Inter-Faculty Lecture
BY:
Raymond Akongburo ATUGUBA
LLB, BL (Ghana); LLM, SJD (Harvard)
Lecturer, Faculty of Law, Universi...
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for final version.
BEFORE WE START…...
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peace, security ...
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theirs4
); and C...
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generated a lot ...
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optimal level an...
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What amazed me d...
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In any case this...
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would demand tha...
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Republic consist...
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The experience o...
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society, includi...
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SOVEREIGNTY IN G...
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this Constitutio...
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on reserved subj...
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The Westminister...
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As such the Nati...
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attack on the ch...
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authority includ...
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Justice Kpegah w...
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“Any legal submi...
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the principle “c...
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Parliament may n...
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procedural and f...
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It is here that ...
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Perhaps we shoul...
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“the path of cri...
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It is not proper...
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week on the 5th ...
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the bare necessi...
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“I cannot read f...
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Raymond Atuguba on why we must eat the Ghana Constitution

  1. 1. Inter-Faculty Lecture BY: Raymond Akongburo ATUGUBA LLB, BL (Ghana); LLM, SJD (Harvard) Lecturer, Faculty of Law, University of Ghana Date : Thursday, 5th February 2009 Venue: K. A. Busia Hall, University of Ghana, Legon Time : 5pm 2/5/2009 Ebi Constitution we go Chop: An Examination of Article 1(1) of the 1992 Constitution of Ghana
  2. 2. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. BEFORE WE START… As you are all undoubtedly aware, I am liked and hated in equal measure for my comments on the mass media of communication: broadcast radio and television; the print media (where my views are almost always distorted); and internet communication. Some of the feedback I receive from persons known and unknown are particularly interesting and intriguing. I once read a comment on the internet after I had presented a public lecture on policing. The comment was basically to this effect: why don’t these lecturers shut up, stay in the University and do what they know best, exchanging examination marks for sexual favors. On another occasion, I made a presentation on the legal regulation of the fisheries industry to a group of very progressive but highly enervated fishermen from along Ghana’s coasts. Parts of the presentation were carried on television. A friend of mind received an SMS text message which she forwarded to me. The message read: “What does a lawyer know about salmon?” On a more serious note, after ten years of making public statements on the mass media, I have learnt a number of things. Our society is very very very polarized. Every society is more or less polarized. The difference is that Ghanaians have hypocritically refused to openly acknowledge our political, ethnic, class and religious polarities and do something about them. We prefer to sweep them under the carpet or provide a thin veneer of gloss covering over them, allowing them to fester and then explode in pockets of conflict and resistance all over our Nation. I have come to this conclusion from assessing thousands of reactions to the public statements I make. Beneath the commendations and curses, I have always found political, ethnic, class and religious intonations, inflections or modulations. This is not good for us. I have written elsewhere1 that the 1992 Constitution is one of the best Constitutions on earth. And that the Constitution is enough for our needs as a nation at this point in time. I bravely asserted then, as I do now, that the 1992 Constitution of Ghana is the instrument for guiding our developmental path and for dealing with the issues of discrimination along gender, ethnic, class and other lines and for ensuring an equitable distribution of our national resources from power and authority, through 1 Raymond A. Atuguba, Raymond A. Atuguba, “Ghana Developing Through Law”, IEA Policy Analysis. Vol. No. Issn 0855-2460, (Institute of Economic Affairs, August 2005). 2
  3. 3. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. peace, security and happiness, to minerals and natural resources. Indeed, Ebi Constitution we go chop! Ghanaians have invested in the 1992 Constitution. It was the goodwill of a military government2 , the bravery of those who broke the “culture of silence”3 , the experienced midwifery of many in the National Commission for Democracy, the Committee of Experts and the Consultative Assembly and the participation of many Ghanaians in the 1992 referendum which birthed for us the 1992 Constitution. Flowing from the above, Ghanaians are equally invested in the 1992 Constitution. Next to the Holy Bible, the Holy Qur’an, and the Morning Libation, the Constitution is slowly becoming the daily bread of the Ghanaian. Indeed, “Ebi Constitution we go chop.” Everyday, the mass media raises issues of critical importance to our nation and gives many ordinary persons the opportunity to have their say. A critical reference point for these discussions has been the 1992 Constitution. To take very current examples, from “election 2008”, through the “Presidential oath not taken” to the nomination of a chief to co-manage the Ministry of Finance, one critical question was constantly posed; what does the 1992 Constitution of Ghana say about the issue? This lecture is a tiny component of a broader project titled “The 1992 Constitution: An Article a Day”. The project seeks to analyse each of the 299 articles of the 1992 Constitution and the 37 sections of the transitional provisions textually, contextually, historically, teleologically, comparatively, practically, popularly and futuristically. The historical evolution of each article will form a significant segment of the project. What Bennion said half a century ago is true today: “…although the republican constitution contains a number of original features and represents a clean break with the past, it inevitably perpetuates by way of organic development much of the former constitutional system. It cannot therefore be understood without reference to the growth of the institutions of government which took place during the years preceding…” The project will include a comparative study of some of the provisions with their equivalents from the United Kingdom (our former colonial masters); the United States of America (in a sense, our current colonial master); India (from where our Constitution took a great deal of its ethos); the South African Constitution (from which our Constitution should have taken a lot of learning if ours had not ante-dated 2 Evidence of PNDC’s resolve to return Ghana to Constitutional Rule. 3 Evidence from the activism of Adu Boahen and others in this. 3
  4. 4. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. theirs4 ); and Cuba (which in its Constitution says bravely and clearly what our Constitution is too timid to say). The analyses of the constitutional provisions would be presented to the Ghanaian public over the course of one calendar year-an article a day, excluding Sundays-for scrutiny and review before they are finalized. My collaborator on the broader project in Nii Armah Josiah Aryeh, one of the finest scholars in this country who like the rest of us is starved of the necessary resources which alone can assure sterling intellectual exploration and real and relevant research output. My expertise is in human rights, law and development, and historical institutionalism. Dr. Aryeh’s expertise is in law, politics and sociology. I consider this a good blend for the project. It is increasingly becoming clear that we need a thorough and quite detailed analysis and elaboration of the dry words of our Constitution. Such a disquisition is necessary in order to give the Constitution some life, so that it is able to speak to us in times of crises; and some light, so that it is able to show us the way out of any doldrums we may descend into. It will be dangerous to depend on the rash, careless, ahistorical, opportunistic and partisan interpretation of the Constitution that we currently witness anytime a Constitutional issue comes up in the public domain. Above all, it is important to take the Constitution a little off the artificial exclusivity that has been created for it by many lawyers, a couple of “public commentators”, and a few political and social scientists. The 1992 Constitution is a public document which belongs to the people of Ghana and it must be available for their reading pleasure and their excited comprehension. It must also be available to be utilized by them for the effective realization of their needs, wants and rights. In short, we must be able to “chop” the 1992 Constitution. A complete, holistic, thorough and critical analysis of the provisions of our Constitution is particularly important because Ghana cannot fail at its fourth attempt at republican constitutional democratic rule. The banner for this last attempt of ours is the 1992 Constitution, which is not only the most beautiful but also the most ambitious of our post-independence constitutions. The operationalisation of this Constitution has span sixteen years, the longest in our post-independence history. The operation of a Constitution for over a decade and a half has meant that we have 4 The current South African Constitution was adopted on 8th May 1996 and came into force on 7th Febraury 1997. See, < http://servat.unibe.ch/icl/sf00000_.html > 4
