Battle Lines Drawn In Case Between US-Based Constitutional Lawyer And The Attorney-General

In a few days, the Supreme Court will decide on the constitutionality of the Constitution Review Commission. I believe that all papers filed in the Court should be available on the Court website since these are

public documents. This will allow the people to know what is going on in the Courts.

To this end, I have attached the Attorney General's case and my case.

May the better side win!
I Shall Return
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT OF JUSTICE
ACCRA – A.D 2014
SUIT NO: JI/12/2014
PROFESSOR STEPHEN KWAKU ASARE PLAINTIFF
10315 South WEST 19TH Place
Gainesville, Florida, USA
AND
ATTORNEY – GENERAL DEFENDANT
Attorney – General's Department
Ministry of Justice
Accra
___________________________________________________________________________

STATEMENT OF CASE OF THE DEFENDANT – RULE 48 C.I. 16

___________________________________________________________________________

1. My Lords, the plaintiff herein, has caused to be served on the Attorney–General, a Writ invoking the Original Jurisdiction of this Honourable Court, together with a Statement of Case filed on 9thJuly, 2014. In the Writ, the Plaintiff is seeking several reliefs bordering on the power of the President of the Republic of Ghana in initiating the process leading to the amendment of the 1992 Constitution. The reliefs are well articulated in the Writ of the Plaintiff and therefore, respectfully, I wish to spare your Lordships the ordeal of having to read the same thing in the presentation.

2. The President of the Republic of Ghana set up a Commission of Enquiry (''the Commission'') into the operation of the 1992 Constitution in 2010, by the Constitution Review Commission of Inquiry Instrument, 2010, C.I 64 (C.I. 64). The terms of reference of the Commission are;

“(a) to ascertain from the people of Ghana, their views on the operation of the 1992 FourthRepublican Constitution and in particular, the strengths and weaknesses of Constitution;

(b) to articulate the concerns of the people of Ghana on amendments that may be requiredfor a comprehensive review of the 1992 Constitution; and

(c) to make recommendations to the Government for consideration and provide a draft billfor possible amendments to the 1992 Constitution.

From the outset, it is clear that the mandate of the Commission was not to amend theConstitution, 1992. Their mandate was to gather information from the people ofGhanaregarding their views of the operations of the Constitution, bearing in mind sections that need to be amended. The Commission was also required to provide a draft Bill for consideration by all stakeholders for possible amendments to the Constitution.

Pursuant to the C.I. 64, the President derives his powers to establish the commissionfrom article 278 (1) (a) of the Constitution, 1992. On the other hand, the Plaintiff contend that, itis only Parliament which under article 289 (1) (a) has exclusive and special power to amendthe Constitution, 1992.

It is therefore pertinent to examine the provisions of articles 278 (1) (a) and 289 (1) of the

Constitution, 1992.
ARTICLE 278(1) OF THE 1992 CONSTITUTION
3. In accordance with the provisions of C.I 64, the President established the Commission in the exercise of powers conferred on him by Article 278 (1) (a) of the 1992 Constitution.

4. It is the contention of the Plaintiff that C.I 64 is null and void and of no legal effect as it contravenes the letter and spirit of Article 289(1) of the 1992 constitution, since by the Article supra, it is Parliament that has the exclusive and specific power to amend the Constitution.

5. Article 278 (1) (a) of the 1992 constitution provides as follows;

APPOINTMENT OF COMMISSION OF INQUIRY.
(1) “subject to Article 5 of this Constitution, the President shall, by Constitutional Instrument, appoint a Commission of Inquiry into “any matter of public interest” (my emphasis) where:

(a) The President is satisfied that a Commission of Inquiry should be appointed. . . .''

6. What then constitutes "any matter of Public Interest'' and whether any issue concerning the provisions of the Constitution can be classified as matters of Public Interest?

