MENSAH vs. ATTORNEY-GENERAL [1997-98] 1 GLR 227

CASES REFERRED TO

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

(2) Powell v McCormack, 395 US 486; LEd 2d 491; 89 Sct 1944 502 (1969).

(3) Alejandrino v Quezon, 271 US 528 (1926).

(4) Baker v Carr, 369 US 186 (1962).

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

(6) Kwakye v Attorney-General [1981] GLR 944, SC.

(7) Ghana Bar Association v Attorney-General [1994-95] GBR 290; [1995] 1 GSCJ 1, SC. (8) United States v Concentrated Phosphate Exp Assn, 393 US 199 (1968).

(9) United States v W T Grant Co, 345 US 629 (1953).

(10) Kidder v West (1684) 3 Kev 167.

(11) Colegrave v Green, 328 US 549 (1946).

(12) Marbury v Madison 1 Cranch 137; 2 LEd 60 (1803).

(13) Luther v Borden, 7 How 1 [1849].

(14) Gray v Sanders, 372 US 368 (1963).

(15) Wesberry v Sanders, 376 US 1 (1964).

(16) Reynolds v Sims, 377 US 533; 84 SCt 1362 (1964).

(17) Avery v Midland Country, 390 US 474 (1968).

(18) Wells v Rockfeller, 394 US 542 (1969).

(19) Nixon v United States, 506 US 224; 113 SCt 732 (1993).

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

NATURE OF PROCEEDINGS

ACTION by the Minority Leader for, inter alia, a declaration that on a true and proper interpretation of articles 78(1) and 79(1) and other specified articles of the Constitution, 1992 no person can after 6 January 1997 act as a minister or deputy minister of state without the prior approval of his appointment by the Second Parliament of the Fourth Republic. The facts are sufficiently set out in the judgments of Aikins and Acquah JJSC.

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COUNSEL

Hon Nana Akufo-Addo, MP (with him Akoto Ampaw) for the plaintiff.

Hon Dr Obed Asamoah, Attorney-General (with him Hon Martin Amidu, Deputy Attorney-General and Avah, Chief State Attorney) for the defendant.

JUDGMENT OF AIKINS JSC.

Lord Patrick Devlin in his renowned book entitled The Judge (1979) at p 4 stated:

“If a judge leaves the law and makes his own decision, even if in substance they are just, he loses the protection of the law and sacrifices the appearance of impartiality which is given by adherence to the law. He expresses himself personally to the dissatisfied litigant and exposes himself to criticism. But if the stroke is inflicted by law, it leaves no sense of individual injustice; the losing party is not a victim who has been singled out; it is the same for everybody he says. And how many a defeated litigant has salved his wounds with the thought that the law is an ass.”

It is with these words of wisdom operating on my mind that I have set off on the journey of writing this opinion.

Introduction On 7 February 1997 the plaintiff issued out a writ against the defendant claiming a declaration that:

“(i) on a true and proper interpretation of the Constitution, particularly articles 57(3), 58(1) and (3), 66(1), 76(1) and (2) 78(1) 79(1), 80, 81, 97(1)(a), 100(1), 113(1) and (3) thereof, no person can after 6 January 1997 act as minister or deputy minister of state without the prior approval by the Second Parliament of the Fourth Republic of his appointment.

(ii) Accordingly, any person who has not been so approved and appointed cannot lawfully act or hold himself out as a minister or deputy minister of state.”

A copy of the writ together with a copy of the accompanying affidavit was served on the defendant, and a further copy was [p.234] of [1997-98] 1 GLR 227 made available to the Speaker of Parliament. Later the plaintiff officially laid a copy before Parliament. Meanwhile, it had been announced that Mr Kwame Peprah, Minister of Finance, would appear before Parliament to present the budget on that very day the copy of the writ was laid before Parliament, that is 7 February 1997. With this information, the Leader of Parliament, Hon J H Owusu Acheampong announced to Parliament that in view of the pendency of the action before the court the purported appearance before the house of Mr Kwame Peprah, to present the budget, or any other person describing himself as a minister but whose appointment had not received the prior approval of the Second Parliament of the Fourth Republic would be sub judice and would be deferred.

By virtue of Order 172(2) of the Standing Orders of Parliament, it is the duty of the appointments committee of Parliament to recommend to Parliament for approval or otherwise, persons nominated by the President for appointment as ministers and deputy ministers. By his letter Ref OP/ S.807 dated 10 February 1997 the President brought to the notice of the Speaker of Parliament that he had decided to retain seven ministers of state.

The appointments committee of Parliament met on 13 February 1997 to deliberate on the matter and decided that where an incumbent minister or deputy minister is retained as a minister or deputy minister by the President, it shall not be necessary for the minister or deputy minister to be summoned to appear before the appointments committee for recommendations to be made to Parliament for reapproval of the minister or deputy minister in view of the previous parliamentary approval.

The following day, ie 14 February 1997, the chairman of the appointments committee, Hon Mr Kenneth Dzirasah, who is also the First Deputy Speaker of Parliament, introduced a motion in Parliament calling on Parliament to accept the decision of the appointments committee mentioned above. Thereupon Parliament resolved that if a person has been appointed a minister or deputy minister with the approval of a previous Parliament, and as an incumbent minister or deputy minister, he is retained by the President, it shall not be necessary for Parliament, ie the current Parliament, to give another approval of such minister or deputy minister. The said ministers were never made to appear before

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Parliament for the necessary approval mechanisms to be followed. The Speaker of Parliament by his letter Ref No 2033 dated 18 February 1997 addressed to the President in reply to his letter aforementioned dated 10 February 1997 conveyed the resolution of Parliament as follows:

“If a person has been appointed a Minister or Deputy Minister with the approval of Parliament and as an incumbent Minister or Deputy Minister, he is retained by the President, it shall not be necessary for Parliament to give another approval of such Minister or Deputy Minister.

In accordance with this resolution therefore the underlisted Ministers of State stand approved by Parliament:

1. Mr Richard Kwame Peprah—Minister of Finance.

2. Mr J H Owusu-Acheampong—Minister of Parliamentary Affairs.

3. Dr Eunice Brookman-Amissah—Minister of Health.

4. Mr Cletus Avoka (MP) —Regional Minister, Upper East Region.

5. Mr Edward Saliah—Minister of Transport and Communications.

6. Mrs Vida A Yeboah (MP) —Minister of Tourism.

7. Dr Kwabena Adjei (MP) —Minister of Lands and Forestry.”

The same day, 18 February 1997, the plaintiff filed a motion for an interim injunction to stop Mr Kwame Peprah from reading the budget the following day, 19 February 1997, but in the event that motion was never listed for hearing, and Mr Kwame Peprah had the opportunity to read his budget.

Amendment of the plaintiff’s writ

On 4 March 1997, the plaintiff sought leave of the court to amend his writ and statement of claim to insert as a new relief (ii) the following: “(ii) a necessary incident of prior approval is the consideration and vetting of each nominee for ministerial appointment by the Second Parliament of the Fourth Republic”, and to

[p.236] of [1997-98] 1 GLR 227 insert as a new paragraph (8) of the statement of the plaintiff’s case the following:

“(8) The plaintiff says that a necessary incident of prior approval is the consideration and vetting of each nominee for ministerial appointment by the Second Parliament of the Fourth Republic, which had not been effected with regard to the ministers and deputy ministers of state appointed by the President of the Fourth Republic.”

The Attorney-General opposed this application, and said he found it a little odd that this application should be made after the court had ordered that the parties should file their submissions. Counsel for the plaintiff moved the court in terms of the motion paper and supporting affidavit, and drew the court’s attention to the fact that the Attorney-General had responded to the amendment in his written submissions. In reply, the Attorney-General submitted that the application changed the nature of the case, and for that reason the application should be rejected.

We granted the application, but reserved our reasons to be embodied in the main judgment. I now give my reasons for concurring in the decision of the court to allow the amendment. This court has power to allow either party under rule 49 of the Supreme Court Rules, 1996 (CI 16) to amend its writ or statement of case at any time with leave of the court on such terms as the court may determine. We were satisfied that the application did not change the nature of the case and that since the defendant had in his statement of case responded to the amendment sought, we granted it, and ordered that it should be taken as admitted and served on the defendant. We permitted the defendant to file an amended statement of his case within one week, if he so wished. The plaintiff was further ordered to file his submissions within two weeks from that date and that the defendant should be at liberty to respond within one week of service of the plaintiff’s submission.

Issues that call for determination

The issues that call for determination in this case are:

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(i) whether the term of office of ministers and deputy ministers of state appointed by the first President of the Fourth Republic ended on 6 January 1996;

(ii) whether prior approval of the Second Parliament of the Fourth Republic is required before a minister or deputy minister appointed by the first President of the Fourth Parliament can legally act or hold himself out as minister or deputy minister of state;

(iii) whether a necessary incident of prior approval is the consideration and vetting of each nominee for ministerial appointment by the Second Parliament of the Fourth Republic;

(iv) whether the requirement of prior parliamentary approval extends to all persons, whether new or retained as ministers or deputy ministers; and

(v) whether “prior approval” is a term of art, and if so, what meaning can be attached to it.

Argument that plaintiff’s action be struck out

The Attorney-General submitted that the plaintiff’s action be struck out for the following reasons:

(a) By the plaintiff’s case there is no defendant before this court.

(b) No issue of interpretation has legitimately been raised.

(c) The action in certain respects seeks to involve the court in deciding questions which are within the competence of other organs of government.

(d) The questions raised for determination are moot.

Arguing the first leg of his objection, the Attorney-General is of the view that the plaintiff is in a quandary by suing him as a defendant, and submits that if the Attorney-General is not a minister then there is no defendant before the court and the action must be thrown out, but if he is a minister the defendant has no case. He contends that the plaintiff cannot claim that the term of office of ministers ended on 6 January but single out the Attorney-General as continuing in office for purposes of his writ.

I think that contention is, with respect, misconceived. Whether the Attorney-General is a minister or not, he is properly before the court as a defendant because the plaintiff is suing his office under

[p.238] of [1997-98] 1 GLR 227 article 88(5) of the Constitution, 1992 which requires that all civil proceedings against the State shall be instituted against the Attorney-General. I agree with Nana Akufo-Addo, counsel for the plaintiff, that it is not the individual personality of the Attorney-General which is the object of proceedings against the Attorney-General. He only acts as a nominal representative of the State and the government. As a result, where a judgment is given against the Attorney-General, it is not against him personally but against the State and the government he represents. The argument of the Attorney-General is therefore unimpressive and spineless.

