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NEW PATRIOTIC PARTY V ATTORNEY-GENERAL [1993-94] 2 GLR 35—192

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NEW PATRIOTIC PARTY V ATTORNEY-GENERAL [1993-94] 2 GLR 35—192 NEW PATRIOTIC PARTY v ATTORNEY-GENERAL [1993-94] 2 GLR 35—192 SUPREME COURT, ACCRA 8 March 1994 ARCHER CJ, ADADE FRANCOIS, ABBAN, AMUA-SEKYI, AIKINS, BAMFORD- ADDO, HAYFRON-BENJAMIN AND AMPIAH JJSC Constitution Law — Constitutional issue — Jurisdiction of Supreme Court — Action against declaration of 31 December as statutory public holiday — Contention by plaintiff that celebration not be financed with public finds and resources — Action not questioning overthrow of government of Third Republic in coup d'etat of 31 December 1981— Whether Supreme Court competent to hear action — Constitution, 1992, Sched 1.s 34(1) and (2). Constitutional law — Constitutional issue — Jurisdiction of Supreme Court — Interpretation of Constitution — Ghanaians granted right to defend constitutional order — Right exercised by seeking interpretation of Constitution — Action by plaintiff for declaration that celebration of 31 December as public holiday with public funds breach of constitution — Whether Supreme Court vested with jurisdiction to adjudicate matter — Constitution, 1992, arts 2 and 3(4). Constitutional law — Constitutional issue — Jurisdiction of Supreme Court — Political question — All issues of constitutional interpretation justiciable by Supreme Court — High Court and chieftaincy tribunals respectively granted, jurisdiction under Constitution over matters with high political content — Constitution essentially political document — Whether Supreme Court to decline jurisdiction on ground case political one. Constitutional law — Constitution, 1992 — Directive Principles of State Policy — Justifiability — No indication within Constitution that principles non-justiciable — Principles not exempted from effect of articles 1(2) and 2(1) which render any law, act or omission inconsistent with any provision of Constitution null and void — Judiciary obliged article 34(1) to be guided by principles when applying or interpreting Constitution — Whether principles justiciable — Constitution, 1992, arts 1(2), 2(1), 34(1) and Chp 6. [p.36] Constitutional law — Constitution, 1992 — Defence of — Celebration of 31 December as statutory public holiday — Article 3(4) vesting Ghanaians with right to defend Constitution — Scope of right — Effect of celebration on people adversely affected by coup d'etat and on resolve of people to resist coups — Whether celebration subverting Constitution — Whether celebration against letter and spirit of Constitution — Claim that celebration for good works, and values, of coup d'etat — Whether constitutional justification for expenditure national resources on it — Whether plaintiff entitled to resist expenditure — Constitution, 1992, arts 3(3), (4)(a) and (b), 41(f) and Sched 1, s 34(2). Constitutional law — Executive and legislative power — Limitation on — Injunction remedy — Supremacy of Constitution — Any law or act inconsistent with any provision of Constitution void — Whether injunction available to restrain President from enforcing or obeying void law — PNDCL 220 declaring 31 December as statutory public holiday and imposing penalties for breach of provision — Action by plaintiff to have declaration by executive of 31 December as statutory public holiday declared unconstitutional — No reference by plaintiff to PNDCL 220 — Provision recognising 31 December as statutory public holiday inconsistent with letter and spirit of Constitution — Whether provision null and void — Constitution, 1992, arts 1(2), 3, 35(1) and 41(f) — Public Holidays Law, 1989 (PNDCL 220), ss 1(1), 5 and Sched. Constitutional law — Executive and legislative power — Limitation on — Government expenditure — Financial estimates in operation before Constitution came into force with any constitutional provision — Financial provision approved by Parliament for celebration of 31 December as statutory public holiday — Celebration unconstitutional — Whether utilisation of public funds for purpose lawful — Constitution, 1992, Sched 1, ss 18, 19 and 36. HEADNOTES On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was overthrown in a coup d'etat. Subsequently, the military regime which took over the reins of government, the Provisional National Defence Council, declared 31 December a statutory public holiday. Accordingly, each year the anniversary of the coup was celebrated, inter alia, by personnel of the security forces with military parades, route marches and carnivals throughout the country. These activities were financed with public funds. On 7 January 1993 the reign of the PNDC came to an end with the assumption of power by a civilian government which had been elected into office