8. Article 295 (1) of the Constitution, 1992, provides the definition of public interest, in the following manner,

“In this constitution, unless the context otherwise requires –''public interest''

includes any right or advantage which inures or is intended to inure to the

benefit generally of the whole of the people of Ghana''

If one reflects on the words ''we the people of Ghana'' in the Preamble of the Constitution, one gets a vivid picture that the provisions and for that matter the application of the provisions of the Constitution concerns the whole of the people of Ghana or are intended to inure to the people of Ghana. Therefore, the definition of “public interest'' in the said quoted Article of the Constitution, gives further credence to the power of the President of the Republic of Ghana to appoint the Constitution Review Commission by C.I 64. Tersely, provided any matter is of public interest, and if the President is so satisfied, he is empoweredto set up a commission of enquiry for the purpose. Consequently, the establishment of the Commission and also the ConstitutionReview Implementation Committee (CRIC) by the President is valid, constitutional and lawful.

This Honourable Court, in the case of THE REPUBLIC v YEBBI & AVALIFO [200] SCGLR 149, cited with approval, the exposition on Public Interest in the case of R v SUSSEX CONFIRMING AUTHORITY; EX PARTE TAMPLIN & SONS BREWERY (BRIGHTON) LTD [1937] 4 ALLER 106 @ Page 108, where Lord Hewart said,

"If the condition is in the interest of a considerable part of the public, then it is true to say that it is in the interest of the public of which that is a part. It would, I think, be fantastic to argue that a condition cannot be in the interest of the public unless it is in the interest of every part of the public . . . .If it is in the interest of the Public concerned, then it is in the interest of thePublic as a whole."

Can one comfortably say the, in the light of the above exposition, issues bordering on the amendment of the Constitution are not in the Public Interest? Certainly not. Issues on theprovisions of the 1992 Constitution concern Ghanaians as a whole and are therefore in the Public Interest and for that matter the President is empowered by Article 278 (1) of the Constitution to set up the CRC to initiate the process of amending some provisions of the Constitution.

In the Republic v Avalifocase, money belonging to the National Democratic Congress was stolen and one of the issues that arose for determination was "whether or not the stealing of moneys belonging to a political party is a crime against the state or the Public interest."

The Supreme Court held in holding 3 as follows;
"the stealing of moneys belonging to a political party was an offence against the public interest as defined in article 295(1) of the 1992 Constitution, namely, "'public interest' includes any right or advantage which inures or is intended to inure to the benefit generally of the whole of the people of Ghana." It was significant that the word used in defining publicinterest was "includes" and not "means." The word "means" when used in defining a wordusually implied that the meaning of the word was restricted to the scope indicated in thedefinition section. However, the word "includes" was often used in order to enlarge the meaning or phrase occurring in the body of the statute; and when it was so used, those words or phrase must be consideredas comprehending not only such things which the interpretation clause declared that they should include. Therefore, the word "includes" used in defining public interest in article 295(1) did not restrict the meaning ofpublic interest as to the scope indicated in the definition but also to the interest of only asection of the population."

In holding 4 of the judgment, this Honourable Court ruled that

"(4) in the instant case, the alleged theft of the moneys, which was said to belong to theNational Democratic Party (NDC), a political party, was not in the interest on only themembers of the NDC but also the entire Ghanaian public who were entitled under the Political Parties Law, 1992, (PNDCL 281), s 19 (4) to inspect and take copies of its audited accounts."

By the interpretation placed on "public interest" by the Supreme Court, in the case supra, to the extent that stolen moneys belonging to a political party is of public interest, then it is more that trueto conclude that any issue in connection the, Constitution, for example, amendment of theConstitution is of essence, a matter of public interest. It is therefore submitted that, the President of the Republic of Ghana, is constitutionally mandated to set up the commission to undertake the termsof reference in C.I, 64.

9. The Preamble of the Constitution 1992, introduces one to the history, the aspirations andthedestiny that the people of this country intend to chart. The contents of the Constitution, as a political document and as the supreme law of this country, makes it imperative that its operations and for that matter its defect thereof must be the concern for all. It is for these reasons and many others that the framers of the Constitution crafted this inspiring preamble thus;

"IN THE NAME OF THE ALMIGHTY GOD
We the people of Ghana,
IN EXERCISE of our natural and inalienable right to establish a framework of

Government whichshall secure for ourselves and posterity the blessings of liberty,

equality of opportunity and prosperity ……………….''
This declaration undoubtedly manifests the collective interest the people of Ghana have in the Operation of the Constitution. In this wise, it of utmost interest to any single Ghanaian to ensure that the provisions of the Constitution work for the common good of all. The framers of the Constitution, having crafted a Preamble as beautiful as we have, had in mind theparticipation of all Ghanaians in matters such as the amendment to the Constitution. As a result the provisions of the Constitution undoubtedly are of great concern to all Ghanaians, such that they are of public interest.