The next point is the contention that no issue of interpretation has legitimately been raised. The Attorney-General draws a distinction between his case and the case of Tuffour v Attorney-General [1980] GLR 637, SC and argues that whereas the Tuffour case (supra) was concerned with the interpretation of the phrase “shall be deemed” in article 127(8) of the Constitution, 1979 and the court had recourse to its use in other provisions of the Constitution, 1979 to give it meaning, in the instant case the court is being asked to add to article 81 of the Constitution, 1992 another basis for the determination of the office of a minister by reference to the provisions relating to the terms of the President and Parliament.

I think the Attorney-General has missed the point of the plaintiff’s thinking. It seems to me the plaintiff is asking for a declaratory relief that on a true and proper interpretation of the Constitution, 1992, particularly article 81 and other articles of the Constitution, 1992 mentioned by him, no person can after 6 January 1997 act as a minister or deputy minister of state without the prior approval by the Second Parliament of the Fourth Republic of his appointment. Article 81 of the Constitution, 1992 provides for circumstances under which the office of a minister or a deputy minister shall become vacant. The question is whether there is a controversy between the parties; if there is, the court will have to find out whether a duty, right and liability can be established. I think there is a controversy regarding the status of a minister or deputy minister of state as at 7 January 1997, the determination of which depends on interpretation. Once there is a controversy, a justiciable issue, the court has jurisdiction to entertain the issue raised by the plaintiff’s writ; in which case, in my

[p.239] of [1997-98] 1 GLR 227 view, the plaintiff can be said to be properly before the court: see the Tuffour case (supra).

The third point relates to the action seeking to involve the court in deciding questions which are within the competence of other organs of government. This matter will be dealt with when I come to consider one of the main issues in this case.

The last point relates to questions raised for determination which the Attorney-General contends are moot.

Moonesst issue

The learned Attorney-General’s point is that the matter should be dismissed because the questions raised for determination are moot since the President out of caution is currently submitting the names of retained ministers to Parliament, and that Parliament has evolved a procedure for approval. The issue is said to be moot because of the uncertainty clouding it. In other words, a case is moot “when the issues presented are no longer, ‘live’ or the parties lack a legally cognizable interest in the outcome”: see the US case of Powell v McCormack, 395 US 486 at 496 (1969) per Chief Justice Warren delivering the opinion of the court.

In that case the petitioner’s complaint named the official responsible for the payment of congressional salaries and asked for both mandamus and an injunction against the official. Chief Justice Warren, giving his opinion about circumstances leading to dismissal of a cause as moot, said at 498-499 of the judgment of the court:

“ … even if respondents are correct that the petitioners’ averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available when Alejandrino was decided. A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus . . . A declaratory judgment can then be used as a predicate to further relief, including an injunction.”

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Distinguishing Alejandrino v Quezon, 271 US 528 (1926) from the Powell case (supra), the Chief Justice continued to say that Alejandrino (supra) stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy the action should be dismissed as moot, but there was no suggestion that petitioner’s averments as to declaratory relief are insufficient and Powell’s allegedly unconstitutional deprivation of salary remained unresolved.

In my view the issue in the instant case is still live, and the fact that the President is submitting names of retained ministers to Parliament is of no moment. I reject the Attorney-General’s proposition that mootness of a “primary” claim requires a conclusion that all “secondary” claims are moot. It confuses mootness with whether Mr Mensah has established the right to a declaration that Parliament’s action is unconstitutional, a question which it is inappropriate to treat at this stage of the litigation. It is still unresolved and is hotly contested and there is no suggestion that his averments as to declaratory relief are insufficient. In the result, I on my part find it unreasonable to accede to the request of the Attorney-General to strike out the plaintiff’s action. I reject it.

Learned counsel for the plaintiff, Nana Akuffo-Addo, submits that a presidential nominee for ministerial appointment requires the prior approval of Parliament before he can act or hold himself out as a minister or a deputy minister of state, and relies on the provisions of articles 78(1) and 79(1) of the Constitution, 1992. The Attorney-General, Dr Obed Asamoah, does not appear to dispute this as far as appointment of new ministers and deputy ministers of state is concerned. He concedes that on first appointment all ministers and deputy ministers need parliamentary approval before assuming office in accordance with the provisions of article 78(1) of the Constitution, 1992, but contends that with regard to the tenure of office of ministers and deputy ministers retained from a previous administration, they need no re-approval by Parliament for them to continue in office. He submits that there is no law currently in force in Ghana which calls for vetting, and that the process by which Parliament exercises its sovereign powers cannot be questioned by the courts. The contention of the Attorney-General is that the term of office of a minister or deputy

[p.241] of [1997-98] 1 GLR 227 minister of state is not limited, as it is the case of the President who appointed him and that of Parliament which approved his appointment, and he buttresses his stance with article 81 of the Constitution, 1992 which deals with how the office of a minister or his deputy becomes vacant, and contends that the term of office of a minister ends only with the occurrence of one of the four conditions contained in that article, and since article 81 of the Constitution, 1992 does not stipulate that a minister’s term ends with the end of the term of the President or Parliament, it is untenable to argue that the term of a minister appointed by the President during his first term ends with that term.

Article 78(1) of the Constitution, 1992 stipulates as follows:

“78. (1) Ministers of State shall be appointed by the President with the prior approval of Parliament from among members of Parliament or persons qualified to be elected as members of Parliament, except that the majority of Ministers of State shall be appointed from among members of Parliament.”

(The emphasis is mine.) And article 79(1) of the Constitution, 1992 reads: “The President may, in consultation with a Minister of State, and with the prior approval of Parliament, appoint one or more Deputy Ministers to assist the Minister in the performance of his functions.” (The emphasis is mine.) Article 81 of the Constitution, 1992 also states:

“81. The office of a Minister of State or a Deputy Minister of State shall become vacant if— (a) his appointment is revoked by the President; or (b) he is elected as Speaker or Deputy Speaker; or (c) he resigns from office; or (d) he dies.”

The wording of article 78(1) of the Constitution, 1992 is clear. Since ministers are appointed by the President with the prior approval of Parliament, it stands to reason that when both the President and Parliament leave the scene, ie when their term of office ends, the minister cannot be perpetually left behind to work on his own. His role was to assist the President, so when the

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President leaves the scene, does the minister who receives instructions from the President remain a pillar by himself? I don’t think so. The same situation applies to the deputy minister under article 79(1) of the Constitution, 1992 though in his case instruction can issue to him by his minister.

I agree with the Attorney-General that the language of article 81 of Constitution, 1992 is clear and there is no issue calling for its interpretation, especially as the plaintiff also has not called for its interpretation. I do not understand the plaintiff by his argument to mean that any additional words should be introduced into the article. His submission is simply that by the combined effect of articles 58(1) and (3), 78(1) and (2), 79(1) and (2), 80, 97(1), 100(1) and 113(1) of the Constitution, 1992 not only is there a term of the tenure of office of a minister but also that term is coterminous with the term of Parliament and the President that approved his nomination and appointed him, respectively. Counsel’s point is that since under article 58(1) of the Constitution, 1992 the executive authority of Ghana vests with the President, and the functions performed by any minister or deputy minister are functions of the President, such minister or deputy minister acts on behalf and in the name of the President when acting as such by virtue of article 58(4) of the Constitution. As a result, a minister or a deputy minister has no independent existence. He is merely an agent, auxiliary arms, legs, feet and then parts of the President, and lives and dies with the President. He submits that as the President’s term of office is four years, his ministers’ and deputy ministers’ term of office a fortiori ends at the end of the four year term of the President. This may be self-evident but can one forcefully maintain that it is because of this that the framers of the Constitution, 1992 made no provision in the Constitution? I wonder. It seems to me that if this situation is so obvious, self-evident and important the framers of the Constitution, 1992 would have definitely made a provision for it in the Constitution. How superfluous would it have been, and to what extent?

Counsel wonders how while the two organs that form the basis of the existence of a minister and a deputy minister of state, ie the President and Parliament, ceased to exist after four years, their foetus, the ministers, who continue to depend for their lives on the existence of these organs of state, can enjoy independent lives

[p.243] of [1997-98] 1 GLR 227 of their own beyond those of Parliament and the President, without any express provision of the Constitution, 1992 to that effect. I also wonder! But counsel explains it off by contending that it makes a mockery of the Republican principle on which the Constitution, 1992 is built to suggest that whilst the President and members of Parliament are duly accountable to the electorate at the end of their term if they seek to continue in office, their creature, the minister of state, who is not directly elected by the people, and is for that reason required to be endorsed into office by the elected representatives of the people, has no such obligation of accountability to continue in office. This is quite an ingenious argument but is the act constitutional? I do not believe so. On this issue counsel for the plaintiff finally submits (and I agree with him) that where the President in his second term wishes to re-appoint such persons as ministers or deputy ministers of state, he must do so, in the express and unambiguous words of article 78(1) and 79(1) of the Constitution, 1992, “with prior approval of Parliament”, that is of the Second or current Parliament.

I now come to the third question, ie the meaning of the phrase “prior approval of Parliament” mentioned in articles 78(1) and 79(1) of the Constitution, 1992. Counsel submits that this phrase is a term of art having a technical meaning, ie screening, assessing, questioning and vetting when one takes into consideration the history of this country, the debates in the Constituent Assembly (1978-79) and the Consultative Assembly (1991-92), the views of the committee of experts in deleting the need for approval by Parliament of persons nominated as Chief Justice or justices of the Supreme Court, and the guiding constitutional principle of probity and accountability to which the people of this country solemnly declare and affirm their commitment to in the preamble to the Constitution, 1992. He contends that there is implicit in the process of approval, a judgment based on evaluation and inquiry, namely assessment, scrutiny, vetting to determine whether what is being approved meets the requisite standard. He buttresses his contention with the definition of the word “approval” as contained in Black’s Law Dictionary (Abridged, 6th ed, 1991): “The act of confirming, satisfying, as scrutiny sanctioning or consenting to some act or thing done by another. Approval implies knowledge and exercise of discretion after knowledge.” And also Webster’s

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Third New International Dictionary (Language Unabridged) (3rd ed, 1968) defining approval as “the act of approving”, and the verb “approve” as defined at p 106, among other things as “a. make or show to be worthy of approbation or acceptance; b. to judge and find commendable or acceptable.”

