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Opinion › Feature Article       08.10.2020

Access to Justice & Vindicating Constitutional Rights to Ghana

Delivered at the 1st National Association of Law Students Public Lecture October 7, 2020 Sponsored by CitiFM
By Stephen Kwaku Asare, Professor
Stephen Kwaku Asare, Professor

It is a distinct honor and privilege to be invited to deliver the maiden National Association of Law Students Public Lecture. It was exactly a year ago that the Association organized a peaceful demonstration to press for reforms in legal education. Alas, this peaceful demonstration, the right to which is guaranteed by the Constitution, was met with needless Police brutality reminiscent of the events that culminated in the Christianborg Crossroad shooting and other peaceful demonstrations under the various military regimes of yore.

I am delighted to join you to commemorate this Red October Day to restate and renew our demands for comprehensive reforms in legal education to make it accessible, affordable, available and adaptable while maintaining quality and excellence. As I have said repeatedly, abandoning the current bifurcated approach that decouples the so-called academic and professional courses must be at the heart of any such reforms. Further, we must take seriously the lesson we learnt in Economics without Tears that monopolies are characterized by high prices, absence of innovation, output restrictions, excess profits and poor customer service. Competition in the provision of legal education drives innovation, efficiency and is a constitutional imperative

At the same time, let me also confess that I feel enormous pressure as the maiden speaker of this maiden and commemorative lecture. After all, I do not want to go down in history as the one who irreversibly altered and irreparably harmed the Association's effort to institute an annual Public lecture. This is especially so as this is a virtual lecture and I have come to believe that if anything can go wrong, it will when I am delivering a zoom lecture. I wish the Association continued success and look forward to future lectures.

The theme you have chosen touches on the issue of access to justice and vindicating constitutional rights. I always enjoy conversations that seek to evaluate the progress that we are making in asserting and vindicating the rights that are guaranteed under the 1992 Constitution. Our ability to assert and vindicate our rights and freedom is the foundation of realizing the blessings of liberty that we seek for ourselves and our posterity.

Under the colonial days and the military regimes, there were no constitutional rights to talk about, let alone access to vindicate them. Thus, after the Christianborg shooting in February 1948, our forefathers got into more good trouble by organizing the Accra riots. But even before that Nii Kwabena Bonne III had organized a boycott of all European imports in response to inflated prices. These grassroots demonstrations were enough to trigger an irreversible march

to independence. Our independence history has not fully reflected the role of Nii Kwabena Bonne III, Sergeant Adjetey, Cpl Attipoe and Private Odartey Lamptey and several others, especially those from outside the Gold Coast colony.

Similarly, the history of NUGS is replete with peaceful demonstrations marred by military brutality. Today, very few remember Adjei Barima, the Legon student who was killed by a stray bullet from a police warning shot to disperse demonstrating students. I was a participant at the NUGS conference a few decades ago when workers from Obuasi were sent to disrupt our proceedings.

There was nowhere to seek justice when we were attacked by these workers. Therefore, we showed them a little Atiwa!

I have had to trace this history to remind you that peaceful demonstration is in our DNA and those who mar peaceful demonstrations make little Atiwa inevitable. Therefore, what you did last year was a continuation of a long tradition. On the flipside, the security forces too never seem to learn from history. So the security forces seem to use the same approach whether under colonialism, military regime or constitutional government.

In a sense then, what your theme is exploring is whether the advent of the Constitution has brought with it a better avenue for vindicating those rights.

For if there is no avenue to vindicate those rights when they are under assault then we have just been given paper rights! Likewise, if there is an avenue to vindicate those rights, but the people seized with the power to do so are unable, unwilling or otherwise reluctant to do so, then those rights are just vanity. In either case, Little Atiwa becomes inevitable, albeit needlessly.

It is trite knowledge that the Constitution guarantees and endows us with numerous rights that it describes as inalienable, fundamental and entrenched. It further commands that these rights and freedom “shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons, and shall be enforceable by the Courts as provided for in this Constitution. In effect, it is everybody's business to respect and uphold these rights but the Courts are ultimate enforcers of those rights.