7. The above position is further reinforced by Articles 1 and 2 of the Constitution which readsas follows;

"1.Supremacy of the Constitution
(1) The sovereignty of Ghana resides in the people in whose name and for whose welfare the powers of the Government are to be exercised in the manner and within the limits laid down in this Constitution.

(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."

8. The impression one gets from reading Articles 1 of the Constitution is that, it is the people of Ghana who have surrendered their sovereignty of the Government to rule in accordance with the provisions of the Constitution: It therefore goes without saying that every portion of the constitution affects the people of Ghana; therefore if any of the provisions of the Constitution needs to be amended, the same is of public interest to the good people of Ghana, and the President is empowered in that regard to appoint a Commission of Inquiry in terms of Article 278 (1) (a) of the Constitution for that purpose.

9. The Plaintiff contends that, Parliament has the exclusive and specific mandate to amend the Constitution pursuant to Article 289(1). The said article reads as follows;

"289. AMENDMENT OF THE CONSTITUTION
(1) Subject to the provisions of this Constitution (my emphasis),

Parliament may, by an Act of Parliament, amend any provision of this Constitution."

It is to be noted that in the language of the provision, Parliament in exercising its powers of amending the Constitution is "subject to" the other provisions of the Constitution. In the case of Edusei v Attorney-General [1998-99] SCGLR 753, his Lordship Charles Hayfron-Benjamin JSC, said of the phrase "subject to" at page 762 in the following manner,

"In my respectful opinion, therefore, the expression, "subject to" within the context of article 130 (1) of the 1992 Constitution, means that, if there is no other provision in the Constitution, by which a remedy may be obtained, then the High Court will have specific jurisdiction to grant redress in matters involved in breaches of provisions of chapter 5 of the Constitution."

Similarly, it is my candied view that, the proper interpretation of article 289(1) of the Constitution is that, the amendment to the Constitution should be undertaken by Parliament alone, provided, there is no provision in the Constitution dealing with amendment to the Constitution. Unfortunately, that is not the case. In amending the Constitution, the procedures and the processes mentioned in articles 289, 290 and 291 are to be complied with. That is not all. The President of the Republic of Ghana is empowered by article 278 of the Constitution to appoint a commission of inquiry to go into any matter of public interest. And as we have already demonstrated, amendment of the Constitution is a matter of great public interest, and if a commission of inquiry is set up by the President to collect and collate views from the people of Ghana geared towards amending the Constitution, then there is no gainsaying the fact that article 278 of the Constitution is a provision to take into consideration when it comes to amending the Constitution.

In other words, the provisions for amending the Constitution will undoubtedly include Article 278(1) (a) which in effect allows the broad masses of the people of Ghana to have a say in amendment of the provisions of the Constitution.

Additionally My Lords, the amendment process itself is neither the preserve nor an exclusive territory for Parliament. The amendment involves the people, Council of State, Parliament and the President. If the framers of Constitution were minded to cloth Parliament with exclusive power to amend the Constitution, they would have done so in plain language; and article 289(1) of the Constitution would not have preceded with words "subject to the provisions of the Constitution…"

10. Pursuant to Article 290 under chapter 25 of the Constitution, the procedures for the amendment of entrenched and non entrenched provisions of the Constitution are discussed. It is worthwhile to note that the amendment of an entrenched provision of the Constitution does not involve Parliament alone.

11. Pursuant to clauses 2,3,4,5, and 6 of the Article 290, the following steps are followed inamending entrenched provisions of the Constitution;

• Speaker refers a Bill for amendment to Council of States who renders its advicewithin 30 days.

• Bill is published in the Gazette and shall be introduced into Parliament after 6 months of the Gazette notification.

