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The Role of the Supreme Court in the Development of Constitutional Law in Ghana

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The Role of the Supreme Court in the Development of Constitutional Law in Ghana View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Unisa Institutional Repository THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA by SETH YEBOA BIMPONG-BUTA i THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA by SETH YEBOA BIMPONG-BUTA Submitted in accordance with the requirements for the degree of DOCTOR OF LAW – LLD at the UNIVERSITY OF SOUTH AFRICA PROMOTER PROFESSOR B P WANDA 1 February 2005 ii ABSTRACT The Theme running through this Dissertation is intended to prove that the Supreme Court has a role to play in the promotion, enforcement and sustenance of a proper democratic system of government, good governance and fundamental human rights and freedoms in Ghana. The Study would therefore address the role of the Supreme Court in the development of Constitutional Law in Ghana, with particular emphasis on the court’s contribution to the underlying concepts of the Fourth Republican Constitution of 1992; the guiding principles of constitutional interpretation and the vexed issue of whether the court should adopt a mechanical and literal approach to the interpretation of the Constitution or adopt a liberal, beneficent and purposive approach. The Supreme Court has asserted in the locus classicus decision: Tuffuor v Attorney-General [1980] GLR 637 that the 1979 Constitution as the supreme law, must be construed as a living political document capable of growth. Is there any evidence now to support that claim? The study shall also investigate the question of the power of the Supreme Court to review legislative and executive action. We shall also examine the role of the Supreme Court in the interpretation and enforcement of the Constitution and Fundamental Human Rights and Freedoms in relation to the rights and obligations of the individual and the State with the view to achieving good governance. The 1992 Constitution itself is founded on the premise that there are limitations to the enjoyment of fundamental human rights and freedoms. What is the extent of such limitations as determined by the Supreme Court? What has been the Supreme Court’s contribution to the sustenance of political stability and democratic governance and, especially, in matters relating to coup d’etats and to enforcement of the Constitution itself as distinct from the enforcement of fundamental human rights and freedoms? Has the Supreme Court power to enforce the Constitution and the existing law where there is proven case of injustice and illegality? Has the Supreme Court power to enforce Directive Principles of State Policy as formulated in chapter 6 of the 1992 Ghana Constitution? TITLE OF THE THESIS THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA Key terms: Meaning of Constitutional Law; importance and meaning of democracy and good governance; Underlying concepts of the Fourth Republican Constitution of 1992; Supreme Court and guiding principles of constitutional interpretation; Supreme Court and judicial review of legislative and executive action; Supreme Court and interpretation or enforcement of fundamental human rights and freedoms; limitations on enjoyment of fundamental human rights and freedoms; jurisdiction of the Supreme Court in interpretation or enforcement of the Constitution; principles pertaining to the enforcement of the Constitution. iii TABLE OF C O N T E N T S Page Abstract iii Table of cases xvii Table of enactments xxii Table of abbreviations xii Bibliography xxvi Acknowledgments xiv CHAPTER I: GENERAL INTRODUCTION AND CENTRAL THEME OF THE DISSERTATION 1 (i) Statement of the central theme 1 (ii) Meaning of constitutional law 6 (iii) Importance and meaning of democracy and good governance .. .. 10 (iv) Different meanings of democracy .. .. 12 (v) Meaning of good governance .. .. 16 (vi) Methodology, work division and scope of the dissertation .. 19 (vii) Conclusion .. .. 20 CHAPTER II: HISTORICAL BACKGROUND: CONSTITUTIONAL EVOLUTION AND THE LEGAL SYSTEM IN GHANA .. 25 PART A: CONSTITUTIONAL EVOLUTION IN GHANA .. 25 iv PART B: GHANA LEGAL SYSTEM 33 (i) Sources of Law .. .. 33 (ii) The judicial system in Ghana (the past and present) .. 41 (iii) Independence of the judiciary .. .. 48 (iv) Composition of the Supreme Court .. .. 56 (v) Qualifications for appointment as Chief Justice or Justice of the Supreme Court .. .. 65 (vi) Jurisdiction of the Supreme Court .. .. 67 (a) appellate jurisdiction .. .. 68 (b) review jurisdiction .. .. 69 (c) jurisdiction relating to official documents .. 72 Conclusion .. .. 72 CHAPTER III: THE UNDERLYING CONCEPTS OF THE CONSTITUTION, 1992 73 (i) Introduction .. .. 73 (ii) Supremacy of the Constitution .. .. 