Question 1

Difference between coup d’état and revolution

When an old regime is usurped, a new regime takes the reins of power, hence the establishment of a
new legal order. This change of legal order can be manifested through revolution or coup d’état. The
legal effect of this change is that whatever source of authority that the old regime drew validity and
relevance from is set aside, be it the constitution, promulgation, or any organ of government.

Revolution occurs when there is a political change arising from the mass rebellion of citizenry against
the ruling class, mostly due to oppression, dictatorship, human rights abuses, incompetence, corruption,
etc. This upheaval is carried out by a sizable number of people with a with a strong force that mostly
leads to political reorganization. The process is normally rapid and sudden.

Arab Spring was a series of pro-democracy anti-government protests, uprisings, and armed rebellions
that spread across much of the Arab world in the early 2010s. It began in Tunisia in response to the
death of Mohamed Bouazizi by self-immolation. From Tunisia, the protests initially spread to five other
countries: Libya, Egypt, Yemen, Syria, and Bahrain. Gaddafi and Hosni Mubarak were all deposed in
2011.

Sri Lanka also experienced a revolution in 2022, driven by an unprecedented economic crisis (shortages,
high inflation) that led to the ousting of President Gotabaya, forcing political resignations and
demanding a new, cleaner government.

Coup d’état, on the other hand, is mostly carried out in a comparatively violent manner. A small number
of the population, mostly members of the military, bring about this political change. It is normally quick,
brilliant and successful. Coup d’état can be classified depending on the discipline under consideration,
whether breakthrough, guardian or veto coup. Breakthrough coup is when the group that overthrew the
government constitute themselves in that capacity. They mostly don't give way to democratic
governance. Guardian coup, on the other hand, is more about the people. They cite reasons such as
restoration of the status quo for the general good of the people. The overthrow of Egyptian leader
Mohammed Morsi by General Abdel Fatah is an example of a guardian coup as it was seen as the
removal of a dictator.

Another classification of coup can be about the subject matter or the identifiable body that is usurped.
That is, whether it is the constitution that is suspended or part of it abrogated, the executive arm of
government, the legislature, judiciary, or the entire government. Ghana has suffered five coups, with the
first one happening in 1966, which ousted Dr. Kwame Nkrumah.

A coup plotter who tries to subvert a government but fails will be charged for high treason. (Art 3)

Legal Effect of Coup d’état

Kelsey's theory of pure law is mostly attributed to the legal effect of coup, even though such
contemplation was never in the frame when he proposed the theory. Kelsen's theory discusses laws and
big laws, which is norms and grundnorms. He asserts that laws are created in a chained manner from
the top to the bottom. That is laws are transcendental. His theory is grounded on law devoid of morality.
Laws are made only when a higher law is authorizing its enactments and amendments. The highest law
of the land is the grand law through which all other laws derives their validity and efficacy. Any law
which doesn't get its validity from the big law isn't a law. The big law must be obeyed for its validity and
efficacy.

So what happens if the grand norm, which is supposed to give validity to the other laws, is abrogated or
suspended through a coup or revolution?

Kelsen says a new legal order replaces the old order. The new legal order becomes the grundnorm. Over
the years, courts around the world have taken judicial decisions based on this theory. The Supreme
Court of Pakistan in 1956 in the State v Dosso affirmed the validity of a coup orchestrated by General
Ayub Khan.

In the case of Sallah v AG, this theory was re-echoed. The plaintiff was appointed as manager of GNTC
under the NLC. The new government sought to terminate his appointment. He sued the government as
he believed his office wasn't established by the NLC. The court then had to give an interpretation of the
word "established." The plaintiff argued establishing a new legal order was different from establishing
new offices. The court held that the plaintiff's office wasn't established by a proclamation or decree but
rather an executive instrument that was established before the NLC.

Ekwam v Pianim(2) is also a landmark Ghanaian constitutional case where the Supreme Court held that
someone who unsuccessfully tried to resist a coup or unconstitutional takeover (like the PNDC coup)
couldn't claim protection under the very Constitution they failed to defend, leaving their fate a difficult
legal question.

Question 2
Interpreting article 18(2)

Area of law

The area of law is jurisdiction over the interpretation of constitutional matter. That is, whether the High
Court and the Supreme Court of Ghana share equivalent jurisdiction over this constitutional matter.

Issues

The core issues arising from this case are:

 Whether or not Jimmy Swag can tender in a telephone conversation as evidence to support a
divorce petition
 Whether or not the High Court and Supreme Court possess the same jurisdiction over the
interpretation of article 18(2)

Issue 1

Rules

Article 18(2) protects the right to privacy of a person’s home, property, correspondence or
communication unless in accordance with law for public safety or the economic well-being of the
country, for the protection of health or morals, for the prevention of disorder or crime or for the
protection of the rights and freedoms of others.

In Raphael Cubagee v. Michael Yeboah Asare & 2 Ors. (2018), the Supreme Court exercised this
jurisdiction to hold that secretly recording a telephone conversation without the other party's consent
violates Article 18(2), rendering the recording inadmissible as evidence, even if the recorder is a party to
the call. The Court emphasized that admissibility must align with constitutional privacy protections.