• After first reading in Parliament, a referendum shall be held to be voted upon by at least 40% of people entitled to vote and at least 75% of people who voted, voted in favour in passing of the Bill

• Parliament shall pass it if the Bill is approved at the referendum.

• President shall assent to it, when parliament passes the Bill.

12. My Lords, it is patently clear that with entrenched clauses, Parliament possesses no exclusive and special power to amend it to the exclusion of all others as is being claimed by the plaintiff. There are a lot of stakeholders; the people of Ghana (at referendum), Council of State, Parliament and the President. The contention of the Plaintiff that Parliament has exclusive right in terms of Article 289(1) of the Constitution to amend the Constitution is to engage in a narrow construction of the provisions of the Constitution instead of a liberal approach to interpretation of a national constitution.

13. Further, for amending non – entrenched provision of the Constitution, Article 291 of the Constitution provides the following steps, before the Bill is introduced into Parliament.

• A Bill thereof is published twice in the Gazette with the second publication at least 3months after the first.

• Ten days have passed after the second publication.

• After 1st reading, the Speaker sends the Bill to Council of State who will submit their advice on it within 30 days of receiving it.

• If Parliament approves the Bill after 2nd and 3rd readings, the same is sent to thePresident for his assent.

Once again, My Lords, with non- entrenched provisions, it is not only Parliament that can amend it. The Council of State, Parliament and the President are all involved.

No amendment can be valid if the President refuses to assent to a Bill approved by Parliament. A Bill assented to by thePresident can be declared as unconstitutional, null and void by this Honourable Court in an action for such a declaration, if it is proved that the Council of State was not given the opportunity toadvice on it. In the same vein, no amendment could be valid, even of the President should give his assent without prior consideration of the Bill by Parliament.

14. It is our submission that article 289(1) does not confer on Parliament the exclusive mandate to amend any provision of this Constitution. It is the right of the President to constitute a Commission of Inquiry to undertake the preparatory work towards the amendment of certain parts of the Constitution, especially when the President is satisfied that it is in the interest of the public to do so. It is our view that, the Constitution Review Commission of Inquiry was a lawful Institution so is its offshoot, the Constitutions Review and Implementation Committee.

15. It is our position that both provisions of the Constitution, Articles 278 (1) (a) and 289(1) complement each other regarding the amendment to some of the provisions of the Constitution. Article 278 (1) (a) enables the people of Ghana to partake in the amendment by submitting memoranda or articulating their views on some provisions of the Constitution. These pieces of information put together become the building blocks of the Bill, which initiates the amendment process. It is to be noted that a national Constitution is a framework and it cannot take care of every activity in this country. Provided the steps being taken are in tandem with the law, the same is lawful. The establishment of the CRIC is just one of the processes of putting up a Bill for amendment following the information gathered by the CRC.

16. The court and many text writers have many times without number have stressed the need to construe the provisions of a national constitution broadly and purposively instead of a doctrinaire and narrow approach. The contentions of the Plaintiff imply the narrow interpretation of articles 289(1) of the Constitution.

17. This notion of construing national constitutions broadly, have been settled in many cases including the landmark case of TUFFOUR V ATTORNEY-GENERAL [1980] GLR 637. In the judgment of the Court of Appeal sitting as the Supreme Court, notion that with National Constitution the courts ought not to narrowly construe its provisions but rather construe provisions of a National Constitution Liberally and broadly was stressed by Sowah JSC at page 647 – 648 thus;

"A written constitution such as ours is not an ordinary Act of parliament. It embodies the will of the people. It also mirrors their history. Account therefore, needs to be taken of it as a landmark to a peoples search for progress. It contains within it their aspirations and their hope for a better and fuller life.

A constitution has its letter of law. Equally, the constitution has its spirit. Its language . . . must be considered as if it were a living organism capable of growth and development. . . . A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principle and bring it into conformity with the needs of the time."

