GHANA BAR ASSOCIATION vs. ATTORNEY-GENERAL AND ANOTHER [1995-96] 1 GLR 598

CASES REFERRED TO

(1) Yiadom I v Amaniampong [1981] GLR 3, SC.

(2) Gbedemah v Awoonor-Williams (1969) G & G 438.

(3) Tait v Ghana Airways Corporation (1970) G & G 527.

(4) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

(5) New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC.

(6) Baker v Carr, 369 US 186; 82 S Ct 691; 7 L Ed 2d 663 (1962).

(7) Republic v High Court, Accra; Ex parte Darke XII [1992] 2 GLR 688, SC.

(8) Garthwaite v Garthwaite [1964] P 356; [1964] 2 WLR 1108; [1964] 2 All ER 233, CA; reversing [1964] 2 WLR 531; 108 SJ 76.

(9) Powell v McCormack, 395 US 486 (1969).

(10) Goldwater v Carter, 444 US 996 (1979).

(11) Youngstown Sheet & Tube Co v Sawyer (The Steel Seizure [p.602] of [1995-96] 1 GLR 598 Case), 343 US 579; 72 S Ct 863; 96 L Ed 1153 (1952).

(12) Stoddart v Prentice (1898) 6 BCR 308.

(13) Newburyport Water Co v Newbury Port, 193 US 561.

(14) Trop v Dulless, 356 US 86 (1958).

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by the defendants to the assumption of jurisdiction by the Supreme Court over the action of the plaintiff seeking, inter alia, a declaration that the nomination and appointment of Justice I K Abban as the Chief Justice of Ghana by the President acting in consultation with the Council of State and with the approval of Parliament was null and void because he was not a man of high moral character and proven integrity as required by the Constitution for that appointment, on the ground, inter alia, that that issue was a political question and thus non-justiciable. The facts are fully set out in the ruling of Kpegah JSC.

COUNSEL

Martin A B K Amidu, Deputy Attorney-General (with him Mrs Adusa Amankwah, Chief State Attorney), for the defendant-applicants.

J B Quashie-Idun (with him J K Agyeman, Obeng Manu and Ayikoi Otoo) for the plaintiff-respondent.

JUDGMENT OF EDWARD WIREDU JSC.

On 16 October 1995 the plaintiff, the Ghana Bar Association, issued out of this court a writ in which she seeks to invoke the original jurisdiction of this court. The reliefs indorsed on the writ are as follows:

“(1) A declaration that on a true and proper interpretation of articles 2(1)(a) and (b), 91(1) and (2), 144(1) and 128(4) of the Constitution, 1992 the President of the Republic should not have nominated and appointed the second defendant, Mr Justice Isaac Kobina Abban, to the office of Chief Justice since he is not a person of high moral character and proven integrity.

(2) A declaration that the appointment on or about 22 February 1995 by the President of the second defendant, Mr Justice Isaac Kobina Abban, as Chief Justice as well as the advice by the Council of State and the approval by Parliament of his nomination to such office were each made in contravention of articles 91(1) and (2) and 128(4)

[p.603] of [1995-96] 1 GLR 598 of the Constitution, 1992 and are therefore null and void.

(3) An injunction restraining the second defendant from acting or purporting to act in the office of Chief Justice of Ghana.

(4) A declaration that the warrant of appointment of the second defendant by the President is null and void, and an order that the second defendant deliver up same to this honourable court for cancellation and that the same be duly cancelled.

(5) An order that in accordance with the rule of natural justice the second defendant be debarred from constituting the panel of the Supreme Court for the hearing of any aspect of this matter and, further that the full complement of this court be constituted for the hearing of same.”

The plaintiff’s writ was accompanied with a fifteen-paragraph statement of case. For the present purpose the only paragraphs relevant are paragraphs (3)—(7) which read as follows:

“(3) On 15 February 1995 the President of the Republic nominated the second defendant, Mr Justice Isaac Kobina Abban, for appointment as the Chief Justice, in anticipation of the retirement of the then Chief Justice, Mr Justice P E N K Archer.

(4) The nomination of the second defendant for appointment as the Chief Justice was approved by Parliament on 21 February 1995 under a certificate of urgency.

(5) The plaintiff says that, though the office of Chief Justice is sui generis, in order to qualify for appointment to that office, a person must meet and continue to meet the requirements for membership of the Supreme Court provided in article 128(4) of the Constitution, 1992 and he must satisfy the requirements for membership of all the superior courts in the judicial hierarchy of which the Chief

Justice, ex officio, is a member and over which he is the constitutional head.

(6) Article 128(4) of the Constitution, 1992 requires that a person be of high moral character and proven integrity to qualify for appointment as a justice of the Supreme Court, and consequently as Chief Justice.

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(7) The plaintiff says that the second defendant is not so qualified by virtue of the following.”

On 26 October 1995 the statement of the defendants’ case was filed which denies the averments contained in the plaintiff’s statement of case but for the most part raised a number of legal issues which sought to dispose of this case summarily.

Following the filing of the statement of the defendants’ case, a notice of an intention to set out the legal issues for arguments was filed by the Attorney-General, the solicitor for the defendants, as preliminary objections to the plaintiff’s claim. When the case came on for hearing on 8 November 1995 the court decided to hear submission of counsel on only the preliminary issue of its jurisdiction.

The notice filed by the Attorney-General on behalf of the defendants reads as follows:

“(1) That the Supreme Court has no jurisdiction to entertain the plaintiff’s action.

(2) That the plaintiff’s writ and statement of case disclose no cause of action against the second defendant either in his personal capacity, as a Supreme Court judge or the Chief Justice of Ghana.

(3) That the plaintiff’s writ and statement of case disclose no cause of action against the first defendant.”

Of all the grounds urged on behalf of the defendants, the only one which set my mind wondering, was ground (3) which reads:

“That by virtue of the doctrine of separation of powers enshrined in the Constitution, 1992, the appointment of the second defendant as the Chief Justice of Ghana pursuant to article 144(1) and (5) of the Constitution, 1992 by the President is a non-justiciable political question specifically committed to the Council of State, Parliament and the President (the executive and the legislative).”

I have resolved to express my opinion on same.

I must confess that I have not found it easy to come to grips with any legal understanding, of the depth of the learning in the submissions of the learned Deputy Attorney-General, counsel for the defendants, which sought to justify his contention on this ground to oust the

[p.605] of [1995-96] 1 GLR 598 jurisdiction of this court as a proposition of law under the Constitution, 1992.

The Constitution, 1992 has established a new legal order for this country. Ghana is now in an era of constitutional supremacy as opposed to parliamentary sovereignty as exists in Britain. In Britain, the executive arm of the State, which is the cabinet responsible for policy making, is part and parcel of the British Parliament, the legislative arm of the State; hence the parliamentary sovereignty. In Britain, no policy of the government or legislation by Parliament can be questioned in any of the British courts. Decisions made by British courts in matters of policy and legislation are of little value to our present situation in Ghana. The United States which has a written Constitution as Ghana has, is because of its federal nature and the fact that the Constitution has given the President a unique role to veto certain acts of Congress, which veto power the President of this country does not have, and to at times do acts without congressional support, make decisions of the United States Supreme Court in some aspects of constitutional cases unhelpful in our situation.

In this country, however, under the new order of constitutional supremacy, the Constitution, 1992 has vested the power of supervising and the enforcement of the Constitution in the Supreme Court, the judges of which have sworn to uphold and defend its provisions without fear or favour. Parliamentary sovereignty as practiced in Britain is alien to our new legal order. The Constitution, 1992 has vested the power of judicial review of all legislations in the Supreme Court. It has dealt away with either an executive or parliamentary sovereignty and subordinated all the arms or organs of state to the Constitution. The court as the repository and watchdog of the Constitution, 1992 is enjoined to protect, defend and enforce its provisions and should not allow itself to be diverted to act as an independent arbiter of the Constitution, 1992.

The scope and extent of the doctrine of the separation of powers, in my respectful view, and, as I understand it, under the Constitution, 1992 is to ensure that each arm of state in the performance of its duties within the framework of the Constitution, 1992 is to act independently and should not be obstructed in the exercise of its legitimate duties or be unduly interfered with [by the Constitution]. In other words, all arms of the State are answerable or responsible to the Constitution,

[p.606] of [1995-96] 1 GLR 598

1992. It is also to ensure the smooth administration either judicial, legislative or executive governance of the State whilst checks and balances are provided to ensure strict observance by each arm of state of the provisions of the Constitution, 1992.

The arms of State and the institutions involved in the appointment of the Chief Justice are all creatures of the Constitution, 1992 and each in playing its part must exercise only such powers as are authorised by it in a democratic manner as enshrined in the Constitution, 1992.

The Constitution, 1992 has vested the Supreme Court with the following original jurisdiction:

(a) any person who alleges that:

(1) an enactment or anything contained in or done under the authority of that or any other enactment: see article 2(1)(a);

(ii) any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect: see article 2(1)(b);

(b) to hear and declare an election of the President invalid on a petition for that purpose: see article 64(1).

(c) to determine, where there is a doubt as to the need for its production whether a document or its contents required to be produced by a public officer before Parliament would be injurious to the public interest or prejudicial to the security of the State: see article 121(3);

(d) supervisory jurisdiction over all courts and adjudicating bodies: see article 132; and

(e) to determine whether an official document shall be produced in court or not for similar reasons as are given under article 121(3): see article 135(1).

It is clear from the above that no organ or arm of state or authority purporting to be exercising its authority under the Constitution, 1992 can claim immunity to any action commenced in the Supreme Court by any person under article 2 in respect of any act done complaining of non-compliance with the provisions of the Constitution, ie that the act done as not having been done in conformity with the Constitution, 1992.

Article 57(4) of the Constitution, 1992 provides as follows:

[p.607] of [1995-96] 1 GLR 598

“(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.”

(The emphasis is mine.) Article 125(3) of the Constitution, 1992 reads as follows:

“(3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”

Article 126(4) of the Constitution, 1992 also reads as follows:

“(4) In the exercise of the judicial power conferred on the Judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction, issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of those courts.”

Article 144(1) which deals with the appointment of the Chief Justice reads as follows:

“(1) The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament”

To me therefore, where an allegation is properly made under article 2(1)(b) of the Constitution, 1992 in circumstances that can be justified under the Constitution, 1992, such an issue becomes justiciable in the Supreme Court and is answerable by that arm or organ of state against which such an allegation is made. I therefore reject as untenable the proposition that the appointment of the Chief Justice under article 144(1) of the Constitution, 1992 is a non-justiciable political question that cannot be questioned in any way and under no circumstances in the Supreme Court.

What about the appointment of a minister of state if the person

[p.608] of [1995-96] 1 GLR 598 nominated does not satisfy conditions precedent required under the Constitution, 1992? What happens if in the remote probability of the executive nominating a non-Ghanaian or an unregistered Ghanaian voter for appointment as a minister of state if Parliament approves such a nominee contrary to the provisions of the Constitution, 1992: this appointment being of a political nature? Can one justifiably say that the government is not answerable when challenged and must the Supreme Court refuse to hear such an issue under article 2(1)(b) of the Constitution, 1992 because the appointment is political? The law requires certain conditions precedent which become sine qua non to justify his prior nomination by the President before going to Parliament for approval.

An examination of the rationale behind the establishment of the Council of State as an institution under the Constitution, 1992 involved in the process prescribed for the appointment of certain categories of public office holders including the Chief Justice, negates any notion that its members are appointed purely on partisan political consideration. Its composition manifests clearly that partisan political consideration is not necessarily the primary factor. Some of the members hold their appointments because of certain positions they had held in the public service before their retirement. Some also because of the present position they hold in the country such as the President of the National House of Chiefs who is supposed not to do partisan politics. District assemblies which under the Constitution, 1992 are devoid of partisan politics are also involved in the process for the appointment of some of its members: see chapter IV of the Experts Report page 27 and chapter 9 of the Constitution, 1992. It is therefore not legally justified, in my view, for anyone to suggest that the appointment of the Chief Justice which involves consultation with the Council of State and approval by Parliament is a political non-justiciable appointment outside the jurisdiction of the Supreme Court under the Constitution, 1992. It is in fact a constitutional appointment.