Application

In the instant case, Jimmy Swag wants to know if a telephone conversation as evidence to support a
divorce petition. Article 18(2) bars the invasion of privacy of a person’s home, property,
correspondence or communication unless such privacy is supported by law for the purposes of public
safety or the economic well-being of the country, for the protection of health or morals, for the
prevention of disorder or crime or for the protection of the rights and freedoms of others. The
exceptions to this privacy can clearly be seen as being of national interest. This provision doesn’t list
divorce petition as one of such lawful purposes making it legally impermissible

The precedent in Raphael Cubagee (2018) strongly suggests the recording would be deemed
inadmissible as a privacy breach whether the person who recorded the telephone conversation was a
party to the call or not, but only a Supreme Court declaration can confirm this in a specific context.

Conclusion
I advise that based on the provision of article 18(2) and the precedence in Raphael Cubagee v. Michael
Yeboah Asare & 2 Ors, the telephone conversation would be impermissible to be admitted as evidence
to support the divorce petition.

Issue 2

Rules

Under Article 2(1) and 130(1) of the 1992 Constitution, the Supreme Court holds exclusive original
jurisdiction in "all matters relating to the enforcement or interpretation of this Constitution." This
exclusivity extends to declarations on whether an act (e.g., tendering a secret recording) contravenes
constitutional provisions like Article 18(2). The Supreme Court alone can provide authoritative, binding
interpretations that lower courts must follow, preventing fragmented or inconsistent rulings.

In J.H. Mensah v. Attorney-General [1996-97], the Supreme Court affirmed its exclusive jurisdiction
under Article 130, ruling that lower courts lack authority to entertain suits seeking constitutional
interpretation, as this would undermine the Constitution's supremacy (article 1(2)) and the Supreme
Court's role as its guardian.

Article 33(1) grants Article 140(1) grants the High Court broad jurisdiction "in all matters and in
particular, in civil and criminal matters," including divorce petitions under Section 3 of the Matrimonial
Causes Act, 1971 where it can hear evidence on matrimonial cases. For fundamental rights enforcement
without requiring interpretation, Article 33(1) empowers the High Court to issue remedies like
declarations or injunctions for breaches of rights such as privacy under Article 18(2).

However, the High Court cannot independently interpret the Constitution in a way that binds other
courts; it must apply existing precedents. If a constitutional question arises during proceedings (e.g.,
admissibility of evidence in a divorce trial), the High Court may stay proceedings and refer the question
to the Supreme Court for determination and dispose of the case in accordance with the Supreme Court’s
decision. Article 130(2)

Application

The intent to obtain a binding interpretation of Article 18(2) on whether a telephone conversation
qualifies as protected "communication" and bars admissibility in divorce proceedings directly invokes
the Supreme Court's exclusive original jurisdiction under Article 130(1). The High Court and Supreme
Court do not share the same jurisdiction over constitutional interpretation. The 1992 Constitution
delineates distinct roles to ensure specialized handling of fundamental human rights and constitutional
matters. This exclusivity promotes uniformity and finality in constitutional rulings, as affirmed in cases
like New Patriotic Party v. Inspector-General of Police, where the Supreme Court emphasized its sole
role in resolving constitutional ambiguities.

High Court holds jurisdiction for Enforcement of Rights, not Interpretation. The High Court has
jurisdiction under Article 33(1) to provide redress if a fundamental right like privacy under Article 18
"has been, or is being contravened or is likely to be contravened." In a divorce proceeding (governed by
the Matrimonial Causes Act, 1971), you could apply to the High Court for enforcement, e.g., an
injunction against using the recording or damages for privacy breach. However, the High Court cannot
interpret the Constitution itself; it must apply existing Supreme Court interpretations.

The High Court retains jurisdiction over the underlying divorce petition where it could preliminarily rule
on evidence admissibility. However, if you file for interpretation there, the High Court would lack
jurisdiction to hear such matter unless such interpretational matter only arose through the divorce
proceedings for which the high court shall refer the interpretational aspect to the Supreme Court, per
article 130(2), to avoid jurisdictional overreach (ultra vires).

Conclusion

To resolve this matter effectively, I advise approaching the Supreme Court directly for the judicial
interpretation you seek under Article 130. It alone holds exclusive jurisdiction, unlike the High Court,
which is limited to human rights enforcement and the divorce proceedings per se.

Question 3
What is separation of powers?

Separation of powers is a foundational principle in political theory and constitutional law, primarily
attributed to thinkers like Montesquieu. It divides the functions of government into three distinct
branches to prevent any one entity from accumulating too much authority and to promote checks and
balances:

Legislative branch: Responsible for making, amending, and repealing laws. This typically includes a
parliament or congress that represents the people and debates policy.

Executive branch: Tasked with implementing and enforcing laws. It is usually headed by a president or
prime minister, along with cabinets and administrative agencies, and handles day-to-day governance,
foreign affairs, and national security.