  5. 5. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. generated a lot of private and public; judicial and extra-judicial; bourgeois and popular; political and apolitical; and serious and mundane interpretations of our Constitutions. All these need to be collected; collated; assessed; analysed and presented to the Ghanaian public as alternative interpretations of their Constitution. Related to the above is the fact that the application of constitutional principles to the functioning of institutions of State has spawned a wealth of quite complex legal principles in the areas of both constitutional and administrative law. Coupled with this is a growing willingness by the Ghanaian courts to relate the rights and duties of players in the administrative State to the human rights provisions in the Constitution. This has chiefly resulted from the reaction of our courts to systems and processes of the administrative State that take their ethos and orientation from previous undemocratic environments and the desire of the courts to subsume that orientation to the democratic and liberal principles of the Constitution. The natural consequence is that there is an increasing desire by individuals to assert their constitutional rights, and to hold the organs of State in check by drawing inspiration from the Constitution. As a result, there are a growing number of cases that discuss issues relating to the functioning of institutions of State that are set-up by or pursuant to a power expressed in the Constitution. These decisions need to be collated and presented as expositions of various articles of our Constitution.5 Only a composite, detailed, practical, down-to-earth, and easily readable manual on the Constitution of Ghana can serve as a tool for the citizenry to assess the functioning of government and hold them accountable to Constitutional standards. It will also be the tool for citizens to assert their rights in our post September 11 world with its huge inroads into the rights and entitlements of citizens.6 Where the citizenry has a limited understanding of the establishment, legality, powers, capacities and limitations of the institutions of State that influence their daily lives, citizen engagement and activism on constitutionalism in Ghana will fall far short of the 5 Raymond A. Atuguba, “Admnistrative Law: The Law of Century”, Annual Survey of Ghana Law, (Lexis-Nexis, 2009 forthcoming). 6 There is an Anti-Terrorism Bill currently under consideration by the Parliament of Ghana. The government of Ghana has committed itself to making changes to its legislation and its policies to deny safe haven for terrorists and fight terrorism. In this regard, it has committed to review national laws and establish criminal offenses (i.e. amend Criminal Code Act 1960 Act 29) for terrorist acts and make such acts punishable.“ A proposed Bill on Terrorism includes provisions dealing with the definition, jurisdiction, penalties, financing of terrorism, money laundering, as well as other aspects of terrorism. The government has promised to expedite action on this bill. See http://64.233.183.104/search? q=cache:7VVbcl7- SQJ:www.interpol.int/Public/BioTerrorism/NationalLaws/Ghana.pdf+Ghana+ratified+the+International+Convention+F or+The+Suppression+Of+The+Financing+Of+Terrorism,+United+Nations,+1999&hl=en&ct=clnk&cd=1&gl=gh for more details. Site visited on 22nd September, 2008; Human Trafficking Act, 2005, (Act 694); Anti-Money Laundering Act, 2008, (Act 749). 5
  6. 6. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. optimal level and the resultant contribution of the citizenry to the improvement of the functioning of the organs of State becomes negligible. Finally, a project that seeks to analyse the 1992 Constitution will assist in the many debates on constitutional reform that we have witnessed so far. These debates have largely been informed by the politics of the day and populist sentiments rather than careful and deliberate research into the purpose of the relevant constitutional provisions, to wit, the social good the provisions are meant to promote, the social problems they are meant to ease or solve, and the popular conception and expectation of the provisions. This does not augur well for a progressive evolution of our Constitution. Such a project will provide the data and analysis on the bases of which any discussions on amending the Constitution may safely proceed. The immediate impetus for this project is “election 2008”. I have received a number of invitations to conduct a post-mortem of “election 2008”. The invitations were very inviting. Some came dangling money. Some came with exciting questions to any researcher: What exactly is the story from the perspective of Dr. Kwadwo Afari- Djan?; How exactly does one obtain a warrant from the Chief Justice to hold court on a holiday and assemble the court officials for same? How did the “friends of the court” know that there would be a court session and managed to get there before the plaintiff-applicant’s lawyers? I had to decline these invitations in favour of this broader project. To return to the point, during election 2008, I kept receiving telephone calls from a highly placed security operative outside of Ghana on how delicate the situation was. I was tempted to dismiss them as a mild form of paranoia. This person then decided to reach me through a very respected Ghanaian. I became scared when I received two other calls from Washington DC and from the British Broadcasting Corporation all seeking answers to questions relating to the information from the operative. I became really scared when some of the predictions the security operative had made started playing out. It was at that time I agreed to do the media rounds with two clear messages: 1. That there was no imminent constitutional crisis in Ghana and that the Constitution had adequately provided for all the possible scenarios relating to electoral lapses, including for a situation where there was no President elect at midnight on January 7th , 2009; and 2. That the courts are not the first point of call for the resolution of disputes once Presidential Election results had not yet been declared. 6
  7. 7. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. What amazed me during this period was the amount of disagreement over simple provisions of the 1992 Constitution depending on what side of the political divide a person belongs to. Another thing that was refreshing to me was the yearning of the public for an understanding of how the 1992 Constitution resolves the issues then confronting our nation. I can safely say that our Constitution was stretched almost to its limits during this time. Questions relating to improved electioneering processes in the form of better electoral time tables; more detailed rules for initiating electoral disputes; well defined guidelines for the transition from one government to another, particularly when it involves the transfer of power from one political party to another; and ex gratia awards for the outgoing political class were boiling then and are still simmering. The project is ambitious, yes, but I have a worthy partner and it has been attempted before in the past with worthy results. I will cite two of the most important attempts presently. Students of Ghanaian Constitutional Law will undoubtedly remember that such an attempt was made by F.A.R Bennion on the 1960 Constitution of Ghana7 . It was acclaimed as “an important book… and the author…well qualified to write it. As technical adviser to the Ghana Government on the preparation of legislation during the period 1959-1961, Mr. Bennion was obviously the right man to produce this commentary”.8 Yet the commentators of the time noted some severe limitations in this work.9 One commentator, who is very familiar, in name at least, to constitutional law students, S. O. Gyandoh, had the following quite damning words at the end of his assessment of Bennion’s work: “In this survey and critical examination of the general principles underlying constitutional interpretation [contained in Bennion’s book], attempts have been made to point out expressly and by implication the inadequacy—one may say without exaggeration, the total lack—of principled criteria for the determination of the meaning of the Constitution in Ghana. This nation, it is submitted, can ill-afford to shirk the task of consciously developing such principles.” 7 F. A.R. BENNION, The Constitutional Law of Ghana (London: Butterworths, 1962). See also a review of this book by W. C. EKOW DANIELS, “REVIEW: The Constitutional Law of Ghana by F. A.R. BENNION. London: Butterworths 1962. African Law Series, No. 5. xxxvi and 527 pp. 70s”. Journal of African Law, 1963 Vol. 7 No.2 pp. 110-111, available at < http://www.francisbennion.com/pdfs/non-fb/1963/1963-001-rev-ghana-review.pdf >, visited on 4th February, 2009 and a commentary on the book by S. O. GYANDOH, JNR. Principles of Judicial Interpretation of the Republican Constitution of Ghana, University of Ghana Law Journal [1966] VOL III NO. 37—67. Finally, see LESLIE RUBIN AND PAULI MURRAY, The Constitution and Government of Ghana, (London: Sweet & Maxwell, 1961). 8 W. C. EKOW DANIELS, supra, p. 110. 9 W. C. EKOW DANIELS and S. O. GYANDOH, JNR Supra. 7