I must admit that the nomination of the Chief Justice is essentially an executive preserve. It can however under certain circumstances be questioned under article 2(1)(b) of the Constitution, 1992 since the appointment is exercisable under the provisions of the Constitution, 1992. What happens if Parliament does not approve the President’s nominee for the Chief Justice’s post? Can the President veto the

[p.609] of [1995-96] 1 GLR 598 disapproval and be justified if he proceeds to issue an instrument of appointment? Even though such an appointment will be void in law, no one can stop anyone who wishes to complain of non-compliance under article 2(1)(b) of the Constitution, 1992. Again, will the executive be justified in appointing an Acting Chief Justice under the circumstance where the Chief Justice is out of the country or unable to perform his duties or the office has become vacant under circumstances within the contemplation of article 144(6) of the Constitution, 1992? It will be dangerous for the nation for any person to conceive the idea that the appointment of the Chief Justice is political. Such a view would create instability in the judiciary and the nation will be the loser. The Chief Justice does not leave office with any particular government. He does not run his term of office with any government. Even though his nomination is an executive preserve as above observed and the President may nominate a person sympathetic to his cause, his nominee, if approved, is not obliged to leave office at the same time the President who appointed him leaves office. He retires just as any Supreme Court judge, all things being equal.

Nothing done under the Constitution, 1992 which is ultra vires its provisions can be justified under a plea of political immunity and therefore privileged so as to oust the jurisdiction of the Supreme Court as the organ charged with the responsibility to see to enforcing due compliance with the provisions of the Constitution. The President has sworn solemnly to submit himself to the laws of Ghana and suffer the penalty for it if he does not faithfully uphold, protect, preserve and defend the Constitution. How can it be contended, as is being urged, that his executive acts are immune to proceedings in the Supreme Court in the exercise of his duties under the laws of this country?: see the presidential oath in the Constitution, 1992, Sched 2.

I am of the respectful view that the provisions of article 295(8) of the Constitution, 1992 relied on by counsel for the plaintiff set the matter at rest. It reads:

“(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed

[p.610] of [1995-96] 1 GLR 598 those functions in accordance with this Constitution or the law.”

I will now come to the facts of the instant case as are uncontroverted in the statement of case put forward by the parties. It is not in dispute that the second defendant has been appointed as the Chief Justice of Ghana as a matter of fact by the President acting in consultation with the Council of State and that his nomination has been approved by Parliament. There is the presumption of regularity here. The presumption is however rebuttable. It is also not disputed that the second defendant was a Supreme Court judge prior to his appointment as Chief Justice. It is further not disputed as pleaded by the plaintiff in their statement of case that:

“Though the office of Chief Justice is sui generis, in order to qualify for appointment to the office, a person must meet and continue to meet the requirements for membership of the Supreme Court provided in article 128(4) of the Constitution, 1992 and he must satisfy the requirements for membership of all the superior courts in the judicial hierarchy of which the Chief Justice, ex officio, is a member and over which he is the constitutional head. Article 128(4) of the Constitution, 1992 requires that a person be of high moral character and proven integrity to qualify for appointment as a justice of the Supreme Court, and consequently as Chief Justice. The plaintiff says that the second defendant is not so qualified by virtue of the following.”

The plaintiff’s writ on its face shows that her action is founded under article 2(1)(b) of the Constitution, 1992 which reads:

“2. (1) A person who alleges that— . . .

(b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

The effect of the reliefs sought by the plaintiff, which this court is being called upon to determine would result, if successful, not only in removing the second defendant as Chief Justice, it will also have the effect of removing him completely from the bench, which in effect would amount to impeaching him.

[p.611] of [1995-96] 1 GLR 598

Though the plaintiff’s indorsement has been couched in a way so as to make it appear a constitutional issue, its ultimate result will be otherwise if her claim succeeds on the allegations made. In Yiadom I v Amaniampong [1981] GLR 3, SC this court held the view that where the issue sought to be decided is clear and it is not resolvable by interpretation, or enforcement of the Constitution, this court ought to resist any invitation to pronounce on the meaning of the constitutional provision. In the instant case, the allegations upon which the plaintiff’s action is founded touch on the character and integrity of the second defendant as Chief Justice. Any person against whom such an allegation is established would not be entitled to hold the high office not only of a Chief Justice but also as a justice of any of the superior courts of which the second defendant is a member ex officio. It is my respectful view that the Supreme Court will itself be violating the Constitution, 1992 by assuming jurisdiction to embark on an inquiry into the plaintiff’s allegation by treating this issue as purely constitutional. Under this same Constitution, 1992, a special procedure for embarking on such exercise for removing a judge is exclusively to be determined by a process within the contemplation of article 146.

We of the judiciary have our limitations under the Constitution, 1992 and the judiciary as the repository and watchdog of it, and enjoined to enforce and defend same, must be the first to respect the new legal order and not to clothe itself with powers it does not possess. Each one of us as a judge, like the President as the executive head of State, members of the Council of State, and members of Parliament have all sworn to uphold and defend the Constitution. We are all subject to the constitutional supremacy. We should not by any means open the floodgate so wide as to circumvent what is not properly cognisable in the courts under the Constitution. The court does not have original concurrent jurisdiction with the body empowered to exercise jurisdiction to adjudicate on matters properly falling within the parameters of article 146 of the Constitution, 1992. We as judges must not arrogate to ourselves powers we do not have. We must however jealously guard against any attempt to erode the powers constitutionally vested in the court by any person. We should recognise the limitations imposed on our powers by the Constitution, 1992.

In the result, I will affirm the supremacy of the Constitution under the new legal order as established by the Constitution, 1992 with

[p.612] of [1995-96] 1 GLR 598 particular reference to the power vested in the judiciary to review all legislation in appropriate cases and to adjudicate all acts alleged to have been done by any person or authority as not being in conformity with the Constitution, be it political, executive, etc and to grant the appropriate remedy sought so far as the exercise of the alleged duty emanates from the Constitution, 1992 and grant the declarations sought in appropriate cases.

On the particular facts of this case, as have been critically examined and analysed above, and for the reasons stated in my ruling, I will uphold the contention by the learned Deputy Attorney-General on behalf of the defendants that this court has no jurisdiction to entertain the plaintiff’s present action.

The history of the development of constitutional law in this country from cases decided by the Supreme Court shows that no less than three holders of this high office of Chief Justice, including the present Chief Justice, have not been spared the ordeal of having to be engaged in court proceedings either to defend their positions or in having to answer allegations of acts done in contravention of the provisions of the Constitution. In all such cases, the Supreme Court has boldly, in my view, determined each case confidently and has courageously proved equal to the challenge posed by those cases and has carried out its duty as enjoined on her by the various Constitutions of this country. Both the Ghana Bar Association and the office of the Attorney-General have played no less significant roles in this area of our constitutional law development and must both be commended.

JUDGMENT OF BAMFORD-ADDO JSC.

I have been privileged to read in advance the comprehensive ruling of Kpegah JSC and I agree with him. The plaintiff filed a writ invoking the exclusive original jurisdiction of the Supreme Court under article 130(1)(a) of the Constitution, 1992 and is asking for a number of reliefs to be discussed hereinafter.

The Attorney-General, appearing for the defendants, filed a statement of defence and followed it up with a motion raising certain preliminary objections including one objecting to the jurisdiction of this court to entertain this action. We decided to take the jurisdictional objection first, it being a fundamental issue, as without jurisdiction the court would be precluded from going into the merits of the case or taking any further steps in the matter.

[p.613] of [1995-96] 1 GLR 598

Jurisdiction is simply the power of a court to hear and determine a cause or matter brought before it, lack of which would render any decision taken or order made null and void and of no effect. If jurisdiction is granted a court by statute, then what is already specified therein determines the nature and extent of that jurisdiction so granted to that court which cannot be extended or modified. Where jurisdiction is wrongly assumed however, all proceedings taken would be a nullity. For this reason, it is the court’s duty to act only within the jurisdiction with which it has been clothed.

The Supreme Court’s jurisdiction is contained in article 130(1) of the Constitution, 1992. Article 129(1) of the Constitution, 1992 gives final appellate jurisdiction as well as other jurisdiction as may be conferred on it by the Constitution or by any other law. Article 130(1) of the Constitution, 1992 provides as follows:

“130 (1) 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; and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”

It is for any person invoking the exclusive original jurisdiction of this court under article 130(1)(a) of the Constitution, 1992 to show that his case falls within article 130 and that the court is clothed with the requisite jurisdiction to entertain the case. The defendants have raised a preliminary objection to the court’s jurisdiction and the issue has to be ruled upon before the court can continue or proceed with the hearing of this case. Fortunately, there exist in this country a number of authorities on the jurisdiction of the Supreme Court which I shall refer to later in this ruling. In deciding the issue of jurisdiction, matters to take into consideration include the statute which invests jurisdiction as well as the true nature of the claim having regard to the pleadings, issues and reliefs sought or the actual effect of the reliefs, regardless of the words used or the manner in which the claim and reliefs are

[p.614] of [1995-96] 1 GLR 598 couched. I agree with the test provided in the case of Gbedemah v Awoonor-Williams (1969) G & G 438 as applied in the case of Tait v Ghana Airways Corporation (1970) G & G 527 (Court of Appeal sitting as Supreme Court). In deciding whether this court is seised with jurisdiction in the present claim, I intend to apply that test.

In the Tait case (supra) the plaintiff issued a writ claiming against the defendant corporation the following reliefs:

“(a) A declaration that his dismissal from the employment of the defendant corporation, communicated to the plaintiff by letter dated 29 May 1970 purporting to be signed by the managing director of defendant corporation, is wrongful and invalid under the Constitution, 1969, in particular articles 138 and 140 thereof.

(b) Consequential relief.”

The defendant corporation took a preliminary objection to the court’s jurisdiction, “That having regard to the plaintiff’s writ and statement of claim, the plaintiff’s action does not properly lie to this court.”

Article 106(1)(a) of the Constitution, 1969 which gave original jurisdiction to the Supreme Court was considered. In deciding whether or not the plaintiff’s action fell within the purview of article 106 of the Constitution, 1969 the court stated at 528 as follows:

“In its ruling in the motion entitled Gbedemah v Awoonor-Williams (supra) this court observed that: ‘. . . for a plaintiff to be able to invoke the original and exclusive jurisdiction of the Supreme Court his writ of summons and/or statement of claim must prima facie raise an issue relating to:

(1) the enforcement of a provision of the Constitution; or (2) the interpretation of a provision of the Constitution; or (3) a question whether an enactment was made ultra vires Parliament, or any other authority or person by law or under the Constitution.”’

The court in the Tait case (supra) adopted this test which it regarded as accurate summary of the original jurisdiction of the court as contained in article 106(1)(a) and (b) of the Constitution, 1969. Applying the said test the court found that from the pleadings and issues settled in that case no issue of interpretation was raised for

[p.615] of [1995-96] 1 GLR 598 determination and stated at 528-529 that:

“The mere fact that a party invokes in support of his case, a provision of the Constitution which is couched in plain, unambiguous language, does not turn an action the true nature of which is one for wrongful dismissal, into one relating to the interpretation of a provision of the Constitution within the meaning of article 106(1)(a) . . . Since our original jurisdiction is limited to article 106, we are driven to the conclusion that this court is not seised with jurisdiction to try this suit as a court of first instance.”

The action was dismissed for the stated reason.

In this case, it is article 130(1)(a) of the Constitution, 1992 which has to be considered in applying the test in the Tait case (supra) and this article is in pari materia with article 106 of the Constitution, 1969.

The writ of the plaintiff seeks the following reliefs: — “(1) A declaration that, on a true and proper interpretation of articles 2(1)(a) and (b), 91 (1) and (2), 144(1) and 128(4) of the Constitution, 1992 the President of the Republic should not have nominated and appointed the second defendant, Mr Justice Isaac Kobina Abban, to the office of Chief Justice since he is not a person of high moral character and proven integrity.

(2) A declaration that the appointment on or about 22 February 1995 by the President of the second defendant, Mr Justice Isaac Kobina Abban, as Chief Justice as well as the advice by the Council of State and the approval by Parliament of his nomination to such office were each made in contravention of articles 91(1) and (2), 128(4) and 144(1) of the Constitution, 1992 and are therefore null and void.

(3) An injunction restraining the second defendant from acting or purporting to act in the office of Chief Justice of Ghana.

(4) declaration that the warrant of appointment of the second defendant by the President is null and void and an order that the second defendant deliver up same to this honourable court for cancellation and that the same be duly cancelled.”

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Is there a question of interpretation involved in relief (1)? The answer is that where words in the Constitution are plain and unambiguous and there is no dispute as to their meaning, the question of constitutional interpretation does not arise and the court will decline to give an interpretation in such circumstances. In the Tait case (supra) at 528 the court stated:

“In our view, unless the words of an article of the Constitution are imprecise and ambiguous, an issue of interpretation does not arise. Where the language of the Constitution is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise.”

