this is solely an a guide from selected literature including SY Binpong Buta

1. THE GHANA SUPREME COURT
AND THE POWER OF
JUDICIAL REVIEW OF
LEGISLATIVE ACTION
Tonny Nyarko Acheampong
LLM (KNUST)
0543210588

2. The power of judicial review of legislative action has been vested in the
Ghana Supreme Court by article 130(1)(b) of the 1992 Constitution. Under
the said article, the Supreme Court has been vested with exclusive original
jurisdiction to declare any enactment or legislation as null and void on the
grounds that the legislation in question has been made in excess of the powers
conferred on Parliament or any other authority or person by law or under the
Constitution. In effect, the exercise of the power of judicial review is founded
on the supremacy of the Constitution. The supremacy of the Constitution, 1992
over any other law in Ghana as enshrined in article 1(2) of the Constitution,
has been reinforced by article 2(1).
These articles state as follows:
"1.(2) This Constitution shall be the supreme law of Ghana and any other
law found to be inconsistent with any provision of this Constitution shall, to
the extent of the inconsistency, be void.

3. 2. (1) 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."
The need for all existing legislation to be, as it were, in tune with the Constitution,
1992 is further strengthened by section 36(2) of the Transitional Provisions of the
constitution which also provides that:
"36(2) Notwithstanding the abrogation of the Proclamation referred to in
subsection (1) of this section, any enactment or rule of law in force immediately
before the coming into force of this Constitution shall, in so far as it is not
inconsistent with a provision of this Constitution, continue in force as if enacted,
issued, or made under the authority of this Constitution."

4. Similarly, article 93(2) of the Constitution also provides that the legislative
power of Ghana shall be exercised in accordance with the Constitution.
The effect of the above quoted provisions is that no legislation in Ghana can be
regarded as valid unless it satisfies the test of consistency with the Constitution,
1992. On the question as to the ambit of the Supreme Court’s power of judicial
review of legislative action, Edward Wiredu JSC in his opinion in support of the
unanimous decision of the Supreme Court in Ghana Bar Association v
Attorney-General (Abban Case) said:
“The Constitution has vested the power of judicial review of all legislation in
the Supreme Court. It has dealt away with either an executive or
parliamentary sovereignty and subordinated all the arms or organs of State
to the Constitution…The arms of State and the institution involved in the
appointment of the Chief Justice are all creatures of the Constitution and
each, in playing its part, must exercise such powers as are authorized by it in
a democratic manner as enshrined in the Constitution.”

5. AMBIT OF JUDICIAL REVIEW OF
LEGISLATIVE ACTION
The Ghana Supreme Court had no power to declare any legislative action
invalid before the coming into force of the Constitution, 1992 for the simple
reason that there was no supreme law, a written constitution, against which
an impugned legislation could be tested or measured. However,
the Supreme Court had the power of judicial review of legislation under
article 118(1)(b) of the Constitution, 1979. But that power (together with
the right and enjoyment of fundamental human rights and freedoms
guaranteed by articles 19-34 of the Constitution, 1979), was curtailed
following the suspension of the Constitution itself by the 1981 PNDC
(Establishment) Proclamation
Similarly, in the most celebrated case of In Re Akoto the supreme court
refused to declare the PDA unconstitutional for reasons which has
fortunately led to the development of our constitutional law today

6. The ambit of the Supreme Court’s power of judicial review of legislative
action principally under the Fourth Republican Constitution of 1992.
It is well-settled that any legislation made in excess of the powers conferred on
the legislature by the Constitution, 1992 which is inconsistent with any
provision of the Constitution, would be declared a nullity by the Supreme
Court in the exercise of its power of judicial review under article 130(1)(b) of
the Constitution. What is the extent of the court’s power of judicial review of
legislation under article 130(1)(b)?
The issue was considered by the Supreme Court in the recent case of Republic
v Yebbi & Avalifo. The case came before the Supreme Court on a reference
from the Greater Accra Regional Tribunal by way of case stated under article
130(2) of the Constitution, 1992. The issue turned on whether section 24(1) of
the Courts Act, 1993 (Act 459), was inconsistent with article 143(1) of the
Constitution, 1992.