  8. 8. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. In any case this volume is on the 1960 Constitution of Ghana and beyond providing one historical perspective on that 1960 Constitution, is not very valuable for the interpretation of the 1992 Constitution. A more recent attempt has been made by S.Y. Bimpong-Buta in his book The Role of the Supreme Court in the Development of Constitutional Law in Ghana10 . As an exposition on the 1992 Constitutional of Ghana, this book suffers from the limitations inherent in its title. The purpose of the broader project is not to ensure that the Constitution is, in the words of Gyandoh, “relegated to the lifeless status of a “mechanism”, devoid of any capacity for organic evolution through the process of “interpretation”’11 . On the contrary, it is meant to provide the information and knowledge on the bases of which the Constitution, which we all now agree is a “living organism capable of growth and development,”12 will be interpreted to meet the needs of the time. In this exercise, we will constantly be mindful of the poetic imagery of Sowah, then Justice of the Supreme Court, in the case of Tuffour v. Attorney-General.13 You must forgive me for the long quotation, which I believe is important in order to capture the essence, drive and direction of this project, especially the holistic and historical character of the analyses we intend to undertake. He said: A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power… Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is 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 principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect… And so a construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say “inconsistent” results, the spirit of the Constitution 10 Advanced Legal Publications, Accra, Ghana , 2007. 11 Gyandoh supra. 12 Tuffuor v. Attorney-General [1980] GLR 637 at 647. 13 Ibid, pp. 647 to 657. 8
  9. 9. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. would demand that the more reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole… We think it is pertinent at this stage for the court to make a very brief excursion into the judicial history of this country’s…past…Such an excursion should illuminate our path and, at the same time, act as a beacon towards the understanding of the judicial structure as it existed before… I completely agree with Sowah J.S.C and have nothing useful to add. Given the peculiar character of this project, I will as much as possible provide an inventory of views from different authorities on the subject of sovereignty in Ghana. This will come with a fair deal of quotations, some of them quite lengthy. NOW LETS START… As I have previously noted, the aim of the broader project is to provide the information and knowledge on the basis of which issues surrounding and arising from our Constitution may be discussed and resolved. We will seek to do this by engaging in a textual, contextual, historical, teleological, comparative, practical, popular and futuristic analysis of each article of the 1992 Constitution of Ghana. In this interfaculty lecture, which is a work in progress, I seek to test the practicability and utility of this methodology by applying it to the dry words of Article 1(1) of the 1992 Constitution. WHAT DOES THE 1992 CONSTITUTION SAY ABOUT SOVEREIGNTY? The word sovereignty appears four times in the 1992 Constitution. In two occurrences, it is in the Oath of Allegiance and the Judicial Oath which are in the Second Schedule to the Constitution and are not very relevant. The other two occurrences are vital to our discussion today. Article 1(1) of the 1992 Constitution provides as follows: “1. Supremacy of the Constitution (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.” As if for effect, Article 35(1) of the Constitution reiterates article 1(1): “35. Political objectives (1) Ghana shall be a democratic State dedicated to the realisation of freedom and justice, and accordingly, sovereignty resides in the people of Ghana from whom the Government derives all its powers and authority through this Constitution. The related word “sovereign” appears two times in the Constitution. The second occurrence in Article 4 is to the effect that the “sovereign State of Ghana is a unitary 9
  10. 10. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. Republic consisting of those territories comprised in the regions which, immediately before the coming into force of this Constitution, existed in Ghana, including the territorial sea and the air space”. This is not very relevant for our purposes today. The first occurrence of the word is, however, pretty relevant and is contained in the Preamble to the Constitution: “We the People of Ghana, IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; IN A SPIRIT of friendship and peace with all peoples of the world; AND IN SOLEMN declaration and affirmation of our commitment to Freedom, Justice, Probity and Accountability; The Principle that all powers of Government spring from the Sovereign Will of the People…”. It is intriguing that despite the clarity of expression on the location of sovereignty in Ghana; it still remains a quite vexed issued. In the rest of this lecture, I will seek to explore the concept of sovereignty, establish its real location in “the people of Ghana” and illustrate why sovereignty does not and should not be located anywhere else. I hope that at the end of the lecture I would have succeeded in removing the cobwebs surrounding the location of sovereignty in Ghana by establishing that it does not reside in the executive, the legislature, or the judiciary but in the “the people of Ghana”. WHAT IS THIS SOVEREIGNTY THING ALL ABOUT? It is amazing how our education has always oriented us outward. In researching this paper, I found, once again, that the most excellent and contextualized expositions of the most difficult and challenging concepts in law and the social sciences are crafted right here in our backyard. Regarding the word sovereignty, one of the greatest judges we have ever had in this country-and we have had many great judges in the past-had this to say, and you would here permit another long quotation: ‘“The doctrine of sovereignty” as has been observed by a learned writer, Heuston…is essentially the work “of Oxford men”; but even though our present leaders are also Oxford men it behoves us to consider whether this doctrine propounded in the comparative security of the Senior Commons of Oxford can be applied in all its fullness in the turbulent conditions of tropical Africa. The doctrine was eloquently propounded by Hobbes of Magdalen College, Oxford, in his Leviathan…An absolute ruler he said…was necessary because in his absence the life of man becomes “solitary, poor, nasty, brutish, and short.” 10
  11. 11. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. The experience of Ghana, and indeed of most African countries has been that it is with the presence of a “Leviathan” in our midst that life becomes “solitary, poor, nasty, brutish, and short.” The doctrine propounded by Hobbes the political scientist, was taken over by Blackstone, of All Souls College, Oxford. He said…“The power and jurisdiction of parliament, says Sir Edward Coke ... is so transcendent and absolute, that it cannot be confined, either for causes or persons within any bounds.... It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime or criminal: this being the place where that absolute despotic power which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms ... It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the parliament doth, no authority upon earth can undo”…14 Beyond judges, who we all know are well paid to write judgments, the academics of old in Ghana have provided very compelling elaborations on the concept of sovereignty. Perhaps, unlike in today’s Ghana, the academics of old, like their friends on the bench, were well paid to write. You must really forgive me for these long quotations, but they are so beautifully written that I decided not to paraphrase them in my relatively weaker version of the English Language: “The notion of popular sovereignty—that all the powers of government spring from the people—is nothing new. Its philosophical basis was first popularised by John Locke in the seventeenth century and refined and further popularised by Jean Jacques Rousseau in the next century…Locke maintained, following earlier natural law philosophers…that natural rights existed prior to government or law and that men came together to form communities only by means of a social compact which expressed the will of the majority…Rousseau advanced the theory a step further, discovering in the pre-social condition of man “the splendour of a lost paradise,” in which men were absolutely free to do as they liked. The contract resulting in the transition from the pre-social to the social condition “reduces itself to the following terms: ‘Each of us puts into the common pool, and under the sovereign control of the general will, his person and all his power. And we, as a community, take each member unto ourselves as an indivisible part of the whole.’”… To be sure, few, if any, would now attempt the articulation of the notion of popular sovereignty in such metaphysical and transempirical terms without exposure to the charge of sounding essentially obscurantist. Yet, the immensely profound influence of Locke's ideas in England and the American colonies…and of Rousseau’s on the Continent of Europe… derived precisely from the fact that the ideas were seen as offering practical solutions, justified by reason, to the problem of government… The validity of the concept of a pre-social condition of man at any point of time in his history is at least doubtful. That concept can certainly not be maintained in any modern 14 Shalabi and Anor v. Attorney-general [1972] 1 GLR, 259. 11
