THE GHANA SUPREME COURT AND THE POWER OF JUDICIAL REVIEW OF LEGISLATIVE ACTION

Tonny Nyarko Acheampong

LLM (KNUST)

0543210588

The power of judicial review of legislative action has been vested in the Ghana Supreme Court by article 130(1)(b) of the 1992 Constitution. Under the said article, the Supreme Court has been vested with exclusive original jurisdiction to declare any enactment or legislation as null and void on the grounds that the legislation in question has been made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution. In effect, the exercise of the power of judicial review is founded on the supremacy of the Constitution. The supremacy of the Constitution, 1992 over any other law in Ghana as enshrined in article 1(2) of the Constitution, has been reinforced by article 2(1).

These articles state as follows:

"1.(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.

2. (1) A 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."

The need for all existing legislation to be, as it were, in tune with the Constitution,

1992 is further strengthened by section 36(2) of the Transitional Provisions of the

constitution which also provides that:

"36(2) Notwithstanding the abrogation of the Proclamation referred to in

subsection (1) of this section, any enactment or rule of law in force immediately

before the coming into force of this Constitution shall, in so far as it is not

inconsistent with a provision of this Constitution, continue in force as if enacted,

issued, or made under the authority of this Constitution."

Similarly, article 93(2) of the Constitution also provides that the legislative power of Ghana shall be exercised in accordance with the Constitution.

The effect of the above quoted provisions is that no legislation in Ghana can be regarded as valid unless it satisfies the test of consistency with the Constitution, 1992. On the question as to the ambit of the Supreme Court’s power of judicial review of legislative action, Edward Wiredu JSC in his opinion in support of the unanimous decision of the Supreme Court in Ghana Bar Association v Attorney-General (Abban Case) said:

“The Constitution has vested the power of judicial review of all legislation in the Supreme Court. It has dealt away with either an executive or parliamentary sovereignty and subordinated all the arms or organs of State to the Constitution…The arms of State and the institution involved in the appointment of the Chief Justice are all creatures of the Constitution and each, in playing its part, must exercise such powers as are authorized by it in a democratic manner as enshrined in the Constitution.”

AMBIT OF JUDICIAL REVIEW OF LEGISLATIVE ACTION

The Ghana Supreme Court had no power to declare any legislative action invalid before the coming into force of the Constitution, 1992 for the simple reason that there was no supreme law, a written constitution, against which an impugned legislation could be tested or measured. However,

the Supreme Court had the power of judicial review of legislation under article 118(1)(b) of the Constitution, 1979. But that power (together with the right and enjoyment of fundamental human rights and freedoms guaranteed by articles 19-34 of the Constitution, 1979), was curtailed following the suspension of the Constitution itself by the 1981 PNDC (Establishment) Proclamation

Similarly, in the most celebrated case of In Re Akoto the supreme court refused to declare the PDA unconstitutional for reasons which has fortunately led to the development of our constitutional law today

The ambit of the Supreme Court’s power of judicial review of legislative action principally under the Fourth Republican Constitution of 1992.

It is well-settled that any legislation made in excess of the powers conferred on the legislature by the Constitution, 1992 which is inconsistent with any provision of the Constitution, would be declared a nullity by the Supreme Court in the exercise of its power of judicial review under article 130(1)(b) of the Constitution. What is the extent of the court’s power of judicial review of legislation under article 130(1)(b)?

The issue was considered by the Supreme Court in the recent case of Republic v Yebbi & Avalifo. The case came before the Supreme Court on a reference from the Greater Accra Regional Tribunal by way of case stated under article 130(2) of the Constitution, 1992. The issue turned on whether section 24(1) of the Courts Act, 1993 (Act 459), was inconsistent with article 143(1) of the Constitution, 1992.

The facts which led to the reference by the regional tribunal to the Supreme Court were that the accused in the case had been arraigned before the regional tribunal on two charges of conspiracy to steal and stealing the sum of one hundred million cedis, the property of a political party, contrary to sections 23(1 and 124(1) of the Criminal Code, (Act 29).

The accused challenged the jurisdiction of the tribunal to try him for the charges brought against him. He argued that under article 143(1) of the Constitution, a regional tribunal had jurisdiction “to try such offences against the State and public interest as Parliament may, by law, prescribe.”