In that regard, vindicating our rights must be conceptualized as a process that involves Public Advocacy, Grassroots Organizing, Peaceful Demonstrations, Lobbying, Legislation and where necessary Litigation. This reflects the notion that upholding our constitutional rights is everybody's business and we cannot count on the Courts to always do it for us. In fact, considering cases like Re Akoto, Dumoga, Frances, Tommy Thompson, we probably should go to the Courts as a last resort. Of course, the Court, once it is invited to the debate, has the final word. I, therefore, focus on the Court as the ultimate enforcers of the rights while emphasizing that vindication of our constitutional right must be placed in the larger context of

political negotiations. Two quick examples are the amendment of the Constitution to allow for dual citizenship in 1996 and the repeal of the criminal law in 2001.

Therefore, the field for vindicating our rights and freedoms is more expansive than going to the Court. It involves a 5 3 1 formation of interacting with family and friends, students and alumnae, chiefs and priests, media and CSO. Here, the tool involves mobilizing, organizing and demonstrations. Then there is the lobbying of the Council of State, Parliament and the Executive for legislative reforms. Litigation at the Court, while part of the repertoire for vindicating our rights and freedoms, should be considered a last resort

I will argue that the Osei-Boateng Doctrine severely undermines our ability to vindicate our constitutional rights. To do so:

TRIANGLE DEFENSE

The framers' scheme for protecting these rights and freedom can be found in Articles 3(4), 2 and 140. I call this scheme the “triangle defense.” Article 3(4) imposes a duty to defend the rights. Article 2(2) provides liberal standing to all persons who are appointed as private Attorney-Generals and Article 130 grants jurisdiction to the Supreme Court by commanding it to open its doors to anyone when any of three conditions are met.

Specifically, Article 3(4) is in the form of

Notice that this duty includes the duty to actively resist people trying to overthrow the Constitution; to restore the Constitution if it is suspended or overthrown; but also to defend the Constitution from assault by Government and State Actors. The

former can be conceptualized as Active Defence and the latter Passive Defence (see, for instance the December 31 case).

Article 2 (1) provides that

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.

In my opinion, this Standing provision is the most important Article in the whole Constitution. Under it,

JURISDICTION

The 3rd wing of the triangle defence is forum for resolving constitutional disputes. According to Article 130(1)

“Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -

  1. all matters relating to the enforcement or interpretation of this Constitution; and
  2. all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”

In this enforcement role, Judges make oath as follows:

Luke Mensah of Sunyani v Attorney General in 2004 is the best illustration of this epistolic jurisdiction.

Plaintiff files a case without the verifying affidavits or joining the proper parties. The writ and statement of case made it difficult to know what the issues are. The Court saw a constitutional issue, opened its door and reframed the question as When do newly created constituencies come into being for election purposes?

In its judgment, the Acquah Court said “We are convinced that as the highest court of the land, charged with the constitutional authority to interpret and enforce the Constitution, and thereby promote rule of law in our society, we should, in fitting situations, rise up to the occasion and determine disputes likely to endanger our infant democracy. And we would do this, if the subject matter falls within our jurisdiction and the procedural errors committed by the plaintiff are not so fundamental as to amount to a denial of our jurisdiction.”

Another excellent illustration of this Triangle Defense is the December 31st case.

Government announces December 31 will be commemorated

Plaintiff filed a suit challenging the constitutionality

Application for injunction heard but Court decided ruling either way will undermine the substantive suit. Rather, Justice of case demands the suit be heard before December 31

Action heard and Judgment delivered for Plaintiff

The Court mindful of the issues at stake took 10 days to resolve the dispute. That is the efficiency that one expects when the Constitution is threatened. Contrast to the Court's recent leave even though it was asked to decide the question of whether the President can send the Auditor-General on leave.

The Triangle Defense is a response to the history of our short-lived Constitutions.