  12. 12. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. society, including those in which Locke and Rousseau lived, where the individual is plainly born into a community without any volition on his part…15 It is clear from the above quotations that “Sovereignty” means absolute power. So absolute is this power that some in England were uncomfortable with locating it wholly in Parliament and mentioned “the people” as a check on Parliamentary sovereignty. Indeed the above quotations from Gyandoh essentially seek to discover the roots of sovereignty, place is in the domain of “the people” and thereby seek to limit the powers of a sovereign parliament. We return to Justice Hayfron-Benjamin again for what I promise will be a shorter quotation this time round: “It was left to another Venerian Professor of law and a Fellow of All Souls Oxford, Professor A. V. Dicey, to clothe naked and arbitrary power with the glossy mantle of academic legality. It is worth noting that it was not by accident that the man who wrote the Law of the Constitution also wrote Law and Public Opinion in England which traced the connection between the development of English law and the course of English opinion. In fact when as Heuston points out at p. 2, Leslie Stephen asked the question why did not Parliament command all blue-eyed babies to be killed, Dicey’s answer was that there were both internal and external limits to parliamentary sovereignty. The internal limit is the fact that members of parliament are not usually men of outrageous views; the external limit is the possibility that the English electorate would not obey such a statute”.16 I will give the lasts words in this section of the paper to Charles Crabbe JSC in the case of Republic v. Maikankan and others17 where he said the following about our colonial suppressor: “The constitutional practice under the British Constitution is that Parliament is supreme. It can make and unmake any law; the courts do not sit as a court of appeal from Parliament. They have no power to set aside the provisions of an Act of Parliament. Their function is limited to the interpretation of what is enacted in an Act of Parliament. Nor can the courts question the exercise of the legislative power of Parliament. So powerful is this position that one session of Parliament cannot fetter the legislative competence of another session of Parliament. All this is subject only to the force of morality and the exercise of the political sovereignty of the people, and Lord Hewart could describe an exercise of the legislative power of Parliament as a new despotism. The position then in the United Kingdom is that Parliament can legislate whenever it considers that certain decisions of the courts are inconsistent with each other or that the law on a particular matter is uncertain.” 15 Gyandoh 16 Ibid, pp. 17 [1973] 2 GLR 384, at 12
  13. 13. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. SOVEREIGNTY IN GHANA; A HISTORICAL OVERVIEW S.O. Gyandoh18 , has noted that the basic notion of popular sovereignty articulated by Locke and Rousseau found its way into several constitutions of countries in the world. Examples from old include the preamble to the United States Constitution of 1787 which begins with “We the People. . .”; the Belgian Constitution of 1831 contains in its Article 1 the following provision: “All powers emanate from the people”; the Weimer German Republican Constitution of 1919 proclaimed the sovereignty of the people in its preamble and in its article 1, to wit: “The German Reich is a Republic. The political power emanates from the people.”19 In 1956, it was estimated that 71% of all Nations, with over 80% of the world’s population, had Constitutions which proclaimed that sovereignty vested in the people.20 This was before the many Asian and African Countries emerged from colonialism to proclaim same in their various constitutions.21 Sovereignty under the 1957 Constitution of Ghana Ghana’s 1957 Constitution, which in fact was an Act of the British Parliament,22 failed to vest sovereignty in the people of Ghana. Although that Constitution did not expressly vest sovereignty in the Parliament, it provided in the First Schedule to the Ghana Independence Act, 1957 that the Parliament of Ghana shall have full power to make laws having extra-territorial operation. I do not know what that means, I hope you do. Again, the 1957 Constitution did not expressly provide for the power of judicial review of legislative acts. Given our history, it is safe to say that the Brits assumed that they had passed unto us their concept and practice of Parliamentary sovereignty. Sovereignty under the 1960 Constitution of Ghana Ghana’s second attempt at formulating its provisions on sovereignty were freer from the looming specter of British monarchism and so the preamble to the Republican Constitution of 1960 begins with the familiar words “We the people,” and continues in its Article 1 to provide that: “The powers of the State derive from the People, by whom certain of those powers are now conferred on the Institutions established by 18 Gyandoh 19 Ibid, pp. 20 Bennion, p. 133 21 Gyandoh. 22 The Ghana (Constitution) Order in Council, 1957, hereafter the 1957 Constitution of Ghana. See also Egon Schwelb, “The Republican Constitution of Ghana” for a discussion of both the 1957 and 1960 Constitutions of Ghana. The American Journal of Comparative Law, Vol. 9, No. 4 (Autumn, 1960), pp. 634-656. 13
  14. 14. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. this Constitution and who shall have the right to exercise the remainder of those powers…”. The 1960 Constitution went on to say that the People had vested in their representatives in Parliament the power to surrendered their sovereignty in furtherance of African Unity.23 Article 13 of the Constitution required the President to declare his adherence to certain fundamental principles. The first of these principles read as follows: “That the powers of Government spring from the will of the people and should be exercised in accordance therewith.” Finally, article 20 provided that so much of the power of the people which is was not vested in Parliament remained in the people. And Parliament could only legislate on the reserved subjects after powers have been conferred by the people to Parliament through a referendum. Gyandoh believes that the concept of popular sovereignty in the 1960 Constitution is ‘emphasized through the device of “entrenching” certain provisions of the Constitution with the result that those provisions are alterable only by way of a direct voting by the people on terms of universal adult suffrage in a referendum…”.24 Given the elaborate provisions in the 1960 Constitution vesting sovereignty in the People of Ghana, it is surprising that what played out in that era was the concept of sovereignty as “absolute power” vested in Parliament. This was obviously an unintended heritage, warts and all, from the British. It is obvious that the limitations that were later placed on the concept of the sovereignty of the British Parliament did not form part of the package we swallowed as a Nation. This becomes obvious from the following quotation: “It was partly because of the absence of those limits, both external and internal and partly due to the uncritical application of the doctrine of parliamentary omnipotence in all its pristine nudity by the courts under the [Nkrumah Regime], that this country was led into what the preamble to the [1969] Constitution describes as a regime of tyranny. The same preamble tells us that the chiefs and people of Ghana have “solemnly resolved never again to allow ourselves to be subjected to a like regime.”25 What exactly caused the deflection of sovereignty from “the People” and unto the President and “Parliament” under the 1960 Constitution? The answer seems to lie in Bennion, that illustrious midwife of the 1960 Constitution. Bennion argued that even after a referendum indicating the wish of the people that Parliament ought to legislate 23 1957 Constitution of Ghana, Article 2. 24 S. O. GYANDOH, JNR, PRINCIPLES OF JUDICIAL INTERPRETATION OF THE REPUBLICAN CONSTITUTION OF GHANA [1966] VOL III NO. 1 UGLJ 37—67. 25 Ibid, pp 14
  15. 15. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. on reserved subjects, Parliament would not be obliged to exercise those powers if, after further consideration, it does not think fit to do so.26 As W. C. Ekow Daniels has noted, “Surely this interpretation makes nonsense of the powers of the people?”27 . And so it was that the Parliament under the 1960 Constitution robbed from the people of the day their sovereignty. It was when Nkrumah started using Parliament to limit the freedoms of the people that they realized they had been robbed. It was too late. The Supreme Court refused to intervene on the side of the People in cases such as Re Akoto and 7 Others.28 Eventually, the Central Intelligence Agency (CIA) in the United States29 decided to take sovereignty away from Nkrumah and his Parliament for completely different reasons. They entered into an alliance with the Military and Police in Ghana who agreed to do what in Ghana we call the “donkey work”. Thus was sovereignty recaptured by the people. Sovereignty During the Eras of Military Rule in Ghana It is important to note that the courts, the interlocutors of the Constitutions and Proclamations we have had, have been quite ambivalent as to the location of sovereignty in Ghana, during periods of military rule. Witness the following by Justice Taylor, a judge who was usually on the side of the people: “That body, our present Supreme Military Council, acquired as of to date, plenary sovereign power, more absolute than the legislative and other powers enjoyed by the regime which it superseded. The extent of its powers undoubtedly transcendent and absolute is of a nature well known to students of English constitutional law who have had acquaintance with the writings of Blackstone and Dicey and the dogmatic jurisprudence found in the Austinian concept and theory of sovereignty. We in this country with our colonial past and as heirs of the English common law are no strangers to this type of sovereignty. It is the sovereignty of the Westminster variety. Its extent and ambit as a matter of pure law know no bounds. This therefore is the power acquired by the Supreme Military Council.”30 In another case, the same judge referred to the “the Wesminster type of absolute legislative sovereignty which the National Liberation Council enjoyed under the Proclamation, 1966”.31 26 Bennion 27 Ekow Daniels, supra. 28 2 G&G, 183. 29 Web Citations. 30 Republic v. Inspector General of Police and Another; Ex Parte Ibrahim alias Telley [1977] 1 GLR 7, at pp. 11 to 12. 31 Patu-Styles and Another v. Amoo Lamptey, [1984-86] 2 GLR 644 at 693. 15