The court declined jurisdiction for this and other reasons.

In Yiadom I v Amaniampong [1981] GLR 3 at 8, SC Apaloo CJ in delivering the ruling of the court said: “The plain truth of the matter is that the original jurisdiction of this court has been wrongly invoked. We will accordingly accede to the challenge to our jurisdiction. Perhaps we should point out, at least for the benefit of the profession, that where the issue sought to be decided is clear and is not resolvable by interpretation, we will firmly resist any invitation to pronounce on the meaning of constitutional provisions. It would, we think, be a waste of mental effort and a thoroughly pointless exercise.”

In relief (2), there clearly appears an admission that on 22 February 1995 Mr Justice Abban was actually appointed by the President on the advice of the Council of State and with the approval of Parliament. However, despite this, the plaintiff alleges that the appointment was made in contravention of certain constitutional provisions and is therefore null and void.

The procedure for the appointment of a Chief Justice is contained in article 144(1) of the Constitution, 1992 as follows: “The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament.” The procedure for appointment was on the plaintiff’s own showing strictly followed by the President and yet the plaintiff is asking for the appointment to be declared null and void. By seeking such a declaration as in (2) the plaintiff seems to be asking us to examine the

[p.617] of [1995-96] 1 GLR 598 method whereby Parliament approved the nomination made by the President of Justice Abban as Chief Justice. The plaintiff’s invitation is clearly misconceived, since no court can inquire into the way in which Parliament goes about its business.

In the case of Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC it was held, as stated in the headnote, holding (2) that:

“(2) The courts did not, and could not, inquire into how Parliament went about its business . . . Of particular importance were the provisions of article 96 which has stated categorically that the freedom of speech, debate and proceedings of Parliament should not be questioned in any court or place out of Parliament. In so far as Parliament had acted by virtue of the powers conferred upon it by the provisions of article 91(1), its actions within Parliament were a closed book.”

Article 115 of the Constitution, 1992 provides a similar provision. According to article 115, “There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.” This court therefore has no power to inquire into how Parliament approved the appointment of the Chief Justice and the declaration in relief (2) cannot be granted for lack of jurisdiction to entertain such issue.

In reliefs (3) and (4), the plaintiff requests for an injunction to restrain the Chief Justice from acting as such and a declaration that the warrant is null and void and a cancellation of same by this court. What the plaintiff in actual fact is seeking from this court is the removal of the Chief Justice from office since an injunction and a cancellation of his warrant of appointment would result in his removal. The fact that reliefs (3) and (4) are not so couched makes no difference to the true nature of the claim. It is the duty of the court to decide the true nature of a claim however camouflaged or disguised in another form, in order to decide whether or not it is clothed with the requisite jurisdiction to entertain that case under article 130 of the Constitution, 1992 and other provisions of the Constitution, 1992.

If this court cannot grant the declarations in reliefs (3) and (4) which in effect removes the Chief Justice from office, then the court has no jurisdiction under the Constitution to entertain the case. The power to remove the Chief Justice is given only to the President under

[p.618] of [1995-96] 1 GLR 598 article 146(6) of the Constitution, 1992 who appoints him as provided by article 144(1) of the Constitution, 1992 and only upon certain specified grounds, under article 146(1) of the Constitution, 1992. The Supreme Court has no such concurrent jurisdiction to remove the Chief Justice with the President under article 146(6) of the Constitution, 1992. It is provided by article 146(2), (6) and (10) of the Constitution, 1992 that:

“(2) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article …

(6) Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers…

(10) Where a petition has been referred to a committee under this article, the President may— (a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice.”

(The emphasis is mine.)

As can be seen, the Constitution, 1992 itself has provided the grounds and the procedure for the removal or suspension of a person who has been constitutionally appointed Chief Justice, and no court has jurisdiction to suspend or grant an injunction to prevent him from discharging his duties or to remove a Chief Justice. Indeed, it would be a violation of the Constitution, 1992 for any court to attempt to do this and clearly this court has no jurisdiction in such a case: see the case of Tuffuor v Attorney-General (supra) wherein the Supreme Court held as stated in the headnote, in holding (8) that:

“(8) Once the Chief Justice was constitutionally in office, his removal, whatever arguments were raised, could only be constitutionally effected by invoking the relevant provisions of article 128 and not by recourse to article 127(1). Any other

[p.619] of [1995-96] 1 GLR 598 manner, any other method, would clearly be inconsistent with the provisions of the Constitution.”

So also in this case, the Chief Justice can only be removed in accordance with the provisions of article 146 of the Constitution, 1992.

If this court cannot, as discussed above, grant any of the reliefs sought by the plaintiff in his writ, then it has no jurisdiction to entertain this suit under its exclusive original jurisdiction granted under article 130 of the Constitution, 1992. For a case similar in nature to this, see Yiadom I v Amaniampong (supra). In that case, the plaintiff sought to invoke the original jurisdiction of the Supreme Court under the Constitution, 1979 for, inter alia, a declaration that the first defendant, a chief, had disqualified himself from continuing in office, as a paramount chief or any other kind of chief. The plaintiff also sought an interpretation of certain provisions of the Constitution.

On a preliminary objection to the exercise of jurisdiction it was held, as stated in the headnote, holding (1), dismissing the action that:

“(1) notwithstanding the way in which the plaint was couched, it was in substance a claim to have it declared that the first defendant had ceased to be a paramount chief by operation of law. That was clearly a dispute affecting chieftaincy which ought to be determined according to customary law and usage. Both article 180(2) of the Constitution, 1979, and section 23(1) of the Chieftaincy Act, 1971 (Act 370), specifically conferred on a regional house of chiefs original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool. Since the Supreme Court did not have concurrent original jurisdiction with a regional house of chiefs, but only an appellate jurisdiction in disputes such as the instant case, it would decline jurisdiction to determine the plaintiff’s claim.”

In this case, the effect of cancelling the warrant of appointment of the Chief Justice amounts to his removal, which this court has no jurisdiction to order. In the face of clear constitutional provisions to the contrary, the court cannot invest itself with jurisdiction in this suit.

In the result, this court should decline jurisdiction and dismiss the plaintiff’s suit.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

I have had the privilege of

[p.620] of [1995-96] 1 GLR 598 reading in draft form the excellent disquisition furnished by my learned and respected brother Kpegah JSC as his considered opinion in this matter, and I am in total agreement with his reasoning. I also wholeheartedly concur in the conclusions at which he has arrived. I therefore adopt them as my own.

Ordinarily, I would not have made any further contributions to this decision in which my learned and respected sister and brethren have also expressed concurring opinions. But I feel impelled by the nature of the objections raised to express myself on the basic issue of jurisdiction.

The Deputy Attorney-General, Mr Martin Amidu, by a notice of preliminary objections raised several issues going to the jurisdiction of this court to entertain the present case. It must even at this stage be noted that the present writ is the second of such similar writs in which the plaintiff contends that, save that in the present suit the Attorney-General is also a party, the issues are the same and similar arguments would be advanced in support of its case. The former writ was, of course, dismissed. But, contrary to what the defendants say, the ruling in the former writ could not estop the plaintiff from pressing on with its present writ. The reason is simple. In the former ruling, the real issue in controversy was whether His Lordship the Chief Justice, had the constitutional authority to empanel any number of judges not below the constitutional minimum of five to adjudicate on any matter brought before this court. Suffice it to say that inherent in the former writ was the clear admission that the second defendant, Mr Justice I K Abban, is the Chief Justice. Be that as it may, the defendants have met the plaintiff squarely on the issue of jurisdiction. This court accordingly decided to hear the parties on the preliminary issue of jurisdiction.

The Deputy Attorney-General in argument referred to no fewer than twelve paragraphs of the defendants’ statement of case and submitted that together with the defendants’ notice of preliminary objections, they formed the basis of their contention that this court had no jurisdiction to entertain the writ.

Mr J B Quashie-Idun, learned leading counsel for the plaintiff, in reply submitted that the objections were crystallisations of the defendants’ own pleadings. He referred to the writ and the reliefs therein sought. In learned counsel’s view, the plaintiff’s case was “all concerned with the appointment of the second defendant as Chief

[p.621] of [1995-96] 1 GLR 598

Justice and not his appointment by the Provisional National Defence Council.” Learned leading counsel then referred to paragraph (3) of the defendants’ case, which dealt with the issue of a non-justiciable political question and submitted that that principle finds no place under the Constitution, 1992. In support of this latter submission, learned leading counsel contended that article 295(8) of the Constitution, 1992 buttressed by the provisions of article 125(3) of the Constitution, 1992 were directly in point. Counsel submitted that this court has the final judicial power to determine whether any person has properly performed his duties under the Constitution, 1992. Counsel finally invited us to dismiss the objection.

Now, the jurisdiction of any court is founded on the twin pillars of the Constitution or a statute and the presence of a cause of action. I use the term “twin” advisedly because the one cannot stand without the other. There is however a false impression within our municipality that if the High Court has jurisdiction in “All matters civil and criminal” then a fortiori this court must possess co-ordinate or even enhanced jurisdiction. The truth of the matter is that by the provisions of the Constitution, 1992 the jurisdiction of this court is limited. In New Patriotic Party v Attorney-General [1993-94] 2 GLR 35 at 179, SC, I attempted to define the scope and limits of our jurisdiction in the following terms:

“By article 2 of our Constitution, 1992 this court has the exclusive jurisdiction to determine whether any statute, act or omission is inconsistent with or in contravention of any provision of the Constitution. Next, by article 130 of the Constitution, 1992 this court has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of our Constitution. The original jurisdiction extends to all matters ‘arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.’ Again, constitutional matters which arise in lower courts must as provided under article 130(2) of the Constitution, 1992 be referred to this court—the Supreme Court—and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court. “‘

[p.622] of [1995-96] 1 GLR 598

In the present writ, the summary of the reliefs being sought by the plaintiff shows quite clearly that while it does not question the legality of the second defendant’s “appointment by the Provisional National Defence Council”—presumably as a Supreme Court judge—they are nevertheless seeking our aid to remove him as Chief Justice, call for the surrender of his warrant of appointment as such Chief Justice and run a blue pencil through it. The plaintiff claims that the basis for these reliefs are contained in articles 2(a) and (b), 91(1) and (2), 144(1) and 128(4) of the Constitution, 1992. At a glance, it is obvious that the second defendant—the object of the exercise of the power conferred on the President—cannot be involved in this case. He has not committed any infraction with respect to the Constitution, 1992 and no action can be brought against him which can be founded on article 2 of the Constitution, 1992.

In respect of the first defendant, Mr Amidu, the Deputy Attorney-General, submits that the exercise of the powers of the President conferred upon him by the Constitution, 1992 is a political question and therefore it is non-justiciable—meaning that this court has no jurisdiction to entertain the case. Mr Quarshie-Idun, learned leading counsel for the plaintiff, relies on article 295(8) of the Constitution, 1992 and contends that the principle of a non-justiciable political question does not arise. Article 295(8) of the Constitution, 1992 has been set down and discussed in the opinion of my learned respected brother Kpegah JSC.

I do not think that counsel for the plaintiff’s replication to the defendants’ objections is correct. I understand the meaning of article 295(8) of the Constitution, 1992 to be that where a person or authority is not, by the provisions of this Constitution, 1992 or any other law, subject to the direction or control of any person or authority in the performance of his duties or functions, the court is not precluded from examining the correctness or otherwise of the exercise of such duties or functions. I can readily call to mind article 225 of the Constitution, 1992 on the Commission on Human Rights and Administrative Justice and article 46 of the Constitution, 1992 on the Electoral Commission. It cannot be said that in the exercise of his powers, the President is “subject to the direction or control” of any person or authority. The constitutional requirement imposed on the President to “consult” or “act on the advice” of any body of persons or authority is either to

[p.623] of [1995-96] 1 GLR 598 enable him obtain their considered opinion or engage in frank discussions resulting in agreed conclusions with such designated body of persons or authority. Naturally, it would be a breach of the Constitution, 1992 if the President neither consulted nor sought the advice of such bodies. In my respectful opinion, on the basis of the plaintiff’s own brief, the President has not breached any article of the Constitution, 1992. The plaintiff’s complaint is simply that processes leading to the appointment of the second defendant were conducted in a hurry. But such assertions are pure conjecture for it is not open to this court to inquire of the President when any such consultations might have begun.

This leads me to a consideration of the second of what I have termed the twin pillars constituting jurisdiction, ie whether this action can be maintained, or more properly, whether this court can clothe itself with jurisdiction to hear and determine the matter. I have already referred to the opinion of my learned and respected brother Kpegah JSC in particular and to the concurring opinions of my learned and respected sister and brethren. I do not think it is necessary for me in this opinion to discuss the principle of the non-justiciable political question. It is certainly one ground upon which the jurisdiction of this court may be ousted. In my respectful opinion, in the case of Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC, this court discussed in full the scope and limits of our jurisdiction with respect to dealings with other arms of government. Although in the Tuffuor case (supra) their lordships did not use the term—non-justiciable political question, I think they reached conclusions which accord with Justice Brennan’s dictum in the American case of Baker v Carr, 369 US 186 (1962). I refer in particular to that part of the dictum in which the learned judge states at 217 that: “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department.” (The emphasis is mine.) In New Patriotic Party v Attorney-General (supra) at 179, I concluded after discussing the topic that:

“It seems to me therefore that by the nature of our Constitution the principle of a non-justiciable political question can only arise where the Constitution, 1992 expressly commits a particular responsibility to some arm of government.”

[p.624] of [1995-96] 1 GLR 598

In the present case, the object being to remove the second defendant, it is clear that the matter is by the Constitution, 1992 committed by article 146(1) and (6) thereof to another forum for resolution. In that article a definite procedure is laid down for the ventilation of any such grievance in which this court qua court is not and cannot in any way be involved. The defendants’ objections as to jurisdiction therefore succeed.

This silly case was instituted by the plaintiff, the Ghana Bar Association, who number among its membership most of the finest legal brains in this country. The plaintiff has sought by its writ to inveigle this court into becoming accessory to the demolition of our Constitution, 1992. This court is the watchdog of the Constitution, 1992 and it is its duty to ensure that parties appearing before it have a level field on which to play and play according to the rules, ie the Constitution, 1992, the latter of which the plaintiff is deemed to be expert on.

I will also dismiss the plaintiff’s writ of summons.

JUDGMENT OF KPEGAH JSC.

In anticipation of the retirement of the then Chief Justice, Mr Justice P E N K Archer, the President of the Republic on 15 February 1995, acting in consultation with Council of State, nominated the second defendant, Mr Justice I K Abban, a Supreme Court judge, for approval by Parliament as the new Chief Justice of Ghana. This responsibility is specifically committed to the President by article 144(1) of the Constitution, 1992 in these words: “144.(1) The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament.” After his approval by Parliament, the second defendant, as Chief Justice, took the oath of office before the President as is required by the Constitution, 1992.

The plaintiff, an association of professional lawyers, seeks in these proceedings to question the constitutionality of the appointment of the second defendant by the President. It attempts this by invoking the original jurisdiction of this court under articles 2(1)(a) and (b) and 130(1) of the Constitution, 1992. The reliefs being sought by the plaintiff are:

“(1) A declaration that, on a true and proper interpretation of articles 2(1)(a) and (b), 91(1) and (2), 144(1) and 128(4)

[p.625] of [1995-96] 1 GLR 598 of the Constitution, 1992, the President of the Republic should not have nominated and appointed the second defendant, Mr Justice Isaac Kobina Abban, to the office of Chief Justice since he is not a person of high moral character and proven integrity.

(2) A declaration that the appointment on or about 22 February 1995 by the President of the second defendant, Mr Justice Isaac Kobina Abban, as Chief Justice as well as the advice by the Council of State and the approval by Parliament of his nomination to such office were each made in contravention of articles 91(1) and (2), 128(4) and 144(1) of the Constitution, 1992 and are therefore null and void.

(3) An injunction restraining the second defendant from acting or purporting to act in the office of Chief Justice of Ghana.

(4) A declaration that the warrant of appointment of the second defendant by the President is null and void, and an order that the second defendant deliver up same to this honourable court for cancellation and that the same be duly cancelled.”

In plain and simple language, the Ghana Bar Association is seeking to remove the second defendant as the Chief Justice of Ghana through the judicial process. No sophistry and pretence can hide this intention of the plaintiff in view of reliefs (3) and (4) as quoted above.

The basis for the plaintiff’s asking for the declarations quoted above are contained in a statement of the plaintiff’s case filed on the same day with the writ. For an informed and responsible appreciation of my ruling on the preliminary objection whether this court is seised with jurisdiction to adjudicate on the issues submitted to us for consideration or not, I intend quoting in full the plaintiff’s statement of case. I have decided to discount the need for brevity, in stating only the substance or synopsis of the plaintiff’s case, in favour of a quote in extenso because of the great passion and fervor with which the case was pursued in this court and the great public interest generated thereby with its attendant public furore. In judicial proceedings of such importance, and for lack of a better word, delicacy, I find my judicial oath better vindicated by an effort to maintain and state my views in my own way.

[p.626] of [1995-96] 1 GLR 598

Coupled with this is something more fundamental: my desire to protect the Constitution, 1992 in accordance with my judicial oath, and my inate attitude to express myself frankly and fearlessly in what I believe to be right. And, as I said in the case of Republic v High Court, Accra; Ex parte Darke XII [1992] 2 GLR 688 at 791, SC: “. . . I cannot permit my views to be lost in a chorus of concurrence or dissent.” The need, therefore, to lay bare the plaintiff’s case, in the plaintiff’s own words, cannot be sacrificed for the sake of brevity.

I will proceed to quote from paragraphs (3)-(15) thereof. These paragraphs seek to chronicle events and give reasons for the action of the plaintiff:

“(3) On 15 February 1995 the President of the Republic nominated the second defendant, Mr Justice Isaac Kobina Abban, for appointment as Chief Justice, in anticipation of the retirement of the then Chief Justice, Mr Justice P E N K Archer.

(4) The nomination of the second defendant for appointment as Chief Justice was approved by Parliament on 21 February 1995 under a certificate of urgency.

(5) The plaintiff says that, though the office of Chief Justice is sui generis, in order to qualify for appointment to that office, a person must meet and continue to meet the requirements for membership of the Supreme Court provided in article 128(4) of the Constitution, 1992 and he must satisfy the requirements for membership of all the superior courts in the judicial hierarchy of which the Chief

Justice, ex officio, is a member and over which he is the constitutional head.

(6) Article 128(4) of the Constitution, 1992 requires that a person be of high moral character and proven integrity to qualify for appointment as a justice of the Supreme Court, and consequently as Chief Justice.

(7) The plaintiff says that the second defendant is not so qualified by virtue of the following:

(i) approval of the nomination of the second defendant for appointment as a justice of the Supreme Court was refused by Parliament during the third Republic on grounds of impropriety and dishonesty on his part in

[p.627] of [1995-96] 1 GLR 598 the performance of his functions as chairman of the erstwhile special tribunal. The plaintiff says that the refusal of approval by Parliament was because the second defendant did not meet the standard of high moral character.

(ii) (a) in the case of Republic v Appiah, Circuit Court, Accra, unreported, the Circuit Court, Accra coram: Judge Owusu Sekyere, on a material issue, disbelieved the evidence of the second defendant, who was a witness for the accused. The second defendant had testified in those proceedings that the decision of the special tribunal in the case of E K Owusu and Kowus Motors Ltd was written by the tribunal. There was evidence to the contrary by four prosecution witnesses to the effect that it was J E K A Appiah, the accused special prosecutor, who wrote the decision. Prominent among the witnesses were two lawyers, Baffour Assasie-Gyima and Bright Akwetey, who worked as assistants to the accused special prosecutor. The court rejected the evidence of the second defendant and accepted that of the prosecution witnesses. The judge proceeded to convict the accused on the offence of extortion, a conviction which was upheld by both the Court of Appeal in Republic v Appiah [1987-88] 1 GLR 223, CA, coram: Osei-Hwere, Wuaku and Amua-Sekyi JJA (as they then were), and the Supreme Court in Appiah v The Republic [1987-88] 2 GLR 377, SC, coram: Sowah CJ, Taylor and Francois JJSC, Lamptey and Essiem JJA.

(b) The refusal of the third member of the special tribunal, Squadron Leader F Darko-Kumi, to sign the ruling on the petition of E K Owusu—Kowus Motors Ltd because he was not consulted about the decision, which he got to

[p.628] of [1995-96] 1 GLR 598 know of only on the eve of the delivery of the ruling, is testimony to the suspicious circumstances in which the ruling was made and delivered. His request for an adjournment of the ruling was rejected by the second defendant.

These suspicions were strengthened by the unchallenged evidence of Miss Sylvia Amoah, a stenographer attached to the tribunal, and of Messrs Assasie-Gyima and Bright Akwetey to the effect that the tribunal’s ruling was written by the Special Prosecutor, J E K A Appiah.

(c) Both the Court of Appeal in Republic v Appiah (supra) and the Supreme Court in Appiah v The Republic (supra) in their judgments confirmed the finding of fact made by the trial circuit judge that not only did the accused J E K A Appiah, who was the prosecutor before the special tribunal (of which the second defendant was chairman) wield unlawful influence of a decisive character over the special tribunal, but also that he was permitted by the second defendant, in flagrant violation of his judicial oath, to actually write the tribunal’s decision in favour of E K Owusu-Kowus Motors Ltd giving the false impression that the same had been written by the members of the said tribunal, thereby dishonestly and maliciously vitiating the judicial process in the said case. The extortion for which the accused was convicted was directly connected with the ruling that he wrote for the tribunal.

(iii) In the Report of the Francois Commission of Inquiry, set up to investigate the jail-break of certain prisoners from the Usher Fort Prison, Accra in November 1979, and related matters, the commission expressed its disquiet about the conduct of the second defendant, when, as chairman of the special tribunal, he failed to initiate the necessary

[p.629] of [1995-96] 1 GLR 598 investigations relating to the destruction or existence or non-existence of a number of warrants of detention in the custody of the special tribunal. The plaintiff will contend that the second defendant’s conduct was all the more reprehensible in view of the fact that, as the commission found, the principal concern of the government at the time was whether or not the warrants had been destroyed, and there was evidence before the second defendant at the time that the warrants had in fact been destroyed.

(iv) (a) in his reasons for judgment delivered in open court in suit No SC 18/93, entitled New Patriotic Party v Attorney-General [1993-94] GLR 35, SC the second defendant misrepresented as the speech of Dr Kofi Abrefa Busia, Prime Minister under the second Republic, what was in fact, the editorial viewpoint of the Daily Graphic newspaper of 24 February 1970; and after this misrepresentation had been pointed out to him in a personal letter by K Mensa-Bonsu, the second defendant surreptitiously altered the relevant passage at page 28 of his reasons for judgment to create the impression that he had made no such misrepresentation.

(b) The second defendant, knowing fully well that he had made the said alteration, nonetheless complained to the then Chief Justice, Mr Justice P E N K Archer, in the presence of the Judicial Secretary, Alhaji Yakubu Dramani, and the acting registrar of the Supreme Court, Mustapha Habib Logoh, that somebody must have maliciously tampered with his reasons for judgment so as to smear his good name and reputation. He followed it up with a letter dated 2 August 1994 to the same effect to the then Chief Justice.

(c) In full knowledge of what he had done and in an attempt to justify the same, the second

[p.630] of [1995-96] 1 GLR 598 defendant proceeded to cause a complaint to be lodged at the Media Commission against the author of the exposure and the editor of the Free Press newspaper, which had carried the exposure and other editorial comments on the matter.

(d) The second defendant later withdrew the complaint from the Media Commission after the commission had invited all parties to a meeting to resolve the matter and he had failed to attend same, and he caused the Judicial Secretary to forward to the Attorney-General a complaint of criminal libel against the author of the exposure, K Mensa-Bonsu, and the editor of the Free Press newspaper.

(v) In proceedings in suit No SC77/94, entitled Republic v Mensa-Bonsu; Ex parte Attorney-General [1995-96] 1 GLR 375, SC three of the second defendant’s colleague justices of the Supreme Court made categorical and unchallenged findings of dishonest and improper conduct on the part of the second defendant …

(8) The plaintiff says that the cumulative effect of the averments in paragraph (7) herein is that the second defendant is not a person of high moral character and proven integrity and therefore not qualified to be appointed Chief Justice.

(9) The plaintiff says further that, in so far as the second defendant is not a person of high moral character and proven integrity the nomination on 15 February 1995, by the President, the vetting by Parliament under a certificate of urgency, and the appointment on or about 22 February 1995, by the President of the Republic of the second defendant as Chief Justice were made in contravention of articles 91(1) and (2), 128(4) and 144(1) of the Constitution, 1992 and are therefore null and void.

