Raymond Atuguba on why we must eat the Ghana Constitution

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

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).
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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.
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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 >
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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).
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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.
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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.
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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.
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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
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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.”
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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.
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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
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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

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
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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.
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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.
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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.
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.
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
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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

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
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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
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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.
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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
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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

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.
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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

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.
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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.
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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

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

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

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

Raymond Atuguba on why we must eat the Ghana Constitution

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