7. The facts which led to the reference by the regional tribunal to the Supreme
Court were that the accused in the case had been arraigned before the regional
tribunal on two charges of conspiracy to steal and stealing the sum of one
hundred million cedis, the property of a political party, contrary to sections
23(1 and 124(1) of the Criminal Code, (Act 29).
The accused challenged the jurisdiction of the tribunal to try him for the
charges brought against him. He argued that under article 143(1) of the
Constitution, a regional tribunal had jurisdiction “to try such offences against
the State and public interest as Parliament may, by law, prescribe.”
But, he contended, the offences brought against him could not be said to be
against “The State or the public interest” because the alleged stolen money
was said to belong to a political party which could not be described as a State
institution; nor was the theft of a political party’s money, an offence against
the public interest

8. The accused therefore contended that the regional tribunal had no
jurisdiction to try him for the charges brought against him. On the other
hand, the prosecution contended that once Parliament had exercised its
discretion by enacting the Courts Act, 1993 (Act 459), s 24(1) by
providing that a regional tribunal had jurisdiction in all criminal matters,
the tribunal had jurisdiction to try the case
In response to these opposing arguments, the Supreme Court compared
the provision in article 143(1) of the Constitution with that of article
140(1), dealing with the jurisdiction of the High Court. On one hand, the
court found that article 140(1) provides that: “The High Court shall,
subject to the provisions of [the] Constitution, have jurisdiction in all
matters and in particular, in civil and criminal matters…” On the other
hand, however, the court found that the original jurisdiction of a regional
tribunal under article 143(1) was confined to : “such offences against the
State and the public interest as Parliament may, by law prescribe.”

9. Having made that comparison, the Supreme Court held that: “the High Court and
Regional Tribunal are not meant and were not intended to have the same original
jurisdiction”; and that the Constitution did not grant the Regional Tribunal
jurisdiction in “all criminal matters.” The Supreme Court therefore concluded, per
Acquah JSC, that:
“To attempt, therefore, in section 24(1) of Act 459 to vest jurisdiction in all
criminal matters in the Regional Tribunals negates not only the clear and
unambiguous language of article 143(1) of the 1992 Constitution but also the
intention of the framers of the Constitution.”
In the light of the above conclusion, the Supreme Court held that on a true and
proper interpretation of article 143(1) of the Constitution, Parliament had no power
to provide that a regional tribunal should have “concurrent original jurisdiction
with the High Court in all criminal matters.” Consequently, the court held that
section 24(1) of Act 459, which made provision to that effect, was clearly
inconsistent with the letter and spirit of the Constitution, 1992. The section was
therefore declared a nullity under article 1(2) of the Constitution.

10. but the supreme court in its 2002 decision in Amidu v Electoral Commission &
Assembly Press.26 In this case, the plaintiff sued in the Supreme Court, invoking
its original jurisdiction under article 2 of the Constitution,1992. He challenged the
constitutionality of the 2001 Ghana Gazette No 1 which contained notice to the
public of the results of the December 2000 Parliamentary Elections.
The ground for challenging the validity of the Gazette was that it bore a
retrospective date of publication, namely, 5 January 2001 instead of 16 January,
the actual date of the publication. He therefore sued for a declaration, inter alia,
that the conduct of the defendants, the Electoral Commission and the Assembly
Press, in causing the publication of the 2001 Gazette No 1 with a retrospective
date, was in contravention of and inconsistent with specified provisions of the
Constitution, 1992 including article 99(1) and also article 107 which proscribes
retrospective legislation Under article 99(1), the High Court has jurisdiction to
determine an election petition relating to the issue whether a person has been
validly elected as a Member of Parliament.
And it is also provided by section 18(1) of the Representation of the People Law,
1992 (PNDCL 284), that an “election petition shall be presented within 21 days
after the date of publication in the Gazette of the result of the election to which it
relates.”

11. In the light of the above provisions, the plaintiff by his claim, in effect, sought
to enforce the constitutional right of a person to challenge the result of a
parliamentary election under article 99(1) of the Constitution within 21 days
of the date of publication of the results in the Gazette. The plaintiff claimed
that, that right had been adversely affected by the back-dating of the 2000
Gazette No 1 containing the results of the December 2000 Parliamentary
Elections.
The crucial question to be addressed, however, is: first, what is the true legal
effect of section 34(3)? Does the ouster clause in section 34(3) prohibit the
Supreme Court from questioning the validity or legality of enactment passed
by the PNDC and the AFRC, which form part of the existing law as defined by
article 11(4) of the Constitution and which are clearly inconsistent with any
provisions of the Constitution, 1992?

12. The effect of the unanimous decision of the court is that where the existing law such as the
laws passed by the PNDC and the AFRC required anything to be done and what is to be done
has already been done before the coming into force of the Constitution, 1992 that legislation
cannot be questioned by the Supreme Court by virtue of the provision in section 34(3).
However, where an enactment by the PNDC or the AFRC requires anything to be done after
the coming into force of the Constitution, then if what is to be done is inconsistent with any
provision of the Constitution, then that Law can be questioned by the Supreme Court under
section 36(2) of the transitional provisions. This appears to be the true legal position because
under section 36(2) of the 1992 transitional provisions:
It is respectfully suggested that the interpretation placed by the judge on sections 34(3 ) and
36(2) of the transitional provisions cannot be supported in law if it appears by the above
pronouncement, the judge sought to construe section 34(3) as meaning
that the existing law - being laws passed by the AFRC and the PNDC could not, by virtue of
section 34(3), "be challenged under section 36(2) of the transitional provisions even if they
are found to be inconsistent with a provision of the 1992 Constitution."