In the light of the above, counsel contends further that the Constitution, 1992 enjoins Parliament to give its prior approval (ie consider, examine and vet) to each person nominated by the President for ministerial office, and that it is each Parliament’s duty to perform this function, involving the independent judgment of Parliament which the Constitution, 1992 forbids one Parliament to shirk by substitution for it another Parliament’s judgment. In other words, this requirement cannot be carried by any procedure or resolution by Parliament that “hold-over ministers” do not need to be vetted because a constitutional requirement cannot be overruled by Parliament under cover of Parliament being master of its own internal procedures. This would mean, he asserted, that an individual member of the appointments committee of Parliament who would want to pose questions to the “hold-over minister”—as to his competence or integrity—would be prevented by the edict of the majority.

The Attorney-General, however, thinks that the point is ill-founded. Essentially he contends that the requirement of prior parliamentary approval does not apply to “hold-over ministers”, and that the phrase “with prior approval of Parliament” does not mean the consideration and vetting of such ministers, nor is it meant to “institute a regime of witch hunting and malicious slander under the cover of absolute parliamentary privilege.” He supports his contention with articles 89(6), 124(5) and 174(2) of the Constitution, 1992 among others and maintains that the phrase as used in these articles cannot support the views of counsel for the plaintiff. For convenience, I quote these articles:

“89. (6) The appointment of a member of the Council of State may be terminated by the President on grounds of stated misbehaviour or of inability to perform his functions arising from infirmity of body or mind, and with the prior approval of Parliament …

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124. (5) The Parliamentary Service Board shall, with the prior approval of Parliament, make regulations, by constitutional instrument, prescribing the terms and conditions of service of the officers and other employees in the Parliamentary Service and generally for the effective and efficient administration of the Parliamentary Service …

174. (2) Where an Act, enacted in accordance with clause (1) of this article, confers power on any person or authority to waive or vary a tax imposed by that Act, the exercise of the power of waiver or variation, in favour of any person or authority, shall be subject to the prior approval of Parliament by resolution.”

(The emphasis is mine.)

The Attorney-General further argues that even if this court accepts the dictionary meaning referred to by counsel for the plaintiff as the ordinary meaning of the word “approval”, the process or procedure by which Parliament gives approval is not the business of this court.

The plaintiff then poses the following questions for the consideration of the court:

(1) a presidential nominee for ministerial appointment requires prior approval of Parliament before he can act or hold himself out as minister or deputy minister of state;

(2) the requirement of prior parliamentary approval applies to all persons, whether retained or “new”;

(3) a necessary incident of the “prior approval of Parliament” under the Constitution, 1992 is the consideration and vetting by Parliament of each nominee;

(4) Parliament cannot by the manipulation of its own procedures grant “prior approval” in a manner in which the elements of consideration and vetting of each nominee are excluded.

After examining closely submissions of both counsel, it seems to me incontestable that the phrase “prior approval of Parliament” is not used as a term of art throughout the various provisions of the Constitution, 1992 but it is a convenient portmanteau term for what is usually the situation one way or the other; that it may

[p.246] of [1997-98] 1 GLR 227 mean assessment, scrutiny, or vetting to determine whether what is being approved meets the requisite standard, as contends by Nana Akufo-Addo, counsel for the plaintiff, or as in the three examples given by the Attorney-General counsel for the defendant with the three situations given above, namely articles 89(6), 124(5) and 174(2) of the Constitution, 1992. It cannot be said with all seriousness that the termination of appointment of a member of the Council of State by the President in article 89(6) of the Constitution, 1992 with the prior approval of Parliament means vetting and scrutiny; neither can it be said that the making of regulations by the Parliamentary Service Board in article 124(5) with the prior approval of Parliament means vetting, nor the exercise of power of waiver or variation in favour of any person or authority in article 174(2) subject to the prior approval of Parliament by resolution means vetting. It seems to me that it is a convenient term for describing the usual triangular situation that arises in these cases.

However, the argument of the Attorney-General that the requirement of prior approval does not apply to “hold-over ministers”, and that the phrase does not mean the consideration and vetting of such ministers is untenable. It is unambiguously clear that the appointment of ministers and deputy ministers of state by the President under articles 78(1) and 79(1) of the Constitution, 1992 shall be with the prior approval of Parliament, and Parliament here should mean the current Parliament and not the previous Parliament. If the framers of the Constitution, 1992 had intended to refer to the erstwhile Parliament they would have stated so. It stands to reason that when a new Parliament and a new President are sworn in, all such ministers intended to assist the President in his deliberations must be appointed in accordance with the provisions of articles 78(1) and 79(1) of the Constitution, 1992 before they assume office as such officers. If the presidential candidate for the New Patriotic Party or the Peoples’ Convention Party had won the elections, it would be absurd to suggest that the ministers and deputy ministers of the previous regime should be retained to avoid creating a power vacuum.

This type of argument is far-fetched. In view of the reasoning above, it is my judgment that the answers for the first three

[p.247] of [1997-98] 1 GLR 227 questions posed by counsel for the plaintiff, Nana Akuffo-Addo, should be in the affirmative, that is to say—

(1) A presidential nominee for ministerial appointment requires the prior approval of Parliament before he can act or hold himself out as minister or deputy minister of state.

(2) The requirement of prior parliamentary approval of Parliament applies to all persons, whether “retained” or “new.”

(3) A necessary incident of “prior approval of Parliament” under the Constitution, 1992 is the consideration and vetting by Parliament of each nominee.

The second part of the question posed in question (3) which I have put down as question (4) will be dealt with later in this judgment.

The political question doctrine

I now turn to the second question posed by the Attorney-General, that is, the process by which Parliament exercises its sovereign power cannot be questioned by the courts—the allegedly political question doctrine. Admittedly, the principle of a non-justiciable political question is an American formulation that is steadily creeping into the Ghanaian legal jurisprudence. In the American case of Baker v Carr, 369 US 186 (1962) the court discussed the political question doctrine and noted that political questions are not justiciable primarily because of the question of separation of powers. It pointed out at 198 that in deciding generally whether a claim is justiciable, a court must determine whether “the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” But in Powell v McCormack, 395 US 486 (1969) the court said in order to determine whether there is a textual commitment to a co-ordinate department of government, the Constitution must be interpreted to determine first what power the Constitution confers upon the house through article 1, clause 5 before the court can determine to what extent, if any, the exercise of that power is subject to judicial review.

In the instant case, if examination of the provision of a particular article gives Parliament judicially unreviewable power to

[p.248] of [1997-98] 1 GLR 227 decide questions which are within its competence, further review by the court may be said to be barred by the political question doctrine. To determine whether there has been a textual commitment to Parliament, a co-ordinate department of the government, the court must interpret the Constitution. In other words, the court must first determine what power the Constitution confers on Parliament before it can determine to what extent, if any, the exercise of that power is subject to judicial review. That is if, as in this case, articles 78(1) and 79(1) of the Constitution, 1992 entitle Parliament to give prior approval to a nominee of the President before he is appointed by him as a minister or deputy minister of state, further consideration by the court will be necessary to determine the extent and scope of that power and whether the action exceeds or is in conformity with whatever authority has been committed. This in itself is a delicate exercise in constitutional interpretation, and is the responsibility of the court as ultimate interpreter. In order to determine the scope of any “textual commitment” under articles 78(1) and 79(1) of the Constitution, 1992 we must necessarily determine the meaning of the phrase “with the prior approval of.” The court cannot justifiably avoid its constitutional responsibility, and it will be palpably wrong to suggest that the court will be usurping the constitutional function of Parliament if the court exercises its original and exclusive jurisdiction to interpret and enforce the Constitution, 1992 as the Attorney-General seems to contend. The fact that such matter involves a political question does not necessarily mean that it cannot be adjudicated upon as is illustrated by Powell v McCormack (supra).

Facts of Powell v McCormack

A brief narration of the facts of the Powell case (supra) will assist in appreciating the foregoing opinion. In this case the petitioner, Adam Clayton Powell Jnr, had been elected to the US Congress to represent the Harlem area of New York. When the 90th Congress met to organise in January 1967, Powell was asked to step aside while oath was administered to the other members-elect. The house discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate the house adopted house resolution No 1 by a vote of

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363 to 65, which provided that the Speaker should appoint a select committee to determine Powell’s eligibility.

The select committee, composed of nine lawyer-members, invited Powell to testify before the committee. The invitation letter stated that the scope of the testimony and investigation would include Powell’s qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt) and other matters relative to alleged official misconduct since 3 January 1961. During his testimony Powell, upon advice of counsel, only gave an information relating to his age, citizenship, and residency.

The select committee later on 10 February 1967, issued another invitation informing Powell that its responsibility under the house resolution extended to determining not only whether he met the standing qualifications of article 1, clause 2 but also to inquire into the question of whether he should be punished or expelled pursuant to the powers granted the house under article 1, section 5 of the Constitution. Powell did not appear at the next hearing, but was represented by his attorneys who informed the committee that Powell would not testify about matters other than his eligibility under the standing qualifications of article 2, clause 2. Powell’s attorneys reasserted Powell’s contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated.

The committee in its report found that Powell met the standing qualifications of article 1, clause 2, but reported further that Powell had asserted an unwarranted privilege and immunity from the process of the courts of New York; that he had wrongfully diverted house funds for the use of others and himself; and that he made false reports on expenditures of foreign currency to the committee on house administration.

The committee recommended that Powell be sworn and seated as a member of the 90th Congress but that he be censured by the house, fined $40,000 and be deprived of his seniority.

The house debated the select committee’s proposed resolution but rejected a motion to bring the resolution to a vote. An amendment to the resolution No 278 was adopted excluding Powell and directing that the Speaker notify the Governor of New

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York that the seat was vacant. Powell and thirteen voters of the 18th Congressional District instituted this suit in the United States District Court for the District of Columbia alleging that house resolution No 278 violated the Constitution, and requested, among other things, a declaratory judgment that Powell’s exclusion was unconstitutional.