(10) The plaintiff says that in acting in consultation with the Council of State and requesting the council for its advice on the appointment of the second defendant to the office of

[p.631] of [1995-96] 1 GLR 598

Chief Justice, the President had a constitutional duty under article 91(1) and (2) of the Constitution, 1992 to act in good faith and to lay before the councillors of State all and every fact, information and matters within his knowledge having bearing, whether adverse or otherwise, or likely to have a bearing on the character and integrity of the second defendant as his nominee for the office of Chief Justice; and which fact, information and matters might reasonably be expected to be taken into account by the councillors of State in tendering their advice to the President. The plaintiff says that the President knew or ought to have known all the facts, information and matters set out in paragraphs 7(1)-(4) (supra) which should have prevented him from nominating the second defendant for appointment as Chief Justice.

(11) The plaintiff says that the Council of State also had a constitutional duty under article 91(1) and (2) of the Constitution, 1992 to tender fair and informed advice to the President on the qualification and suitability of the second defendant for the office of the Chief Justice under article 128(4); the plaintiff contends that the Council of State failed to tender such fair and informed advice as expected of it under the Constitution, 1992 by not making any or any proper investigation into every fact, information and matter having a bearing on the character and integrity of the second defendant as a nominee for the office of Chief Justice.

(12) The plaintiff says that Parliament in approving the nomination of the second defendant for appointment to the office of Chief Justice failed to consider relevant information, facts and matters available, or which ought to have been available to it, which said facts, information and matters adversely affected the second defendant’s suitability or qualification for the office of Chief Justice under article 128(4).

(13) The plaintiff says that the President’s nomination of the second defendant on 15 February 1995 and the second defendant’s subsequent appointment to the office of Chief Justice the day after the judgment of the Supreme Court set out in paragraph 7(5) (supra) were made mala fide and in

[p.632] of [1995-96] 1 GLR 598 further breach of the letter, spirit and intendment of the Constitution, 1992.

(14) The plaintiff says that it will be contrary to law, any rule of practice and the rules of natural justice in the circumstances of this case for the second defendant to exercise any power vested in him by any law or rule of practice to select any section of the justices of the Supreme Court for the hearing of any aspect of or matter in this action since he is a party to this writ and the issue involved in these proceedings is his qualification to be appointed Chief Justice of Ghana under the Constitution, 1992.

(15) The plaintiff says this is a proper case in which the second defendant’s warrant of appointment given to him by the President should be brought up into this honourable court for cancellation and the second defendant be restrained from acting in the office of Chief Justice of Ghana.”

In answer to the above averments, was filed a statement of defence on behalf of both defendants. This was immediately followed the next day with notice by the defendants of an intention to rely on a preliminary objection. Three grounds were stated in this notice. They are:

“(1) That the Supreme Court has no jurisdiction to entertain the plaintiff’s action.

(2) That the plaintiff’s writ and statement of case disclose no cause of action against the second defendant, either in his personal capacity as a Supreme Court judge or the Chief Justice of Ghana.

(3) That the plaintiff’s writ and statement of case disclose no cause of action against the first defendant.”

As a cursory remark, I do not see any material difference between the second and third objections and will accordingly compress them into one and reformulate the point as: “The writ and statement of case disclose no cause of action against the defendants.”

The gravamen of the plaintiff’s case is that the appointment of Justice I K Abban as the Chief Justice of Ghana is in violation of articles 91(1) and (2); 128(4) and 144(1) of the Constitution, 1992 of the Republic of Ghana. The issue of jurisdiction being so fundamental,

[p.633] of [1995-96] 1 GLR 598 since where a court’s jurisdiction is challenged it has “jurisdiction” to inquire into that issue only, we decided to take that question as the foremost preliminary point in the case. The grounds for the plea to jurisdiction in bar to the action can be summarised as follows:

(a) That by virtue of the doctrine of separation of powers enshrined in the Constitution, 1992, the appointment of the second defendant as the Chief Justice by the President acting in consultation with the Council of State and with the approval of Parliament, is a non-justiciable issue. This submission is predicated upon the fact that the appointment is a political decision specifically committed to the President, the Council of State and Parliament.

(b) This court has no jurisdiction to question the procedure and proceedings of Parliament relating to its approval of the second defendant as the Chief Justice of Ghana.

(c) That as a corollary, this court has no authority to restrain the second defendant from performing his functions as Chief Justice, much less order a revocation of the second defendant’s warrant of appointment or order its cancellation as null and void.

The concept of “jurisdiction” in its esoteric and jurisprudential sense is said to be “a DIGNITY which a man hath by a power to do justice in causes of complaint made before him.” In a technical sense, when one is considering whether a properly constituted court has jurisdiction or not one cannot resolve this issue without necessarily relating it to:

(a) the parties to the dispute—that is, whether the court has jurisdiction over them;

(b) the subject matter of the dispute—whether it is one which falls within its jurisdiction;

(c) the relief being sought—that is, whether the said court can grant the relief the plaintiff is seeking; and, lastly

(d) territorial limitation.

One or a combination of any of these factors can very well assist in determining if a court has jurisdiction or not. So, relying on the case of Garthwaite v Garthwaite [1964] P 356, the learned authors of Stroud’s Judicial Dictionary (4th ed), Vol 3 at p 1452 said of the concept as follows:

[p.634] of [1995-96] 1 GLR 598

“(2) In its narrow and strict sense, the ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors.”

To these three may sometimes be added as relevant the court’s area or district of operation. I prefer to call it simply as territorial limitations of the court.

The learned authors also considered the term in its wider sense thus at the same page: “In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its ‘jurisdiction’ (in the strict sense) or as to circumstances in which it has ‘jurisdiction’ (in the strict sense) to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances. . .”

As earlier indicated in this ruling, the crux of the plaintiff’s case is that the appointment of Justice I K Abban, admittedly a Supreme Court judge at the time of the said appointment, to the office of Chief Justice of Ghana was made ultra vires certain provisions of the Constitution, 1992.

Although we are not now called upon to determine the merits of the case, which may necessitate an interpretation of those provisions, a reference must necessarily be made to them. This is so, because I believe a consideration of these provisions and others will help determine whether the issue submitted to us is a non-justiciable political question or not. A distinction therefore has to be made between an interpretation to determine whether a particular matter has been constitutionally committed to another branch of government, and an interpretation to find out whether that branch of government has exceeded its power in the performance of that duty or omitted to perform that duty. The line of distinction may be thin but it does exist.

Justice Warren CJ in the case of Powell v McCormack, 395 US 486 at 519 (1969) noted that:

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“In order to determine whether there has been a textual commitment to a co-ordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers. . . before we can determine to what extent, if any, the exercise of that power is subject to judicial review.”

It is this distinction which was applied in Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC to enable the Court of Appeal, sitting as the Supreme Court, to hold that as a matter of constitutional interpretation, the incumbent Chief Justice became the Chief Justice by the due process of law, holding the identical or equivalent office as he held before the coming into force of the Constitution, 1979; and yet also held that the court did not, and could not, have jurisdiction to inquire into how Parliament went about its business in the vetting of the incumbent Chief Justice.

I have already given consideration to the concept of “jurisdiction” in its jurisprudential sense. The original jurisdiction of this court is stipulated in article 130(1) of the Constitution, 1992 thus:

“130. (1) 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; and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”

Article 130(2) of the Constitution, 1992 is not relevant here and will not be quoted.

I will indulge myself in a little bit of digression by discussing some aspects of the legal history of Ghana. In 1960, Ghana had a Constitution, 1960 which, for the first time, introduced the American concept of the doctrine of separation of powers as an important doctrinal underpinning of our Constitution—the separation of powers between the executive, the legislature and the judiciary. This was also to be the case with the Second Republican Constitution, 1969; although

[p.636] of [1995-96] 1 GLR 598 this Constitution provided for a ceremonial President in favour of a Prime Minister. In the case of the Third Republican Constitution, which was introduced in 1979, the presidential system of government was reintroduced with the same concept of separation of powers underpinning it. In the Constitution, 1992 which is the fourth in our history and under which we currently operate, the presidential system of government was retained and the framers consciously and meticulously allocated state authority among the executive, the legislature and the judiciary. The doctrine of the separation of powers is indicated in the discrete manner each branch of government is dealt with in chapters eight, ten and eleven of the Constitution, 1992.

This principle, as was pointed out in the Memorandum to the Draft Proposals for the 1979 Constitution of Ghana, which is still relevant, requires that the executive, the legislative and the judicial powers of state should be assigned to separate institutions and organs with each having power to check the power of the others in order to ensure that they do not encroach on one another’s sphere of competence. Such an arrangement is necessary so that, in the words of President Woodrow Wilson, there can be “effective check on power by power.”

In the same Memorandum on the 1979 Constitution at para 49, p 19, it was pointed out as follows: “. . . the principle does not require that the executive, legislative and judicial organs of State should operate in complete isolation from, or open conflict with, one another. On the contrary, they are expected to work in harmony to the end that the various functions of government will complement each other.”

So a careful reading of our Constitution, 1992 reveals that the separation is not intended to be airtight; very often, there is overlapping of powers as an aspect of check and balances. For example, the power of the Supreme Court to strike down a legislation which is inconsistent with any provision of the Constitution; the power of the President to appoint the members of the superior courts, in some cases, with approval of Parliament. So also the procedure for the impeachment of the President and his vice: a combination of co-operation between the judiciary and the legislature. As to the jurisprudential implications or derivatives of the doctrine of the separation of powers, I hope to deal with it later.

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The charge of constitutional impropriety levelled against the President, the Council of State and Parliament in respect of the appointment of the second defendant, is based upon the allegation that the second defendant is not a person of “high moral character and proven integrity” as specified by the Constitution, 1992. This court, therefore, must take a second look at the appointment in the light of the plaintiff’s allegations and review the appointment accordingly. The implication of this line of reasoning, in the light of article 2(1)(b) of the Constitution, 1992 is that in the plaintiff’s view the “acts” or “omissions” of the President, the Council of State and Parliament resulting in the appointment of the second defendant are inconsistent with certain provisions of the Constitution, 1992.

The President has the sole constitutional responsibility to appoint in consultation with the Council of State, and with the approval of Parliament a person for the office of Chief Justice. And in advising the President on the appointment of the second defendant as the Chief Justice, the Council of State was only discharging its responsibility under article 91(1) of the Constitution, 1992. This clause enjoins it to advise the President in respect of any appointment required by the Constitution, 1992 to be made with the advice of, or in consultation with, the Council of State. Clause (2) of the said article stipulates that such advice be tendered not later than thirty days after the request from the President.

Admittedly, the qualifications for the office of the Chief Justice is the same as that for the Supreme Court. This is arrived at by reading together clauses (1) and (4) of article 128 of the Constitution, 1992 which provide thus:

“128. (1) The Supreme Court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court …

(4) A person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity. . .”

The plaintiff contends that in submitting the name of the second defendant to the Council of State for advice, the President failed (“omission”) to place before the said Council of State all relevant facts or material touching on the integrity of the second defendant. Also the Council of State in advising the President had a duty under article 91(1)

[p.638] of [1995-96] 1 GLR 598 of the Constitution, 1992 “to tender a fair and informed advice to the President on the qualification and suitability of the second defendant for the office of the Chief Justice.” But, as it were, the Council of State, “Failed to tender such fair and informed advice as expected of it under the Constitution by not making any or any proper investigations into every fact, information and matter having a bearing on the character and integrity of the second defendant as a nominee for the office of Chief Justice.”

In respect of Parliament, the accusation is that it failed, in the plaintiff’s words, “to consider relevant information, facts and matters available” to it. Curiously, Parliament has a second count on the plaintiff’s charge sheet to plead to: its failure to consider:

“Relevant information, facts and matters … which ought to have been available to it, which said facts, information and matters adversely affected the second defendant’s suitability or qualification for the office of Chief Justice under article 128(4) of the Constitution, 1992.”

(The emphasis is mine.)

In my humble view, there is a serious contradiction in terms in the plaintiff’s statement of case. I do not think a person can be accused of improper exercise of discretion when he has no discretion in a matter; nor can he be accused of inaction or omission when he had in fact “acted” even if it did not meet the accuser’s expectations. To be precise, you cannot fault a person in one vein for not taking into account a factor which “ought to have been available” to him and in the same vein accuse him of not taking into account those same factors which “were available” to him. To me this is contradiction in terms. Article 2(1)(b) of the Constitution, 1992 under which the plaintiff can be said to be challenging in this court both the executive and the legislative conduct, clearly appreciates this. It provides:

“2. (1) A person who alleges that — . . .

(b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

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(The emphasis is mine.) I am firmly of the view that “act” and “omission” are mutually exclusive terms in law; hence the sense in which they are employed in article 2(1)(b) of the Constitution, 1992 by the use of the word “or.” To me it is absurd to allege that a person has acted in a certain way which contravenes a provision of the Constitution, 1992 and at the same time allege that he has omitted to act in that way, which said omission is also in contravention of the Constitution, 1992.