Judicial branch: Interprets laws, resolves disputes, and ensures compliance with the constitution.
Courts, led by independent judges, review actions of the other branches for legality and protect
individual rights.

The goal is to avoid tyranny by ensuring each branch operates independently while having mechanisms
to oversee and limit the others, such as veto powers, judicial review, or impeachment processes. In
practice, pure separation is rare; most systems feature some overlap or fusion for efficiency, like in
parliamentary setups where the executive emerges from the legislature.
Does separation of powers manifest under the 1992 constitution of Ghana? If so, to what extent?

Yes, the 1992 Constitution of Ghana explicitly incorporates the doctrine of separation of powers,
establishing a framework for democratic governance that divides authority among the three branches
while including checks and balances to maintain equilibrium. This structure draws from Montesquieu's
ideas and is designed to prevent abuse of power in Ghana's Fourth Republic. The Constitution vests
legislative power in Parliament (Article 93), executive power in the President and government (Article
58), and judicial power in an independent Judiciary (Article 125). Here's a breakdown of how it manifests
and its extent:

Key Provisions

Legislative Branch (Chapter 10): Parliament holds supreme law-making authority, consisting of elected
members and the President (though the President's role is largely ceremonial here). It enacts laws via
bills (Article 106), controls public finances through approval of budgets and taxes (Articles 174-179), and
oversees the executive by censuring ministers (Article 82) or impeaching the President (Article 69).
Restrictions include no power to establish a one-party state (Article 55) or enact retroactive laws altering
court decisions (Article 107).

Executive Branch (Chapter 8): Led by the President as Head of State and Government, this branch
exercises authority in policy implementation, national security, and international relations (Articles 57-
58, 73-75). The President appoints ministers with parliamentary approval (Article 78), enters treaties
subject to ratification (Article 75), and can grant mercy (Article 72). However, powers are checked: loans
require parliamentary ratification (Article 181), and appointments to key bodies like the Electoral
Commission involve advice from the Council of State (Article 70).

Judicial Branch (Chapter 11): The Judiciary is independent, with power derived from the people and free
from interference by other branches (Article 127). It includes the Supreme Court (for constitutional
interpretation and appellate jurisdiction, Articles 129-135), Court of Appeal, High Court (for human
rights enforcement, Article 140), and Regional Tribunals. Judges are appointed by the President on
advice from the Judicial Council (Article 144), with secure tenure until retirement and removal only for
proven misbehavior or incapacity (Article 146). The courts can review executive and legislative actions
for constitutionality.

Checks and Balances

The system includes interdependence to enforce accountability:

The Legislature can override presidential vetoes on bills with a two-thirds vote (Article 106) and
approves major executive actions like loans or resource agreements (Article 268).

The Executive prepares budget estimates but cannot revise them once laid before Parliament (Article
179), and the President must consult the Council of State on key appointments and bills (Articles 89-92).

The Judiciary has supervisory powers over lower courts and can declare laws or actions unconstitutional,
while its financial autonomy is protected (Article 149), with estimates submitted directly to Parliament.
Independent bodies like the Auditor-General (Article 187) and Electoral Commission (Article 46) provide
additional oversight, insulated from direct control.

Extent and Limitations

While the Constitution formally separates powers, its implementation is not absolute and features
elements of fusion typical in presidential systems with parliamentary influences. For instance, ministers
must be drawn mostly from Parliament (Article 78), creating overlap between executive and legislative
roles. Critics argue this leads to executive dominance, where the President's party control over
Parliament weakens checks, making separation more theoretical than practical—a "mirage" in some
views. The executive's influence over appointments and resources can undermine judicial and legislative
independence, especially in a majoritarian context. Political question doctrines, rooted in separation,
sometimes limit judicial intervention in executive matters (e.g., Article 2 for enforcement).3e4fbe
Despite these, the framework has supported democratic stability since 1993, with maturing institutions
fostering balance over time.ad812f Reforms, such as strengthening parliamentary oversight, have been
proposed to "breathe life" into the doctrine.5f790d Overall, separation exists robustly on paper but is
moderated by practical overlaps and power imbalances, reflecting a hybrid system rather than strict
division

Question 4
What is constitutionalism?

Constitutionalism is a political and legal doctrine that emphasizes the limitation of government power
through a constitution, which serves as the supreme law establishing the framework for governance,
protecting individual rights, and ensuring the rule of law. It involves a set of ideas, attitudes, and
behaviors that derive governmental authority from a body of fundamental laws while simultaneously
restricting that authority to prevent abuse. John Locke credited with the doctrine of constitutionalism
observed that there is a social contract between the governor and the governed. The governed is the
absolute repository of power and they confer part of their power to the governor and place limitations
to avoid absolutism

Key elements include limited governance, separation of powers, checks and balances, judicial
independence, rule of law, accountability and the protection of fundamental rights, distinguishing it
from mere constitutional government by requiring active adherence to these principles rather than just
the existence of a constitution. In essence, constitutionalism promotes limited government, where
rulers are bound by law and accountable to the people, contrasting with authoritarianism or absolute
rule.

