Article 106: explanatory memorandum, committee report and debate
Article 106(2) requires a bill not intended for the settlement of financial matters to be accompanied with an explanatory memorandum which sets out in detail, the policy and principles of the Bill, defects in the existing law, remedies in the new bill which propose to deal with those defects, and requires the bill to be published in the Gazette at least fourteen days before the date of its introduction in Parliament. The Plaintiff says that the explanatory memorandum that was laid before Parliament did not sufficiently lay out the policy change that was being brought by the law, specifically by section 43. The Plaintiff also says that this led to the policy change not being debated enough before its passage into law. The Plaintiff also asserts that the amendments to the new law which allowed for the growth of cannabis with less than 0.3% tetrahydrocannabinol (THC) level were belatedly inserted and there was no subsequent report made to parliament as required by Article 106(4),(5) and (6). The Plaintiff submits that this conduct is also in violation of the standing orders of Parliament as well as the letter and the spirit of the 1992 Constitution. This is the argument of the Plaintiff that finds the most favour with this Court. Parliament, by Article 106(5) and (6) is mandated to have a bill accompanied by an explanatory memorandum as well as the committee report by the appropriate committee and have a full debate on a bill before passing or rejecting it.
I am not unmindful of the constitutional allowance of the retroactive application of certain fiscal legislations. That however, does not include tax statutes within the context of Article 107(b) the 1992 Constitution which provides in mandatory language that: “Parliament shall have no power to pass any law- (a) … (b) which operates retrospectively to impose any limitations on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under Articles 178 or 182 of this Constitution.
Article 125(3): judicial power vested in the Judiciary
The law is that where a matter is determined judicially, it is only a body with judicial power that can pronounce on it as being valid, invalid, void or otherwise. It is the Court of Appeal in the exercise of its judicial power which can acquit the Appellant or the Supreme Court in the exercise of its supervisory powers under Article 132 of the Constitution which may quash the conviction. By virtue of Article 125 (3) of the Constitution which provides that judicial power of Ghana shall be vested in the judiciary and exercised exclusively by the Judiciary, no other person or body including the President nor Parliament can exercise judicial power.
Article 125(4): administration and supervision of the Judiciary
"The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary." Thus, for as long as the Chief Justice is in office, the right to constitute panels of the Supreme Court is exercisable by him as one of the administrative incidents of his office. Indeed, his is not only a right, but also an obligation, to constitute such panels. The difficulty of compulsorily taking away this function of the Chief Justice, in relation to a particular case, is evidenced by the fact that no endeavour to do so has so far succeeded in the history of our courts since independence.
Article 128(4): qualifications of a Justice of the Supreme Court
We agree with the Plaintiff and the Attorney General that the effect of section 16(2)(a), which restricts dual citizens from occupying the office of Chief Justice and Justice of the Supreme Court, amounts to an unconstitutional amendment of Article 128(4) as it imposes a further qualification criteria which was not contemplated or endorsed by the Constitution on persons who are serving as justices of the Supreme Court. This backdoor attempt to impose a further qualification criterion on members of the Apex falls foul of not only the principles of procedural constitutionalism by reason of the Acts failure to be passed in accordance with the prescriptions of Article 289 and 291; but also of the substantive text of the constitution as it is directly inconsistent with the scope of the criteria set out in Article 128(4). The qualification criteria set out in Article 128(4) is exhaustive and cannot be arbitrarily increased or reduced by Parliamentary fiat, except in accordance with the dictates of the Constitution.
Article 129(3): Supreme Court bound by its previous decisions
We are enjoined by Article 129(3) to treat our prior decisions as binding, and to depart only where compelling reasons make it right so to do. Accordingly, where this Court has previously pronounced on the propriety, validity, or legal effect of the competing Gazettes, we must acknowledge that decision and either apply it or if we are minded to depart, do so with clear and cogent reasons.