  16. 16. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. The Westminister thing refused to go away. In Republic v. National House Of Chiefs, Kumasi And Another; Ex Parte Kusi-Apea [1984-86] 2 GLR 90, at 97 we find the following statement: “Clearly on 5 November 1976, by the imperative provisions of S.M.C.D. 64, a Decree of the Supreme Military Council, the second respondent regained the Wenchi paramount stool which he had been deprived of since 5 December 1966 by N.L.C.D. 112. On 4 June 1979, however, the Supreme Military Council was itself ousted from power and a new military regime, the Armed Forces Revolutionary Council (hereinafter referred to as the A.F.R.C.D) took over the reins of government and until it relinquished power on 24 September 1979 it also, like the regime it toppled, exercised plenary sovereignty of the Westminster variety.” The location of sovereignty during military regimes was beautifully illustrated by Archer J.S.C in Fattal and Another v. Minister for Internal Affairs and Another as follows: “Under a normal constitutional government, sovereignty lies with the people and the Constitution is supreme. Under a military government sovereignty ceases to rest with the people until the military hands over to a civilian government or until the people can mobilise themselves and overthrow the military government by force and regain their sovereignty. Moreover, in the absence of a written constitution, which delimits the powers of the various organs of state, a military government is at liberty to do what it likes by Decree which has the force of the law. It is an absolutist government.”32 There were, however, some dissenting voices from the judge-folk as to where to locate sovereignty during military regimes. One brave judge asserted during the era of the National Liberation Council (NLC), that sovereignty resided in the people. The following are his exact words: “The wider question here is whether citizenship once conferred can be withdrawn by processes other than those specifically mentioned at the time of the acquisition of such citizenship. The answer, it is submitted on behalf of the Attorney-General, is that the National Liberation Council being sovereign could do everything except turn a man into a woman or vice versa. We are grateful that it has not been suggested that the National Liberation Council could do even that… The Proclamation [of the NLC] provided in paragraph 3 that “Until such time as a new Constitution is promulgated by the People of Ghana, the National Liberation Council shall have power for such purposes as they may think fit and in the National Interest to make and issue decrees which shall have the force of law in Ghana.” I cannot read from this Proclamation or from anything said or done by the leaders of the coup any other thing than that they were an interim government recognising the rights of the people of Ghana as the only body to promulgate a new constitution, i.e. as the repository of sovereignty. 32 [1981] GLR 104, at p. 112. 16
  17. 17. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. As such the National Liberation Council could have had no greater powers than the people.” ‘The…citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.” As John Locke said…the power given to any sovereign or government has no other end than the preservation of life, liberty and pursuit of happiness, and therefore it ‘can never have a right to destroy, enslave, or designedly impoverish the subjects…’33 . Sovereignty under the 1969 Constitution This Constitution makes reference to the “sovereignty of the people as the foundation of our society” in its Preamble. This has the flavor of the Hobbesian, Lockeian, Rousseauian, and Weberain concepts of sovereignty we have examined. It helps clarify thing if we remember that the 1969 Constitution was a Parliamentary Constitution. It also provides in its article 1(1) that “The sovereignty of Ghana resides in the people of Ghana whose welfare is enshrined in this Constitution”. This is similar to the sovereignty provisions in the 1992 Constitution and the analysis below on the 1992 Constitution holds good for the 1969 Constitution. Sovereignty under the 1979 Constitution The 1979 Constitution provides in its Preamble that “all powers of government spring from the sovereign will of the people”. This is an improvement on the 1969 formulation which merely located sovereignty in the People but did not positively state that the powers of government spring from that sovereignty. Article 1(1) on the location of sovereignty in Ghana was reproduced word for word in article 1(1) of the 1992 Constitution. To that and related provisions of the 1992 Constitution it is now necessary to turn. Sovereignty under the 1992 Constitution Articles 1(1) and 35(1) are very clear on where sovereignty in Ghana resides. It resides in the people. In Sam (No. 2) v. Attorney-General,34 Mrs. J. Bamford-Addo J.S.C., as she then was, and Speaker of Parliament, as she now is, noted that to “ allow [a particular provision of a law] to remain in our statute books…is to permit a direct misguided 33 Shalabi and Anor v. The Attorney-General [1972] 1 GLR 259 at pp.264-270. 34 [2000] SCGLR 305 17
  18. 18. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. attack on the cherished hopes and aspirations of the sovereign people of Ghana to wit to live under the rule of law specified forcefully in the preamble to the constitution of 1992. The Constitution stipulates that all persons shall live under the rule of law in justice, equality and freedom, to ensure unity and stability of this nation.” By this statement, her Lordship was importing the principle of sovereignty, from the preamble of the 1992 Constitution to invalidate a law that was not in accord with the sovereignty of the Ghanaian people. This is laudable indeed. There are, however, some worry statements in a number of cases which seek to effectively relocate sovereignty away from the people. This is reminiscent of the relocation of sovereignty from the people to Parliament under the 1960 Constitution and the horrible results that ensued. Ghana Bar Association v. Attorney-General and Another,35 involved an attempt by the Ghana Bar Association to invalidate the nomination by the President, the vetting by Parliament and the appointment of Justice Abban as the Chief Justice of Ghana. In an attempt to save one of their own, the Supreme Court of the time overshot the mark and made statements about sovereignty that may come to haunt us someday. I have in various comments on a number of cases including the Dan Abodakpi case and Tsatsu Tsikata series of cases noted the fact that the judiciary must be careful that in their haste to save or damn a particular individual they do not foul the law. This is what happened in this case. As an aside, the allegations that were made by the Ghana Bar Association against justice Abban were more damning than those that are now being made by some nominees for ministerial appointment. To return to the case, the Supreme Court, speaking through Kpegah J.S.C said as ff: “…to accept the invitation which is being extended to us and exercise jurisdiction in the matter, we shall be behaving like an unruly dog which has refused to be chained to its own kennel but wanders to places where it ought not to be. Any attempt by the Supreme Court to claim a power to be able to declare null and void the appointment of the Chief Justice made by the President, in consultation with the Council of State and with the approval of Parliament as provided in the Constitution, 1992 could not only correctly or justly be characterised, in the words of Chief Justice Marshall, as “an absurd and excessive extravagance” but also as usurpation of the constitutional functions of both the executive and the legislature. As a fall out, we shall be deliberately courting confrontation not only with the executive, but also with Parliament whose proceedings we have no power to scrutinise. If the President, in consultation with the Council of State and with the approval of Parliament makes an appointment in compliance with the Constitution, 1992, his authority, in the words of Justice Jackson, “is at its maximum.” Because in such circumstances, his 35 [1995-96] 1 GLR 598 18
  19. 19. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. authority includes all that he possess under the Constitution, 1992 plus all that Parliament, the people’s direct representatives, has. When the President gets the support of Parliament in the discharge of a constitutional duty, he can in such circumstance be described not only as close to personifying the sovereign people of Ghana, but also doing their will. If the President’s act is held to be unconstitutional in these circumstances, then it means that the Government of Ghana, in the words of Gunther, “as an undivided whole lacks power.” For, as was pointed out by Professor Edward S Corwin…the principle of, “a political question relates to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President, and whose decisions are binding on the Courts.” This novel concept of sovereignty personified in Parliament was again quoted with approval by Kpegah himself in Yeboah v A-G36 . It is this reasoning that will be quoted by those who wish to support the pillage of our national resources in the name of ex gratia awards and the approval by Parliament of the pillage of national resources in the name of attracting strategic investors. And since it is a decision of the Supreme Court, it will require a fair amount of creativity to avert. The references quoted by Kpegah J.S.C. are premised on a certain degree of responsibility on the part of Parliament which we are still working to build in ours. They cannot, therefore, be applied to our Parliament as we have it today. A parliament that is irresponsible enough to lack a quorum several times, take cursory looks at critical documents before passing them and is said to accept various “rewards” in order to influence legislation in one way or the other cannot be fully trusted to do a good job at checking the Executive arm. Thus, where there is compelling reason and evidence that Parliament did not do its job properly, the courts must be brave enough to intervene and set the record right. It is important that we limit the import of the case of Ghana Bar Association v. Attorney-General and Another37 to its peculiar facts. That is to say, we had a Supreme Court that decided to protect one of its own and by extension their individual selves. The Supreme Court was betrayed by Kpegah J.S.C. when he said at page 658 of the report: “This suit appears to be a guided missile launched not only at the heart of the judiciary but also at the Constitution, 1992 itself; possibly inadvertently. We cannot, in the circumstances, keep our own patriot missiles permanently fixed to their launch-pads, we must instinctively fire them in defence of the Constitution”. 36 [1998-99] SCGLR 492 at 529-530. 37 [1995-96] 1 GLR 598 19
