CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria by Peter Atudiwe Atupare A thesis submitted to the Faculty of Law in conformity with the requirements for the degree of Doctor of Philosophy Queen‘s University Kingston, Ontario, Canada (May, 2011) Copyright © Peter Atudiwe Atupare, 2011 Abstract This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‗fundamental law‘ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‗legality‘ or the ‗rule of law.‘ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‗law‘ that transcends the confines of positive or explicit law while remaining inherently ‗legal‘ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana ii and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa. iii Acknowledgements I am grateful to the Law Faculty and the School of Graduate Studies and Research, Queen‘s University, for the wonderful opportunity to undertake this research, and I very much appreciate your generous financial support without which this research would have been a monumental fiasco. I would like to record my special thanks to Professor Mark D. Walters, my Thesis Supervisor for a wonderful job done. While it is common for students of my caliber to be left in their own solitary, depressing universe in the course of graduate studies, I thank Prof. Mark for saving me from such an excruciating fate, and for the care, sympathy and amazing understanding shown to me. I appreciate your unbounded patience in reading through the tedious pages of my Thesis. Indeed, there is no doubt that my Thesis would have suffered many grievous errors or omissions but for your affection, probing mind, critical comments and questions. You have been extremely generous with your labour, which extended beyond the substance of the difficult legal questions at the core of my Thesis, to syntax and style. You are not only an outstanding mentor, but also an excellent counselor in difficult periods of graduate studies. On the whole, I have been a constant beneficiary to your sustained devotion to my wellbeing, and tremendous teaching and writing skills. Words are not sufficient to capture my wish for you, but I would simply say that may the grace of God always be upon you and your family, and as I leave Queen‘s Law, hopefully, to join the world‘s teaching and research fraternity, I shall look back with great pride that you have been a great mentor, and ever living influence. iv Special thanks also go to my Thesis Committee members, Professors Cherie Metcalf and Stanley Corbett. I appreciate your guidance and insightful comments that gave this Thesis a coherent shape. I could not have done this without your demonstrated brilliance in grasping the salient question of this Thesis and offering very generous and helpful suggestions. By your suggestions, I have come to understand and appreciate the variegated theoretical options that exist for the judicial enforcement of socio-economic rights in the common law world. Though some of these options are clearly not the target of my Thesis, the exposure to them makes me a better student of Law, especially on the justiciability of socio-economic rights, and above all, saves me from penetrating charges of parochialism by balancing my arguments. When the opportunity grants itself again to study law at the graduate level with the choice to pick my thesis committee members, I shall make the confident and right decision to be with you. You have shown me care and love, something that deleted from the compass of my experience at Queen‘s Law, stress and boredom. Thanks so much. To Dean Prof. William Flanagan and Associate Dean (Graduate Studies and Research) Prof. Sharryn Aiken, thanks so much for your tremendous support. Your understanding of the dynamics of both administration and international studentship was a great resource that contributed to my survival. By your daily acts of care and love, the beam of hope in my academic battle was sustained. By your due diligence and sensitivity to the salient issues of graduate studies, I have prevailed, and I am confident that with you at the post, Queen‘s law shall stand tall. v Phyllis Reid deserves more than thank you, but unfortunately words cannot express what she actually deserves. She has been extremely caring and understanding, and the foundational yoke of my good experience in the Law Faculty. Her soothing words on some troubling administrative matters are usually enough to cleanse me of stress. I thank you so much for being an outstanding administrator and a loving mother. Yet, while a student at Queen‘s Law, many people have shown me love and care. There is no space to record the names of all these people, but there must be a space for my Canadian ―Mother‖, Madam Anne in the Law Library. I sincerely thank you for providing me with the sense of a family in Canada. You have shown me sympathy, and genuine love. Thanks so much. Though I shall miss your great sense of humour and amazing acts of encouragement and support, remember that you are at the centre of my life‘s chapter at Queen‘s Law. I should express my gratitude to Faculty members for their instructions and various acts of support, especially, Professors Leslie Green, Don Stuart, Arthur Cockfield, Rosemary King, Martha Bailey, Nicholas Bala, Nancy McCormack, Erik Knutsen, George Alexandrowicz, Darryl Robinson, Malcolm Thorburn and Michael Pratt. To my colleagues in the Doctoral Program, especially Muhammad Abbas, Hugo Choquette, Jennifer Quaid, and Philip Wright - and those in the LL.M Program – Stephan Pierre-Noel, Baboa Opoku, Imran Akram, Alejandra Encinales, and Gaunru Liu, accept my profound gratitude for your rewarding and stimulating company. vi Finally, I am indeed thankful to all members of Manyoro Royal Family, especially Letitia, and Lexie Lamwoweni for being there for me during all trying times. At long last, it is all over and we have prevailed. In spite of the support, comments and suggestions received and acknowledged, all errors or shortcomings that my thesis might contain are my sole responsibility. vii Table of Contents Abstract ............................................................................................................................................ ii Acknowledgements ......................................................................................................................... iv Chapter 1 Introduction ..................................................................................................................... 1 Chapter 2 The Constitutional Setting for Human Rights in Ghana and Nigeria .............................. 9 2.1 Introduction ............................................................................................................................ 9 2.2 Ghana and Nigeria Compared .............................................................................................. 10 2.3 An Anatomy of Constitutional Human Rights Protections .................................................. 20 2.4 Academic Opinions and Gaps .............................................................................................. 23 2.5 Judicial Response ................................................................................................................. 27 2.6 Academic Question of Investigation .................................................................................... 32 2.7 Constitutional Positivism in Context ................................................................................... 35 Chapter 3 The Constitution as a Fundamental Law for the Collective Good ................................ 45 3.1 Introduction .......................................................................................................................... 45 3.2 Rule-Based Constitutionalism ............................................................................................