The plaintiff will be on course to seek an interpretation of section 34, or an aspect of it, if he moves against a particular person in respect of an act or omission of that person, and he, for a defence, seeks shelter under section 34. It is then that is will be profitable for the court to determine whether the defendant or his act or omission is covered by section 34 or not. It is then that an interpretation or a declaration may be called for. On the pleadings as they now stand, any declaration made will be an empty declaration, a declaration in a vacuum. Ours is to interpret the constitution in the context of disputes. Ours is not to tender advice to prospective litigants; that is the role of solicitors in private practice. I agree with the defendant in this case that the plaintiff’s writ does not disclose a cause of action. I will dismiss it.
Article 130 (1) also provides as follows Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in- (a)All matters relating to the enforcement or interpretation of this Constitution
Article 131 of the Constitution provides as follows: “131. (1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court- (a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or (b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest. (2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.” (Emphasis).
Under article 131(1)(a) of the Constitution and section 4(1)(a) of the Courts Act, an appeal from the decision of the Court of Appeal may be filed as of right to this Court only where the case was appealed to the Court of Appeal from a decision given by the High Court in the exercise of its original jurisdiction. In the instant matter, in so far as the decision of the High Court was not given in the exercise of its original jurisdiction, the Appellant/Applicant herein cannot file his appeal to this Court from the decision of the Court of Appeal as of right. See Coker vs. NDK Financial Services Ltd [2017-2020] 1 SCGLR 766.
It stands to reason, therefore, that the only avenue open to the Appellant/Applicant herein was to apply for the Special leave of this Court under article 131(2) and section 4(2) of the Courts Act in order to file its appeal to the Supreme Court. The Notice of Appeal filed by the Appellant/Applicant herein on the 29 August 2023, bears no evidence to show that the special leave of this Court was obtained as required by article 131(2) of the Constitution and section 4(2) of the Courts Act. The said Notice of Appeal was therefore, filed in breach of the Constitution and the Courts Act, and it is, therefore, a nullity upon which no application can be founded.
Article 133(1): review jurisdiction of the Supreme Court
It is worth reminding lawyers who invoke our review jurisdiction under Article 133(1) of the 1992 Constitution that, same is specially created, and distinct from our jurisdiction to hear and determines appeals. The review jurisdiction of the Supreme Court is not one that vests the court with the power to engage in a rehearing of a lost appeal determined by the same court. For this reason, it is rudimentary that, review is not an appeal. Therefore, having urged certain grounds on the court through an appeal, which grounds were evaluated and dismissed, a dissatisfied Appellant, cannot guise the same grounds and re-argue the case rejected by the Court. To succeed on review, the Appellant must show that the court committed a fundamental error, which error was so crucial, that if same were not committed, the decision would have concluded differently.
Article 136(5): Court of Appeal bound only by decisions on the merits
The Court of Appeal was bound by its previous decisions in terms of article 136(5) of the 1992 Constitution only when the decisions had been given on the merits in determining the issues before the court. A differently constituted Court of Appeal could not be expected to be bound by ruling in an interlocutory application by another panel where the facts forming the basis of the ground of appeal had not formed part of the record of proceedings before the panel in the substantive appeal”
Article 136(5): lower courts bound by Court of Appeal decisions
Article 136 clause (5) of the 1992 Constitution makes it mandatory for all courts lower than the Court of Appeal to follow the decisions of the Court of Appeal on questions of law.
The right to appeal against a decision of the High Court to the Court of Appeal is created by article 137 of the Constitution and section 11(c) of the Courts Act only provides for the time frame within which such an appeal may be filed. A person who files an appeal against the criminal decision of the High Court to the Court of Appeal under article 137 of the Constitution acquires a constitutional right and not a statutory right and cannot therefore say that an appeal is a creature of statute as pertains in the English Courts where they do not have a written Constitution.
Article 137(1): jurisdiction of the Court of Appeal
Jurisdiction denotes the authority of a court to adjudicate upon a given subject matter and is derived from statute or the Constitution. Venue, on the other hand, pertains merely to the geographical location at which a duly constituted court sits and is essentially administrative in character. The Court of Appeal is a single superior court of record established under Article 126(1)(a)(ii) of the 1992 Constitution and, by virtue of Article 137(1), is vested with jurisdiction extending “throughout Ghana.” Its sittings in the various regions are matters of administrative convenience rather than jurisdictional constraint.
