No constitutional dispute has arisen to warrant NPP’s suit on presidential term limits – Kwaku Azar

Ghanaian legal scholar Professor Stephen Kwaku Asare, popularly known as Kwaku Azar, has questioned the legal basis of the New Patriotic Party’s (NPP) suit seeking an interpretation of the constitutional two-term limit for presidents.

The NPP has invoked the Supreme Court’s original jurisdiction to determine whether the two-term limit applies to consecutive and non-consecutive presidential terms, a case with potential implications for President John Dramani Mahama’s eligibility to contest the 2028 elections.

In a writ against the Attorney-General, the opposition party is seeking declarations that no person can be elected President more than twice or serve more than eight years in total, regardless of whether the terms are consecutive.

Reacting to the suit in a social media post on Wednesday, October 28, Kwaku Azar questioned whether the action presents a justiciable constitutional controversy.

“Can the Supreme Court be asked to interpret the Constitution merely to settle a public debate?” he asked, answering in the negative.

He argued that although Articles 2(1) and 130 of the 1992 Constitution empower the Supreme Court to handle constitutional interpretation and enforcement matters, those provisions do not give the court unlimited authority to offer advisory opinions.

According to him, a party seeking the court’s intervention must demonstrate a genuine constitutional dispute rather than merely ask judges to clarify a provision whose interpretation has become a subject of public discussion.

Kwaku Azar cited the Supreme Court’s decision in Bilson v. Attorney-General as an important precedent.

In that case, the court dismissed an action seeking declarations on an indemnity provision of the Constitution because the plaintiff had not identified an actual dispute requiring the court’s determination.

He said the ruling established a distinction between interpreting the Constitution to resolve a real controversy and providing legal guidance to prospective litigants.

“The Supreme Court is a court of law, not a constitutional advice centre,” he stated.

The legal scholar also referred to Republic v. Special Tribunal; Ex parte Akosah, which outlines circumstances in which constitutional interpretation questions may arise, including ambiguity in constitutional language, competing interpretations and conflicts between constitutional provisions.

However, he cautioned against treating every disagreement over the meaning of the Constitution as sufficient grounds for invoking the Supreme Court’s original jurisdiction.

He maintained that differences of opinion among lawyers, politicians and citizens do not automatically create a constitutional controversy requiring judicial intervention.

The NPP, meanwhile, argues that interpreting the presidential term limit as applying only to consecutive terms would introduce a restriction that is not expressly contained in the Constitution.

The party is seeking a declaration that a person who has served one presidential term remains eligible for only one additional term, even if another person occupies the presidency in between.

It is also asking the court to clarify the eligibility of a vice-president who assumes the presidency for more than half of a predecessor’s unexpired term.