Discuss constitutionalism under the 1992 constitution of Ghana

The 1992 Constitution of Ghana represents a cornerstone of constitutionalism in the country, marking
the transition from military rule to democratic governance and establishing a framework that limits state
power, upholds the rule of law, and protects citizens' rights. Promulgated after a referendum on April
28, 1992, it declares itself the supreme law of Ghana, rendering any inconsistent laws void (article 1(2))
and empowering citizens to defend it against overthrow or abrogation (Article 3). This supremacy clause
embodies constitutionalism by ensuring that all government actions are subordinate to constitutional
principles, preventing arbitrary rule.

A key feature reflecting constitutionalism is the hybrid governmental structure, blending elements of the
U.S. presidential system (e.g., a strong executive president elected for four-year terms) with the British
parliamentary model (e.g., a unicameral parliament with fused executive-legislative powers in some
aspects). This design incorporates separation of powers among the executive, legislature, and judiciary,
with checks and balances to curb excesses. For instance, the president appoints ministers subject to
parliamentary approval (art 78), and the judiciary has exclusive original jurisdiction over constitutional
interpretation and enforcement under Article 130. The constitution also decentralizes power through
regional and district assemblies, promoting local governance and reducing central authority
concentration (art 240)

Fundamental human rights and freedoms are robustly entrenched in Chapter 5, including freedoms of
speech, assembly, movement, and religion, as well as protections against discrimination, arbitrary
arrest, and slavery. These provisions align with constitutionalism's emphasis on individual liberties, with
mechanisms for enforcement through the courts and independent bodies like the Commission on
Human Rights and Administrative Justice (art 216). The constitution integrates customary law where
compatible (Article 11), but prioritizes human rights over conflicting traditions, fostering a balance
between cultural heritage and modern constitutional norms.

Sovereignty is vested in the people (Article 1), who exercise it through universal adult suffrage and
multi-party democracy, with provisions for political participation and periodic elections. Independent
institutions, such as the Electoral Commission and the National Development Planning Commission,
further support developmental constitutionalism by addressing poverty, inequality, and fiscal
accountability.

However, constitutionalism under this framework faces challenges, including criticisms of an "imperial
presidency" where executive dominance can undermine checks and balances, potentially hindering
democratic consolidation. Recent reform efforts, such as those initiated in 2025, aim to address defects
like winner-takes-all politics and inadequate local representation, indicating ongoing evolution. Overall,
the 1992 Constitution has sustained Ghana's stability as one of Africa's most resilient democracies,
though it’s full realization of constitutionalism depends on effective implementation and cultural
adherence to the rule of law.
 Question 5
Supremacy of the constitution

The supremacy of the 1992 Constitution of Ghana is a foundational principle establishing it as the
highest legal authority in the country. Enacted following a 1992 referendum and ushering in the Fourth
Republic on January 7, 1993, it declares Ghana a unitary republic with sovereignty residing in the people.
Article 1(1)

Article 1(2) explicitly states:

"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." This clause ensures
that all laws, actions, and policies—whether enacted by Parliament, the executive, or other bodies—
must conform to the Constitution. Inconsistent legislation or acts are automatically void, reinforcing
constitutional supremacy over parliamentary sovereignty (departing from earlier British-influenced
models).

Enforcement is supported by Article 2, which allows any citizen (or certain entities) to seek Supreme
Court declarations on constitutional breaches, with the Court empowered to invalidate offending laws
or actions. Article 3 further obligates citizens to defend the Constitution and classifies attempts to
suspend or overthrow it as high treason.

Sources of law

Primary sources

(1) The laws of Ghana shall comprise—

(a) This Constitution;

(b) Enactments made by or under the authority of the Parliament established by this Constitution;

(c) Any Orders, Rules and Regulations made by any person or authority under a power conferred by this
Constitution;

(d) The existing law; and

(e) The common law

Secondary sources

Executive instruments, treaties and conventions, foreign cases, textbooks, journals, articles
 Question 6
a. Who is a chief?

Article 277 of the 1992 Constitution of Ghana defines Chief as a person, “who hailing from the
appropriate family and lineage, has been validly nominated, elected or selected and enstooled,
enskinned or installed as a chief or queen mother in accordance with the relevant customary law and
usage”.

Similar definition can also be found in Section 57(1) of the Chieftaincy Act, 2008 (Act 759). It is required
that a Chief under this Act has been registered in the National Register of Chiefs to enable his
functionality (Section 57(5) of Act 759).

In re Wenchi Stool Affairs: Sramangyedua v. Nketia (2011) 2 SCGLR 1024, the Supreme Court held that
article 277 of the 1992 Constitution has underscored the requisites to be satisfied when considering the
making of a Chief, namely, nomination, election/selection, enstoolment, enskinment or installation. The
satisfaction of those requirements should be in accordance with the peculiar customs and usages of the
people in the area for whom the chief was being considered.

b. causes or matters affecting chieftaincy

Section 76 of The Chieftaincy Act, 2008 (Act 759) provides clear parameters for what constitute a
chieftaincy matter as follows:

"Cause or matter affecting chieftaincy" means a cause, matter, question or dispute relating to any of the
following:

(a) The nomination, election, selection or installation of a person as a chief or the claim of a person to be
nominated, elected, selected or installed as a chief,

(b) The deposition or abdication of a chief,

(c) The right of a person to take part in the nomination, election, selection or installation of a person as a
chief or in the deposition of a chief,

(d) The recovery or delivery of stool property in connection with the nomination, election, selection,
installation, deposition or abdication of a chief, and

(e) The constitutional relations under customary law between chiefs;

It excludes general land disputes, crimes, or contracts not tied to succession.