under the Constitution, 1992. When on 19 December 1993 the government announced that 31 December 1993 would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the registered political parties in the country, claiming that the celebration would be unconstitutional, brought an action under article 2(1) of the Constitution 1992 against the Attorney-General for a declaration that the public celebration of the coup d'etat of 31 December out of public funds was inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 particularly articles 3(3)-(7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the celebration and refrain from carrying out the [p.37] celebration with public funds. In support of the plaintiff's case, it was contended, inter alia, that it was clear from the relevant provisions of the Constitution, 1992 that the people of Ghana had resolved never to allow the Constitution, 1992 to be overthrown or undermined and since the intended celebration would glorify coups d'etat and in the result would undermine the people's resolve to resist coups, it would be unconstitutional. Accordingly, expenditure of public funds on the celebration would constitute waste and misuse of public funds which the Constitution enjoined the people to resist. In his defence on the other hand, the defendant objected to the jurisdiction of the Supreme Court to entertain the action on the ground that (a) the action sought to question the legality of the coup d'etat of 31 December 1981 contrary to section 34(2) of the transitional provisions of the Constitution, 1992; and (b) the question whether 31 December should be celebrated was a political question which should be reserved to the executive or Parliament to decide. And on the merits, the defendant contended, inter alia, that (i) the celebration of 31 December as a public holiday could not be said to be subverting or overthrowing the Constitution in contravention of article 3(3) as to require any defensive action by anyone under article 3(4); (ii) the Directive Principles of State Policy contained in chapter 6 of the Constitution, 1992 were not justiciable and therefore articles 35 and 41 which were part of the principles could not ground a cause of action; and (iii) 31 December was a statutory public holiday by virtue of the Public Holidays Law, 1989 (PNDCL 220) and moneys were lawfully appropriated under the 1993 budget estimates approved by Parliament for its celebration in recognition of the historical values and good works that the revolution stood for and therefore the intended expenditure was lawful. Held, (Archer CJ, Abban, Bamford-Addo and Ampiah JJSC dissenting): (1) the Supreme Court had jurisdiction to entertain the plaintiff's action because (a) The essence of the plaintiff's action was that whatever the nature of the coup d'etat of 31 December 1981, legal or illegal, its anniversary after 7 January 1993, should not be celebrated out of public funds and other resources. Since the action did not relate to the overthrow of the government of the Third Republic or the abrogation of the Constitution, 1979, section 34(2) of the transitional provisions of the Constitution, 1992 which conferred immunity on and freed the persons covered by it from punishment or from paying compensation to anyone did not apply to the case. (b) By virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana had the constitutional right to protect the constitutional order established by the Constitution so that it was not abolished or sought to be abolished. The citizen had to exercise that right by seeking an interpretation as to the meaning and effect of a particular provision or provisions of the Constitution. Since in the [p.38] instant case, the determination of the controversy as to whether the celebration of the 31 December revolution offended the Constitution depended on the interpretation of the Constitution, it raised a justiciable issue which the Supreme Court had jurisdiction under article 2 of the Constitution, 1992 to adjudicate upon and make such orders and give such directions as it might consider appropriate. Tuffuor v Attorney [1980] GLR 637, CA sitting as SC cited. (c) The doctrine of "political question" was inapplicable in Ghana since under articles 1, 2 and 130 of the Constitution, 1992 issues of constitutional interpretation were justiciable by the Supreme Court. Besides, even though questions of human rights invariably had large components of political issues, yet under article 33 of the Constitution, 1992 those questions were reserved in the first instance to the High Court. Similarly even though chieftaincy disputes almost always involved local and often national politics, they were as provided by chapter 22 of the Constitution, 1992 cognisable only by the chieftaincy tribunals in the
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