  20. 20. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. Justice Kpegah would have been more honest if he had substituted for the words “in defence of the Constitution” the words “in defence of our brother Chief Justice Abban”. It will be better for all of us if we return to the words of the judge who has been foremost in naming and protecting the sovereignty of the people in the recent history of our Supreme Court. In the case of Philip Apaloo v. Electoral Commission of Ghana,38 Justice Bamford-Addo had the following to say: “The people of this country in 1992 promulgated for themselves a constitution which vested sovereign power in the people and provided a Democratic form of Government based on certain fundamental principles…In the Preamble to the 1992 Constitution it is stated clearly that: "We the people of Ghana, in exercise of our natural and inalienable right to establish a frame work of Government which shall secure for ourselves and posterity the blessings of liberty equality of opportunity and prosperity ... The Principle that all powers of Government spring from the sovereign Will of the People…” Again, the following profound statement appears in the judgment of Prof. Kludze in the case of Professor Stephen Asare v. The Attorney-General:39 “The sovereign people of Ghana can expressly or by implication reject any aspect or implication of the doctrine of the separation of powers, as they may any other doctrine, philosophy or principle.” I very much hope that I have both located the sovereignty of Ghana in the people of Ghana and referred to the dangers that portend a relocation of sovereignty anywhere else. I will conclude this lecture by establishing that sovereignty does not reside in two of the entities that often compete with the people for sovereignty. THE PARLIAMENT OF GHANA IS NOT SOVEREIGN We need to start with the basic principle that the Parliament of Ghana is not sovereign. This is an implication of articles 1(1) and 35(1) of the Constitution. If sovereignty resides in the people of Ghana, then Parliament cannot be sovereign, for it is practically impossible to have more than one sovereign. This has historically been the case. In Shalabi v. Attorney-General,40 Hayfron- Benjamin J said the following: 38 [2001-2002] SCGLR 1. 39 [2003-2004] SCGLR 823. 40 [1972] 1 GLR, 259 at 264-268 20
  21. 21. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. “Any legal submission or proposition which would have the effect of depriving even one person, who at a certain point in time was undoubtedly a Ghanaian citizen, of that citizenship has to be considered with care and circumspection. Even greater care is required when the basis of this submission or proposition is the monstrous doctrine of legislative omnipotence or omnicompetence. For the avoidance of any doubts the Constitution of the Second Republic of Ghana, 1969, banished this doctrine from the realm… I am of the view that the doctrine of legislative omnipotence is a logical abstraction and ought not be applied to practical issues.” This is as true today as it was true then. I turn once again to the words of Hayfron-Benjamin in the Shalabi case,41 where he says that “[t]he supremacy of the British Parliament in my view is nothing more than that the British Parliament has power to carry into effect what the predominant opinion in the country demands and not that the British Parliament can do whatever it likes.” Implications of a Parliament that is not Sovereign Whilst the fact that Parliament is not sovereign may be easy to swallow, the implications of the statement are not that easy to ingest, what more swallow. It is easy to sing the chorus that the Ghanaian, even the British Parliament, from which we have drawn the mantra of Parliamentary Sovereignty, is not as sovereign as they would want us to believe. However, the implications can be far reaching indeed. It means that they are not all powerful; they are limited; they falter; they make mistakes, grave mistakes at times; they are accountable; and they may be held accountable. A familiar Ghanaian Constitutional Scholar I have quoted quite a bit today, S. O. Gyandoh, has provided a brief but very insightful review of a book by Professor Heuston, which as far back as 1969, threw serious doubt on the song-master’s refrain of British Parliamentary Sovereignty.42 The insights they both provide are relevant and helpful for us in Ghana today as we seek to firmly reside sovereignty in the People and prevent its relocation to Parliament. The first main point made in the commentary is to endorse the propositions that the “proverbial aphorism that the British Parliament is supreme in the sense that there are no legal limitations whatever on its legislative power” should be discredited and that 41 Ibid at 267. 42 BOOK REVIEWS: [1970] VOL VII NO. 1 UGLJ 77—80 ESSAYS IN CONSTITUTIONAL LAW [1970] VOL VII NO. 1 UGLJ 77—79 By R. F. V. HEUSTON [London: Stevens & Sons, 2nd Edition 2nd Impression 1969. 204pp. Paperback 18s. od.] GYANDOH, JNR. S.O. 21
  22. 22. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. the principle “cannot, and should not, be taken literally”.43 In this regard there are four basic propositions we should avert our minds to: “ (1) Sovereignty is a legal concept: the rules which identify the sovereign and prescribe its composition and functions are logically prior to it. (2) There is a distinction between rules which govern, on the one hand, (a) the composition, and (b) the procedure, and on the other hand, (c) the area of power, of a sovereign legislature. (3) The courts have jurisdiction to question the validity of an alleged Act of Parliament on grounds 2 (a) and 2 (b), but not on ground 2 (c). (4) This jurisdiction is exercisable either before or after the Royal Assent has been signified—in the former case by way of injunction, in the latter by way of declaratory judgment.”44 Citing cases from the United Kingdom, the Republic of Ireland, Australia and other places, Professor Heuston establishes that there are several legal limitations of a procedural nature on the legislative power of the British Parliament. It is important to note that according to the typology provided by Professor Heuston, all the three heads of the “composition”, “procedure” and “area of power of a legal sovereign” are open to question in Ghana. Professor Heuston’s argument is clearly that the first two heads are reviewable even in a “sovereign” Parliament like the British Parliament. The reason why the third head on “the area of power” is not open to question in Britain is because it marks “the point of difference between the British Constitution and limited constitutions, such as our own, under which the area of power of the legislature is itself circumscribed by the fundamental law”.45 For example, Article 3(1) of our 1992 Constitution provides that “Parliament shall have no power to enact a law establishing a one-party state.”And Article 107 provides that “Parliament shall have no power to pass any law to alter the decision or judgment of any court as between the parties subject to that decision or judgment…; or…which operates retroactively to impose any limitations on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under articles 178 to 182 of this Constitution”. The point I am making is that the Parliament of Ghana is not sovereign. This means that, and following Professor Heuston’s typology, the Parliament of Ghana is subject to review as to its “composition”, “procedure” and “area of power”. We are already familiar with the Constitutional provisions in Articles 1(1) and 2(1) to the effect that 43 P. ??? 44 Gyandoh II, supra, 45 Gyandoh II 22
  23. 23. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. Parliament may not act ultra vires the Constitution and give any person the right to challenge any such ultra vires act. I am suggesting to you this evening that the people of Ghana, in whom alone sovereignty resides, must be able to challenge any output of Parliament which is shown to be an outcome of a Parliament or a Parliamentary Committee that was not duly composed or that suffers from a procedural impropriety so gross that the output may be said not to be an output of Parliament acting, as we say in Ghana, “with its eyes open” like the man on TV during “election 2008” watching the counting of results. Far from inhibiting the work of Parliament, this proposition is essential for a new and learning Parliament. It is also essential for a Parliament that sometimes acts quite irresponsibly. If we can show that the process of approving ex-gratia awards for government officials by our last Parliament is clothed with such procedural irregularity as to make the deed not a deed of Parliament, then it should be declared as such and be of absolutely no effect. Even during military regimes, the courts have been willing, even if timorously so, to hold the legislative acts of govern to scrutiny according to procedural criteria established by the military themselves. We cannot fail to do this in a constitutional democracy. Witness the following statement from Republic v. National House Of Chiefs, Kumasi and Another; Ex Parte Kusi-Apea46 : “I have stressed the nature of the power which the military regimes which took over the reigns of government in this unfortunate Republic exercised, in order to highlight the position as a matter of constitutional law that strictly speaking our courts have no power as they have under a constitutional government to declare laws passed in accordance with the yardsticks propounded by these military regimes as invalid. Under constitutional rule, the legislative acts of the government are subject to the supreme edicts of the Constitution and therefore even in the absence of an enabling specific constitutional provision, our courts must of necessity superintend the legislative functions of a constitutional government in order to promote constitutional democracy and ensure the supremacy of the Constitution. The only power which the courts have ever had and still have to declare the laws of a military regime invalid or null and void is in cases where the law itself does not conform to the criteria for validity mandatorily provided for by the military regime itself. In Mekkaoui v. Minister of Internal Affairs [1981] G.L.R. 664, S.C… it is obvious that the yardstick for determining the validity of a particular Decree was itself provided by the Armed Forces Revolutionary Council [AFRC] which promulgated that Decree.” In Mekkaoui v. Minister of Internal Affairs [1981] G.L.R. 664, S.C, and also in Republic v. Director of Prisons; Ex Parte Salifa47 the court declared laws passed by the NLC and the AFRC respectively to be void because they did not meet the 46 [1984-86] 2 GLR 90, at 97. 47 [1968] GLR 630; 2 G&G 374, at 377. 23