I submit that we all attached more seriousness to the Triangle Defense in the early years of the Constitution. I characterize that as Golden Age of Enforcement. Possible reasons include:

The Court from Archer to Acquah seem to prioritize enforcement Perhaps Coup years were fresh on our minds

Political Parties Involvement

Ghana Bar Association Involvement (e.g. Kuenyehia & Ors v Archer & Ors) Outstanding issues from the Military Days

Active Public Debate and Commentary by Legal Academy

Then came the “Purposive Age of Enforcement.” This period saw cases such as Frances v AG. Distinctive features of this age include

Inefficiency (Delays)

Objective Purposive Approach (Reasonable Person?). This was a bad thing for it always meant straying from the obvious meaning of the Constitution.

Nuclear Meltdown

Excessive Deference to Executive and Administrative Bodies Less Involvement by GBA and Political Parties

Less Debate and Commentary Who won or Who Lost regime

Time does not permit me to discuss these eras in detail. Therefore, I now turn my attention of what I call the Abdication Age of Enforcement. I will illustrate that with the enforcement of Article 25, which I now discuss.

RIGHT TO EQUAL EDUCATIONAL OPPORTUNITIES

Let us focus on the right to equal educational opportunities. Article 25 provides that

FCUBE

The framers intended

This is because Education empowers people:

Further education is a Key right:

Education unlocks the enjoyment of other human rights:

Government is charged to Respect, Protect and Fulfill the right to equal educational opportunities

Governments must not deprive people of a right or interfere with persons exercising their rights.

Governments must prevent private actors from violating the human rights of others.

Governments must take positive action to facilitate the enjoyment of basic human rights.

APPLYING TRIANGLE DEFENSE IN ENFORCEMENT OF RIGHT TO EQUAL EDUCATIONAL OPPORTUNITIES

PPP v AG

This case sought enforcement of Articles 14(1)(e); 25(1)(a) and 38(2).

The issue posed in the case is

  1. Is Government violating its duty to implement FCUBE?
  2. Does Government have a duty to compel attendance to School?

According to the Court,

That is, Relying on Osei Boateng, the Court declined jurisdiction because there is no issue of interpretation

imply opening the flood gates for enforcement actions to overwhelm the Supreme Court. Accordingly, where a constitutional provision was clear and unambiguous any court in the hierarchy of court might enforce it and the Supreme Court's exclusive original jurisdiction would not apply to it.”

This statement

“On the issue as to whether or not the SC has the power to assume jurisdiction under Article 2(1) and 130(1)(a) in matters of enforcement where no questions of interpretation arises; the majority of the SC (6-3) in the case of Osei Boateng took the firm opinion that a matter relating to the enforcement of fundamental human rights which does not involve constitutional interpretation should be filed in the High Court instead of the Supreme Court.” Adjei Dennis, Modern Approach to the Law of Interpretation P 454

It has also Found its way to the Qualifying Certificate Examination (Interpretation 2020)

“In Osei-Boateng, in interpreting articles 2(1) and 130(1) the majority of the Supreme Court held as follows:

To what extent do you agree with the above position of the Supreme Court in the above- mentioned case taking into account recent decisions of the Supreme Court?

I will call this the Osei-Boateng doctrine and evaluate its impact on the Triangle defense. Suffice it for now to make the following observations.

Musah Mustapha v UG &AG

Whether UG's road toll imposes or levies taxes contrary to Article 174(1)?

174 (1) “No taxation shall be imposed otherwise than by or under the authority of an Act of Parliament.”

Whether the UG's road toll breach the right to equal educational opportunity.

Held: Applying the Osei-Boateng Doctrine, “The issues raised are not constitutional in nature as article 174(1) does not present us with any issue of interpretation.”

Asare v AG&GLC (2020)

This case sought enforcement of Articles 25(2); Article 296

The issue is whether Government is violating anti-monopoly article (Article 25(2)) by setting up GSL.