Republic v. High Court, Kumasi; Ex Parte Abubakari (No. 3) [1998-99] SCGLR 904

c. hierarchy of chiefs

Section 58 of Chieftaincy Act 2008 list the following as the categories of chiefs in Ghana
(a) The Asantehene and Paramount Chiefs,

(b) Divisional Chiefs,

(c) Sub-divisional Chiefs,

(d) Adikrofo, and

(e) Other chiefs recognised by the National House

Section 76 of Act 459 interprets: "Asantehene" means the occupant of the Golden Stool of Ashanti;
"paramount chief" means a person who has been nominated, elected or selected and installed as a
paramount chief in accordance with customary law and usage.

Each traditional area has its paramount chief, with some areas having multiple (Ga Mashie has 7 while
Ashanti Kingdom has about 78 making it the largest. Five paramount chiefs of each region form the
National House of Chiefs

Per section 76, "Divisional chief" means a chief whose name for the time being appears as a Divisional
Chief in the National Register of Chiefs. Section 16— A Division is an area which is specified in the
National Register of Chiefs as a Division. They are below the paramount chiefs. They preside over
smaller divisions within the paramountcy. They have authority over sub-chiefs and communities within
their division.

Sub divisional chiefs are responsible for specific communities within the divisional chief’s jurisdiction.
They assist in governance of their respective areas.

Question 7
Judicial precedents

Judicial precedents, also known as legal precedents or case law, refer to previous court decisions that
serve as authoritative examples or rules for deciding similar cases in the future. This system is rooted in
the doctrine of stare decisis (Latin for "to stand by things decided"), which promotes consistency,
predictability, and fairness in the law by requiring courts to follow established rulings when facts and
legal issues are substantially similar.

In essence, judicial precedents mean that judges do not start from scratch in every case; instead, they
apply principles from prior judgments, particularly the ratio decidendi (the reasoning essential to the
decision), which forms the binding part of a precedent. Key Aspects

Precedents can be binding, thus must be followed by lower courts in the same judicial hierarchy (e.g.,
decisions from a higher court like a Supreme Court bind lower courts) or persuasive: not mandatory but
influential (e.g., decisions from courts in other jurisdictions or equal-level courts).
This is a cornerstone of common law systems (e.g., in the UK, US, Canada, Australia), where judge-made
law supplements statutes. In contrast, civil law systems (e.g., many European countries) rely more on
codified statutes and give less weight to precedents.

This doctrine ensures uniformity (similar cases treated alike), predictability (parties can anticipate
outcomes), and efficiency in the judicial process.

It also enhances flexibility. Courts can distinguish cases (if facts differ materially), overrule outdated
precedents (usually by higher courts), or depart from them in exceptional circumstances.

This principle upholds the rule of law by fostering stability while allowing evolution of legal
interpretations over time.

Legal effects of binding and persuasive decisions on courts

Ghana operates a common law system influenced by English law, where the doctrine of stare decisis
governs judicial precedents. This ensures consistency, predictability, and fairness by requiring courts to
follow prior decisions on similar facts and legal issues, primarily through the ratio decidendi (the binding
reasoning). Precedents are categorized as binding (mandatory) or persuasive (influential but non-
mandatory), with effects determined by the court hierarchy: Supreme Court > Court of Appeal > High
Court > lower courts (Circuit and District). The 1992 Constitution and Courts Act, 1993 (Act 459)
underpin this framework.

Binding Precedents

A binding precedent is a decision from a superior court that must be followed by inferior courts on
questions of law where facts are substantially similar. It promotes uniformity (treating like cases alike),
legal certainty (enabling predictable outcomes and reducing litigation), efficiency (narrowing issues in
trials), and public confidence in the judiciary by restraining arbitrary judicial discretion. Failure to follow
a binding precedent can lead to appeals or reversals. However, courts may distinguish cases on
materially different facts or depart if the precedent is per incuriam (made in ignorance of law) or
conflicts with statute/constitution.

Relevant Provisions:

Article 129(3) of the 1992 Constitution: "All other courts shall be bound to follow the decisions of the
Supreme Court on questions of law." The Supreme Court treats its own prior decisions as normally
binding but may depart if "substantial and compelling circumstances" justify it for justice or law
evolution.

Article 136(5): Decisions of the Court of Appeal on questions of law bind all lower courts.