  24. 24. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. procedural and formal requirements for making laws as setout by the military regimes themselves in their Proclamations. It is in the light of the above that I seek to examine the unfortunate decision in the case of Tuffour v. Attorney-General48 Make no mistake about it, Tuffuour is a great case in underlining the capacity of “any person” to invoke article 2(1) of the Constitution and have a legislative act or an executive action declared void to the extent of its inconsistency with the Constitution. Beyond that, its exposition on Parliamentary Sovereignty leaves much to be desired. As some of you may remember, this case involved the position of Chief Justice in the third Republic. The decision of the Supreme Court was to the effect that Justice Apaloo was the Chief Justice. Here again we see the judiciary loading its missiles and firing at anyone who dares to touch them. Unfortunately, the judicial armoury was so completely mobilized and the return fire so massive and indiscriminate that stray bullets have affected our body politic in the domain of Parliamentary restraints and accountability. Witness the following quotation from the case known to every first year law student in Ghana: “This then brings us to the question of how far the courts can question what, under our Constitution, has been done in, and by, Parliament? There is a long line of authorities which establishes two important principles governing the relationship that subsists or should exist between Parliament and the courts: (a) that the courts can call in question a decision of Parliament; but that the courts cannot seek to extend their writs into what happens in Parliament; and (b) that the law and custom of Parliament is a distinct body of law and, as constitutional experts, do put it, “unknown to the courts.” And therefore the courts take judicial notice of what has happened in Parliament. The courts do not, and cannot, inquire into how Parliament went about its business…The courts cannot therefore inquire into the legality or illegality of what happened in Parliament. In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions of article 91(1), its actions within Parliament are a closed book.”49 In support of the above provision, the Supreme Court referred to provisions of the Constitution, reproduced in our 1992 Constitution, to the effect that there is freedom of speech, of debate and of proceedings in Parliament and “that freedom shall not be impeached or questioned in any Court or place out of Parliament.”50 48 [1980] GLR 637. 49 Tuffuor v. Attorney-General [1980] GLR 637. 50 1992 Constitution, Article 115. 24
  25. 25. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. It is here that I seek to make the most important point in this lecture. A Constitutional injunction against impeaching or questioning the freedom of speech, or debate and of proceedings in Parliament assumes that the proceedings are constitutional and legal. It is preposterous to argue that even where proceedings in Parliament are unconstitutional and illegal, they are nevertheless valid and no court may inquire into those proceedings. In the words of Ekow Daniels, this will “make nonsense” of both the sovereignty of the people and the supremacy of the Constitution. Parliament, like every other institution of state which is not sovereign and which draws its powers from the sovereignty of the people and the supremacy of the Constitution must not be placed on an unquestionable pedestal for all purposes. I cannot for example fathom the reasoning for excluding the application of Article 23 of the 1992 Constitution on administrative justice and Article 296 on the parameters for exercising discretionary powers from application to our young Parliament, especially as the Parliament has shown that it is wanting in some material respects on responsible behavior. Endorsing the jettisoning away of valuable national assets and crazy end of service benefits for public officials are just a few examples. THE JUDICIARY IN GHANA IS NOT SOVEREIGN This is easier to deal with than the legislature. As Archer J.S.C. has noted, “[t]he court has not within its environment nuances of supremacy, sovereignty or omnipotence.”51 No one has ever dreamt of residing sovereignty in the judiciary even if, in fact, they sometimes act as if they are sovereign. The following complaint by two United Stateseans, some call them Americans, indicates the popular view on the sovereignty of the judiciary in the United States of America: “MARTHA NEIL'S "CASES & controversies," October, page 38, about judicial independence, was good so far as it went. However, I believe that it missed or glossed over the main reason behind the serious protest we have seen recently opposing various actions of courts, particularly the U.S. Supreme Court. Sovereignty in the U.S. does not lie with the members of the Supreme Court, but with the people of the United States. It was they who first ordained the Constitution and who, through Congress and their states, ratified each amendment. To remove sovereignty without the people giving it up through a constitutional amendment would be a coup d'etat against the American people. 51 Fattal v. Minister for Internal Affairs and Anor [1981] GLR 104, at 118. 25
  26. 26. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. Perhaps we should look at the proposition that Supreme Court amendments to the Constitution should not take effect until ratified by the people in the manner of amending the Constitution.”52 It is exactly because the judiciary is not sovereign that the public, in whom alone sovereignty resides, must work to constantly keep the judiciary in check. Judicial power in Ghana is great indeed and every great power must be watched by the people. I have said before, and made many enemies as a result, that it is very very wrong to postulate that the judiciary is so perfect, sanctimonious and all knowing that no one should dare to criticize a judgment they pass or to comment on matters which are pending in court.53 Lawyers refer to a case that is pending in court as a matter that is sub judice. Researching the history of the sub judice thing, it appears that it was used as a political tool in England, especially against Irish political activists. Facing oppression in the British courts of law, the disadvantaged Irish resorted to critiquing judgments of these courts. The sub judice rule was used to gag them. It is not a legal tool in its origin, it is a political tool. Centuries later, the sub judice rule was used for the same purpose in India. As one intelligent Indian observer was later to note in protestation “it is popularly believed that as soon as a matter becomes sub judice (pending), all comments on the issues must stop. Such a view is as inaccurate as it is intrinsically wrong”54 . This view of the Indian observer has been upheld by the European Court of Justice, which has reversed some House of Lords decisions that seemed to restrict free speech with the sub judice rule. To correct the mistake, and in 1997, the Supreme Court of India held that judges and judicial decisions could be critiqued “fairly but fiercely”.55 They have corrected the mistake they imported from the British. Lord Atkin, that illustrious English judge has noted in a quite popular case that: 52 Charles H. Troutman and Guam Yona, ABA Journal, December, 2005, Letters to the Editor, TITLE: CONSTITUTION IS OURS TO AMEND 91 A.B.A.J. 8 53 Raymond A. Atuguba, “The Legal Profession in Ghana: Global Problems, Local Solutions”. A Presentation at the 2008/2009 Annual Conference of the Ghana Bar Association , Golden Tulip Hotel, Kumasi City, 29th September, 2008. 54 See GBA folder. 55 See GBA folder. 26
  27. 27. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. “the path of criticism is a public way; the wrong-headed are permitted to err therein. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny of and respectful even though outspoken comments of ordinary men”.56 Lord Atkin also said the following: “Whether the position and authority of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises freely the ordinary right of criticizing temperately and fairly, in good faith, in private or in public, any episode in the administration of justice. Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and are not acting in malice, or attempting to impair the administration of justice, they are immune from proceedings for contempt of court.”57 Closer home, His Lordship Justice S.A Brobbey, a Justice of the Supreme Court has also written somewhere: “... it cannot be accurate to say that the Judiciary is immune to criticism. Indeed, such would have done no good to the Judiciary.”58 We must resolve as the sovereign people of Ghana that a theory which keeps the judiciary, indeed, any entity of government, beyond the reach of public scrutiny is as wrong as the wrongheadedness which propagates it. The current state of the global thinking on this matter is that, unless there is “a clear and present danger to the administration of justice”, anyone may comment on and/or criticize judges and judgments, whilst a case is pending and when it is concluded as long as this is done temperately and without malice. This is a function of the sovereignty of the people. The 1992 Constitution does not repose sovereignty on the Executive, the Legislature or the Judiciary. Article 1 of the 1992 Constitution vests sovereignty in “the People”. It does not even vest justice in the Judiciary, for Article 125 of the Constitution vests justice in “the People”. It provides as follows: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary…” To say that the people cannot comment on and/or criticize judges and judgments is to say that the owner of a Company cannot criticize the administrator of the company. 56 Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C 323 at 335. 57 Ibid, at 322 58 Brobbey, S.A. “The Judiciary and the Press” in The Law and the Media in Ghana (School of Communications Studies: University of Ghana, 2002) p.53. 27