Is bifurcation of legal education where some courses can be taught only at the GSL arbitrary?

“We hold that Article 25(2) is very clear and admits of no ambiguity and as such does not call for any interpretation;

neither does the provision of the Professional and the Post Law Courses by the GLC at the GSL amounts to a monopoly since no such evidence has been demonstrated by the Plaintiff.

We therefore fail to see any violation of Article 25(2) by the 2nd Defendant to give rise for an enforcement order under Article 2(1)”

In support of no evidence, Court relies on National Democratic Congress (NDC) v Electoral Commission [2001-2002] SCGLR 954 at 958, where this Court said “where an act or omission of any person is challenged under article 2 of the 1992

Constitution, such an act or omission must be shown to have taken place, and it must be shown that such act or omission falls foul of a specific provision of the Constitution, or at the very least, the spirit of an actual provision.”

(e.g., Republic v Yebbi & Avalifo [2000] SCGLR 149; Sam (No 2) v Attorney- General [2000] SCGLR 305; New Patriotic Party v Attorney-General (Ciba Case)

[1996-97] SCGLR 729; Asare v Attorney General and General Legal Council

(J1/1/2016) [2017] GHASC 25 (22 June 2017) among many others).

Case Reasons for Decline Solution
Bimpong-Buta v General Legal Council [2003-2004] 2 SCGLR 1200 Action for Wrong Dismissal clouded as Constitutional issue Go to High Court
GBA v Attorney-General and another (Abban Case) [2003-2004] 1 SCGLR 250 (Abban Case) Action for “Removal” of SCJ Separation of Powers Use Article 146
National Democratic Congress (NDC) v Electoral Commission [2001-2002] SCGLR 954 Article 2(1)(b) action without evidence of impugned Act Provide evidence of the Impugned Act

Asare is an Article 2(1)(a) plaintiff. The others are Article 2(1)(b) plaintiff. Asare has nowhere to ventilate. The other Courts suggested where to ventilate.

Asare Court seemed to want to adjudicate Article 296 claim even though it claims no jurisdiction. The other Courts stop at lack of jurisdiction.

The Court also declined jurisdiction on grounds that Article 25(2) is very clear and admits of no ambiguity and as such does not call for any interpretation. This ignores the 2nd wing of the Akosah test that calls for an interpretation when the parties place rival meanings on a provision of the Constitution. The Court claims that is jurisdiction is not invoked merely because a party has placed an absurd meaning on a provision. It does not say which party has done so and why it thinks so.

The Plaintiff claims Article 25 is an anti-monopoly provision that applies to all schools. The regulator demurs and claims GSL is a monopoly but the type of school therein does not include schools set up for training of professionals or for professional education. Alternatively, the regulator claims LI 2235 does not prevent a person from exercising his right to establish and maintain a private school at his own expense. Finally, the regulator claims a monopoly can exist where nobody exercises the right to set up a school.

Thus, the Court's stance is hardly satisfying since whatever meaning the AG and GLC have put on Article 25 was the basis for perpetuating and effectuating the monopoly that the plaintiff complains about.

An interpretation is called for under the second wing of Akosah since rival meanings have been put on Article 25(2)

The OSEI-BOATENG DOCTRINE

Osei Boateng v NMC & Berifi Appenteng

The issue raised in this case Is whether NMC is violating the Constitution by appointing one of its members to the position of Director of GBC without affording other Ghanaians the opportunity to apply?

Thus, Plaintiff calls for an Enforcement of Articles 168; 23 and 296

The Commission shall appoint the chairmen and other members of the governing bodies of public corporations managing the state -owned media in consultation with the President.

Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.

Article 168 is clear, precise and unambiguous and Plaintiff has not demonstrated that it has been breached

NMC's power to appoint members to GBC does not partake of any adjudication of a quasi-judicial matter and is not amenable to Article 296

Dismissed

Dismissed

Dismissed.