Article 14(1): grounds for deprivation of personal liberty
Counsel’s argument amounts to the court being called upon to shirk the duty imposed on it by Article 14(1) to ensure that any person who is deprived of his personal liberty has been subjected to due process which calls for examination of every case regardless of the offence the person is alleged to have committed. For Article 14(1) does not give room for the lawful detention of a person based upon the nature of the offence alleged to have been committed by him. It is pertinent to observe that Article 14(1) says no person shall be deprived of his personal liberty except in the following cases • • •.’ Thus the Constitution itself has circumscribed the situations in which a person may be deprived of his liberty. Therefore s. 96(7) of Act 30 that seeks to add to this list is inconsistent with the constitutional provision. Thus the existence of section 96(7) of Act 30, as amended undermines the express provisions of Article 14(1) of the Constitution.
Article 14(6): credit for time spent in lawful custody
Article 14(6) of the 1992 Constitution provides that: “14(6) where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”
Article 14(7): compensation for a person acquitted on appeal
Applying the above principles to the instant case, I hold that this court is bound by the decision of the Supreme Court in Dordzie Sabbah’s case that the award of compensation under article 14(7) is discretionary and not automatic or mandatory. It follows that the certifying court like the Supreme Court is also required to undertake an examination of the facts and circumstances of the case to satisfy itself that the application is deserving. It is pertinent to note that in such situation, the applicant is also required by law to satisfy the court, independent of his acquittal by the appellant criminal court, that he is innocent.
The High Court enjoys, under the Constitution, an incremental, as opposed to a reductive, jurisdiction and unless one can point to a provision in the Constitution which curtals the jurisdiction of the High, it cannot be correctly argued that the High Court lacks jurisdiction to entertain and pronounce upon a particular civil matter.
Article 146(6): petition for the removal of the Chief Justice
Fourth, I do, however, declare that, upon a proper purposive construction of the whole of article 146 in the context of the Constitution viewed in its entirety, the Chief Justice must be given the benefit of a prior determination of whether a prima facie case has been established against him before the President may lawfully establish a committee to consider a petition for his removal. This prima facie determination is to be made by the President in consultation with the Council of State. Thus, as claimed in the plaintiff’s fifth relief, the consultation by the President with the Council of State in respect of the appointment of a committee to inquire into a petition for the removal of a Chief Justice has to determine first whether the said petition discloses a prima facie case, before the President may proceed to the appointment of the committee, again in consultation with the Council. In the course of my judgment, I also advised the Council of State that it would be prudent for it to evolve a convention by virtue of which the advice of an independent reputable lawyer would be sought by it as part of the consultative process with the President on this issue.
Article 146(8): removal proceedings held in camera
The alleged leakages whoever caused them committed plain illegality in terms of the prevailing provisions in article 146(8) which mandates in camera holding of all proceedings. To stand on an illegality to request a departure from a provision of the constitution is a dangerous position to take and must be discountenanced by any Court of law.
A balanced assessment of the competing public interests in this area is bound to lead to a certain degree of curtailment of the freedom of expression of a petitioner for the removal of a Chief Justice or any other judge of the Superior Court of Judicature. The constitutional requirement that the impeachment proceedings be held in camera would be defeated if the petitioner were allowed to publish his or her petition to anyone other than the President. This is likely to lead to the petitioner’s allegations being aired in public, while the judge’s response can only be considered in private. This would lead to grave adverse public relations consequences for the judiciary. The institution of the judiciary could be undermined without any justification. Accordingly, in my view, a petitioner under article 146 may not disclose the contents of his or her petition to the media nor indeed to any person other than the President. He or she may reveal the fact that he or she has presented a petition to the President, but not its contents, if the purpose of the framers of article 146(8) of the 1992 Constitution is to be adhered to.
Article 155(1): pension of a Justice of the Superior Court
When the provisions of Article 155(1) of the 1992 Constitution are read in conjunction with Sections 7 & 5 of PNDC 320, it puts it beyond any dispute that for a lawyer in the Legal Service to qualify to retire and be paid a monthly pension he shall work in the public service for twenty (20) years or more, at least five (5) continuous years of which must have been in the relevant qualifying office.