The district court granted the respondents’ motion to dismiss the complaint “for want of jurisdiction of the subject matter.” This decision was affirmed by the Court of Appeals for the District of Columbia Circuit on somewhat different grounds, with each judge of the panel filing a separate opinion. The Supreme Court granted certiorari, and held, inter alia, that the House of Representatives lacks power to exclude from its membership a person who has been duly elected as a congressman and who meets the age, citizenship, and residence requirement specified in article 1, clause 2, of the Federal Constitution; and such person after being excluded from membership by a House of Representatives’ resolution, is entitled to a declaratory judgment that his exclusion was unlawful. In other words the US Supreme Court concluded 548 that:

“Art. I, 5 is at most ‘a textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore the ‘textual commitment’ formulation of the political question doctrine does not bar federal courts from adjudicating petitioners’ action.”

Concerning other aspects of the political question doctrine which were urged upon the US Supreme Court, the court succinctly and correctly held thus at 548-549:

“Respondents’ alternative contention is that the case presents a political question because judicial resolution of petitioner’s claim would produce a ‘potentially embarrassing confrontation between coordinate branches’ of the Federal Government. But, as our interpretation of Art. I, 5, discloses, a determination of petitioner Powell’s right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accord

[p.251] of [1997-98] 1 GLR 227 d courts to interpret the law, and does not involve a ‘lack of respect due [a] coordinate [branch] of government,’ nor does it involve an ‘initial policy determination of a kind clearly for non-judicial discretion.’ . . . Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility.”

What I gather from the foregoing opinion is that the fact that the matter is a political question does not determine the matter. It is rather the power vested in a particular branch of government, and it is the interpretation of the Constitution that determines the question, and the tribunals that are constitutionally appropriate and responsible to perform that function are the federal courts. In Ghana the situation is not different. The case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC confirmed that the Supreme Court was entitled to decide questions of a political nature since in Ghana it is the Constitution, 1992 and not Parliament which is supreme, as distinct from the British Constitution which makes Parliament supreme and operated without the limitation of a written Constitution. In our situation, it is the Constitution and not Parliament which is supreme, and accordingly any Act passed by Parliament which is inconsistent with the Constitution can be declared null and void, even though the Act dealt with a political question. This was founded on article 93(2) of the Constitution, 1992 which provides: “Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.” To hold otherwise will be subverting the Constitution, 1992 and the rule of law.

Exercise of Parliament’s powers of approval

The Attorney-General argues rather strongly that there can be no legal challenge to the resolution on the approval process by Parliament. In other words, that how Parliament goes about exercising its powers of approval cannot be questioned in this court. He seems to be emphatic in his position because in his

[p.252] of [1997-98] 1 GLR 227 view this is a matter of internal procedure in Parliament, and he supports his contention with Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC, particularly at 650 where Sowah JSC (as he then was) had this to say:

“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 put it, ‘unknown to the courts.”

And therefore the courts take judicial notice of what 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 courts cannot therefore inquire into the legality or illegality of what happened in Parliament.”

(The emphasis is partly mine.) It is pertinent to note that shortly after this statement, his lordship said at 651: “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 emphasis is partly mine.)

In that case, the plaintiff issued out a writ against the Speaker of Parliament and the Attorney-General before the Court of

[p.253] of [1997-98] 1 GLR 227

Appeal sitting as the Supreme Court for a declaration that: (a) on the coming into force of the Constitution, Justice Apaloo was deemed to have been appointed Chief Justice and as such became the president and a member of the Supreme Court; and (b) the application of the procedure in article 127(1) of the Constitution, 1979 to Justice Apaloo and his purported vetting and rejection by Parliament were in contravention of the Constitution, 1979.

The Attorney-General argued that the procedure in article 127(1) of the Constitution, 1979 was mandatory and that Justice Apaloo’s rejection by Parliament was in exercise of the powers conferred upon it by article 127(1) and therefore proper. This clause provided that:

“127. (1) The Chief Justice and other Justices of the Supreme Court shall be appointed by the President by warrant under his hand and the Presidential seal,

(a) in the case of the Chief Justice, acting in consultation with the Judicial Council;

(b) in the case of the other Justices of the Supreme Court, acting on the advice of the Judicial Council, and with the approval of Parliament.”

(The emphasis is mine.)

The court having dismissed the preliminary objections founded on lack of jurisdiction and capacity in the plaintiff and having dismissed the Speaker as not a competent party, proceeded to determine the plaintiff’s writ and held, in upholding the plaintiff’s claim, that:

(i) the court had jurisdiction to entertain the plaintiff’s writ but that;

(ii) the court did not, and could not inquire into how Parliament went about its business, as that constituted the state of affairs, as between the legislature and the judiciary which had been crystallised in articles 66-99, 103 and 104 of the Constitution as stated by Sowah JSC above.

The Attorney-General relied on article 96 of the Constitution, 1979 in support of his argument, which provided that “there shall

[p.254] of [1997-98] 1 GLR 227 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.” It was upon upholding the Attorney-General’s objection that the Court of Appeal sitting as the Supreme Court held as in the passage by Sowah JSC (as he then was) supra .

It must be noted that the plaintiff in the Tuffour case (supra) sought in his pleadings to get the court to extend its writ to what happened in Parliament in addition to the declaration sought, vis-à-vis the instant case where the plaintiff is only asking for a declaration as regards the interpretation of certain provisions of the Constitution, 1979. What is important is the conclusion arrived at by the court at 651 that: “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.” In other words, Parliament must be seen to have acted in accordance with, and not in contravention of the powers conferred upon it by the provisions of the article. Article 91 (1) of the Constitution, 1992 reads: “91(1) Subject to the provisions of this Constitution, Parliament may regulate its own procedures.” It will be seen therefore that the absolute terms in which the two principles relied on in the Tuffour case (supra), as stated, are thus subject to qualification.

Article 110(1) of the present Constitution, 1992 is in identical terms. It reads: “110(1) Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own proceedings.” This article makes whatever procedure Parliament adopts subject to the provisions of the Constitution. In other words, the standing orders of Parliament, dealing with its internal procedures, must be in conformity with the spirit and letter of the Constitution, 1992 or, as Nana Akufo-Addo, counsel for the plaintiff rightly put it, “run the risk of being struck down as unconstitutional, and accordingly null and void.” It means therefore that if Parliament’s procedures are so regulated in such a way that it can be shown to be contrary to any provision of the Constitution, 1992, the fact that “the law and custom of Parliament” is a distinct law “unknown to the courts” would be of no moment. It would be the law of the Constitution known only to the Supreme Court that the court would be pronouncing upon.

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It must be pointed out that articles 96, 97, 98, 99, 103 and 104 of the Constitution, 1979 mentioned in the Tuffour case (supra) deal with the privileges and immunities of Parliament. It is clearly in respect of these that the court said that “the courts do not, and cannot, inquire into how Parliament went about its business”, and continued to say that “These constitute the state of affairs,” (ie in that case), as between the legislature and the judiciary which has been “crystallized” in articles 96-99, 103 and 104 of the Constitution, 1979. The court particularly mentioned article 96 whose provisions confer on Parliament freedom of speech, of debate and of proceedings in Parliament and which freedom shall not be impeached or questioned in any court or place out of Parliament.

In the instant case, the Attorney-General thinks the opinion of the court supra, is reinforced by article 115 of the Constitution, 1992 upon which he relies. This article speaks in identical terms as article 96 of the Constitution, 1979. It says: “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 article, together with articles 116, 117, 118, 119, 120 and 121 of the Constitution, 1992, also falls under “Privileges and Immunities” of Parliament. The matter dealt with in the Tuffour case (supra) under article 96 of the Constitution, 1979 and related articles under “Privileges and Immunities” therefore is of a restricted nature and when that court expressed itself in very broad terms, especially in a constitutional matter, the breadth of the language must be construed to apply to the specific facts of that case and no more, because it is not the function of the court to decide on issues not before it. This is the well established principle of law.

Counsel for the plaintiff cites article 106(1) of the Constitution, 1992 which spells out the mode by which Parliament exercises its legislative power, to buttress his point. He argues that if Parliament purported to exercise its legislative power in a manner contrary to article 106( 1) of the Constitution, 1992, could it hide under the shield that what goes on in Parliament is a closed book to perpetuate such illegality, and would the Supreme Court be barred from pronouncing on such act? He thinks this cannot be, and I agree with him. This clearly shows that there are constitutional limits to the principle that proceedings in Parliament can

[p.256] of [1997-98] 1 GLR 227 ot be called in question in any court. On this point, the decision in Tuffour v Attorney-General (supra) is clearly distinguishable from the instant case.

Under article 172(2) of the standing orders of Parliament the appointments committee of the house is obligated to make recommendations to Parliament for approval or otherwise of persons nominated by the President for appointment as ministers or deputy ministers. The committee at its meeting held on 13 February 1997 rather decided that where an incumbent minister or deputy minister is retained by the President, it shall not be necessary for the minister or deputy minister to be summoned to appear before the appointments committee for recommendations to be made to Parliament for re-approval in view of the fact that the previous or erstwhile Parliament had given approval for their appointment. If therefore Parliament, instead of acting in accordance with the provisions of articles 78(1) and 79(1) of the Constitution, 1992 chose to ignore the mandatory provisions of those articles but decided to accept the recommendations of the appointments committee, and resolved that it was not necessary to give another approval of such minister or deputy minister, can such a resolution be proper and constitutional? I believe not. In my view, Parliament has by this resolution refused to perform its constitutional function and therefore acted unconstitutionally, with the result that the said resolution is unconstitutional and therefore null and void. The answer to the fourth question posed by the plaintiff that Parliament cannot by the manipulation of its own procedures grant prior approval in a manner in which the elements of consideration and vetting of each nominee are excluded, is therefore definitely “yes.”

In the result the plaintiff’s action succeeds, and I would grant the reliefs sought.

CHARLES HAYFRON-BENJAMIN JSC.