Court has jurisdiction

There are 5 DEFICITS Miscount

Floodgate Argument Misapply Ex Parte Akosah Upsets Settled Law

Ignored by Subsequent Cases

For the conclusion without opining on the dicta For the conclusion and opine on the dicta Agree with the dicta

Disagree with dicta

Authored the opinion (his view of interpretation as precondition for enforcement is shaped by his concern that there will be a floodgate of cases to the Court)

“I had the privilege of reading the opinions of my learned brethren Atuguba and Dr. Date-Bah before hand and I agree with the opinion, reasons and conclusion of Dr Date Bah. I have nothing to add to it.

4 Amigos

For Against Abstain
That the preliminary objection be overruled 9 0 0
That the Court's enforcement jurisdiction does not arise unless an issue of interpretation arises 2 3 4

is a hostile attack on the Triangle Defense

ignores the fact that there is no limit on the number of Justices ignores the fact that a 5 Justices form a panel

ignores the Court's role as a Constitutional Court

misunderstands standing to enforce the Constitution at non-constitutional courts

An interpretation case involving the meaning of AFRCD 23 and whether it has been incorporated in Transitional Provisions of 3rd Constitution (1979).

The jurisdictional question revolved around whether an interpretation issue had arisen at the trial court so as to necessitate a reference to the Supreme Court by virtue of Article 118(2) of the Constitution, 1979.

In defining the contours of interpretation to be used by Trial Courts, the Court titled it “interpretation or enforcement”

The Court laid down the 4-tiered test for such referrals, noting that

“in the event that there is no case of “enforcement or interpretation,” “the aggrieved party may appeal in the usual way to a higher court against what he may consider to be an erroneous construction of those words; and he should certainly not invoke the Supreme Court's original jurisdiction under Article 118. Again, where the submission made relates to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises.”

“I summarily dismissed the second ground of objection …. It is not every question of interpretation of an article of the Constitution that should be referred to the Supreme

Court. Where no difficulty of interpretation exists there is no need for the High Court to refer the article or any matter contained therein to the SC for interpretation.”

Evidence that the matter at the SC was about interpretation of AFRCD 23

There is a sub-title “Arguments on the Interpretation issue” when the 4-tiered test is announced.

In answer to the court's question “when an issue of interpretation raised within the meaning and scope of article 118 of the 1979 Constitution, Mr. Appiah, counsel for the respondent suggested a four-fold test … .”

In answer to a similar question, Nana Addo, counsel for Appellant, answered that such an issue is raised when on the face of the particular article there would appear to be a conflict between the operations of particular institutions under the Constitution, or if there is an ambiguity. But where the matter is clear there is no ambiguity.

“And in Tait v. Ghana Airways Corporation, Supreme Court, 29 July 1970, unreported, where I had the privilege of delivering the judgment of the court, a similar pronouncement was made (as stated in (1970) 2 G. &. G. 527 at p. 528): The crux of the matter is whether the plaintiff's action raises any issue of either interpretation or enforcement of any provisions of the Constitution. From the pleadings and issues settled in this case, we hold that no issue of interpretation is herein raised for determination. …. “Where the language of the Constitution is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. The mere fact that a party invokes in support of his case, a provision of the Constitution which is couched in plain, unambiguous language, does not turn an action the true nature of which is one for wrongful dismissal, into one relating to the interpretation of a provision of the Constitution within the meaning of article 106 (1) (a).”

Ex Parte Akosah deals with referrals from lower courts, not cases involving the original jurisdiction of this Court, as provided under Articles 2 and 130 of the Constitution, 1992. This is an important distinction because a denial of this Court's enforcement jurisdiction under the Constitution, 1992 does not leave the aggrieved party with any appellate choices as in Ex Parte Akosah.

The Supreme Court's jurisdiction under the Constitution, 1992 is not just original, it is also exclusive.

While Ex Parte Akosah uses “interpretation or enforcement” throughout the judgment, on closer inspection the case focuses solely on the interpretation of section 17(7) of the transitional provisions of the Constitution, 1979.