Courts Act, 1993 (Act 459), Section 2(3): Reinforces the hierarchical binding effect of superior court
judgments.
Key Cases:

Ekow Russel v Republic [2017-2020] SCGLR 469: The Supreme Court held that a trial judge (sitting as an
additional High Court judge) was bound by prior Supreme Court precedents on procedural matters,
emphasizing stare decisis to avoid inconsistency.

Ex Parte Opuni (No. 1), Civil Motion No. J5/58/2021 (unreported, 28 July 2021): A Supreme Court
majority departed from Ekow Russel under supervisory jurisdiction, illustrating flexibility in binding
precedents when erroneous, but the decision was later reviewed.

Ex Parte Opuni (No. 2), Civil Motion No. J7/20/2021 (unreported, 26 October 2021): A 4-3 Supreme
Court review panel overturned Ex Parte Opuni (No. 1), reaffirming stare decisis as normally binding on
the Supreme Court itself unless per incuriam or for exceptional reasons, balancing certainty with
adaptability.

Amponsah v Appiagyei & Ors (Consolidated Cases) [1982-83] GLR 96: The High Court refused to follow a
Court of Appeal decision (Bonsu v State Insurance Corporation [1977] 1 GLR 303) as it conflicted with
statute, holding that lower courts need not "slavishly" follow demonstrably wrong binding precedents.

Persuasive Precedents

Persuasive precedents are non-binding but carry weight to guide judicial reasoning, such as obiter dicta
(incidental remarks), decisions from courts of equal or lower hierarchy, or dissenting opinions. They
allow flexibility for legal evolution without rigid adherence, influencing outcomes where no binding
authority exists, but courts prioritize local precedents. Effects include enriching analysis, filling gaps in
Ghanaian law, and adapting common/customary law to societal changes, though over-reliance can lead
to inconsistency if not contextualized.

Relevant Provisions:

Article 129(2) of the 1992 Constitution: Permits the Supreme Court (and by extension, others) to
consider persuasive sources when departing from or in absence of binding precedents.

Courts Act, 1993 (Act 459), Section 115(1): Ensures continuity of precedents across constitutional eras,
treating them as persuasive if not strictly binding.

Key Cases:

Nkrumah v Manu [1971] 1 GLR 176: The High Court treated a prior Court of Appeal decision (Attiase v
Abotse, unreported, 21 July 1969) as persuasive only, refusing to follow it due to statutory conflict,
upheld on appeal in Kyei v Donkor [1974] 1 GLR 366.

Nana Addo Dankwa Akufo-Addo & Ors v John Dramani Mahama & Ors (unreported, Supreme Court):
Justice Dotse noted the absence of local binding precedents, relying on persuasive reasoning from lower
courts to resolve novel constitutional issues.

J H Mensah v Attorney-General (unreported, Supreme Court): Persuasive precedents from High Court
decisions aided in advising on constitutional disputes, highlighting their role in legal certainty.
Judgments from Foreign Jurisdictions

Foreign judgments have no binding effect on Ghanaian courts, as sovereignty limits external authority.
However, they are highly persuasive if relevant, well-reasoned, and adaptable to Ghanaian context (e.g.,
English common law cases pre-independence or from Commonwealth jurisdictions). Effects include
borrowing principles for gaps in local law, promoting harmonization with international norms, and aiding
interpretation of statutes/constitution, but they yield to Ghanaian precedents or statutes. Enforcement
of foreign judgments (distinct from precedential value) requires reciprocity under the Foreign
Judgments (Reciprocal Enforcement) Act, 1961 (Act 131), but this does not confer binding precedent
status.

Relevant Provisions:

Article 129(2)-(3) of the 1992 Constitution: Implicitly allows persuasive consideration of foreign
decisions, as the Supreme Court is unbound by non-Ghanaian courts.

No specific statute mandates binding force; persuasive status derives from common law tradition.

Key Cases:

Raphael Cubagee v Michael Yeboah Asare & 2 Ors (Civil Appeal No. J4/15/2017, Supreme Court, 28
February 2018): The court relied heavily on persuasive foreign jurisprudence from the Supreme Court of
India and other jurisdictions to interpret procedural rules, adapting them to Ghanaian facts where no
local binding precedent existed.

The ARA Libertad Arbitration (Argentina v Ghana) (Supreme Court, 20 June 2013): The court considered
persuasive international law precedents (e.g., from PCA/ITLOS) on sovereign immunity, but held they
were not binding absent domestication, illustrating dualist approach where foreign decisions influence
but do not compel.

General practice in Re Akuffo-Addo cases (various, Supreme Court): English precedents (e.g., from House
of Lords) treated as persuasive for constitutional interpretation, prioritizing Ghanaian evolution.

In summary, binding precedents ensure stability in Ghana's judiciary, while persuasive ones (including
foreign) foster growth. The Supreme Court's latitude under Article 129(2) prevents ossification, as seen
in the Opuni saga. For enforcement of foreign judgments (beyond precedents), see Act 131
 Question 8
What is Rule of Law?