In the final analysis, the “act” the President could be said to have done in the appointment of the Chief Justice is presenting his name, after consultation with the Council of State, for the approval of Parliament. The “act” which Parliament could be said to have done in respect of the appointment is to give its approval. All these “acts” are consistent with the Constitution, 1992. In discharging their constitutional responsibilities, so contends the plaintiff, they omitted to take into account factors which could have influenced them against the nomination and approval of the second defendant.

It is these factors the plaintiff alleges the President, the Council of State and Parliament have ignored, that it is calling upon us to consider so as to reappraise their performance in the appointment of the second defendant as Chief Justice. And if we find their performance unsatisfactory against the background of the plaintiff’s allegations, then we must declare the appointment null and void and consequently revoke the second defendant’s warrant of appointment.

As already pointed out, the Constitution, 1992 appreciates that the two concepts—”act” and “omission”—are mutually exclusive, hence the use of the word “or.” May be the difficulty of the plaintiff in not being able to attach a specific “act” or “omission” to any of the organs involved in the appointment of the Chief Justice—like, the President not consulting the Council of State, and Parliament not giving its approval—masks a more fundamental difficulty: whether the subject matter is appropriate for judicial review or adjudication; or whether, as we shall try to discover later, the judiciary has what Justice Brennan calls a “judicially discoverable and manageable standard” for resolving the issue.

In this whole saga the President is said to have acted mala fide; the Council of State stands accused of gross dereliction of duty; and Parliament for the indecent haste in which the approval was given

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“under a certificate of urgency” for the appointment of the second defendant. All these allegations, submits the plaintiff, warrant this court’s intervention and declaration that the appointment is null and void. In simple terms we are being asked to question an act of the executive in a matter exclusively committed to it by the Constitution, 1992 and possibly subject the proceedings of Parliament to judicial scrutiny.

To this invitation, the learned Deputy Attorney-General and his team quickly erected a “no entry” sign on the ground that the issue is non-justiciable; it being a political question. Mr Quashie-Idun and his team took up the role of a demolition squad, fortuitously thrust upon them by the objection, to tear down the “no entry” sign post by urging that the doctrine of political question and non-justiciability have been exercised from our Constitution, 1992 and must be laid to rest in its sarcophagus. Learned counsel for the plaintiff contended that this court has the final judicial power to determine whether any person or authority has properly performed his or its functions under the Constitution, 1992 or any other law. Reliance was placed on article 295(8) of the Constitution, 1992 for this submission. The said clause (8) states:

“(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.”

The above provision, said counsel, is buttressed by article 125(3) of the Constitution, 1992 which states that the judicial power of Ghana is vested in the judiciary, and that “neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”

In analysing the language of article 295(8) of the Constitution, 1992, I have no doubt in my mind that the said clause is reiterating the courts’ power to review administrative actions, rather than giving the judiciary sweeping powers to wander to the domain of other branches of government to scrutinise matters specifically committed to them.

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For example, article 172 of the Constitution, 1992 guarantees the independence of the National Media Commission in these words:

“172. Except as otherwise provided by this Constitution or by any other law not inconsistent with this Constitution, the National Media Commission shall not be subject to the direction or control of any person or authority in the performance of its functions.

Article 295(8) of the Constitution, 1992 makes it possible for a person adversely affected by a decision of the Media Commission to appeal to the courts for a review on any of the known grounds, such as excess of jurisdiction, non-compliance with the rules of natural justice, etc.

Such a challenge to state action pertaining to the administration of the affairs of the State through its officers, have always been rested or predicated on claims of constitutional deprivation which are subject to judicial review so said Justice Brennan in the Baker case (supra). Several examples like article 172 can be found in the Constitution, 1992 but I think this single example can equally, forcefully illustrate the point I am making.

However, the submission that the doctrine of political question is inapplicable in our jurisdiction is not without judicial support. In the case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35 at 63, SC, Adade JSC in his contribution said:

“The argument that the case is a political one, and ought nor to be entertained by this court is also buttressed on another American case, Baker v Carr, 369 US 186 (1962) … Reading the report in the Baker case (supra), it is abundantly clear that the United States has developed a special doctrine of ‘political question,’ based on the federal nature of their Constitution and their system of separation of powers. It is this special circumstance which is at the bottom of the notion that political questions are not justiciable by the district courts.”

After referring to some passages from the report which he thought illustrated his point, Adade JSC continued at 64:

“Thus it would seem that even in the United States the doctrine of ‘political question’ does not apply to the United States Supreme Court, the ‘ultimate interpreter of the Constitution‘, as

[p.642] of [1995-96] 1 GLR 598 our Supreme Court too is the ‘ultimate interpreter of our Constitution, 1992. In any case, by articles 1 and 2 of the Constitution, 1992, that doctrine cannot have any application to us here in Ghana. With us, issues of constitutional interpretation are justiciable only by the Supreme Court, and not by any other court.”

(The emphasis is mine.)

Before proceeding any further, I would like to take a look at the view of Adade JSC that “even in the United States the doctrine of ‘political question’ does not apply to the United States Supreme Court, the ‘ultimate interpreter’ of the Constitution.” I do not think this is a correct assessment of the authorities on the point as the Baker case (supra), which he relied upon for his views, itself demonstrates; it being a decision of the United States Supreme Court. Justice Brennan in that case stated the ingredients of the political question doctrine which he said he distilled from cases in which the principle was held to be applicable. However, in the particular circumstances of the Baker case (supra) the majority held the view that the criteria was not reached.

And in the case of Powell v McCormack (supra) the then Chief Justice, Warren CJ in the cause of delivering the opinion of the Supreme Court said at 518:

“It is well established that the federal courts will not adjudicate political questions. . . In Baker v Carr supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government.”

(The emphasis is mine.) The “we” can only refer to the Supreme Court . . .

A relatively recent case in which the United States Supreme Court discussed and applied the principle of non-justiciability on ground of the political question doctrine is the case of Goldwater v Carter, 444 US 996 (1979). The Goldwater case (supra) was one in which the President’s authority to abrogate a treaty without congressional approval was challenged. The court refused to go into the merits. The facts of the case, as stated in Gunther, Constitutional Law (12th ed) at p 354, were that in 1978, President Carter announced that the United States would recognise the Government of the People’s Republic of

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China and would simultaneously withdraw recognition from the Government of Taiwan. Later the State Department informed the Taiwan Government that the Mutual Defense Treaty of 1995 with that government would be terminated on 1 January 1980 in accordance with a provision which permitted each party to terminate the treaty after a year’s notice. Senator Goldwater, in collaboration with other senators, brought an action to prevent the President from terminating the treaty without a two-thirds vote in the Senate. It is a constitutional requirement that a treaty be ratified by a two-thirds congressional vote but it was silent on abrogation. The plaintiffs claimed a similar vote was needed for abrogation. The lower courts reached the merits; the Court of Appeal upholding the President’s power to terminate without congressional approval. The Supreme Court, however, ordered the senator’s complaint dismissed without taking argument.

While the Supreme Court was unanimous that the case was unsuitable for judicial resolution, the justices differ in the reasons why. Four of the justices, namely Justice Rehnquist, Chief Justice Burger and Justices Stewart and Stevens said the case presented a non-justiciable “political question.” Justice Powell agreed in the result of the case but indicated that, in his view the political question barrier had not been reached. The others did not explicitly consider that issue. It is submitted, therefore, that a statement that the political question does not apply to the United States Supreme Court is, with respect, not a correct review of the authorities.

And in reviewing the local legal landscape, my brother Adade JSC gave a second reason at 64-65 “why the doctrine does not apply in our jurisdiction, as, that questions of human rights tend to have “large components of political issues” but these are reserved for a lower court, the High Court. And that similarly:

“chieftaincy disputes almost always involve local, and often national, politics. But these disputes are cognisable only by ‘chieftaincy tribunals’ in the first instance: the Supreme Court coming in only as a court of last resort.”

His lordship then made this positive statement of law at 65:

“The conclusion is inescapable, that in this country we have no doctrine of ‘political question’ such as exists in the United States. What we have is a written Constitution, 1992 to be

[p.644] of [1995-96] 1 GLR 598 interpreted and enforced, with the result that in Ghana, courts and tribunals much lower in the hierarchy than the Supreme Court may lawfully decide cases which may involve ‘political questions.”’

He then concluded thus at 65:

“Therefore to refuse to do a constitutional case on the ground that it is political is to abdicate our responsibilities under the Constitution, 1992 and to breach, in particular, articles 2 and 3 thereof.”

With great respect to my learned brother, I think this a very simplistic way to consider a serious and deep legal concept like the “political question.” I have always been of the view that the principle of political question is something which is inherent in the concept of separation of powers where certain functions are committed to a specific branch of government. In such a situation a political question cannot evolve into a judicial question.

Adade JSC refused the invitation to decline jurisdiction in the case of New Patriotic Party v Attorney-General (supra) for he was of the view that the invitation was being extended to the court, on the grounds that, in his own words, “the case is a political one.” As I have pointed out elsewhere in this ruling, “a political question” is different from “a political case.” The former concept has a strong jurisprudential connotation and is rooted in the doctrine of separation of powers.

To demonstrate that the principle of non-justiciable political question is the product of the concept of the separation of powers, I will refer to some judicial opinions. In the celebrated case of Baker v Carr (supra) which was relied on by him, Justice Brennan said at 210 thus: “The non-justiciability of a political question is primarily a function of the separation of powers.” And in the same Baker case (supra) at 242, Justice Douglas in a separate opinion stated the problems of political question as “involving the distribution of power between the Court, the Congress, and the Chief Executive.” The political question principle is a tool for the maintenance of governmental order. Therefore, to make such an emphatic statement as my brother Adade JSC did in New Patriotic Party v Attorney-General (supra), when considering a written constitution, the underlying jurisprudential consideration of which is the separation of

[p.645] of [1995-96] 1 GLR 598 powers is, in my view, too far-fetched and of doubtful validity. It is however legitimate to say that the mere fact that a suit seeks the protection of a political right does not mean that it presents “a political question” and therefore non-justiciable.

Justice Brennan in his contribution in the Baker case (supra) brings out the distinction, unlike my brother in New Patriotic Party v Attorney-General (supra). Justice Brennan said at 217:

“The doctrine of which we treat is one of ‘political questions’, not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.”

(The emphasis is mine.) The very essence of the guarantee of fundamental human rights consists in the right of the individual to seek redress from the courts and claim protection of the law whenever he receives or perceives an injury to his rights. The courts have never denied redress, on grounds of non-justiciability, to anybody who asserts that his rights have been breached. This has always been a traditional subject of judicial intervention.

I do not, therefore, think it right to assert that the doctrine of political question does not apply under our Constitution, 1992 because questions of human rights tend to have “large components of political issues” and yet they are justiciable. The term “political question” as we have seen is not used in its popular sense but in a technical legal sense; in a philosophical or jurisprudential sense. The assertion that the doctrine does not apply under our Constitution, 1992 without any attempt at a definition is unfortunate.

The Ghanaian Constitution, 1992 has been influenced not only by our past experiences but also by thinkers like Montesquieu, in the allocation of state power to the three branches of government—the executive, the legislature and the judiciary. The adoption of the concept of separation of powers by the framers of our Constitution, 1992 aims not only at the prevention of the exercise of arbitrary power with its attendant tyranny, but also aims at the promotion of efficiency and avoidance of friction or conflict between the various arms of government. See the case of Tuffuor v Attorney-General (supra) where the Court of Appeal sitting as the Supreme Court declined jurisdiction to examine proceedings in Parliament and consequently struck out the

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Speaker of Parliament as the first defendant. And in the case of Youngstown Sheet & Tube Co v Sawyer (The Steel Seizure Case), 343 US 579 at 635 (1952), Justice Jackson said of the concept of the separation of powers:

“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

There are local judicial statements against the view of Adade JSC expressed in New Patriotic Party v Attorney-General (supra). The celebrated case of Tuffuor v Attorney-General (supra) offers the first example. In this case, one of the reliefs the plaintiff was claiming was a declaration that: “[T]he purported nomination by the President of the Republic of Fred Kwasi Apaloo for approval by Parliament of his appointment as Chief Justice of the Republic and member of the Supreme Court and his purported vetting and rejection by Parliament as such on 16 August 1980 were each acts effected in contravention of the Constitution and laws of the Republic and were therefore all null and void and of no effect.”