The opinions and conclusions expressed and arrived at in the very able and erudite judgment of my learned and respected brother Acquah JSC have my approbation. I would, however, like to make brief comments on the general approach by counsel to the interpretation and construction of our Constitution, 1992 which, if often adopted by our courts, would lead to absurdity. Such absurdities could arise

[p.257] of [1997-98] 1 GLR 227 not from want of guidelines by the courts, but by the persistence of litigants in limiting the scope of the various articles thereof. There are, of course, many authoritative dicta which run counter to this attitude. I would for the sake of brevity refer to the dictum of Apaloo CJ in Kwakye v Attorney-General [1981] GLR 944 at 958, SC where his lordship clearly stated the guidelines when he said:

“In the exercise of the interpretative jurisdiction of this court, it is obvious that we should go beyond statutory interpretation since we are concerned with the most fundamental issues of our jurisdiction. We must have regard to the terms of our particular Constitution whose specific reference points are largely unique to our national history. In this area, more than others, judicial pronouncements in other jurisdictions on the particular facts of their experience are not likely to be of much assistance; the range of judicial wisdom embodied in them will, of course, influence our judicial reflections. I think originality is required of us in the exercise of our original jurisdiction if we are to attend to the letter and spirit of the Constitution as the basic law of our land. That originality must, of course, be judicial and must not do damage to the plain and obvious meaning of the words used nor is it the province of this court to be astute to find some reason or other for depriving the constitutional provision of an effect clearly intended.”

Then again more recently Abban JSC (as he then was) in Ghana Bar Association v Attorney-General (1995) 1 GSCJ 1 at 13 said:

“It must also be borne in mind that in construing any statute, for that matter any of the provisions of the Constitution, the duty of the court is to stick to the ordinary meaning of the actual words used. After ascertaining the general purport and the meaning of the provision in question from the words used, effect must be given to it, unless by so doing it would be at variance with the intention of the law makers or could result in or lead to some obvious absurdity.”

[p.258] of [1997-98] 1 GLR 227 Thus in my respectful opinion, the expression “prior approval” appearing in article 78 of the Constitution, 1992 and the variant forms of the expression appearing in other parts of the Constitution, 1992 are not “terms of art.” They must be given their ordinary meaning as the context would permit, but always bearing in mind the necessity to avoid absurdity.

My learned and respected brother Acquah JSC has rightly pointed out in his judgment that the provision for an interregnum between any two successive elections of the President and Parliament as contained in article 64(3) of the Constitution, 1969 does not exist. It must be borne in mind that the Constitution, 1969 did not create or adopt an executive presidency. Parliament was supreme and the presidency largely ceremonial. It may be said, perhaps with hindsight, that had this Constitution, 1992 contained a similar article, such problems as we now encounter in this writ would be largely academic.

However, such is the nature of our Constitution, 1992 that every President and every Parliament are assigned definite terms of office and no more. There is no provision in the Constitution, 1992 for an interregnum or a “caretaker government.” Consequently, in order to prevent a failure of government, reasonable time must be allowed after the inauguration of the President and Parliament to enable the new institutions to be set in place and ensure smooth administration to avoid absurdity and unconstitutional action. Thus speaking for myself, I would incline to the view that not until the expiry of a reasonable time after a general and presidential election, ministers and deputy ministers may hold over their respective offices. For our fledgeling Constitution, 1992, it will be useful to remind ourselves of the need for constitutional conventions. Professor O Hood Phillips in his learned treatise entitled Constitutional and Administrative Law defines “Constitutional Conventions” as: “Rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by Courts …” In my respectful opinion, this case only arises because the Constitution, 1992 does not provide for a sufficient time to intervene between the actual constituting of Parliament and a subsequent inauguration of the President.

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JUDGMENT OF AMPIAH JSC.

I have had the opportunity to read beforehand the leading judgment of my brother Acquah JSC and I am in full agreement with his opinion. I, however, have this little to add to his.

Perhaps the issues in this case having exhausted themselves, they have become moot and need no further determination. First, because the plaintiff has since the issuance of the writ taken part in proceedings he described as unconstitutional, and secondly, because had the issue of the capacity of a minister or deputy minister of state been adhered to strictly, there would not have been any defendant before the court, for, the defendant as the Attorney-General is not only the “principal legal adviser” to the government but also “a Minister of State” who has to be appointed by the President with the prior approval of Parliament—vide articles 88(1) and 78(1) of the Constitution, 1992. As stated by my brother Acquah JSC in his opinion, it is not the office of the Attorney-General which was sued, but the person of the Attorney-General.

However, moot as the matter may be, because there seems to be longer “live” disputes to be determined, I am of the opinion that there exists issues which are capable of determination for future conduct of the framers of the Constitution, the legislature and the executive: see United States v Concentrated Phosphate Exp Assn 393, US 201 (1968) and United States v W T Grant Co, 345 US 629 (1953). Some of the situations which have arisen in this case, had come about first, because, happily this is the first time that the country has had a succession of a civilian government without the intervention of a military regime abrogating or suspending an existing Constitution. Secondly, some of the issues which have arisen were not anticipated or envisaged by the framers of the Constitution, 1992 or the issue had been overlooked. Article 81 of the Constitution, 1992 provides that:

“81. The office of a Minister of State or a Deputy Minister shall become vacant if— (a) his appointment is revoked by the President; or (b) he is elected as Speaker or Deputy Speaker; or (c) he resigns from office; or (d) he dies.”

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Does it mean then that a minister or deputy minister of state would continue to hold office in perpetuity unless one of the incidents set down in article 81 occurs? Could it be said that such a minister would continue in office despite the fact that, the President who appointed him has been displaced by another President of whose political party the minister no longer represents? The Constitution, 1992, art 66(1) provides that, “A person elected as President shall, subject to clause (3) of this article, hold office for a term of four years beginning from the date on which he is sworn in as President.” The proviso for the termination of the term of a President under article 66(3) of the Constitution, 1992 is:

“(3) The office of President shall become vacant—

(a) on the expiration of the period specified in clause (1) of this article; or

(b) if the incumbent dies or resigns from office or ceases to hold office under article 69 of this Constitution.”

And, article 113(1) of the Constitution, 1992 also provides that:

“Subject to clause (2) of this article, Parliament shall continue for four years from the date of its first sitting and shall then stand dissolved.” Article 97(1) of the Constitution, 1992 provides for the vacation of the seat of a member of Parliament. These are:

“(a) upon a dissolution of Parliament; or (b) if he is elected as Speaker of Parliament; or (c) if he is absent, without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet; or (d) if he is expelled from Parliament after having been found guilty of contempt of Parliament by a committee of Parliament; or (e) if any circumstances arise such that, if he were not a member of Parliament, would cause him to be dis

[p.261] of [1997-98] 1 GLR 227 qualified or ineligible for election, under article 94 of this Constitution; or (f) if he resigns from office as a member of Parliament by writing under his hand addressed to the Speaker; or (g) if he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member; or

(h) if he was elected a member of Parliament as an independent candidate and joins a political party.”

By law, some of the ministers and deputy ministers of state must necessarily be members of Parliament: see article 78(1) of the Constitution, 1992. Does a minister or deputy minister of state continue to hold office even when Parliament has been dissolved or that person has ceased to be a member of Parliament? In view of the existing law, it would be absurd for such a minister or deputy minister to continue in office when both the President and Parliament have come to an end by operation of the law.

I have no doubt in my mind that, the framers of the Constitution, 1992 had intended that the office of these ministers and deputy ministers should terminate with the life of the President and Parliament. Unfortunately, no provision was made in the Constitution. The fundamental rule of interpretation of statutes and for that matter all documents is that what is intended by the framers of an Act must be expressed in the words used in the statute or document. What is intended and what is actually expressed are two different things. If the expressed intention is unfortunately different from what was really desired, so much the worse for those who wish the actual intention to prevail: see Kidder v West (1684) 3 Lev 167. In our Constitution, 1992 even though Parliament shall be dissolved within four years, such a period may be extended. Article 113 of the Constitution provides:

113.(1) Subject to clause (2) of this article, Parliament shall continue for four years from the date of its first sitting and shall then stand dissolved.

(2) At any time when Ghana is actually engaged in war, Parliament may, from time to time by resolution

[p.262] of [1997-98] 1 GLR 227 supported by the votes of not less than two-thirds of all the members of Parliament, extend the period of four years specified in clause (1) of this article for not more than twelve months at a time, except that the life of Parliament shall not be extended under this clause for more than four years.

(3) Where, after a dissolution of Parliament but before the holding of a general election, the President is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.

(4) Unless the life of Parliament is extended under the provisions of clause (2) of this article, the general election of members of Parliament shall proceed and the Parliament that has been recalled shall, if not sooner dissolved, again stand dissolved on the date appointed for the general election.”

If the life of a minister or deputy minister was expected to go beyond the life of the President or Parliament it should, like the provisions of article 113 of the Constitution, 1992, have been so expressed. Unfortunately, though this may have been the intention of the framers of the Constitution, no provision was made to that effect. We only have the strict interpretation of article 81 of the Constitution, 1992, which interpretation alone, is bound to end in absurdity. I think however that though the minister or the deputy minister’s office may not come to an end abruptly, there must be a reasonable time to allow new ministers and deputy ministers to be appointed by the President after he had been sworn-in. There should not be a vacuum created in these offices as such a situation would result in chaos. What, a “reasonable time” is, must be determined by Parliament itself.

The next issue is, do the ministers and deputy ministers require “prior approval” by Parliament before their appointment? Article 78(1) of the Constitution, 1992 provides:

“78.(1) Ministers of State shall be appointed by the President with the prior approval of Parliament from among members of Parliament or persons qualified to be elected as members of Parliament, except that the majority

[p.263] of [1997-98] 1 GLR 227 of Ministers of State shall be appointed from among members of Parliament.”

Article 79(1) also provides: “The President may, in consultation with a Minister of State, and with the prior approval of Parliament, appoint one or more Deputy Ministers to assist the Minister in the performance of his functions.” I have no doubt in my mind that before a minister or deputy minister takes up an office, he or she needs to have the prior approval of Parliament. Any appointment by the President without the prior approval of Parliament would be unconstitutional and this court would have the power to so declare that appointment.

What is the meaning of “prior approval”? Reference has been made to proceedings in the Consultative Assembly, the framers of the Constitution, 1992, to interprete what is meant by those words. I, on my part, supported in my view by the Interpretation Act, 1960 (CA 4), do not think it is necessary to resort to words used at the Consultative Assembly as aid to the interpretation of the words “prior approval.” These are not terms of art; they are ordinary words which must be interpreted in their ordinary sense. The words “prior approval” and “approval” appear at various portions of the Constitution. “Prior”—means coming before in time, order or importance; “approval” means—feeling or showing or saying that one thinks something is good or acceptable or satisfactory: see the Oxford Advanced Learners Dictionary. The words “prior approval” therefore means simply that before the President appoints a minister or deputy minister he or she must be put before Parliament for it to feel, show or say that such a person is good, acceptable or satisfactory. While the word “prior” connotes acceptance before an appointment becomes valid, “approval” simpliciter connotes an acceptance after the appointment.