The rule of law is a foundational principle of governance that ensures all individuals, entities, and
institutions including the state itself are accountable to laws that are fairly applied and enforced. It
promotes a system where power is exercised within defined legal boundaries, preventing arbitrary
actions and safeguarding fundamental rights and freedoms. At its core, the rule of law requires laws to
be clear, publicized, stable, and just, applied evenly without favoritism, and protective of human rights
norms. This principle underpins democratic societies by fostering predictability, trust in institutions, and
mechanisms for resolving disputes impartially.

Key elements of the rule of law include:

Accountability: No one is above the law; governments, officials, and private actors must operate within
legal frameworks and face consequences for violations.

Just and Fair Laws: Laws should be consistent with international human rights standards, non-
retroactive, and designed to protect security, property, and individual liberties rather than enable
oppression.

Open and Transparent Processes: Government actions must be accessible, with public participation and
oversight to prevent corruption or abuse.

Independent Judiciary and Access to Justice: Courts must be impartial, free from external influence, and
available to all for enforcing rights and resolving conflicts.

In practice, the rule of law supports economic stability, social cohesion, and democratic legitimacy by
constraining power and enabling citizens to challenge injustices. However, it can be undermined by
factors like political interference, weak institutions, or unequal access to legal resources, leading to
erosion of public trust. Historically, it has evolved from concepts in ancient philosophies (e.g., Aristotle's
emphasis on law over rulers) to modern frameworks in documents like the Magna Carta and the
Universal Declaration of Human Rights. In contemporary discussions, it is seen as essential for
sustainable development, with organizations like the United Nations emphasizing its role in achieving
peace, justice, and strong institutions.

Protection and Enforcement of Rule of Law under the 1992 Constitution of Ghana

Ghana's 1992 Constitution establishes the rule of law as a core pillar of its democratic framework,
emphasizing the supremacy of the Constitution, protection of fundamental rights, judicial
independence, and institutional mechanisms for accountability. This represents a deliberate shift from
post-independence eras marked by military coups and executive overreach, aiming to entrench
democratic governance and prevent arbitrary rule.

Sovereignty and Supremacy of the Constitution

The Constitution declares itself the supreme law of Ghana, rendering any inconsistent law or action void
(Article 1(2)). Sovereignty belongs to the people, and all powers of government must be exercised in
accordance with its provisions (Article 1(1)). This supremacy is protected against overthrow or
suspension, with such acts constituting high treason punishable by death (Article 3(3)). Citizens have a
right and duty to resist unconstitutional changes, and any resulting punishments are void upon
restoration of order (Article 3(4)-(6)).

Fundamental Human Rights and Freedoms

Chapter 5 outlines extensive rights that form the bedrock of the rule of law, binding all organs of
government and enforceable by courts (Article 12(1)). These include equality before the law (Article 17),
protection from arbitrary arrest and detention (Article 14), prohibition of torture (Article 15), fair trial
rights (Article 19), freedom of expression and assembly (Article 21), and economic rights like fair labor
conditions (Article 24). Rights are subject to reasonable limitations for public order, security, or morality
(Article 164), but administrative actions must be fair and reasonable, with judicial redress available
(Article 23). International human rights treaties are recognized, and media freedoms are protected
under Chapter 12 to prevent censorship (Article 162).

Judicial Independence and Role in Enforcement

The Judiciary is vested with independent authority to administer justice (Article 125(1)), free from
control by any other branch (Article 127(1)-(2)). Judges enjoy security of tenure, with removal only for
proven misbehavior or incompetence (Article 146), and their salaries are charged directly to the
Consolidated Fund to insulate them from interference (Article 127(4)-(7)). The Supreme Court has
exclusive jurisdiction over constitutional interpretation and enforcement (Article 130), including
declaring laws unconstitutional (Article 2(1)). It can issue orders for compliance, with non-adherence
punishable as a high crime (Article 2(4)-(5)). The High Court enforces human rights directly (Article
140(2)), offering remedies like habeas corpus, and supervises lower courts (Article 141). Judicial
decisions have upheld these principles, such as striking down restrictions on assembly or ensuring equal
media access.

Key Institutions for Protection and Enforcement

Commission on Human Rights and Administrative Justice (CHRAJ): Established under Articles 216-230, it
investigates human rights violations, corruption, and administrative injustices (Article 218). It can bring
court proceedings, negotiate settlements, or report findings, with powers like subpoenas (Article 219),
and operates independently (Article 225).

Other Bodies: The National Media Commission promotes media independence (Articles 166-172); the
National Commission for Civic Education educates on constitutional principles (Articles 232-237); and
the Judicial Council advises on judicial matters (Articles 153-154). The Auditor-General audits public
accounts independently (Article 187), and legal aid supports enforcement (Article 294).

Challenges and Achievements

While the Constitution has fostered judicial resurgence, enabling checks on executive power through
landmark cases, persistent issues include indemnity clauses for past military actions (Transitional
Provisions, Section 34), which undermine accountability, and occasional judicial inconsistencies in
electoral or appointment matters. Overall, these mechanisms have sustained Ghana's democracy since
1993, though ongoing reforms are suggested to strengthen independence and remove impunity.