18. Also Apaloo JA (as he then was ) in SALLAH V ATTORNEY – GENERAL –SupremeCourt, 20 April, 1970; digested in (1970) CC 55 said

"We shall fail in our duty to effectuate the will of the constituent Assembly if we interpreted the Constitution, 1969, schedule 1, section 9(1), not in accordance with its letter and spirit but in accordance with some doctrinaire juristic theory."

19. Sowah CJ, in the REPUBLIC V HIGH COURT, ACCRA; EX PARTE ADJEI

Supreme Court 23 June, 1986; digested in [1984-86] GLRD 130 said,

"The narrow rules of construction applicable in the cases of contracts, will, statutes and ordinary legislations may not be adequate when it comes to the interpretation of a constitution or law intended to govern the body politics. Our interpretation should therefore match the hopes and aspirations of our society and our predominant consideration is to make the administration work."

20. It is in the light of the above exposition that we wish to indicate that articles 287(1) (a), 289(1). 290, and 291 must all be read together to achieve the purpose in relation to the amendment of the Constitution.

The mention in article 289(1) of ". . . Parliament may, by an Act of Parliament any provision of the Constitution" constitutes the letter of the Constitution. The spirit of this provision is gathered if one reads this provision in addition to the other provisions mentioned supra. This enables one to achieve the real purpose for the amendment of the Constitution. And the purpose is among other things is to get as many people as possible to be involved in the amendment of the Constitution.

21. My Lords it is view, respectfully, that the Plaintiff has woefully failed to establish the basis of this action and that the action must fail. The plaintiff is therefore not entitled to his reliefs,

7. Respectfully submitted.
LIST OF AUTHORITIES
1. 1992 Constitution
2. Constitution Review Commission of Enquiry Instrument, 2010 C.I. 64

3. THE REPUBLIC V YEBBI & AVLIFFO [2000] SCGLR 149
4. R v SUSSEX CONFIRMING AUTHORITY; EX PARTE TAMPLIN & SONS

BREWERY (BRIGHTON) LTD [1937] 4 ALLER 106@Page 108.

5. TUFFOUR V ATTORNEY - , GENERAL [1980] GLR 637
6. SALLAH V ATTORNEY – GENERAL – Supreme COURT, 20 April, 1970; digested in (1970) CC55

7. REPUBLIC V HIGH COURT, ACCRA; EX PARTE ADJEI– Supreme Court 23 June, 1984; digested in [1984-86] GLRD 130

DATED AT ATTORNEY–GENERAL'S CHAMBERS, MINISTRIES, THIS 22ND DAY OF JULY, 2014.

SYLVESTER WILLIAMS
CHIEF STATE ATTORNEY
FOR: ATTORNEY-GENERAL
LAWYER FOR DEFENDANT
THE REGISTRAR
SUPREME COURT
ACCRA
AND TO THE PLAINTIFF HEREIN OR HIS LAWYER, ERIC DELANYO ALIFO, HELPLAW GHANA, OPPOSITE NTHC, NEAR NAYAK PLAZA, GLICO AND ECOBANK, ADABRAKA, ACCRA

IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT OF JUSTICE
ACCRA – A.D 2014
SUIT NO: JI/12/2014
PROFESSOR STEPHEN KWAKU ASARE PLAINTIFF
10315 South WEST 19TH Place
Gainesville, Florida, USA
AND
ATTORNEY – GENERAL DEFENDANT
Attorney – General's Department
Ministry of Justice
Accra
___________________________________________________________________________

AFFIDAVIT IN VERIFYING FACTS AND PARTICULARS:
RULE 48 (2) (a) OF C.I. 16
___________________________________________________________________________

I, ElfredaDankyi (Mrs.), Senior State Attorney of the Attorney-General's Department, Accra,Make oath and say as follows;

1. That I am the deponent herein
2. That I am a Senior State Attorney in the Civil Division of the Attorney-General's

Department and I have the consent and authority of the Attorney-General to depose to

these facts which have come to my knowledge in the course of my official duties as A

State Attorney.
3. That the fact and the particulars contained in the Statement of Case of the defendant herein are true to the best of my knowledge, information and belief.

WHEREFORE I swear to this affidavit verifying the facts and particulars.

SWORN in Accra this 23rd day of]
]

July, 2014 ]
…………………………………
DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS