Access to Justice & Vindicating Constitutional Rights to Ghana

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:

• First, I will discuss the Constitution's Triangle Defense.
• Second, I will touch on the Right to Equal Educational Opportunities
• Then, I will discuss two cases on the Right to Equal Educational Opportunities to illustrate the Triangle Defense.
• I will next introduce and evaluate what I call the Osei-Boateng Doctrine.
• I then conclude.

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

• • All citizens of Ghana shall have the right and duty at all times
    • (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and
    • (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

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,

• Any Person is empowered to defend the Constitution.
  • This innovation, in my mind, means the court's rules of procedure, important as they are, should facilitate the hearing of the person, not frustrate it.
    • Should facilitate the enforcement of the Constitution, not defeat it.
    • When there is a conflict between procedural law and the substantive constitutional claim being advanced by the person, the latter must prevail as the ultimate end of the Triangle Defense is to enforce the Constitution.
  • It says the Court's jurisdiction is epistolic (opened to Kwame Arhin and those who lack the English to accost the Achimota girls).
• Under the Triangle defense, the Court's enforcement jurisdiction is Original, Exclusive and Epistolic.

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.”

• • provides three independent grounds of jurisdiction
  • To enforce is to compel obedience.
  • To interpret is to assign meaning.
  • Ultra Vires is to act in excess of power

• • Article 130 is a conscious choice to reject parliamentary sovereignty as it existed under the independence constitution.
  • It is also a conscious choice to fuse constitutional enforcement role with traditional roles. Thus, there is no standalone constitutional courts as in continental Europe or South Africa
  • The Court's enforcement jurisdiction is original, exclusive and epistolic.
  • One can easily see that the triangle defense presents a risk of too many cases being sent to the Court. Empirically, this has not been the case. Further, the framers anticipated this problem and created an unusual solution of (1) allowing a panel to be properly constituted by 5 justices; (2) no limit on the number of Justices

• • To sum up, The Supreme Court is a repository watchdog of the Constitution (Ghana Bar Association v Attorney-General (Abban Case) [2003-2004] SCGLR 250.

In this enforcement role, Judges make oath as follows:

• … and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana. (So help me God.)

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.

• 19 Dec. 1993

Government announces December 31 will be commemorated

• 21 Dec. 1993

Plaintiff filed a suit challenging the constitutionality

• 23 Dec. 1993

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

• 29 Dec. 1993

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.

• Our history is replete with coups, both successful and foiled. In consequence, we had been under extra-constitutional rule during the years of 1966-69, 1972-79 and 1982-92.
• The Committee of Expert and Consultative Assembly sought to design an anti-coup Constitution
• Their answer was the Triangle Defense, which makes everyone a protector of the Constitution and which grants easy access to vindicate the rights and freedoms therein granted as well as any of its provisions.

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

• (1) All persons shall have the right to equal educational opportunities and facilities and with a view to achieving the full realisation of that right
  • (a) basic education shall be free, compulsory and available to all;

FCUBE

• • (b) secondary education in its different forms, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education; Progressive FAASE
  • (c) higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education; Progressive FAHE
  • (d) functional literacy shall be encouraged or intensified as far as possible;
  • (e) the development of a system of schools with adequate facilities at all levels shall be actively pursued.
• (2) Every person shall have the right, at his own expense, to establish and maintain a private school or schools at all levels and of such categories and in accordance with such conditions as may be provided by law. PPEAAL

The framers intended

• The State to have a Positive obligation to make education available, accessible, acceptable, adaptable.

This is because Education empowers people:

• towards personal development
• to contribute to society as an independent and emancipated citizen
• to have control over one's personal life
• to control the government
• to move up the social ladder

Further education is a Key right:

Education unlocks the enjoyment of other human rights:

• The right to work
• The right to health
• The right to food
• The right to political participation
• The right of women to equal opportunity and full participation

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

• Respect

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

• Protect

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

• Fulfill

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

APPLYING TRIANGLE DEFENSE IN ENFORCEMENT OF RIGHT TO EQUAL EDUCATIONAL OPPORTUNITIES

• Let us look at two recent cases focusing on Article 25
  • Progressive Peoples Party (PPP) v Attorney General (J1/8/2014) [2015] GHASC 95 (28 July 2015)
  • Asare v Attorney General (J1/1/20202) Judgment delivered on July 28, 2020

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,

• “The plaintiff made no effort to demonstrate any ambiguity, absence of clarity or imprecision in respect of the articles relied upon which calls for our interpretive or enforcement intervention.

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

• This [ambiguity] is a necessary precondition to the invocation of our interpretive and enforcement jurisdiction.
• In our recent majority (6-3) decision in Osei Boateng v National Media Commission [2012] SCGLR 1038 at 1041 this point was brought to the fore in holding 2 as follows:

• “the requirement of an ambiguity or imprecision or lack of clarity in a constitutional provision was as much a precondition for the exercise of the exclusive original enforcement jurisdiction of the Supreme Court as it was for its exclusive interpretation jurisdiction under articles 2 (1) and 130 of the 1992 Constitution; that was clearly right in principle since to hold otherwise would

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

• Has Found its way to the Textbooks

“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:

• • “the requirement of an ambiguity or imprecision or lack of clarity in a constitutional provision was as much a precondition for the exercise of the exclusive original enforcement jurisdiction of the Supreme Court as it was for its exclusive interpretation jurisdiction under articles 2 (1) and 130 of the 1992 Constitution; that was clearly right in principle since to hold otherwise would 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.”

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.

• They say it is a 6-3 majority
• They say it relies on Ex Parte Akosah
• They say it avoids opening the Court to a Floodgate of cases.
• I am discussing the Doctrine's application to Article 25 but it has been applied elsewhere, notably
  • Agbeleze and Others Vrs. Attorney General and Another (J1/28/2018) [2018] GHASC 57 (28 November 2018)
  • Bomfeh Vrs. Attorney General (J1/14/2017) [2019] GHASC 2 (23 January 2019)

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?

• HOLDING

“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 2^nd 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.”

• NDC is easily distinguished from the instant case where the Plaintiff alleges that an enactment (LI 2235) contravenes or is inconsistent with a provision of the Constitution (Article 25(2)).
• Here Plaintiff brings its action under Article 2(1)(a) whereas NDC was brought under Article 2(1)(b).
• Not only does Article 2(1)(a) provides a jurisdictional basis for such an allegation to be heard but also numerous cases from this Court support the same conclusion

(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).

• Asare is easily distinguished from all these cases

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 2^nd 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

• Article 168.

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.

• Article 23

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 296
• Where in this Constitution or in any other law discretionary power is vested in any person or authority -
• (a) that discretionary power shall be deemed to imply a duty to be fair and candid;
• (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and
• (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power

• Preliminary Legal Objections by NMC Article 23 is a human rights provision.

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

• Ground 1
• Article 23 is a human rights provision.
• Dismissed since the human right sought to be enforced is not in relation to the Plaintiff

• Ground 2: Article 168 is clear, precise and unambiguous and Plaintiff has not demonstrated that it has been breached.

• “With respect to Article 168 itself it must be stressed that ambiguity or lack of clarity is as much a precondition for the exercise of the exclusive original enforcement jurisdiction as it is for its exclusive original interpretation jurisdiction.”
• However, Ground 2 is Dismissed but only because the function exercised by NMC must meet the standard of Article 296, which is infected with uncertainty and imported into 168 to make it fit for interpretation or enforcement.
• Ground 3
• 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 since the parties have competing interpretations of the meaning of discretionary power in the context of Article 296 and whether it applies to the exercise of NMC's power under article 168.

• Ground 1

Dismissed

• Ground 2

Dismissed

• Ground 3

Dismissed.

• Summary

Court has jurisdiction

• Why has this then become a wahala?

There are 5 DEFICITS Miscount

Floodgate Argument Misapply Ex Parte Akosah Upsets Settled Law

Ignored by Subsequent Cases

• On ground 2, the main opinion has a dicta on interpretation being a precondition for enforcement
• So court members could vote

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

Disagree with dicta

• Justice Date-Bah

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)

• Justice Ansah

“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.

• Justice Atuguba
  • Agrees with Justice Date-Bah's conclusion to overrule the jurisdiction- based preliminary objection.
  • However, he wrote separately to disagree with Justice Date Bah on his obiter that the Court's enforcement jurisdiction does not arise unless an issue of interpretation arises.
• Justice Akuffo
  • “for the reasons stated by my esteemed brother Atuguba, I agree that the objection be overruled.
• Justice Owusu
  • “I have had the opportunity to read the judgment of my respected brother and I am in full agreement with the conclusion arrived by him. I have also looked at the Judgment of the respected President on the issue of interpretation and enforcement jurisdiction of the Supreme Court and I seem to agree with the distinction made by him that the enforcement jurisdiction can be enforced without necessarily having to interpret.”

4 Amigos

• Justice Baffoe Bonnie
  • “I have had the benefit of reading beforehand the two main opinions read by my esteemed brothers Atuguba, Ag. CJ and Date-Bah JSC. I also agree that the preliminary legal objection should be overruled.
• Justice Adinyira
  • “I also agree that the preliminary objection is without merit and is hereby overruled.”
• Justice Gbadegbe
  • I have had the advantage of reading beforehand the draft of the opinions just delivered by my worthy brothers and I also agree that the preliminary objection be overruled.
• Justice Bamfo
  • “I had the opportunity of reading before-hand the well reasoned opinion of my respected brethren, Atuguba, Acting Chief Justice and Prof Date-Bah, JSC. I agree with their conclusions that the objection be overruled. I therefore have nothing useful to add.

• The Floodgate Argument

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

• Parte Akosah [1980] GLR 592

An interpretation case involving the meaning of AFRCD 23 and whether it has been incorporated in Transitional Provisions of 3^rd 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”

• Ex Parte Akosah [1980] GLR 592

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.”

• “The words of the provision are imprecise or unclear or ambiguous and one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;
• Where rival meanings have been placed by the litigants on the words of any provision of the Constitution;
• Where there is a conflict in the meaning and effect of two or more articles of the Constitution
• Where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution
• Trial Court Judge

“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

• Evidence from Ex Parte Akosah

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.

• But there is no doubt that the Akosah Court knew that interpretation and enforcement are independent grounds of jurisdiction as Justice Anin makes clear by restating his prior position in Tait.

“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).”

• Summary

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.

• Summary

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.

• SUMMARY
• Article 2(1)

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.

• Justice Atuguba is clearly right and Justice Date-Bah is clearly wrong.

“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.”

• • Justice Atuguba in Osei Boateng v National Media Commission [2012] 2 SCGLR 1038
• UPSETS SETTLED LAW
• Gbedema v Awoonor Williams 2 G & G 438

“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

• • (a) the interpretation of the provision of the Constitution or
  • (b) the enforcement of a provision of the Constriction or
  • (c) a question whether an enactment was made ultra vires Parliament, or any other authority or person or under the Constitution.”

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.

• Adumoah II v Adu Twum II [2000] SCGLR 165

“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.”

• To enforce is to compel observe. To interpret is to assign meaning.

“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;

• ambiguity or otherwise of constitutional provisions is not necessary for invoking the Court's original enforcement jurisdiction. Actions in which this Court has exercised its exclusive original jurisdiction in respect of clear and unambiguous provisions.

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

• Asare v Attorney General and Another (J1/1/2016) [2017] GHASC 25 (22 June 2017)

“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.”

• Kor v. Attorney-General & Duose [2016] Writ No. JI/16/2015 judgment delivered on 10th March 2016

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”.

• Kor v. Attorney-General & Duose [2016] Writ No. JI/16/2015 judgment delivered on 10th March 2016

“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.”

• Bomfeh v Attorney General [2017] Writ No. JI/14/2017 judgment delivered on 23rd January 2019

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

• Article 130 is the only avenue to defend the Constitution as mandated by Article 3.
• Because the Supreme Court has original and exclusive jurisdiction in interpreting and enforcing the Constitution, the decision to decline jurisdiction MUST not be taken lightly.
• Given the exclusivity of the Court's jurisdiction, the Court must operate on a presumption that it has jurisdiction to hear cases raising constitutional questions. This, of course, is rebuttable by the opposing parties.
• The Court is enjoined to protect, defend and enforce the Constitution's provisions and should not create jurisdiction doctrines that divert it from its core constitutional duties
• Jurisdiction must be determined as a preliminary matter and MUST never come as a surprise to the parties or be the Court's ultimate decision after hearing all the arguments and promising a decision in 6 weeks.
• Where a Plaintiff demonstrates that there is a prima facie issue of enforcement or an enactment being made ultra vires, the Court has a duty to hear the matter and decide it on its merits.
• A decline of jurisdiction imposes extraordinary burdens on litigants as they have no other forum to seek redress of their substantive claims.
• If there is a prima facie claim of a constitutional violation, a decline of jurisdiction is tantamount to endorsing the alleged violation.
• A pattern of inexplicable declines can chill Private Attorney-Generals and negate the innovative standing rule provided in Article 2.
  • It is no answer that Article 2(1) may increase the Court's case load.
  • This is one of the reasons why there is no cap on the number of justices and why perhaps a practice has developed where sit in panels.
  • That, of course, has its own problems for constitutional cases of first impression where one would expect an en banc voice on the question.
• There is an emerging and worrying trend of the Court declining jurisdiction in matters relating to the enforcement of the Constitution.
  • Thus, it is of utmost importance to subject any constitutional forum ousting to rigorous analysis.
  • It is inexcusable if the Court cannot give a contemporaneous written decision to explain why it has decided so late in the game that it has no jurisdiction.
• The Court's core function as a constitutional court is to compel obedience to the provisions of the Constitution.
• Thus, if there is a well-pled allegation that there is a violation or transgression of the Constitution, the Court has an unequivocal duty to hear the allegations and must do so as a neutral arbiter without fear of or favour to the Plaintiff or the State Actor.
• The Court must also do so in a way that preserves the value of the claims
• Article 2(1) provides that a person may sue in the Supreme Court for a declaratory relief if she alleges that
  • an enactment
  • anything contained in or done as authorized by that enactment
  • or Any act or omission of any person
  • is inconsistent with or contravenes a constitutional provision,

• The Court conditioning its enforcement jurisdiction on the existence of an interpretation issue will swallow this innovative standing requirement
• In Asare [2020], the Court said no evidence was led to show that the Ghana School of Law is a monopoly provider of professional legal educating.
• This strains credulity considering the detailed evidence provided by LI 2235, thousands of students who cannot continue their legal studies because they cannot enter the School and the former Chief Justice's statement about mass production of lawyers
• The Court has a responsibility to say whether it is constitutional for the government to create a monopolist provider of legal education, given what Article 25(2) promises.

CONCLUSION

• You asked me to talk about accessing justice and vindicating our constitutional rights.
• The framers erected a triangle defense for that purpose
• Citizens have fulfilled their duty of private Attorney Generals in attempting to enforce Article 25 of the Constitution
• They have been rebuffed by the Courts on grounds that severely undermine the triangle defense
• The Court must seriously abandon any reliance on Osei Boateng
• The Court must review Asare (2020)
• Thank you for giving me audience in your chambers
• I wish the Association continued success and look forward to future lectures.