The Data Protection Act, 2012 (Act 843) was enacted to give substance to article 18(2) and essentially protects data or information of/about a person in the custody or possession of, or likely to come into the custody of the data controller. The Act therefore subjects data controllers and data processors to strict privacy responsibilities or obligations and fleshes out some of these protections as they pertain to the protection of one’s personal information.
The protection of the right to privacy has thus been elevated to constitutional protections under Article 18 of the Constitution of Ghana, 1992. The control over one’s personal information, including particulars for registering a SIM number comes within this bundle of privacy rights and the misuse of appellant’s personal information amounted to a violation of his autonomy and a breach of this rights under Article 18. From the Data Protection Act and the authorities cited, there is no doubt that in the internet age, online addresses and personal details linking a person to a particular SIM number is part of the sphere of life deserving of protection under the right to privacy.
Article 187: appointment of an acting Auditor-General
Consequently, it is our opinion that unless the incumbent occupying the office of the Auditor-General, duly appointed by Article 70(1)(b) and sworn into office as prescribed in the 2nd schedule of the Constitution, 1992, has vacated the position through resignation, retirement, death, or removal by Article 146, any action taken by the President or any person purporting to act on behalf of the President to designate another individual as "Acting Auditor General" or in a similar capacity would be in contravention of the Constitution and null and void.
It is evident that the Constitution, 1992 guarantees the security of tenure for the Auditor-General, similar to that of a Superior Court Judge. The Constitution explicitly outlines the circumstances under which a Superior Court Judge (and, by extension, the Auditor-General) can be removed from office. This clear and unambiguous specification ensures that the Auditor-General can only be removed from office in accordance with the prescribed procedures.
Article 187(7): power of disallowance and surcharge
Consequently, for all the reasons explained above, we are of the firm opinion that the proper interpretation of Article 187(7) of the Constitution is to read into it the right of prior hearing in any person to be directly affected by the exercise of the power of disallowance and surcharge by the Auditor-General.
As is clearly evident from Section 34(1) of Act 792, the legislature intended, and did expressed clearly, that the repeal of an enactment may not lead to the automatic cessation of the enactment if any of the conditions afore-referred to under Section 34(1) of Act 792 is present. In simple terms, per the facts at hand, there is an ongoing prosecution of the Appellant, albeit under the repealed enactment. Since the prosecution had already commenced; same does not become unlawful to continue in the absence of a legislative proscription by the repealing legislation. Further, the continuance of the prosecution will not defeat the constitutional prohibition against the non-existence of a written penal law defining a specific offence for which an accused stands trial as per Article 19(11) of the 1992 Constitution.
The grant of bail is one of the tools available to the court to ensure that a suspect or an accused, as the case may be, is guaranteed his innocence until the court has found him guilty. The presumption of innocence embodies freedom from arbitrary detention and also serves as a safeguard against punishment before conviction. It also acts as a preventive measure against the State from successfully employing its vast resources to cause greater damage to a person who has not been convicted than he can inflict on the community. Therefore in my humble view any legislation, outside the Constitution, that takes away or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed him guilty even before the court has said so. That would be clearly contrary to this constitutional provision which guarantees his innocence until otherwise declared by a court of competent jurisdiction. In my opinion, besides article 14(3) and (4) which the court in the Gorman case endorsed as having impliedly repealed s. 96(7) of Act 30, the said statutory provision is also contrary to the letter and spirit of Article 19(2)(c) in so far as prohibition of the right to apply for the court’s consideration for bail presumes the guilt and not the innocence of a suspect or accused, as the case may be.
Article 19(2)(d): information in detail of the nature of the offence
Thus, the plain meaning of article 19(2)(d) of the Constitution clearly is that a person charged with a criminal offence must be informed, “in detail” of the nature of the offence charged. The words “in detail” appearing in the constitutional provision emphasises the extent of information required for purposes of complying with the said constitutional provision. The plain meaning ascribed to the provisions of article 19(2)(d) of the 1992 Constitution is more compelling when account is taken of the general purpose of article 19 itself. Its side notes indicate that it has to do with fair trial. The whole of Article 19 of the Constitution is therefore devoted to ensuring that accused persons enjoy the fundamental right to a fair trial.