Thus, it is not a proper test for questions relating to the enforcement of the Constitution, 1992 as can be readily seen when one pays close attention to the content of the test.

Empowers Private Attorney-Generals to enforce the Constitution

These Private Attorney-Generals have no standing to seek interpretations qua interpretation

The jurisdictional test for them is whether their pleadings prima facie allege that an enactment, something done under an enactment, act, omission violates or is inconsistent the Constitution

I do believe that the 4-tiered test of Ex Parte Akosah is not, cannot be and should not be the proper test for triggering the Court's exclusive enforcement jurisdiction of a provision of the Constitution, 1992.

“It certainly cannot be with tremulous respect to him, be right to the extent that this Court's enforcement jurisdiction only arises where the article that falls to be enforced is not devoid of ambiguity. No Court other than the Supreme Court has jurisdiction to entertain an action to enforce any article of the Constitution even if its clarity is brighter than the strongest light.”

“to be able to invoke the original or exclusive jurisdiction of the Supreme Court, the plaintiff's writ of summons or statement of claim, or both, must prima facie raise an issue relating to

Tait v Ghana Airways (1970) 2 G & G 527 Yiadom I v Amaniampong [1981] GLR 3 Edusei v Attorney-General [1996-97] SCGLR 1 Adumoah II v Adu Twum II [2000] SCGLR 165

Bimpong Buta vs General Legal Council (2003-2004) SCGLR, 1200.

“My Lords, the original jurisdiction vested in the SC under articles 2(1) and 130(1) of the 1992 Constitution to interpret and enforce the provisions of the Constitution is a special jurisdiction meant to be invoked in suits raising genuine or real issues of interpretation of a provision of the constitution; or enforcement of a provision of the constitution; or a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the Constitution.”

“If the Plaintiff's case for interpretation is tenuous, her plea for enforcement is even more so. To enforce a provision is to compel its observance. The Plaintiff was not able to point to any provision of the Constitution which the first defendant has breached or threaten to breach.”

Yiadom I v Amaniampong (1981) GLR 3, SC;

National Media Commission v. Attorney-General [2000] SCGLR 1

Agbevor v. Attorney-General [2000] SCGLR 403;

Adofo v. Attorney-General [2005-2006] SCGLR 42;

Samuel Okudjeto Ablakwa & Anor v. The Attorney-General & Another, JI/4/2010);

Nana Yiadom v Nana Maniampong (1981) GLR 3

“Secondly, this court has reiterated in several decisions that its enforcement jurisdiction can be invoked independently of the interpretative jurisdiction as the right to seek a remedy under article 2 (1) is disjunctive and not conjunctive. The said position was pronounced upon in the cases of Sumaila Bielbiel v Dramani [2011] 1 SCGLR 132; Emmanuel Noble Kor v The Attorney- General; an unreported judgment in case number J1/16/2015 dated 03 March 2016 and Abu Ramadan (No 2) v Electoral Commission and Another, an unreported judgment in case number J1/14/2016 dated May 05, 2016.

Having surmounted the jurisdictional hurdle, we direct our energies to a consideration of the action herein on the merits.”

rejecting the view that “no action can be brought in this Court to enforce a clear provision of the Constitution,” and highlighting that “certainly it cannot be said that this Court cannot compel the observance of a provision of the Constitution unless it first acquires the murkiness of ambiguity and is processed in the interpretive refinery of this Court”.

“It will be seen that article 2 of the Constitution is headed 'Enforcement of the Constitution' and the ensuing provisions are meant to attain the enforcement of the Constitution. There is therefore express authority in the Constitution itself for the view that the enforcement jurisdiction of this court is a conspicuously independent item of jurisdiction of this court.”

holding that “these reliefs raise enforcement issues and this Court has a duty to consider these claims regardless of the words used or the manner in which the reliefs are couched. We will therefore reject the A-G's invitation to throw out in limine the Plaintiff's case”.

Urgent call to normalcy

CONCLUSION

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