13. LEGALITY OF COUP D’ETATS AND JUDICIAL
REVIEW OF LEGISLATIVE
ACTION
His Lorships in Sallah v Attorney-General, that (as was rightly observed by Elias) the
Supreme Court “ had to determine definitively the precise legal effect of a coup d’etat on the
country’s legal system.” The plaintiff in this case was on 16 October 1967 appointed as a
manager of a statutory corporation set up under the Statutory Corporations Act, 1961. His no
Fast Track High Court vested with jurisdiction to try criminal cases. The reasons for the
decision were, inter alia, that the Fast High Track Court was not a Division of the High
Court created by the Chief Justice under article 139(3) of the Constitution because it was not
created by an Act of Parliament or by an order, rule or regulation as required by article
11(7) of the Constitution, 1992. The majority rejected the guidelines issued by the Chief
Justice as having any legal effect.

14. In his opinion in support of the majority decision, Kpegah JSC said:
"A statute or some legal instrument or an enactment is required in
the creation, not only of a court, but the creation of a division as
well. The guidelines, ... (relied upon by the defendant) cannot
achieve this because it has no legal effect... That the individual can
administratively create a court has not been part of legal thought...
The basic position derived from our legislative history is that an Act
of Parliament or other statutory instrument is always needed to
create a court... A substantive law is always necessary to create a
court; not courts only, but also divisions of such courts because this
will entail curtailing the general jurisdiction of that court when a
‘division’ of it is created.

15. You can only administer a court when it has been established or created.
But you cannot, in law administratively create a court.“It should be stated
that all the five Justices of the Supreme Court, who upheld the plaintiff's
claim103 (with the exception of Ampiah JSC), were of the opinion that the
creation of a division of the High Court under article 139(3) of the
Constitution, must be by an Act of Parliament or by constitutional or
statutory instrument. However, as indicated, a member of the majority,
Ampiah JSC did not share that opinion. His lordship said "The Chief Justice
for the purposes of the administration of justice may establish divisional
courts without reference to Parliament but these divisional courts can
only be Judicial Divisions and must be established in accordance with the
constitutional provision, namely, article 139(3). (Compare the provision
under article 136(4) of the Constitution and also section 10(4) of the
Courts Act, 1993 (Act 459)). It is a notorious fact that there exists three
Divisions of the Court of Appeal - one doing criminal appeals and two
doing civil appeals..."

16. "The Chief Justice for the purposes of the administration of justice may establish
divisional courts without reference to Parliament but these divisional courts can only
be Judicial Divisions and must be established in accordance with the constitutional
provision, namely, article 139(3). (Compare the provision under article 136(4) of the
Constitution and also section 10(4) of the Courts Act, 1993 (Act 459)). It is a
notorious fact that there exists three Divisions of the Court of Appeal - one doing
criminal appeals and two doing civil appeals...“is very interesting to note that section
136(4) of the Constitution, which Ampiah JSC said may be compared with article
139(3), the subject of interpretation in the Tsatsu Tsikata (No 1) case, states: "The
Chief Justice may create such divisions of the Court of Appeal as he considers
necessary to sit in such places as he may determine." It is respectfully submitted that
Justice Ampiah, who supported the majority in upholding the plaintiff's claim, was
right and in effect, agreeing with the minority judges in the case, namely, that the
Chief Justice had the power under article 139(3), to administratively create a division
of the High Court. It is very surprising and regrettable that the opinion of Ampiah
JSC on the true effect of article 139(3) appears to have been lost on his colleagues in
the majority!

17. THE APPLICATION FOR A REVIEW OF
THE MAJORITY DECISION
It could be concluded from the discussion in this chapter, that the Supreme
Court has made appreciable contribution to the all-important question of
the ambit of power of judicial review of legislation, particularly the court’s
attitude to ouster clauses (such as section 34(3) of the transitional provisions
to the Constitution, 1992), the legality of coup d’etats and the
constitutionality or otherwise of the Fast Track High Court. While the
Supreme Court must be commended for enhancing its power of judicial
review of legislative action as shown by the decision in Mekkaoui case
(supra), the court must also be criticized for its subsequent decision in the
Amidu case (supra). As argued, the decision constitutes a self-imposed
limitation of its power of judicial review under article 130(1) of
theConstitution, 1992.