The Speaker of Parliament was made the first defendant in this suit. The court considered the impropriety of joining the Speaker of Parliament and decided to strike out the Speaker as a defendant. This is what the court said at 650:

“This then brings us to the question of how far the courts can question what, under our Constitution, has been done in, and by, Parliament? There is a long line of authorities which establishes two important principles governing the relationship that subsists or should exist between Parliament and the courts:

(a) that the courts can call in question a decision of Parliament; but that the courts cannot seek to extend their writs into what happens in Parliament; and (b) that the law and custom of Parliament is a distinct body of law and, as constitutional experts do not put it, ‘unknown to the courts.”’

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The court continued thus at the same page:

“. . . the courts take judicial notice of what has happened in Parliament. The courts do not, and cannot, inquire into how Parliament went about its business. These constitute the state of affairs, as between the legislature and the judiciary which have been crystallized in articles 96, 97, 98, 99, 103 and 104 of the Constitution. Of particular importance to us are the provisions of article 96 of the Constitution. They confer on Parliament freedom of speech, of debate and of proceedings in Parliament. The article also states categorically: ‘that freedom shall not be impeached or questioned in any Court or place out of Parliament.”’

The court then proceeded to deliver itself at 650-651 as follows:

“The courts cannot therefore inquire into the legality or illegality of what happened in Parliament. In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions of article 91(1), its actions within Parliament are a closed book.

The above were the considerations that led to our conclusions . . .

(c) that the Speaker ought not be a party to the present proceedings and we accordingly discharge him as the first defendant.”

(The emphasis is mine.) The rationale for the court’s holding that proceedings in Parliament are a closed book and cannot be subjected to judicial review is the concept of separation of powers and its necessary implication of non-justiciability of proceedings within Parliament.

This case is a classic example of a court being confronted with a complex issue of constitutional interpretation, a function of the Supreme Court, to give itself jurisdiction, in the strict sense, and yet applying at the same time the principle of a non-justiciable political question to decline jurisdiction to go into an issue. This dual role is nicely brought out by Justice Brennan in the Baker case (supra) at 211 when he said:

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“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as [the] ultimate interpreter of the Constitution.”

It is this dictum which gave rise to the view expressed by my brother Adade JSC that the principle of non-justiciable political question does not apply in our circumstances; and to hold otherwise would be a breach of article 2 of our Constitution, 1992. If article 2 of the Constitution, 1992 is taken to imply that the Supreme Court has a special guardianship role in constitutional interpretation and enforcement, then it could be argued that it alone must have the final say in all constitutional problems. I think a more legitimate implication of article 2 of the Constitution, 1992 is that the Supreme Court has authority to adjudicate constitutional issues only when these are relevant in cases properly within its “jurisdiction” (in the strict sense).

The articles relied on in the Tuffuor case (supra) are in pari materia with articles 115-121 of the Constitution, 1979 which cover the privileges and immunities of members of Parliament under the present Constitution, 1992. Archer CJ in his opinion in New Patriotic Party v Attorney-General (supra) at 49 came out forcefully in support of separation of powers and the principle of non-justiciability of certain matters in these words:

“The Constitution, 1992 gives the judiciary power to interpret and enforce the Constitution, 1992 and I do not think that this independence enables the Supreme Court to do what it likes by undertaking incursions into territory reserved for Parliament and the executive. This court should not behave like an octopus stretching its eight tentacles here and there to grasp jurisdiction not constitutionally meant for it.”

And my brother Charles Hayfron-Benjamin JSC in the same case at 176-177 confronted the issue directly thus:

“The final submission of the Deputy Attorney-General emanating from the averment contained in his statement of the defendant’s case was that the plaintiff’s case raised a non-

[p.649] of [1995-96] 1 GLR 598 justiciable political question. Simply put, if the matter in issue could be dealt with by any other arm of government and the Constitution, 1992 said so, then the court, must decline jurisdiction. His contention was that since it was Parliament which under the doctrine of separation of powers had the responsibility for controlling legislation it was fully within its authority to make a law abolishing 31 December as a public holiday.”

After stating the issue Charles Hayfron-Benjamin JSC said at 178-179:

“The whole principle of a non-justiciable political question is an American formulation. While it may be relevant to our situation because it is a development from a written democratic Constitution, I think there are so few parallels between the two Constitutions on this principle that its application to our Constitution, 1992 must necessarily be limited.”

He then continued thus at 179:

“It seems to me therefore that by the nature of our Constitution the principle of non-justiciable political question can only arise where the Constitution, 1992 expressly commits a particular responsibility to some arm of government. A clear example may be the power of the President to appoint ambassadors under article 74(1) of the Constitution, 1992.”

(The emphasis is mine.)

Having tried to demonstrate that the principle of non-justiciable political question does apply to our Constitution, 1992 and that there are some local authorities to this effect, I will now endeavour to discover what the features or characteristics of this unclear concept are. Despite the fact that it does not lend itself easily to definition, the authorities are however unanimous about some of its identifying characteristics; or some of the criteria which help identify a “political question.”

The case which best describes the basis and criteria to be employed in determining a political question is the case of Baker v Carr (supra). Justice Brennan in his majority opinion stated at 217: “It is apparent that several formulations which vary slightly

[p.650] of [1995-96] 1 GLR 598 according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Justice Brennan however concluded by cautioning thus at the same page: “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.”

The Baker case (supra), we have seen, was applied in the case of Powell v McCormack (supra). Justice Powell considering the case of Baker v Carr (supra), in which he did not participate, condensed the investigation into the principle of political question to three questions in his concurring opinion in Goldwater v Carter (supra); namely (a) Does the issue involve resolution of questions committed by the text of the Constitution to a co-ordinate branch of the government; (b) would a resolution of the question demand that a court move beyond areas of judicial expertise? (c) Do prudential considerations counsel against judicial intervention? It appears that in deciding whether a question falls within the class of “political questions”, the specific commitment of the matter to another arm of government, and the lack of satisfactory criteria for a judicial determination, appear to be the dominant considerations.

My Lords, having identified the characteristics, I think it will be appropriate now to confront the ultimate question; whether the criteria we have identified as to what constitutes a non-justiciable “political question” brings the instant case under the umbrella of the said doctrine. The natural beginning, as was pointed out in the Baker case

[p.651] of [1995-96] 1 GLR 598

(supra), is to note whether any of the common characteristics which we have been able to identify are present.

My Lords, every element is present in the case before us. To the first question, whether the appointment of the Chief Justice is constitutionally committed to other agencies of government, I will answer in the affirmative. By the provisions of article 144(1) of the Constitution, 1992 this function is specifically committed to both the executive and the legislature; and to accept the invitation which is being extended to us and exercise jurisdiction in the matter, we shall be behaving like an unruly dog which has refused to be chained to its own kennel but wanders to places where it ought not to be. Any attempt by the Supreme Court to claim a power to be able to declare null and void the appointment of the Chief Justice made by the President, in consultation with the Council of State and with the approval of Parliament as provided in the Constitution, 1992 could not only correctly or justly be characterised, in the words of Chief Justice Marshall, as “an absurd and excessive extravagance” but also as usurpation of the constitutional functions of both the executive and the legislature. As a fall out, we shall be deliberately courting confrontation not only with the executive, but also with Parliament whose proceedings we have no power to scrutinise.

If the President, in consultation with the Council of State and with the approval of Parliament makes an appointment in compliance with the Constitution, 1992, his authority, in the words of Justice Jackson, “is at its maximum.” Because in such circumstances, his authority includes all that he possess under the Constitution, 1992 plus all that Parliament, the people’s direct representatives, has. When the President gets the support of Parliament in the discharge of a constitutional duty, he can in such circumstance be described not only as close to personifying the sovereign people of Ghana, but also doing their will.

If the President’s act is held to be unconstitutional in these circumstances, then it means that the Government of Ghana, in the words of Gunther, “as an undivided whole lacks power.” For, as was pointed out by Professor Edward S Corwin, quoted by Professor H J Abraham in his book, The Judicial Process (6th ed) at p 358 the principle of, “a political question relates to the possession of political power,

[p.652] of [1995-96] 1 GLR 598 of sovereignty, of government, the determination of which is vested in Congress and the President, and whose decisions are binding on the Courts.”

The appointment of the Chief Justice is vested in the President, the Council of State and Parliament, ipso facto the determination of who is a person “of high moral character and proven integrity.” Their decision in this regard is binding on the courts. It is important that we show decent respect for the wisdom, integrity and patriotism of the President and Parliament. It was Justice Felix Frankfurter who wrote “even the most rampant worshipper of judicial supremacy admits that wisdom and justice are not the test of constitutionality.”

In assuming jurisdiction to adjudicate in the matter, we shall certainly be entering upon policy determinations for which judicially manageable standards are not available. How do we probe what factors influenced the President, the Council of State and Parliament in nominating, advising and approving the second defendant as the Chief Justice of Ghana? By what judicial standard shall we be ascertaining the role of these agencies of government in the appointment of the second defendant?

The Constitution, 1992 is silent on who “a man of high moral character and proven integrity” is and the factors to be taken into account in finding such a person for appointment as the Chief Justice of Ghana. The framers of the Constitution, 1992 have deliberately left these matters to the good sense of the President, the Council of State, and Parliament which personifies the sovereign people of Ghana, being their direct representatives. Can we substitute our notions of “a man of high moral character and proven integrity” for theirs without appearing to be, or actually, appointing the Chief Justice instead of the accredited organs? Shall we not be granting this court the power to veto the appointment? I do not think the framers of our Constitution, 1992 intend to anoint and enthrone the judiciary. The political question principle is one basic virtue to emanate from the concept of separation of powers. This court must apply it in an endeavour to find its proper place within the constitutional structure.

It has already been pointed out that there is no means for effective judicial relief. The Supreme Court is of course not a platform for political debate, nor can we turn ourselves into parliamentarians. In the Baker case (supra) at 267 Justice Frankfurter in his minority opinion

[p.653] of [1995-96] 1 GLR 598 has these words of caution:

“The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”

(The emphasis is mine.)

In rejecting the invitation to apply the principle of non-justiciable political question in the case of New Patriotic Party v. Attorney-General (supra), Adade JSC said at 65:

“Thus the invitation to decline jurisdiction on that account is an invitation to this court to act unconstitutionally, which invitation must itself be unconstitutional, as it cannot but be subversive of the Constitution, 1992. I must reject that invitation.”

I will put “not” between “invitation” and “to” in the first line and this will adequately describe my views on the invitation to us to assume jurisdiction in this case.

While it may be true to say that the dominant elements involved in the concept of non-justiciable political question is the constitutional commitment to other agencies of government, and the aptness of judicial review, judicial discretion and prudence may not be denied a role either.

Gerald Gunther and Kathleen M Sullivan in their book, Constitutional Law (13th ed) after affirming the role of the above elements as some of the important strands of the concept of non-justiciable political question said at p 46 thus:

“Still another, even more open-ended, and most clearly prudential strand [of the concept] suggests that resolution of issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties.”

I beg to recall, for the sake of emphasis, a dictum on jurisdiction I have earlier quoted: “In its wider sense it embraces also settled practice of the Court

[p.654] of [1995-96] 1 GLR 598 as to the way in which it will exercise its power to hear and determine issues which fall within its ‘jurisdiction’ (in the strict sense) or as to circumstances in which it will grant a particular kind of relief which it has ‘jurisdiction’ (in the strict sense) to grant, including its settled practice to refuse to exercise such power, or to grant such relief in particular circumstances.”

My Lords, how can this court declare parliamentary proceedings null and void because it is said to have been conducted “under a certificate of urgency”? Are we, sitting here, to tell or direct Parliament what type of matters it may or may not consider under a certificate of urgency? Can this court scrutinise parliamentary proceedings, let alone declare them null and void? Assuming we grant this declaration, how are we going to enforce it; shall we not run into enforcement problems? The queries can go on ad infinitum. This invitation to us for the assumption of jurisdiction in this matter is, in my view, not only the best prescription for a collision with the legislature and the executive, but also a sign of disrespect for other arms of government, namely, the executive and Parliament.

The plaintiff tried to avoid the enforcement problem by asking this court to declare “the warrant of appointment of the second defendant by the President is null and void, and an order that the second defendant deliver up same to this honourable court for cancellation and that same be duly cancelled.”