How then does Parliament certify its prior approval? As stated before, it is my considered opinion that ministers or deputy ministers whether new or retained, must have the approval of Parliament. The evidence before us show that there is an “Appointments Committee of Parliament” which sits on persons submitted by the President to Parliament for approval. As stated before, the question of “retained” ministers or deputy ministers arose because for the first time in the history of this country we have a legitimate

[p.264] of [1997-98] 1 GLR 22 succession of a civilian government by a civilian government, and in our current situation, the succeeding civilian government happens to be a government of the previous government. Thus, some of the ministers and deputy ministers of the previous government were intended to be ministers and deputy ministers in the new government; in other words they were to be retained. Under those circumstances the appointments committee, which includes members of the opposition, decided that those “retained” ministers and deputy ministers need not be “vetted”, “scrutinised”, “investigated”, “assessed” or “examined” before approval and that for such persons a vote by Parliament would be enough. In the light of such decision, Parliament sat on the names submitted by the President and approved by show of hands or other means. It is unfortunate that the opposition had to criticise this manner of voting.

But it must not be forgotten that our Constitution is a democratic one and that it is the people represented in Parliament who decide; it is unfortunate that the minority did not find favour with this manner of voting for approval. It is provided by article 104(1) of the Constitution, 1992 that:

“104.(1) Except as otherwise provided in this Constitution, matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of Parliament present.”

Also, article 110 of the Constitution, 1992 provided that: “Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure.” And under article 115 of the Constitution, 1992: “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. Provided “approval” is given to the nominees of the President, in accordance with Parliament’s orders regulating Parliament’s procedure, such exercise of a right could not be unconstitutional. The Constitution, 1992 itself has not regulated the procedure for approval. It is a different matter if no approval at all is given for such appointments.

In the circumstances, I agree entirely with my brother Acquah JSC.

[p.265] of [1997-98] 1 GLR 22

JUDGMENT OF ACQUAH JSC.

My lords, soon after the swearing in on 7 January 1997 of His Excellency J J Rawlings as the President of Ghana for a second term of four years, it was announced that the President had decided to retain in office, some of his previous ministers and deputy ministers of state; and that since those retained ministers and deputy ministers were approved by the previous Parliament of the first term of the Fourth Republic, they would not be presented to the new Parliament for their approval. For in the government’s view, only fresh appointees for ministerial office need the prior approval of the Second Parliament of the Fourth Republic. One of these retained ministers is Mr Kwame Peprah of the Finance Ministry. The minority group in Parliament vehemently opposed this idea, arguing that under the Constitution, 1992 of Ghana, no one can be appointed or act as a minister or deputy minister of state during the second term of the Fourth Republic without being vetted by the new Parliament, since the tenure of office of previous ministers and deputy ministers of state ended with the dissolution of that Parliament. And in this case on 6 January 1997.

Now, in the midst of this controversy, it was announced that Mr Kwame Peprah was going to present to the new Parliament on 7 February 1997, in his capacity as the Minister of Finance in the second term of the Fourth Republic, the nation’s budget. But at the dawn of the scheduled presentation, the Parliamentary Minority Leader, Mr J H Mensah, filed the instant action for a declaration, as later amended, that:

“(i) On a true and proper interpretation of the Constitution, 1992, particularly articles 57(3), 58(1) and (3), 66(1), 76(1) and (2), 78(1), 79(1), 80, 81, 97(1), 100(1), and 113(1) and (3) thereof, no person can after 6 January 1997 act as a minister or deputy minister of state without the prior approval of the Second Parliament of the Fourth Republic of his appointment.

(ii) A necessary incident of prior approval is the consideration and vetting of each nominee for ministerial appointment by the Second Parliament of the Fourth Republic.

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(iii) Accordingly any person who has not been so approved and appointed cannot lawfully act or hold himself out as a minister or deputy minister of state.”

From their respective pleadings and statements, the issues set down by the plaintiff for determination are:

(1) Does a presidential nominee for a ministerial appointment require the prior approval of Parliament before he can act or hold himself out as a minister or deputy minister of state?

(2) Does the requirement of prior parliamentary approval extend to all persons whether retained or new?

(3) Is prior approval a term of art? If so what is its meaning?

The Attorney-General in his written submission, however, raises two preliminary points which deserve to be commented upon. First, he contends that going by the plaintiff’s case that retained ministers who had not received prior parliamentary approval of the Second Parliament, cannot act or hold themselves out as such, the instant action cannot be instituted against the Attorney-General since the person acting in that capacity is also a retained minister who has also not had such prior approval. The plaintiff’s brief reaction to this submission is that it is not the individual personality that matters, and that the Attorney-General only acts as a nominal defendant for the State and the government. Does it mean that in respect of the office of the Attorney-General, anyone who had not had prior approval of the Second Parliament can, in the words of the plaintiff, “act or hold himself out as” such?

Emphatically No! Because article 88(1) of the Constitution, 1992 unambiguously shows that the individual personality of the one holding that office is paramount. For that person: “shall be a Minister of State and the principal legal adviser to the Government.” (The emphasis is mine.) And as a minister of state, the person who is or acts as the Attorney-General, falls into the same category as any other minister of state. Indeed, the objection to Mr Peprah and the other retained ministers from acting as such ministers, was not against their respective offices but against each personally for not receiving the requisite prior approval of

[p.267] of [1997-98] 1 GLR 227 the Second Parliament. Thus going by the plaintiff’s own case, one would have expected that even though the Attorney-General is constitutionally a nominal defendant the plaintiff would have objected to Dr Obed Asamoah and his deputy, Martin Amidu, signing the pleadings and appearing in court in their alleged capacities as acting Attorney-General and Deputy Attorney-General, respectively. For at the time they filed the pleadings and appeared in court, they had not had the prior parliamentary approval complained of. The plaintiff did not object to their representations, notwithstanding the undisputed fact that the two honourable men were in the same position as those sought to be excluded. What is good for the goose is equally good for the gander!

This preliminary objection, vindicates a proposal, which was of course rejected, of the 1968 Constitutional Commission, recommending that the Attorney-General be insulated from the ministers of the government. In the memorandum of the commission, they proposed at pp 104-105 that though the tenure of the government should be five years, and the President eight years, the Attorney-General, “should hold office for seven years and should be eligible for re-election. The person to be appointed Attorney-General should be qualified to be appointed a judge of the Supreme Court and he may be removed from office exactly in the same way that a judge of superior court of record, other than the Chief Justice, may be removed.”

The other preliminary objection is that the questions raised for determination are moot since the government has retracted its position by submitting the names of the retained ministers to the Second Parliament for its prior approval. There are thus no live questions to be determined. The principle guiding the court in refusing to decide moot questions is quite settled. If the question though moot, is certainly not likely to recur, the courts will not waste their time to determine questions and issues which are dead and buried for ever. But where it is not so established, the courts would go into the questions to forestall a multiplicity of suits. Thus, for a court to decline deciding a moot question, it must be established or shown, as stated in United States v Concentrated

[p.268] of [1997-98] 1 GLR 22

Phosphate Exp Assn, 393 US 201 (1968); and United States v W T Grant Co, 345 US 629 (1953) that: “subsequent events made it absolutely clear that the allegedly wrong behaviour could not reasonably be expected to recur.” No such proof has been established in this case, neither am I certain that the issue may not recur.

Now, whatever be the merits of these preliminary objections, it cannot be denied that the tension that this dispute caused both in and outside Parliament and in the nation as a whole, makes it prudent that this court determines the questions in issue for the guidance of future governments and Parliaments.

The first issue is whether a nominee for ministerial or deputy ministerial office requires prior parliamentary approval. On the plain language of articles 78(1) and 79(1) of the Constitution, 1992, the Attorney-General cannot and does not indeed give a negative answer to this question. For in articles 78(1) and 79(1) of the Constitution, 1992 it is provided that the President shall appoint his ministers and deputy ministers with the prior approval of Parliament. Thus a nominee for ministerial or deputy ministerial office undoubtedly requires prior parliamentary approval.

1. Does the requirement of prior parliamentary approval extend to all persons, whether retained or new?

The plaintiff contends that by the combined effect of articles 58(1) (2) and (4), 78(1) and (2), 79(1) and (2), 80, 97(1), 100(1) and 113(1), of the Constitution, 1992 the tenure of office of a minister or deputy minister is coterminous with the term of the President and Parliament. And that on the expiry of the term of the President and Parliament the tenure of the minister or deputy minister also comes to an end. Accordingly, on the inauguration of a fresh term of a President and Parliament all the ministers and deputy ministers nominated for office need the prior approval of that new Parliament irrespective of whether the nominee was a minister or deputy minister in the previous term. He further contends that articles 78(1) and 79(1) of the Constitution; 1992 do not even recognise the concept of a “retained” minister or deputy minister. Neither do the two articles exempt any nominee from the requirement of prior parliamentary approval.

The Attorney-General on the other hand contends that although a nominee for ministerial or deputy ministerial appoint

[p.269] of [1997-98] 1 GLR 22 ent needs the prior approval of Parliament, this does not extend to persons who were ministers in the preceding term and therefore had already had the prior approval of that Parliament. Furthermore, the Attorney-General argues, under article 81 of the Constitution, 1992 the tenure of a minister or deputy minister does not come to an end on the dissolution of that Parliament which gave prior approval to the appointment of that minister or deputy minister. Thus, in his view, unless one of the events specified in article 81 occurs, a minister or deputy minister will continue to be in office. Accordingly, in his written reply to the plaintiff’s submission, the Attorney-General writes: “The defendant, however, submits that once a minister has been appointed with the prior approval of Parliament his tenure is indefinite, unless his office becomes vacant under the Constitution.” (The emphasis is mine.) The Attorney-General finds solace in article 64(2)(a) of the Constitution, 1969 of Ghana which provides, that a minister’s office becomes vacant, inter alia, on the dissolution of the National Assembly. In his view, once such a provision is absent in article 81 the Constitution, 1992, the dissolution of the National Assembly in the first term of the Fourth Republic did not terminate the office of a minister or deputy minister.

Now, article 81 of the Constitution, 1992 provides that the office of a minister or deputy minister becomes vacant if:

“(a) his appointment is revoked by the President; or (b) he is elected as Speaker or Deputy Speaker; or (c) he resigns from office; or (d) he dies.”