We are of the considered opinion that the High Court Judge failed to provide facilities to enable IFC to testify and tender evidence to support the case for the appellant. From the evidence on record, IFC was a material witness to the Appellant but the Appellant lost that vital evidence as a result of the wrong ruling by the trial High Court. It is our decision that the fundamental human rights of the Appellant was breached regarding the role of the Court in providing facilities for the witnesses called by the accused person before the Court and to obtain the attendance and carry out the examination of witnesses to testify in the same conditions as witnesses called by the prosecution. It is a provision under the fundamental human rights and freedoms with specific reference to fair trial. We hold that the accused person was not given a fair trial required by paragraph (g) Clause (2) of article 19 of the Constitution.
Article 190(1)(b) and (4): public corporations set up as commercial ventures
Ghana Telecom after its conversion into a public company limited by shares in 1995, was no longer part of the public service because by operation of law, it ceased to be a public corporation as stipulated in Article 190(1)(b)&(4) and Article 192 of the 1992 Constitution and the schedule to Act 461. Thus, upon a true and proper interpretation of Article 190(1)(b) of the Constitution 1992 and Statutory Corporation (Conversion to Companies Act, 1990 (Act 461), Ghana Telecommunications Company Ltd ceased to be part of the public service from 1995.
Article 191(b): public officers and members of governing boards
After a thorough review and consideration of this issue and the relevant constitutional provisions we hold that members of the governing bodies of statutory boards, corporations, authorities (howsoever described) are not members of the public services, and not public officers by virtue of their membership of the governing body of a statutory board or corporation. They are therefore not governed by article 191(b) of the Constitution.
Article 2(2): consequential orders on a declaration of unconstitutionality
We have constitutional authority to determine whether our decision shall operate prospectively or retrospectively. It derives from article 1 clause (2), sub-clause (2) of the 1992 Constitution, which provides: The Supreme Court, shall for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.
Article 2(2): orders to give effect to a declaration
Ghanaian constitutional jurisprudence acknowledges that remedies for constitutional violations should be effective yet proportionate. The Constitution in Article 2(2) empowers this Court to make “orders and directions” as may be necessary to give effect to its declarations. This provision gives us a broad discretion to shape remedies that fit the circumstances of each case. It does not follow that in every instance of a law being void, all acts done under that law must be undone.
Article 20(1): taking possession distinguished from acquisition
Compulsory taking possession of lands for mining has been taking place in this country under mining legislations from colonial times and this cannot be confused with compulsory acquisition which is regulated by different legislation. It use to be the State Lands Act, 1962 (Act 125), and now the Land Act (supra). On the lapse of a mining lease, the land automatically reverts to the owners and does not belong to the state, whereas with compulsory acquisition, the land on acquisition remains state land forever, unless the government returns it to the original owners.
Article 20(2)(b): access to the High Court for compensation
It is stated there in black and white that the access to the High Court may either be direct or on appeal from a determination by other authority. So the impression created by the plaintiff that article 20(2)(b) conferred direct access to the courts is clearly misconceived and, in fact, is opposite what is stated in article 20(2)(b). Act 703 provides that access to the High Court shall be after a determination by other authority, in this case, the Minister, so the Constitution has not been violated.
Having painstakingly reviewed the historical background and experience that have informed Article 276(1), and taking due cognizance of the debate in the Consultative Assembly relating to that provision and other relevant perspectives from learned scholars, including the mutually reinforcing nature of the relationship between Article 276(1) and Article 270, this Court is of the considered view that a Chief's endorsement of a candidate for elective national or local political office to the exclusion of rival candidates amounts to participating in "active party politics" within the meaning of Article 276(1). We are led to this conclusion by the belief that such an interpretation best vindicates the principles and policy rationale or intent behind Article 276(1), which is that, Chiefs must not take sides or be seen to have taken sides in a partisan political contest, as to do so risks creating or exacerbating social division to the detriment of their communities and damaging the prestige, honor and reverence of the stool, skin and the Chief's office.