But, he contended, the offences brought against him could not be said to be against “The State or the public interest” because the alleged stolen money was said to belong to a political party which could not be described as a State institution; nor was the theft of a political party’s money, an offence against the public interest

The accused therefore contended that the regional tribunal had no jurisdiction to try him for the charges brought against him. On the other hand, the prosecution contended that once Parliament had exercised its discretion by enacting the Courts Act, 1993 (Act 459), s 24(1) by providing that a regional tribunal had jurisdiction in all criminal matters, the tribunal had jurisdiction to try the case

In response to these opposing arguments, the Supreme Court compared the provision in article 143(1) of the Constitution with that of article 140(1), dealing with the jurisdiction of the High Court. On one hand, the court found that article 140(1) provides that: “The High Court shall, subject to the provisions of [the] Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters…” On the other hand, however, the court found that the original jurisdiction of a regional tribunal under article 143(1) was confined to : “such offences against the State and the public interest as Parliament may, by law prescribe.”

Having made that comparison, the Supreme Court held that: “the High Court and Regional Tribunal are not meant and were not intended to have the same original jurisdiction”; and that the Constitution did not grant the Regional Tribunal jurisdiction in “all criminal matters.” The Supreme Court therefore concluded, per Acquah JSC, that:

“To attempt, therefore, in section 24(1) of Act 459 to vest jurisdiction in all criminal matters in the Regional Tribunals negates not only the clear and unambiguous language of article 143(1) of the 1992 Constitution but also the intention of the framers of the Constitution.”

In the light of the above conclusion, the Supreme Court held that on a true and proper interpretation of article 143(1) of the Constitution, Parliament had no power to provide that a regional tribunal should have “concurrent original jurisdiction with the High Court in all criminal matters.” Consequently, the court held that section 24(1) of Act 459, which made provision to that effect, was clearly inconsistent with the letter and spirit of the Constitution, 1992. The section was therefore declared a nullity under article 1(2) of the Constitution.

but the supreme court in its 2002 decision in Amidu v Electoral Commission & Assembly Press.26 In this case, the plaintiff sued in the Supreme Court, invoking its original jurisdiction under article 2 of the Constitution,1992. He challenged the constitutionality of the 2001 Ghana Gazette No 1 which contained notice to the public of the results of the December 2000 Parliamentary Elections.

The ground for challenging the validity of the Gazette was that it bore a retrospective date of publication, namely, 5 January 2001 instead of 16 January, the actual date of the publication. He therefore sued for a declaration, inter alia, that the conduct of the defendants, the Electoral Commission and the Assembly Press, in causing the publication of the 2001 Gazette No 1 with a retrospective date, was in contravention of and inconsistent with specified provisions of the Constitution, 1992 including article 99(1) and also article 107 which proscribes retrospective legislation Under article 99(1), the High Court has jurisdiction to determine an election petition relating to the issue whether a person has been validly elected as a Member of Parliament.

And it is also provided by section 18(1) of the Representation of the People Law, 1992 (PNDCL 284), that an “election petition shall be presented within 21 days after the date of publication in the Gazette of the result of the election to which it relates.”

In the light of the above provisions, the plaintiff by his claim, in effect, sought to enforce the constitutional right of a person to challenge the result of a parliamentary election under article 99(1) of the Constitution within 21 days of the date of publication of the results in the Gazette. The plaintiff claimed that, that right had been adversely affected by the back-dating of the 2000 Gazette No 1 containing the results of the December 2000 Parliamentary Elections.

The crucial question to be addressed, however, is: first, what is the true legal effect of section 34(3)? Does the ouster clause in section 34(3) prohibit the Supreme Court from questioning the validity or legality of enactment passed by the PNDC and the AFRC, which form part of the existing law as defined by article 11(4) of the Constitution and which are clearly inconsistent with any provisions of the Constitution, 1992?

The effect of the unanimous decision of the court is that where the existing law such as the

laws passed by the PNDC and the AFRC required anything to be done and what is to be done

has already been done before the coming into force of the Constitution, 1992 that legislation

cannot be questioned by the Supreme Court by virtue of the provision in section 34(3).

However, where an enactment by the PNDC or the AFRC requires anything to be done after

the coming into force of the Constitution, then if what is to be done is inconsistent with any

provision of the Constitution, then that Law can be questioned by the Supreme Court under

section 36(2) of the transitional provisions. This appears to be the true legal position because

under section 36(2) of the 1992 transitional provisions:

It is respectfully suggested that the interpretation placed by the judge on sections 34(3 ) and

36(2) of the transitional provisions cannot be supported in law if it appears by the above pronouncement, the judge sought to construe section 34(3) as meaning

that the existing law - being laws passed by the AFRC and the PNDC could not, by virtue of

section 34(3), "be challenged under section 36(2) of the transitional provisions even if they

are found to be inconsistent with a provision of the 1992 Constitution."

