Case Brief: Ghana Bar Association v. Attorney-General and Abban (Abban Case)
Ghana Bar Association v. Attorney-General and AbbanStatement of fact: The President of the Republic of Ghana nominated Mr Justice Isaac Kobina Abban, a justice of the Supreme Court for approval by Parliament as the Chief Justice. This was done in anticipation of the retirement of the then Chief Justice, Mr Justice P. E. N. K. Archer.Parliament gave the approval and Mr. Abban took the oath of office before the President as required by the Constitution, 1992. The Plaintiff Association invoked the original jurisdiction of the Supreme Court challenging the constitutionality of the appointment of the second defendant by the President. The plaintiff argued that the second defendant was not a person of high moral character and proven integrity as required by the 1992 Constitution. The defendant on the other hand contended that the Supreme Court lacked jurisdiction to entertain the action of the plaintiff. Issue: Whether or not the Supreme Court has jurisdiction to entertain the present action? Held: The Supreme Court lacks jurisdiction to entertain the matter. Reasoning: Unlike Adade, JSC in the case of the New Patriotic Party v. Attorney-General (31st December Case), who asserted that the doctrine of political question does not apply under the Constitution, Kpegah, JSC believes it applies. Political question is rooted in the doctrine of separation of powers. The appointment of the Chief Justice is committed to other agencies of government- Executive and Legislature. Therefore, inviting the Supreme Court into this matter is like going somewhere one ought not to go. This invitation, like in the words of Chief Justice John Marshall, does not only amount to “an absurd and excessive extravagance” but also usurpation of the constitutional functions of both the Executive and Legislature.The act of the President was to nominate which he did. The act of the Council of State was to advise which they did. The act of Parliament was to give approval, which they did. These acts are not inconsistent with the Constitution. The Constitution is silent on who a man of high moral character and proven integrity is. The framers have therefore left this decision to be made by the President, Council of State and Parliament. Therefore, the plaintiff cannot ask the court to do what another arm of government is clothed with power to do. Conclusion: The Supreme Court lacks jurisdiction to declare the appointment of the Chief Justice as null and void.Per Kpegah, JSC at pp. 644-646: The Speaker of Parliament was made the first defendant in this suit. The court considered the impropriety of joining the Speaker of Parliament and decided to strike out the Speaker as a defendant. This is what the court said at 650: “This then brings us to the question of how far the courts can question what, under our Constitution, has been done in, and by, Parliament? There is a long line of authorities which establishes two important principles governing the relationship that subsists or should exist between Parliament and the courts:(a) that the courts can call in question a decision of Parliament; but that the courts cannot seek to extend their writs into what happens in Parliament; and(b) that the law and custom of Parliament is a distinct body of law and, as constitutional experts do not put it, “unknown to the courts.” At pp. 650-653: My Lords, having identified the characteristics, I think it will be appropriate now to confront the ultimate question; whether the criteria we have identified as to what constitutes a nonjusticiable “political question” brings the instant case under the umbrella of the said doctrine. The natural beginning, as was pointed out in the Baker case p.651, is to note whether any of the common characteristics which we have been able to identify are present.“My Lords, every element is present in the case before us. To the first question, whether the appointment of the Chief Justice is constitutionally committed to other agencies of government, I will answer in the affirmative. By the provisions of article 144(1) of the Constitution, 1992 this function is specifically committed to both the executive and the legislature; and to accept the invitation which is being extended to us and exercise jurisdiction in the matter, we shall be behaving like an unruly dog which has refused to be chained to its own kennel but wanders to places where it ought not to be. Any attempt by the Supreme Court to claim a power to be able to declare null and void the appointment of the Chief Justice made by the President, in consultation with the Council of State and with the approval of Parliament as provided in the Constitution, 1992 could not only correctly or justly be characterised, in the words of Chief Justice Marshall, as “”an absurd and excessive extravagance”” but also as usurpation of the constitutional functions of both the executive and the legislature. As a fall out, we shall be deliberately courting confrontation not only with the executive, but also with Parliament whose proceedings we have no power to scrutinize. If the President, in consultation with the Council of State and with the approval of Parliament makes an appointment in compliance with the Constitution, 1992, his authority, in the words of Justice Jackson, “is at its maximum”. Because in such circumstances, his authority includes all that he possesses under the Constitution, 1992 plus all that Parliament, the people’s direct representatives, has. When the President gets the support of Parliament in the discharge of a constitutional duty, he can in such circumstance be described not only as close to personifying the sovereign people of Ghana, but also doing their will. If the President’s act is held to be unconstitutional in these circumstances, then it means that the Government of Ghana, in the words of Gunther, “as an undivided whole lacks power.” For, as was pointed out by Professor Edward S Corwin, quoted by Professor H J Abraham in his book, The Judicial Process (6th ed) at p 358 the principle of, “a political question relates to the possession of
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