Top Constitutional Law Cases since adoption of Constitution 1992 - Law Lecturer recounts
Top Constitutional Law cases since adoption of Constitution 1992 - Law Lecturer recounts
A Constitutional Law Lecturer at the Faculty of Law at the Wisconsin International University College and the Lancaster Law Faculty, George Acquah has recounted his top Constitutional Law cases since the adoption and operationalization of the Constitution, 1992 some 30 years ago.
He indicates that the Referendum of April 28, 1992, brought new hopes, aspirations, and a bright future for Ghana and increased the participation of people in politics through voting, making it easier to resolve political problems.
Also, the multiparty system allowed in the constitution deepens democracy and stabilizes the political climate of the country as summed up by Sowah JSC in Tuffour v Attorney General that “a written constitution … embodies the will of the people. It also mirrors their history” and also by Hayfron-Benjamin JSC in NPP v Attorney General that “The 1992 Constitution is, therefore, the sum total of our hopes, disappointments, experiences, and expectations as a nation”
On calls by a section of Ghanaians for the amendment of the Constitution, the lecturer noted that The 1992 constitution has some limitations that have restricted its effectiveness in promoting good governance and development. There is a correlation between a good constitution and good governance and democracy. A good democracy eschews corruption, bad leadership, making decisions based on partisan lines, bribery, and violence. If the country is not scoring good points on the corruption index and there is perceived corruption in the Executive, Legislature and Judiciary, Police service, etc, then probably some provisions of the Constitution are either not right or not living its purpose. Tuffour v Attorney-General stated that the Constitution is a living organism capable of growth so it is up to us to make the constitution serve its purpose by applying it in context to serve society in a dynamic manner.
“We need to look critically in a non-partisan approach certain provisions that do not deepen democracy e.g provisions that do not enforce separation of powers, others that undermine accountability and some that do not promote the decentralization of power from the Central government. These are some of the provisions that if amended will deepen our democracy. ”
Some Top Constitutional Cases since the adoption of the 1992 Constitution
Mr. George Acquah outlined his top Constitutional Cases as follows;
i. New Patriotic Party v Attorney-General (31st DecemberCase):
The case enforced constitutional supremacy reiterating the fact that “under article 1(2) of the 1992 Constitution, any law found to be inconsistent with any provision of the Constitution (the supreme law) shall, to the extent of such inconsistency, be void.” Per Aikins JSC. (emphasis mine)
Again, Amua-Sekyi JSC said that:
"Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a 'one party' state, or make a party leader President for life or crown him Emperor. As the fundamental or basic law the Constitution,1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.”
ii. Mensima v Attorney-General
Upheld the Constitution as the supreme law of the land. The court in that case stated that Article 1(2) of the 1992 Constitution is the bulwark which not only fortifies the supremacy of the Constitution but also makes it impossible for any law or provision inconsistent with the Constitution to be given effect to…For Article 1(2) contains a built-in repealing mechanism which automatically comes into play whenever it is found that a law is inconsistent with the Constitution.”
iii. Tehn-Addy v Electoral Commission and Apaloo v Electoral Commission of Ghana
Supported the fact that voting is a constitutional right and no one should be denied such rights. The court per Acquah JSC (as he then was) made it clear that –
“A heavy responsibility is therefore entrusted to the Electoral Commission under Article 42 of the Constitution in ensuring the constitutional right to vote. For in the exercise of this right, the citizen is able not only to influence the outcome of elections and therefore the choice of a government but also is in a position to help influence the course of social, economic and political affairs thereafter. He indeed becomes involved in the decision-making process at all levels of government.”
iv. Aboagye v Ghana Commercial Bank Ltd.
The court explained the role of Administrative justice per Bamford-Addo JSC that “article 23 says that administrative bodies and officials shall act fairly. And acting fairly implies the application of the rules of natural justice, which have been elevated to constitutional rights and are binding on all adjudicating and administrative bodies as well as courts and tribunals.”
The court held that all courts and adjudicating bodies and authorities were required under article 19(13) of the 1992 Constitution, to give a fair hearing within a reasonable time;
The court also noted that in considering the question of whether or not in any particular case, there had been a failure of natural justice, the fact that there was evidence to support the charge preferred against the plaintiff, namely, negligence, was immaterial to the determination of the issue whether the plaintiff had not been given a fair hearing;
iv. Sam (No 2) v Attorney-General
Clarified the position of the indemnity clauses in the transitional provisions of the 1992 Constitution.
The court stated that “…section 34(3) of the transitional provisions provides only a partial and not a total indemnity. It indemnifies only the validity of executive, legislative or judicial acts of the PNDC and its agents so far as the period of the administration of the PNDC is concerned. It is in this way that effect can be given to both sections 34(3) and 36(2) of the transitional provisions…If section 34(3) were to be given total coverage of operation, then it would nullify section 36(2).”