By the defendant’s contention, a minister or deputy minister in a previous government whose appointment is not revoked before a new President comes into power, will continue to be a minister even under this new President, unless the said President revokes the appointment. And, if even the succeeding President is of a different political party from that of the previous minister, that previous minister will continue to be a minister under the opposition party’s President. And unless the new President revokes that minister’s appointment, the minister will continue to hold himself out as such and be entitled to the salary and benefits attached

[p.270] of [1997-98] 1 GLR 22 to that office. Even when the new President appoints his own ministers the previous ministers whose appointments still stand unrevoked by the new President (for the defeated President’s mandate would have expired with his defeat) would, on the defendant’s submission, be deemed to be in office. Is this not absurd?

Certainly, the correct position is that, even if the same President is re-elected for a second term, his previous ministers whose appointments were not revoked before he was inaugurated for a second term, cannot claim to continue indefinitely as such in the second term, unless they are reappointed by the President. Indeed, the very fact that the President announced that some of his former ministers were to be retained, is an implied admission that none of the previous ministers has an indefinite tenure of office or an automatic right to continue as a minister in the second term of the President. Otherwise, why should the announcement be made if, subject to article 81 of the Constitution, 1992, the previous ministers hold an indefinite tenure of office?

I think it is now firmly settled that a better approach to the interpretation of a provision of the Constitution is to interpret that provision in relation to the other provisions of the Constitution so as to render that interpretation consistent with the other provisions and the overall tenor or spirit of the Constitution. An interpretation based solely on a particular provision without reference to the other provisions, is likely to lead to a wrong appreciation of the true meaning and import of that provision. Thus in Bennion, Constitutional Law of Ghana (1962) at p 283 it is explained that it is important to construe an enactment as a whole, “ … since it is easy, by taking a particular provision of an Act in isolation, to obtain a wrong impression of its true effect. The dangers of taking passages out of their context are well known in other fields, and apply just as much to legislation. Even where an Act is properly drawn it still must be read as a whole.

Indeed a well-drawn Act consists of an interlocking structure each provision of which has its part to play. Warnings will often be there to guide the reader; as for example, that an apparently categorical statement in one is subject to exceptions laid down elsewhere in the Act, but such warnings cannot always be provided.

[p.271] of [1997-98] 1 GLR 22

I am therefore of the considered view that having regard to the obvious absurdity involved in determining the tenure of office of a minister or deputy minister solely on article 81 of the Constitution, 1992, a recourse must be made to the broad outline of the type of government created in the Constitution, 1992. Our Constitution, 1992 provides for a government, as distinct from the legislature and the judiciary, of an Executive President (article 58(1) and (4); assisted by the Vice-President (article 60), ministers and deputy ministers of state (articles 78 and 79). The President is both the Head of State and the head of the government (article 57), and he is assisted in the determination of the general policy of the government by the cabinet which is made up of the above team minus the non-cabinet ministers (article 76). Now, because the ministers are part and parcel of the Executive President’s government, article 58(5) of the Constitution, 1992, acknowledges that the signature of a minister is sufficient to authenticate any constitutional or statutory instrument made or issued in the name of the President.

The Constitution, 1992 therefore creates a government of an Executive President. And thus the term of office of the Executive President is the term of office of that government. Of course, where the Executive President dies before the end of his term of office, the Constitution, 1992 empowers his Vice-President to complete that term. Accordingly, the term of office of the Executive President is the term of office of those who constitute the government, that is the Vice-President, ministers and deputy ministers. Thus understood, it becomes clear that article 81 of the Constitution, 1992 provides for circumstances under which the office of a minister or deputy minister will become vacant within the tenure of office of the government under which that minister or deputy minister is serving. The term of office of a minister or deputy minister does not extend beyond that of the government which appointed that minister. If that government is re-elected into power, the minister or deputy minister may be reappointed to the same office. And that was why it was necessary for the National Democratic Congress Government to announce that some of the previous ministers were going to be reappointed or retained.

The contention therefore that unless the office of a minister or deputy minister becomes vacant in any of the ways provided for in article 81 of the Constitution, 1992 he has an indefinite term of

[p.272] of [1997-98] 1 GLR 22 office, is certainly untenable and inconsistent with the governmental structure provided for in the Constitution, 1992. I therefore uphold the plaintiff’s contention that the term of office of a minister or deputy minister is coterminous with that of the government which appointed the minister, and that in-between that term, the minister or deputy minister may lose his office in any of the ways specified in article 81.

Now, articles 78(1) and 79(1) of the Constitution, 1992 which provided that the President should appoint his ministers and deputy ministers with the prior approval of Parliament, do not draw a distinction between fresh and reappointed candidates. The two articles do not exempt any category of nominee from the requirement of prior approval. Consequently, a new or reappointed candidate, ought to obtain the prior approval of Parliament. For just as an incumbent President who seeks a second term of office has to obtain the approval of the people through the ballot box and thereafter go through another swearing-in-ceremony, so is a previous minister or deputy minister who is to be retained in the next government, to obtain the prior approval of the elected representatives of the people, as provided in articles 78(1) and 79(1) of the Constitution, 1992.

2. What does “prior approval” mean?—Is it a term of art?

The plaintiff argues that the meaning of the expression “prior approval” arises for determination because the defendant in his written submission contended that: (a) no law currently in force calls for vetting; and (b) the process by which Parliament exercises its sovereign powers cannot be questioned by the courts, the allegedly “political question doctrine.”

Now, after extensive examination of the political question doctrine, especially in the light of the United States Supreme Court’s decision in Powell v McCormack, 395 US 486 (1969), the plaintiff submits that in the United States the fact that the matter is a political question does not determine the matter, and that the Ghana Supreme Court had equally maintained such a stand in New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC and a dictum of Adade JSC in Tuffuor v Attorney-General [1980] GLR 637.

[p.273] of [1997-98] 1 GLR 227

Now, the political question doctrine which the United States Supreme Court invoked in 1946 in Colegrave v Green, 328 US 549 (1946) to avoid addressing the issue of legislative malapportionment is one of the oldest of the court’s rationales for not deciding a case. Other concepts and doctrines deviced by the court for the same purpose, are the doctrines of mootness, ripeness, and locus standi. The court also refuses to offer advisory opinion, and rejects collusive suits: see H J Abraham, The Judicial Process (6th ed), chap 9, for further details on this aspect.

The United States Supreme Court devised these doctrines to circumscribe the exercise of its power of judicial review—a power that was not expressly provided for in the United States Constitution but was deduced by the court as a logical consequence of the nature of the judicial function. Thus in the very famous case of Marbury v Madison, 5 US (1 Cranch) 137 (1803) wherein the power of judicial review was authoritatively asserted, Marshall CJ recognised and defined the concept of political question at 170 as follows:

“The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform their duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

And in 1849 Taney CJ in Luther v Borden, 7 How 1 (1849) also said:

“It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the US to prescribe the qualifications of voters in a state … nor has it the right to determine what political privileges the citizens of a state are entitled to, unless there is an established constitution or law to govern its decision.”

But what exactly constitutes a political question has not received a unanimously consistent formulation and understanding among the US judges themselves. However, Justice Brennan pointed out in Baker v Carr, 369 US 186 (1962) that the mere fact that a suit

[p.274] of [1997-98] 1 GLR 22 seeks protection of a political right does not mean that it presents a political question. The case of Baker v Carr (supra), made the first bold attempt to establish a clear doctrinal basis for determining a political question. The majority opinion therein found that the ruling in Colegrove v Green (supra) was based on too broad a definition of the political question. A controversy involves a political question said Justice Brennan in Baker v Carr (supra) at 217, where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” This decision in Baker v Carr (supra) was subsequently adopted and applied successfully in a number of cases including Gray v Sanders, 372 US 368 (1963); Wesberry v Sanders, 376 US 1 (1964); Reynolds v Sims, 377 US 533 (1964); Avery v Midland County, 390 US 474 (1968); and Wells v Rockfeller, 394 US 542 (1969).

But when later in 1969 in Powell v McCormack (supra), the respondents asked the court to dismiss the suit because it asked a political question, meeting several of the criteria set out in Baker v Carr, (supra) it refused to do so. The issue in the Powell case (supra) was whether the House of Representatives could vote to exclude a member—Mr Powell—on the grounds that he allegedly engaged in unethical activities. The court in particular rejected the contention that the dispute was one in which a “textually demonstrable constitutional commitment” to the house existed, enabling it to determine its own membership. Rather the Constitution permits the house only to judge the “qualification expressly set forth in the Constitution“ which Powell met. The court also rejected Baker v Carr’s criteria, noting that: “Our system of Government requires that the federal courts on occasion interpret the Constitution in a manner at variance with a construction given the document by another branch.” But quite interestingly, as recently as 1993 in Nixon v United States, 506 US 19 (1993), the court relied heavily on Baker v Carr (supra) to examine a domestic issue—that is, the impeachment of a federal judge who claimed that the Senate used unconstitutional procedures in trying his case. The court unambiguously ruled that the procedures used by Congress to handle impeachments are not subject to judicial review. For the Constitution grants the Senate the sole power to

[p.275] of [1997-98] 1 GLR 22 try all impeachments, and how the Senate organises itself to discharge that duty constitutes a political question.

It is therefore evident from the above short exposition that the attributes of the political question doctrine are quite variable. As one of the judges in Baker v Carr (supra) at 210 aptly observed, the attributes “in various settings diverge, combine, appear and disappear in seeming disorderliness.” Thus, for example, in Goldwater v Carter, 444 US 996 (1979) which presented a challenge to President Carter’s unilateral termination of a US treaty with Taiwan, Justice Rehnquist held that the case presented a political question. In his view, it involved a foreign policy matter on which the Constitution provided no definitive answer. As such, it “should be left for resolution by the Executive and Legislative branches.” Justice Powell on the other hand held that the dispute did not present a political question under the Baker (supra) principle. In his view, the case only “touched” foreign affairs, with the major issue being “constitutional division of power between Congress and the President.” He wrote at 1001:

“Interpretation of the Constitution does not imply lack of respect for a co-ordinate branch …. If the President and the Congress had reached irreconcilable positions, final disposition of the question presented by this case would eliminate, rather than create, multiple constitutional interpretations.”