LEGALITY OF COUP D’ETATS AND JUDICIAL REVIEW OF LEGISLATIVE

ACTION His Lorships in Sallah v Attorney-General, that (as was rightly observed by Elias) the Supreme Court “ had to determine definitively the precise legal effect of a coup d’etat on the country’s legal system.” The plaintiff in this case was on 16 October 1967 appointed as a manager of a statutory corporation set up under the Statutory Corporations Act, 1961. His no Fast Track High Court vested with jurisdiction to try criminal cases. The reasons for the decision were, inter alia, that the Fast High Track Court was not a Division of the High Court created by the Chief Justice under article 139(3) of the Constitution because it was not created by an Act of Parliament or by an order, rule or regulation as required by article 11(7) of the Constitution, 1992. The majority rejected the guidelines issued by the Chief Justice as having any legal effect.

In his opinion in support of the majority decision, Kpegah JSC said: "A statute or some legal instrument or an enactment is required in the creation, not only of a court, but the creation of a division as well. The guidelines, ... (relied upon by the defendant) cannot achieve this because it has no legal effect... That the individual can administratively create a court has not been part of legal thought... The basic position derived from our legislative history is that an Act of Parliament or other statutory instrument is always needed to create a court... A substantive law is always necessary to create a court; not courts only, but also divisions of such courts because this will entail curtailing the general jurisdiction of that court when a ‘division’ of it is created.

You can only administer a court when it has been established or created. But you cannot, in law administratively create a court.“It should be stated that all the five Justices of the Supreme Court, who upheld the plaintiff's claim103 (with the exception of Ampiah JSC), were of the opinion that the creation of a division of the High Court under article 139(3) of the Constitution, must be by an Act of Parliament or by constitutional or statutory instrument. However, as indicated, a member of the majority, Ampiah JSC did not share that opinion. His lordship said "The Chief Justice for the purposes of the administration of justice may establish divisional courts without reference to Parliament but these divisional courts can only be Judicial Divisions and must be established in accordance with the constitutional provision, namely, article 139(3). (Compare the provision under article 136(4) of the Constitution and also section 10(4) of the Courts Act, 1993 (Act 459)). It is a notorious fact that there exists three Divisions of the Court of Appeal - one doing criminal appeals and two doing civil appeals..."

"The Chief Justice for the purposes of the administration of justice may establish divisional courts without reference to Parliament but these divisional courts can only be Judicial Divisions and must be established in accordance with the constitutional provision, namely, article 139(3). (Compare the provision under article 136(4) of the Constitution and also section 10(4) of the Courts Act, 1993 (Act 459)). It is a notorious fact that there exists three Divisions of the Court of Appeal - one doing criminal appeals and two doing civil appeals...“is very interesting to note that section 136(4) of the Constitution, which Ampiah JSC said may be compared with article 139(3), the subject of interpretation in the Tsatsu Tsikata (No 1) case, states: "The Chief Justice may create such divisions of the Court of Appeal as he considers necessary to sit in such places as he may determine." It is respectfully submitted that Justice Ampiah, who supported the majority in upholding the plaintiff's claim, was right and in effect, agreeing with the minority judges in the case, namely, that the Chief Justice had the power under article 139(3), to administratively create a division of the High Court. It is very surprising and regrettable that the opinion of Ampiah JSC on the true effect of article 139(3) appears to have been lost on his colleagues in the majority!

THE APPLICATION FOR A REVIEW OF THE MAJORITY DECISION

It could be concluded from the discussion in this chapter, that the Supreme Court has made appreciable contribution to the all-important question of the ambit of power of judicial review of legislation, particularly the court’s attitude to ouster clauses (such as section 34(3) of the transitional provisions to the Constitution, 1992), the legality of coup d’etats and the constitutionality or otherwise of the Fast Track High Court. While the Supreme Court must be commended for enhancing its power of judicial review of legislative action as shown by the decision in Mekkaoui case (supra), the court must also be criticized for its subsequent decision in the Amidu case (supra). As argued, the decision constitutes a self-imposed limitation of its power of judicial review under article 130(1) of theConstitution, 1992.