74 (iii) Doctrine of separation of powers .. .. 101 (iv) Doctrine of non-justiciable political question .. 109 (v) Doctrine of mootness .. .. 136 (vi) Conclusion .. .. 147 CHAPTER IV: THE SUPREME COURT AND THE INTERPRETATION OF THE CONSTITUTION 149 Introduction 149 Rules applicable in construing a national constitution: 155 (i) general principles of constitutional interpretation 155 (ii) need for benevolent, broad, liberal and purposive construction of a national document 159 (iii) benevolent construction on provisions on the right to vote 166 v (iv) national constitution to be viewed as a document sui generis to be construed not necessarily according to ordinary rules and presumptions of statutory interpretation .. 169 (v) National constitution to be construed as political document capable of growth .. 184 (vi) Role of Directive Principles of State Policy as tool for constitutional interpretation 187 (vii) Role of the spirit of the Constitution as a tool for interpretation 189 Conclusion .. .. 202 CHAPTER V: THE SUPREME COURT AND THE POWER OF JUDICIAL REVIEW OF LEGISLATIVE ACTION 206 (i) general introduction 206 (ii) Ambit of judicial review of legislative action 208 (a) introduction .. .. 208 (b) examination of ambit of judicial review of legislative action 210 (iii) Ouster clauses and judicial review of legislative action 227 (a) introduction .. .. 227 (b) the indemnity clause in section 34(3) and 36(2) of the transitional provisions .. .. 228 (iv) Legality of coup d’etats and judicial review of legislative action 244 (a) introduction .. .. 244 (b) examination of the issue of the legality of a coup d’etat 244 (v) Constitutionality of the Fast Track High Court 258 (a) introduction .. .. 258 (b) creation and purpose of the Fast Track High Court 259 (c) the facts and central issue for determination .. 261 (d) determination of the central issue .. 263 vi (e) application for a review of the majority decision 274 (f) crucial issue for determination in review application 278 (g) rationalization of the ordinary and review bench decisions in the Tsatsu Tsikata case .. 284 (vi) Conclusion 286 CHAPTER VI: THE SUPREME COURT AND THE POWER OF JUDICIAL REVIEW OF EXECUTIVE ACTION 287 (i) Introduction 287 (ii) The Supreme Court and challenge to executive action relating to compulsory retirement of public officers 288 (a) introduction .. .. 288 (b) the facts and issue in Yovuyibor case .. 291 (c) can the decision in Yovuyibor case .. 292 (d) can the decision in Yovuyibor case be supported 295 (iii) Challenge to executive action relating to local government administration 305 (a) introduction .. .. 305 (b) examination of cases relating to local government administration .. .. 306 (iv) Can the President be sued personally in the exercise of executive functions? 309 (a) introduction .. .. 309 (b) examination of the question whether the President amenable to court proceedings .. 310 (c) reasoning for the majority and minority opinions in NPP v President Rawlings .. .. 311 (d) rationalization of the majority and minority opinions on the vexed issue whether or not the President can be sued personally sued .. .. 325 (v) Conclusion .. .. 328 vii CHAPTER VII: THE SUPREME COURT AND THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS 330 Introduction 330 PART A 1. Historical background to enjoyment of fundamental human rights and freedoms 331 2. Enjoyment of fundamental human rights before the coming into force of Constitution, 1992 339 3. Enjoyment of fundamental human rights under the Constitution, 1992 346 (i) jurisdiction to enforce fundamental human rights .. 346 (ii) rights declared as constituting fundamental human rights and freedoms .. 347 4. Fundamental human rights distinguished from Directive Principles of State Policy 348 PART B 1. General Fundamental Human Rights and Freedoms 354 (i) Right to or protection of personal liberty (a) limitations to enjoyment of personal liberty 354 (b) right of person arrested for committing or about to commit a criminal offence to a fair trial within a reasonable time 355 (c) right of a person actually charged before a court to a fair hearing within a reasonable time .. 362 (d) right of a person charged not to be tried in absentia 363 (e) no conviction for a criminal offence unless the offence is defined and penalty prescribed 365 (f) the right of a person charged to be informed immediately viii as to nature of offence in a language he understands 372 (g) right of an accused person to be given reasons by trial court for his conviction for a criminal offence 374 (ii) Observance and enjoyment of administrative justice as a fundamental human right .. 378 (iii) Freedom of assembly and the right to demonstrate 383 (iv) Freedom of association including freedom to form and join trade unions 391 (v) Freedom of speech and expression, including freedom
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