  28. 28. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. It is not proper for us to denigrate the sovereignty which the Constitution has vested in us by imposing unhealthy and untoward limitations on ourselves. As I have said before, a judge who is afraid of comments on and criticisms of his conduct and judgments or who is negatively swayed by same has no business being a judge. CONCLUSION Our Constitution is very important to us, in the words of a former Chief Justice of Ghana, in National Media Commission v. Attorney General-Attorney,59 “[i]t is a document that expresses our sovereign will and embodies our soul.” This dictum was quoted with approval by Atuguba J.S.C. in Amidu v. President Kufuor and others.60 It is important that we invest in its exposition. The “culture of silence” we experienced during military rule has given way to what some have called “a culture of noise”. Neither extreme is desirable. It is essential that scholars provide the scientific bases upon which discussions about our Constitution may proceed. This is what this project is about. What has amazed me during the course of this research project is the paucity of evidence of any learning from our traditional notions of sovereignty. Our current notions of sovereignty may legitimately take their ethos from two sources: Traditional Constitutionalism and British Notions of Sovereignty. There is a lot we can learn from the traditional notions of sovereignty we operate in this country and we are often not smart enough to call these in aid of a search for the true meaning and a descent application of the concept. This is essential for tampering the crude form of sovereignty we inherited from the Brits. Traditional sovereignty was clearly limited, interestingly, in the matter provided for in our present constitution. Speaking in the Court of Appeal, Essiem J.A noted in Darke And Another V. Dei XI and Another:61 “In this connection, I respectfully indorse the opinion of Jackson J. when he said: ‘A jurisdictional interest in land vested in a stool imports more than mere sovereignty. It carries with it the right and duty to administer and control the land in the interests of the whole community.” I am a spiritual person. Otherwise I would not call for a spiritual enlivenment of our constitution. It is no coincidence that this lecture is being held on the 5th day of the 59 National Media Commission v. Attorney General [2000] SCGLR 1. 60 [2001-2002] SCGLR 86. 61 [1991] 2 GLR 112, at 122. 28
  29. 29. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. week on the 5th of February and at 5pm. The 5th Estate, the people, needs to be enlivened now so that they may be more fully aware of and enjoy their sovereignty and keep all institutions of State in conformity with the letter and spirit of the Constitution. Yet, thinking, writing, working, moving, in the spirit is a daunting task and is not accomplished lightly. It comes with hard work. The 5th Estate needs to be equipped to do this. The first equipment is an elaborated and practicalised constitution disseminated in letters, voice, pictures and drama to all Ghanaians. During my first inter-faculty lecture titled “Abotchie Where is My Police: The Police Force and the Political Economy of Ghana”, delivered on the 17th of February, 2005 I recounted a series of incidents involving the brutalization of the citizenry by the colonial Police Force we still have in Ghana and noted that when Hon. Mahama Ayariga, as he then was, and Presidential Spokesman, as he has now become, raised the issues in Parliament, he was prevailed upon to withdraw his statements. I hope that the ideals that informed Mahama Ayariga then to stand up and speak the truth and on the side of the oppressed and against the daunting booing of other Members of Parliament and the dictatorial cowing of the speaker are the same ideals his Boss man espouses and that those ideals will animate this administration. I will end this lecture by recounting two sets of communication I received this week. I received the following SMS text message from someone I do not know. I called him or her back but (s)he did not pick up: “AS A MATTER OF URGENCY, READ PSALM 58 AND LET YOUR PEERS KNOW WHAT GOD WILL DO TO ANY POLITICIAN WHO DECEIVES THE NATION, LOOTS THE NATIONAL TREASURY MEANT FOR THE ADVANCEMENT OF THE POOR MASSES, ARROGANTLY TALKS DOWN ON THE TAX PAYER, ADMINISTERS INJUSTICE AND OCHESTRATES DISUNITY. ANY MINISTER OF STATE, MP, DCE, MEMBER OF SOE BOARD, STATE FUNCTIONARY AND COLLABORATOR WHO IS ENGAGED IN ANY OF THE ABOVE WILL NOT SURVIVE THE 4 YEAR TERM. CORRUPTION, GREED, CHRONISM, IMPUNITY, INCOMPETENCE N LACK OF DELIVERY HAVE NO GOD PLACE UNDER GODs NEW ERA FOR GHANA. GOD WILL FIGHT FOR THE POOR. Fwd dis text to all and see the hand of God at work” (the abbreviations and capitalizations are his or hers). The following is another observation from a sixty-nine year old man at Yikene in the Upper East Region. Speaking about the ex-gratia awards he says: “If we can make such mindless and madening expenditure on a few big men who already enjoy privileges on the poor, hungry tax payers while the majority in our Country cannot get 29
  30. 30. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. the bare necessities of life, then we are certainly creating economic and social conditions for social upheavals and revolutions a la francaise and not just short-term coup-d’etat. This proposal and its approval by Parliament is a clear example of absolute power corrupting absolutely. I am shocked that the …National democratic Congress…opposition…opposed the measure only half-heartedly. …we are putting veneer or fine cover over filth i.e. our poverty. This thin veneer may wear out because of the force underneath; the container i.e the nation explodes in the form of violent popular revolution-and there goes the new and unripe democracy we make so much noise about.” (again the spelling mistakes and abbreviations are his). It was Hayfron-Benjamin who said the following in Shalabi v. Attorney-General:62 “As John Locke said in the Second Treatise of Government (Peardon ed.), p. 76, the power given to any sovereign or government has no other end than the preservation of life, liberty and pursuit of happiness, and therefore it “can never have a right to destroy, enslave, or designedly impoverish the subjects.”63 We must also be constantly reminded by that wise saying by Charles Crabbe J.S.C in Republic v. Maikankan and others64 that: “The military take over in 1966 was widely acclaimed by the people of Ghana as being in the best interests of the people: the first Republican Government had become destructive of the ends for which it was established. The people of Ghana gave vent to the principle that the web of government depends upon the existence of the State and that if the political sovereignty of the people cannot be given the opportunity for the exercise of their constitutional right, free and unfettered, to change the existing order, then by revolution, it could abolish it.” In the words of the ordinary Ghanaian, this means that where the managers of the State for the time being misbehave, the people, not the military, but civil society, in whom sovereignty resides, can act to remove them and restore the Constitutional Order we all work to maintain and nurture. To the Prof. John Evans Atta-Mills administration, I say the 5th estate in whom alone sovereignty resides are watching. Even the military regimes we have had have recognized the sovereignty of the people. The only rider was that they were self acclaimed and self imposed protectors of the sovereignty of the people. As Hayfron-Benjamin noted in the Shalabi Case: 62 Supra 63 [1972] 1 GLR 259 at 268 to 269. 64 [1973] 2 GLR 384 at p. 394 30
  31. 31. DRAFT, NOT TO BE QUOTED. CONTACT AUTHOR ON +233 24 4675611 or atugubaatuguba@yahoo.com for final version. “I cannot read from this Proclamation or from anything said or done by the leaders of the coup any other thing than that they were an interim government recognising the rights of the people of Ghana as the only body to promulgate a new constitution, i.e. as the repository of sovereignty. As such the National Liberation Council could have had no greater powers than the people”.65 And the PNDC Proclamation contained the following words somewhere at the beginning; “AND WHEREAS on Thursday, the 31st day of December, 1981, it thus became necessary for the Provisional National Defence Council to assume the reins of Government of the Republic of Ghana in the interest of the sovereign people of Ghana . . .Now, THEREFORE by virtue of the said assumption of the Government of Ghana this Proclamation is made with effect from the 31st day of December, 1981. . .”66 I promised most of you after my first inter-faculty lecture that my next interfaculty lecture will be titled: “Akpeteshie Seller Give me Quarter: Institutional Continuities, Subaltern Counter-Hegemonnic Practices and Institutional Reform in Ghana”. I am sorry I disappointed you. I, however, hope that my current engagement on the 1992 Constitution will compensate for the disappointment. The cost of the project will be enormous indeed, but funding it is a duty that the University must discharge. Otherwise, some imperialists or other would come dangling cash and eventually teleguide the project according to their interests and often into stylish but mediocre sophistry and valuelessness. I am sure that if we get sufficiently frustrated, my comrade in this project will gladly join me on in the return to the Akpeteshie project. THANK YOU FOR COMING; AND TAHNK YOU FOR YOUR ATTENTION. 65 P. 259. 66 Preamble to the Provisional National Defence Council (Establishment) Proclamation, 1981. 31

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