Such is the lack of unanimity among the United States judges in establishing the precise content and application of their doctrine of political question. Thus Prof Peltason in his Federal Courts in the Political Process (1955) at p 10 views political questions as: “those which judges choose not to decide and a question becomes political by the judges’ refusal to decide it.”

Fortunately the Ghana Supreme Court is not in the same position as the United States Supreme Court in the exercise of the power of judicial review. For, as pointed out earlier, whereas the latter’s power of judicial review was not provided in the United States Constitution but acquired through case law and therefore thought it prudent to device doctrines to circumscribe its use, the Constitution, 1992 of Ghana expressly and in no ambiguous terms invests the Ghana Supreme Court with the power of judicial

[p.276] of [1997-98] 1 GLR 22 review in articles 2 and 130(1) thereof. In this wise, whatever limitations there may be on the Ghana Supreme Court’s power of judicial review, will have to be gathered from the language and wording of articles 2 and 130(1) of the Constitution, 1992.

Now, article 1(2) of the Constitution, 1992 upholds the supremacy of the Constitution, while article 2(1) provides that:

“2. (1) Any person who alleges that—

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(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.”

Under article 2(2) of the Constitution, 1992 the Supreme Court is empowered to make orders or give directions to secure the enforcement of the declarations made in article 2(1). While article 2(3) to (5) deal with obeying and sanctions for disobeying such orders and directions. And finally, article 130(1) of the Constitution, 1992 gives the Supreme Court original jurisdiction in the assignment specified in article 2, and in questions involving the constitutionality of any law. The cumulative effect of all these provisions is to invest in the Supreme Court an original jurisdiction to entertain all cases relating to the enforcement and interpretation of any provision of the Constitution, 1992 and all questions relating to the constitutionality of any enactment or any act or omission by any person. Explaining the import of this power, the Committee of Experts appointed under the Committee of Experts (Constitution) Law, 1991 (PNDCL 252), in their Report dated 31 July 1991, state at p 161, para 354: “This involves the power to pronounce any act of Parliament or any measure of the Executive unconstitutional.”

Accordingly, where one alleges that the conduct of Parliament, for example, in passing a law is inconsistent with a provision like article 106 of the Constitution, 1992 the political question doctrine cannot forbid the Supreme Court from determining the authentic

[p.277] of [1997-98] 1 GLR 22 ty of the allegation. For as explained in paragraph 63, page 25 of the 1978 Memorandum of the Constitutional Commission:

“Constitutional government requires that all persons and authorities in the State shall accept that the Constitution, the supreme law of the land, shall be the source of all state power and that the courts shall be the sole and final interpreters of the Constitution—what it allows and what it forbids.”

The Constitution, 1992 of Ghana therefore invests the Supreme Court of Ghana with a more substantial power of judicial review than what the United States Supreme Court acquired in Marbury v Madison (supra).

Accordingly, if by the political question doctrine, it is meant that where the Constitution, 1992 allocates power or function to an authority, and that authority exercises that power or function within the parameters of that provision and the Constitution as a whole, a court has no jurisdiction to interfere with the exercise of that function, then I entirely agree that the doctrine applies in our constitutional jurisprudence. For this what is implied in the concept of the separation of powers. But if by the doctrine, it is meant that even where the authority exercises that power in violation of that constitutional provision, a court has no jurisdiction to interfere because it is the Constitution, 1992 which allocated that power to that authority, then I emphatically disagree.

For two reasons: First, articles 2(1) and 130(1) of the Constitution, 1992 empower this Supreme Court to declare as null and void not only any enactment but also any act or omission of any person which is inconsistent or in contravention of the Constitution. Secondly, if even the power or function is entrusted exclusively to that authority (like in Nixon v United States (supra)) and in the exercise of that function the authority is subject to no direction or control of any body, article 295(8) of the Constitution, 1992 still empowers the Ghanaian courts to inquire into whether that authority is exercising that function in accordance with the Constitution. It reads:

“(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be

[p.278] of [1997-98] 1 GLR 22 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 these functions in accordance with this Constitution or the law.”

(The emphasis is mine.) If the court finds that the function is being exercised in contravention of the Constitution, then as empowered under articles 2(1) and 130(1) of the Constitution, 1992 the Supreme Court has to declare the said exercise null and void.

Our Constitution, 1992 is clearly then unique in its marvellous detail. And the Ghana Supreme Court’s power of judicial review cannot therefore legimatelysic(2) be subordinated nor even equated to that of the United States Supreme Court. Actually, judicial review feeds on constitutional detail. For as Lawrence M Friedman in his book, A History of American Law (1973) at p 107 states:

“ … the more clauses a constitution [contains], especially clauses that [do] something more than merely set out the basic frame of government, the more potential occasions for the exercise of the power of review.”

Thus in Ghana, the very detailed nature of the Constitution, 1992 coupled with—

(i) the empowerment of any “person who alleges” to come to court—article 2(1);

(ii) the duty imposed on every citizen to uphold and defend the Constitution and the law—article 41(b);

(iii) the making of the Attorney-General, a compulsory defendant in all such cases, and

(iv) the availability of legal aid to any such insolvent litigant—article 294, cannot effectively stem the tide and contain the volume of judicial review litigation. Indeed, no judicial self-restraint doctrine can sufficiently assist the Ghana Supreme Court to refrain from deciding cases involving the constitutionality or otherwise of a law or action or omission of any authority. All what is required for the busy-body litigant is to allege that a law or a provision thereof, or

[p.279] of [1997-98] 1 GLR 22 an action taken under that law, or an action or omission of a person is inconsistent with the Constitution, 1992 and the stage is set to drag in the Attorney-General as the defendant.

Now, back to the meaning of the expression “prior approval.” The plaintiff relying heavily on the debate at the Consultative Assembly which drew up the Constitution, 1992 submits that it was clearly the intention of the members of the assembly that prior approval should imply “consideration and vetting.” He also makes references to the meaning of the word “approval” in various dictionaries. The Attorney-General, on the other hand demonstrates from other provisions in the Constitution, 1992 where the expression is used, that the interpretation of the plaintiff would not be applicable in all such cases. He refers in particular to articles 60(10), 89(6), 124(5), 174(2) and 180 of the Constitution, 1992.

Now, the expression “prior approval” appearing in the various provisions of the Constitution, 1992 is not defined anywhere in the Constitution. Black’s Law Dictionary Abridged (6th ed, 1991), referred to by the plaintiff, defines “approval” as: “The act of confirming, ratifying as scrutiny or consenting to some act or thing done by another. Approval implies knowledge and exercise of discretion after knowledge.” Again in Webster’s Third New International Dictionary (The English Language Unabridged) (1968), “approval” is defined as “act of approving.” And the verb “approve” is defined as:

“1. To demonstrate the truth or correction, establish as a fact as being sound 2. Test, try, experience: 3.

Make or show to be worthy of approbation or acceptance. 4. To judge and find commendable and acceptable. 5. To express often formally agreement with and support of or commendation of as meeting or standard.”

Clearly, in none of the above definitions is “approval” defined as “consideration and vetting.” Then at the Consultative Assembly it is evident from the passages quoted by the plaintiff in his written submission that members used other words like “screening”, “approval”, “assessed” and “scrutiny” in addition to “vetting.” Indeed, the common sense implication of the expression “prior approval” is to obtain the consent of the relevant authority. As to

[p.280] of [1997-98] 1 GLR 227 how that body and in this case Parliament may proceed to give this consent, article 110(1) of the Constitution, 1992 provides: “Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure.”

In my view, the above provision empowers Parliament by standing orders to regulate its own procedure provided same does not infringe a provision of the Constitution, 1992. Thus the courts cannot intervene at the suit of a person who desires a different procedure, if the one he objects to is equally constitutional. For it is not the province of the court under articles 2 and 130(1) of the Constitution, 1992 to direct Parliament or the executive on how to conduct its proceedings or perform its business if the procedure or action adopted infringes no provision of the Constitution, 1992. As succinctly stated in Tuffuor v Attorney-General (supra) at 651: “In so far as Parliament has acted by virtue of the powers conferred upon it by the provision of article 91(1) [of the Constitution, 1979], its actions within Parliament are a closed book.” (The emphasis is partly mine.) And Archer CJ also said in New Patriotic Party v Attorney-General (supra) at 49:

“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.”

Now, based on the variety of definitions of the word “approve” and the various expressions used at the Consultative Assembly, I cannot say that the framers intended “prior approval” to imply nothing but “consideration and vetting.” Especially so, as such an interpretation cannot be applied consistently in the remaining provisions of the Constitution, 1992 where the expression “prior approval” is used. For article 124(5) of the Constitution, 1992, for example reads: “The Parliamentary Service Board shall, with the prior approval of Parliament, make regulations, by constitutional instrument …” Consequently the contention that prior approval is

[p.281] of [1997-98] 1 GLR 227 a term of art and necessarily implies “consideration and vetting” cannot be upheld.

3. Conclusion

In the end I hold that every presidential nominee for ministerial appointment, whether retained or new, requires the prior approval of Parliament. And that prior approval is not a term of art.

Accordingly, I will refuse the plaintiff’s second and third reliefs. In respect of the first relief, I take judicial notice that a newly inaugurated Parliament cannot immediately be ready with its various committees to approve presidential nominees. The Constitution, 1969 of Ghana, in article 64(3) thereof took care of the interim period from the inauguration of the President and the Parliament to the time Parliament gets settled down to approve nominees for ministerial appointments. There is no such provision in the Constitution, 1992. But until Parliament acting under article 298, makes a law to regulate the interim period, I will simply hold that on a true and proper interpretation of the Constitution, 1992 particularly articles 57(3), 58(1) and (3) 66(1), 76(1) and (2), 78(1), 79(1), 80, 81, 97(1), 100(1), and 113(1) and (3) no person can in each Parliament of the Fourth Republic after a reasonable time from that Parliament’s inauguration, act as a minister or deputy minister of state without the prior approval of that Parliament.

JUDGMENT OF AKUFFO JSC.

I have previously had sight of the judgment of my learned brother Acquah JSC and I do not believe that I have anything cogent to add which he has not adequately touched upon. I, therefore attach myself to his opinion and I agree that:

(i) a nominee for ministerial appointment does, indeed, require the prior approval of Parliament;

(ii) the requirement of prior parliamentary approval affects both new and holdover ministers;

(iii) and the expression “prior approval” is not a term of art.

DECISION Judgment accordingly.

Endnotes

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