To sum up: We hold that the phrase "active party politics" contained in Article 276(1) is amendable and subject to interpretation by this Court in exercise of our original jurisdiction under Article 130(1)(a). We further hold that commendations or expressions of appreciation (or criticism) by Chiefs about the policies, projects, and programmes of a candidate or their party, whether past, present or proposed, do not amount to participation in "active party politics." However, endorsement of the person of the candidate or of their party, whether free-standing or embedded in an otherwise innocuous statement, is violative of Article 276(1).
Article 286(1): declaration of assets before taking office
Article 286(1)(a) of the Constitution stipulates that, a person who holds any of the specified public offices “shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by, him… before taking office” (emphasis added). The constitutional text is unambiguous, the declaration must precede the assumption of public office or, conversely, no person should assume such office without first declaring their assets and liabilities.
Article 289: procedure for amending the Constitution
The concept of supremacy of the Constitution does not admit of any exception invested in any institution or person to take away or obliterate the Constitution and its values. The prescriptions, letter, values, conventions, and spirit of the Constitution are carried into effect through procedure. Therefore, procedure mandated by the Constitution cannot be negatived by any official or institutional conduct without recourse to the clear tenets of the Constitution. The supremacy of the Constitution is not only entailed in the substantive values of the constitutional provisions but also in the prescribed procedure through which such provisions are executed or amended.
Section 16(2) of Act 591 with its resultant effect of amending Article 8(2) of the Constitution therefore ought to have been passed in accordance with the mandatory procedural requirements of amending a constitutional provision as stipulated by Article 289 and 291 of the Constitution.
Article 296: discretionary power to be exercised fairly and candidly
When the Chief Justice empanels a bench, he acts as an administrator and not as a judge. Accordingly, a principle of natural justice tailored to the requirements of proceedings cannot be relevant to that exercise. Rather, what is relevant is the Chief Justice’s implied duty to be fair and candid in the exercise of his discretionary power, as laid down in Article 296 of the Constitution.
The trial High Court Judge should have given the Appellant a hearing before vacating her order which had been pending for over one year. Article 296 clauses (a) and (b) of the Constitution of Ghana provides for the modes by which discretionary power vested in a person may be exercised.
We are satisfied that the trial High Court Judge in vacating the order for stay of proceedings did not exercise her discretionary powers in accordance with due process of law and therefore occasioned miscarriage of justice to the Appellant.
Article 297(a): power to exercise disciplinary control
Given that the removal of the Auditor-General is addressed explicitly in Article 146, it follows that the President's ancillary power under Article 297(a) cannot be applied to the removal of the Auditor-General and other Article 70 office holders. By extension, the President's ancillary power to exercise disciplinary control cannot be invoked in this context, as it would undermine the intended safeguards and independence of the Auditor-General's office. Thus, to align with the constitutional framework, it is reasonable to interpret that the President's disciplinary control does not extend to the Auditor-General or other similar appointments, as any disciplinary action is subject to specific provisions outlined in the Constitution, i.e., Article 146. The directive to proceed on accumulated leave, albeit temporal, interfered with the day-to-day functions of the Auditor-General. Since it did not comply with Article 146, the directive constitutes a constructive removal and, therefore, unconstitutional.
Article 40(c): respect for international law and treaty obligations
While there has been an evolution away from the position that directive principles in general are non-justiciable, to the current position of the law that directive principles are prima facie justiciable, it must be established that Article 40 in and of itself is justiciable. Even if Article 40 is justiciable, there remains the question of whether a perceived breach of an international obligation amounts to a breach of Article 40. In other words, does the fact that Ghana has breached an international treaty obligation mean that the state has breached its obligations to "promote respect for international treaty obligations"? The view of this court is that this is not the case. In any case, any and every breach of an international treaty obligation cannot be said to be the basis for an action against the state for failing in general to promote respect for international law. For this reason, this ground of this action fails and is dismissed accordingly.
Parliament has the right to enact laws to regulate rights which are not absolute, including the right to vote or being registered as a voter, but the restrictions shall be fair and reasonable to achieve a legitimate aim, and the restriction shall be proportional to the offence for which a citizen was convicted.
Article 71: persons whose emoluments are determined
The tight, precise listing of the identified public officers shows that the framers of the Constitution intended to leave no doubt about the persons and entities covered, and the fact that non-listed persons cannot be included or roped in to the model of emolument setting by simple extrapolative reasoning.
It is this clear reflection of an intention to set up a peculiar regime for the emoluments of the public officials listed in article 71 that reveals the purposive direction of article 71 as deliberately exclusionary. Because of this exclusionary nature, we are of the opinion that article 71 cannot be expanded in the absence of an express constitutional amendment permitting the importation of other beneficiaries. The circumstances of the provisions show that neither statutory nor administrative acts can expand the list of covered persons or officers covered under article 71 without falling into inconsistency with the constitutional intention.
Furthermore, article 88(3) of the Constitution is clear about who may institute criminal proceedings. Article 88(3) reads; “(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences” Therefore it is not open to anyone, other than the Attorney General or a person acting lawfully under the Attorney General’s instructions, to initiate criminal prosecutions.
Article 93(2): legislative power exercised in accordance with the Constitution
From its inception therefore, the lawmaking power of Parliament, is restrained by the limitations and structure set by the Constitution. Cases are legion to the effect that Parliament cannot exercise its legislative mandate in a manner that is antithetical to, inconsistent with or at variance with the Constitution and in cases where Parliament has, whether overtly or inadvertently strayed outside the scope set by the Constitution, such acts have invariably been struck down.
Article 94(2)(a): allegiance to a country other than Ghana
We state without any equivocation that article 94 (2) (a) means that to be qualified to be a member of parliament, a citizen of Ghana must not hold any other citizenship at the time when nominations are opened by the Electoral Commission for registration of candidates for election as Members of Parliament.
We hold that by the requirements of article 8 as amended by Act 527, and article 94 (2) (a), any person, who has obtained citizenship of another country other than Ghana, and who files for nomination with the Electoral Commission to contest for election as a Member of Parliament will not be qualified to contest for elections unless and until they show a record from the alternate State that they no longer hold the citizenship of that State as at the date of filing their nominations with the Electoral Commission
Under the 1992 Constitution, the Supreme Court, and the High Court are the only courts vested with jurisdiction to supervise superior courts and lower courts and other adjudicating bodies respectively. (See Articles 132 and 141 of the 1992 Constitution). This power of judicial review, is a special power that provides an inherent check in the administration of justice itself. It ensures that, even the courts (both inferior and superior) are not by themselves insulated from adhering to due process and the rule of law.
We believe that Act 1012 is founded on the wrong constitutional provision, i.e., Article 21(4), which only sanctions laws that restrict a continuing application. Act 1012, being an Act of Parliament that authorises the taking of measures in the event or eminence of an emergency in one body, i.e., the Executive, is inconsistent with Articles 21, 31 and 32 of the Constitution, 1992 and is hereby declared unconstitutional and, therefore, null and void.
Articles 33(4) and 157(2): powers of the Rules of Court Committee
Article 33(4): “The Rules of Court Committee may make rules of court with respect to the practice and procedure of the Superior Courts for the purposes of this article.” Article 157(2): “The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.” From the clear reading of the above enabling provisions of the Constitution, the mandate of the Rules of Court Committee as exercised by them in the promulgation of C.I. 47 is limited to the making of rules to regulate the practice and procedures of the Court. Such rules made must strictly be confined to the remit of rules of practice and procedure as against substantive legislation that vests jurisdiction in courts.