That, with due respect, is a preposterous request to make to this court. Has this court got the jurisdiction to declare the appointment of one of its members null and void, let alone revoke a warrant given by the President under official seal? The answer may be found in the case of Stoddart v Prentice (1898) 6 BCR 308 the first headnote of which reads: “The Supreme Court has no power to decide the validity of the appointment of one of its members.” In the Stoddart case (supra) a motion was brought to commit the manager and the editor of the Daily Colonist, for contempt in respect of certain articles published in their paper. There had been a general election in the Province, which resulted in a large number of election petitions. Meanwhile, one Martin had been elevated to the bench and appointed an election judge to deal with the petitions filed. The Justice Martin was alleged to have been an active participant in the political issues raised at the elections. But he, in fulfilment of his duties as a judge of the Supreme Court, was

[p.655] of [1995-96] 1 GLR 598 asked to adjudicate and make orders in some of the election cases. The Daily Colonist published some articles and pointed out the embarrassment which such a position entailed to the judge. The manager and the editor were brought on motion for contempt.

In the cause of the arguments, counsel for the contemnors contended that the appointment by the Dominion Government of the said Mr Martin as a judge of the Supreme Court was ultra vires under section 7 of the Supreme Court Act, as Mr Martin had not the requisite standing at the Bar. Drake J at 315 summarily dismissed the contention in these words:

“He then contended that Mr. Justice Martin was not properly appointed, as he was not of standing indicated by section 10 of CAP. 56 R. 8 B.C. 1897. This is a subject which I cannot discuss. The appointment having been made by the Governor-in-Council, cannot be reviewed by this Court.”

(The emphasis is mine.)

I am sure that the rationale behind the court’s decision to decline jurisdiction is not only the concept of political question, but also what Gunther calls “judicial discretion”, or “prudential judgments” that some issues ought not to be decided by the courts.

It should now be apparent what my attitude is towards the applicability to this case of the principle of non-justiciable “political question.” But I do not intend to rest my decision on the sole ground of inappropriateness of the subject matter for judicial consideration — what we have designated here as “non-justiciable.”

There is another dimension to the jurisdictional aspect of this case and it is important that we maintain the distinction. I am here referring to the possibility of withholding judicial relief from the plaintiff on the ground that if the Supreme Court, to start with, could be said, and I do not admit this, to have “jurisdiction” (in the strict sense), it will, however, not exercise its “jurisdiction” (in the wider sense) because the plaintiff has failed to state a claim which entitles it to judicial relief. Such a situation or circumstance will arise when it is very plain that the plaintiff’s claim is “so attenuated and unsubstantial as to be absolutely devoid of merit”: see the case of Newburyport Water Co v City of Newbury Port, 193 US 561 at 579 (1904).

Without mincing words, the ultimate result this action is intended

[p.656] of [1995-96] 1 GLR 598 to achieve for the plaintiff is the removal of the second defendant as Chief Justice of Ghana, and, as a fall-out, a judge of the Supreme Court. The substratum of the plaintiff’s case, as we have stated earlier, is that the second defendant is not a man “of high moral character and proven integrity” to be the Chief Justice; ipso facto, a judge of the Supreme Court since the qualifications are admittedly the same. For, if the second defendant is disqualified from occupying the post of Chief Justice on grounds of lack of integrity, I do not see how he can continue to be a judge of the Supreme Court. It will clearly be a contradiction in terms and an ambivalent position to take if one asserts otherwise.

I am firmly of the view that the undeclared intention of the plaintiff is to impeach the second defendant not only as Chief Justice but also as a judge of the Supreme Court by using the judicial process. For if we should declare that the second defendant is not a man of “high moral character and proven integrity” to occupy the position of Chief Justice, we would also equally have declared that he is not fit to be a justice of the Supreme Court; not having the basic qualification for such a position either. This invidious scenario is not supported by the Constitution, 1992. Constitutional lawyers will describe such a prospect as “unconstitutional and a subversion of the Constitution.” The procedure for the impeachment of a Chief Justice, a judge of the superior courts, or a chairman of a Regional Tribunal is clearly and unambiguously spelt out in article 146 of the Constitution, 1992. An essential aspect of the impeachment procedure is provided in article 146(8) of the Constitution, 1992 as follows:

“(8) All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.”

The good sense in the constitutional prescription that impeachment proceedings be held in camera, are very obvious and need not be recited here; suffice it to say that the judiciary, as an institution, thrives on the healthy estimation in which it is held by the people it serves. It is therefore not safe to impugn the integrity of a judge in public in case the allegation turns out to be unfounded; hence the constitutional provision that such proceedings be held in camera.

[p.657] of [1995-96] 1 GLR 598

If we accept the present writ for adjudication then we would have guaranteed the plaintiff a public platform to impeach the Second defendant, at least, as a Supreme Court judge. We shall thereby be condoning the violation of his right to be so impeached in camera.

The case is also a direct assault on another provision of the Constitution, 1992, ie section 4(1) of the transitional provisions which “shall have effect notwithstanding anything to the contrary in this Constitution”: see article 299 of the Constitution, 1992. Section 4(1) of the transitional provisions of the Constitution, 1992 states:

“4. (1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this Constitution.”

The necessary implication of the above provision, and I say so without any fear of contradiction, is that all judges of the superior courts are deemed to have the requisite qualification for those various positions, notwithstanding any provision of the Constitution to the contrary. As a matter of constitutional interpretation, therefore, nobody, not even Parliament, could have questioned the qualification, ipso facto the integrity, of Justice I K Abban when he was nominated for the post of Chief Justice. If there is anything against him touching on integrity, the proper procedure for impeachment must be invoked under article 146 of the Constitution, 1992 because he has a constitutional right that his integrity cannot be impugned in public. It would have been different if the President’s nominee was not already on the superior court bench but was coming from outside; then there would be the need to investigate his integrity. Unless such interpretation is put on section 4(1) of the transitional provisions of the Constitution, 1992, Parliament could imperceptibly acquire the power to impeach a superior court judge who is nominated for Chief Justice or as a judge of the Supreme Court. I hold this view because a rejection on the grounds of integrity will mean an impeachment as the nominee cannot retain his previous position. It is this view which prompted Francois JSC to refuse to go to Parliament when he was nominated as a Supreme Court judge. He was then a judge of the Court of Appeal. His reason was that he doubted the constitutionality of the vetting in Parliament.

[p.658] of [1995-96] 1 GLR 598

The question may be asked: What do we do about a corrupt judge of the superior courts who has been nominated as a Chief Justice or as a Supreme Court judge? My answer is that if you could not impeach him before his nomination, better hold your peace; for a judge who is not a man of “high moral character and proven integrity” has no right to be on the bench for even a day. My view is that as a matter of constitutional interpretation, section 4(1) of the transitional provisions of the Constitution, 1992 denies us the jurisdiction to entertain this writ. This is in addition to lack of jurisdiction on grounds of non-justiciability, coupled with the court’s lack of jurisdiction to grant the relief the plaintiff is seeking.

It must be said that this case is without precedent in our legal history. This fact itself must have a profound weight against it. Had it been supposed at the bar that this court has power to meddle in the appointment of a Chief Justice or a judge of the superior courts, it can hardly be doubted that writs with such an object would have been filed long ago. Occasions have not been wanting. To entertain this writ will amount to what Justice Frankfurter refers to as “a massive repudiation of the experience of our whole past” by asserting what he calls a “destructively novel judicial power.”

The need for a virile, fearless and independent judiciary cannot be over emphasised. This suit appears to be a guided missile launched not only at the heart of the judiciary but also at the Constitution, 1992 itself; possibly inadvertently. We cannot, in the circumstances, keep our own patriot missiles permanently fixed to their launch-pads, we must instinctively fire them in defence of the Constitution. I hold the humble view that we cannot in faithfulness to our constitutional system and oath of office say that it is not the function of the executive (the President) and the legislature (Parliament) to appoint the Chief Justice of this country. It is the duty of every citizen to assist the judiciary fight for and retain its independence.

As was pointed out by the Chief Justice of India in a paper on “Judicial Independence” at the Sixth Commonwealth Chief Justices’ Conference in Ottawa, Canada on 26 September 1995:

“The principles of judicial independence should not remain as pious platitudes, mere decorations in the Constitutions of countries but must at all times be protected by strong public opinion. In spite of solemn declarations of the necessity of an

[p.659] of [1995-96] 1 GLR 598 independent and impartial judiciary and the reiteration thereof in various international fora, it is common knowledge that at times efforts are made to undermine the same … It is not only that the threat to the independence of the judiciary is from the executive but very often we find judges being singled out for attack by organised bodies including at times by Bar Associations.”

I cannot conclude this ruling without reference to the words of that champion of the philosophy of judicial self-restraint, Justice Frankfurter in the case of Trop v Dulless, 356 US 86 at 120 (1958): “It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy.. It must observe a fastidious regard for limitations on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.”

The emphasis is mine.) My Lords, I have had to give an anxious consideration to the question whether we have jurisdiction to adjudicate on the issues submitted to us for determination. I have arrived at the inescapable conclusion that to accept the writ and embark on the inquiry will be an unconstitutional adventure. I will therefore cast my vote that the preliminary objection be upheld.

JUDGMENT OF ADJABENG JSC.

I agree with my learned brothers and sister that this court has no jurisdiction to entertain the plaintiff’s action. The plaintiff-association, by its reliefs (2) and (4), admits that the second defendant was appointed the Chief Justice on 22 February 1995 by the President after His Excellency had consulted the Council of State and sought the approval of Parliament as is required by article 144(1) of our Constitution, 1992. It is admitted also that a warrant was issued by His Excellency on the appointment in favour of the second defendant.

Now, the plaintiff wants us not only to declare this warrant of appointment null and void; we are also to order the second defendant to deliver up this warrant to us with the request that we cancel it.

[p.660] of [1995-96] 1 GLR 598

This no doubt means that this court is being asked by the plaintiff association to remove the Chief Justice from his office. The question is: can we do that? Does the Constitution, 1992 give us power to remove His Lordship the Chief Justice? The answer obviously is no. We do not have any such power.

The Constitution, 1992, as the fundamental law of the land, assigns functions to the various institutions and persons and gives them power for the performance of the duties assigned. It prescribes how the power given should be used. Our Constitution, 1992, it must be emphasised, has not given power to this court to remove a Chief Justice. Nor does it give power to this court or to any other court in this country to remove a judge or even a judicial officer. Article 146 of the Constitution, 1992 does provide for the removal of a Chief Justice, a justice of the superior courts, and a chairman of a Regional Tribunal. The article also clearly states the one who can do any such removal. It must be emphasised that neither this court nor any other court has been entrusted with that responsibility. Article 146(1) and (2) of the Constitution, 1992 provides:

“146. (1) A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.

(2) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article.”

(The emphasis is mine.) According to article 146(3) of the Constitution, 1992, the procedure starts with a petition to the President.

In respect of the removal of a Chief Justice under article 146 of the Constitution, 1992, clauses (6), (7) and (9) thereof provide that:

“(6) Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers. (7) The committee appointed under clause (6) of this

[p.661] of [1995-96] 1 GLR 598 article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office . . .

(9) The President shall, in each case, act in accordance with the recommendations of the committee.”

It is clear from the above that under our Constitution, 1992 a Chief Justice, a justice of the superior court of judicature, and a chairman of a Regional Tribunal can only be removed from office by the President, acting on the recommendations of a committee appointed by the President or the Chief Justice, as the case may be, to inquire into a petition sent to the President alleging some misbehaviour or incompetence against the one concerned, or his inability to perform his functions because of infirmity of body or mind. It is important to note that article 146(8) of the Constitution, 1992 provides that the proceedings of the committee appointed to deal with any such petition “shall be held in camera.” It is mandatory that such proceedings be held in private, not in public or open court as has unfortunately been done in this case. The reason for this important provision is obvious. It is to preserve, protect and safeguard the authority, dignity and independence of the judiciary. It would be a sad day for this country if this court were to grant the request of the plaintiff-association and start removing our judges in open court contrary to the provisions made in the Constitution, 1992 for the purpose.

It is in the light of these observations that I consider this action of the plaintiff-association, who should be expected to know better, most unfortunate as it is likely to undermine the judiciary, in particular, and the rule of law, in general.

As my learned and respected brother, Charles Hayfron-Benjamin JSC, said in his opinion in the celebrated case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35 at 171-172, SC, the clear duty of this court in constitutional matters is to:

“. . . discover the intent and meaning of the letter and spirit of the Constitution, 1992 or of any relevant article thereof and ‘to execute the will of those who made it, in the best manner to effect the purpose intended.”’ There is no doubt that it is not the will and intention of those who made our Constitution, 1992 to give power to this court to remove judges or [p.662] of [1995-96] 1 GLR 598 Chief Justices.

The action must be dismissed with costs.

DECISION Preliminary objection upheld.

Action dismissed.

DRKS