Question 9
Judicial Review

Judicial review in Ghana refers to the power of the courts, particularly the Supreme Court, to examine
and invalidate legislation, executive actions, or administrative decisions that contravene the 1992
Constitution or exceed legal authority. Under Article 2(1) of the 1992 Constitution, the Constitution is
the supreme law, and any act or omission inconsistent with it is void to the extent of the inconsistency.
The Supreme Court holds exclusive original jurisdiction in matters involving the enforcement or
interpretation of the Constitution under Article 130(1), while the High Court exercises supervisory
jurisdiction over lower courts and adjudicating authorities under Article 141, which is distinct from
common law judicial review of administrative actions preserved under Articles 11 and 126(2). Judicial
review of administrative actions is grounded on principles of illegality (acting ultra vires), irrationality
(unreasonableness), and procedural impropriety (breach of natural justice or fairness), ensuring
compliance with law, fairness, and proportionality without substituting the court's judgment for the
administrator's. This applies to public institutions performing public functions and potentially to private
bodies exercising public powers not derived from contract.

Key cases illustrate its application. In Re Akoto and Seven Others [1961] GLR 523, the Supreme Court
upheld the Preventive Detention Act, 1958, as valid under the sovereign Parliament of the 1960
Constitution, limiting judicial review to explicit constitutional violations rather than broader principles
like natural justice. In Sallah v Attorney-General [1970] 2 G&G 493 (2d) (CA), the court ruled that
transitional provisions did not apply to dismiss the plaintiff from a pre-existing office, rejecting claims
that the 1966 coup destroyed the prior legal order and emphasizing strict interpretation to protect
rights. More recently, in Republic v SSNIT and AG Ex parte Ernest Thompson (Civil Appeal J4/51/2021, 15
June 2022), the Supreme Court clarified that supervisory jurisdiction under Article 141 applies to lower
courts on grounds like excess of jurisdiction or breach of natural justice, while judicial review of
administrative actions uses broader grounds under common law or human rights provisions like Article
23 (right to administrative justice). In Republic v Bank of Ghana Ex parte Hoda Holdings Limited (Civil
Appeal J4/62/2023, 26 June 2024), the Chief Justice distinguished supervisory jurisdiction from judicial
review, allowing the latter via Order 55 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) for
common law claims or Order 67 for human rights enforcement, providing remedies like certiorari,
prohibition, or mandamus.

Jurisdiction of the Court

The jurisdiction of courts in Ghana is structured under the 1992 Constitution (Articles 125-161) and the
Courts Act, 1993 (Act 459), dividing the judiciary into Superior Courts (Supreme Court, Court of Appeal,
High Court, Regional Tribunals) and Lower Courts (Circuit Courts, District Courts, and specialized
tribunals like Juvenile and Family Tribunals). The Chief Justice heads the judiciary administratively, with
supervisory powers over jurisdiction transfers. Jurisdiction encompasses original (first-instance hearing),
appellate (review of lower decisions), supervisory (oversight via writs like certiorari), and review powers.

The Supreme Court, comprising the Chief Justice and at least nine other Justices (panels of at least five),
has exclusive original jurisdiction in constitutional enforcement and interpretation (Article 130), matters
questioning parliamentary enactments (Article 2), and high treason trials; appellate jurisdiction as the
final court from the Court of Appeal (as of right or with leave); supervisory jurisdiction over all courts
(issuing habeas corpus, certiorari, etc.); and review of its own decisions in exceptional cases. The Court
of Appeal, with the Chief Justice and at least ten Justices (panels of three), has appellate jurisdiction over
High Court and Regional Tribunal decisions in civil and criminal matters, but no original or supervisory
powers. The High Court, with the Chief Justice and at least twenty Justices (including specialized
divisions like Commercial, Land, and Human Rights), exercises original jurisdiction in all civil and criminal
matters, exclusive jurisdiction in piracy and fundamental human rights enforcement (Article 140),
appellate jurisdiction over lower courts, and supervisory jurisdiction over District and Circuit Courts.
Regional Tribunals handle serious criminal offenses like economic fraud concurrently with the High
Court, with appeals to the Court of Appeal.

Lower courts include Circuit Courts (original civil up to specified values in contracts, land, etc.; criminal
for non-capital offenses) and District Courts (civil up to lower monetary limits; summary criminal trials
for minor offenses). Chieftaincy matters fall under Judicial Committees of Traditional Councils,
appealable to Houses of Chiefs and ultimately the Supreme Court. Alternative Dispute Resolution is
promoted under the Alternative Dispute Resolution Act, 2010 (Act 798), with mandatory pre-trial
mediation in some cases.

Cases affirming jurisdiction include Republic v High Court, Accra; Ex parte CHRAJ (Addo Interested Party)
[2003-2004] SCGLR 312, where the Supreme Court confirmed the High Court's common law judicial
review powers over administrative actions are not restricted by Article 141.

Principles of Natural Justice

The principles of natural justice in Ghanaian law ensure fairness in decision-making by public bodies,
rooted in common law and enshrined in the 1992 Constitution. They comprise two core rules: nemo
judex in causa sua (rule against bias, requiring impartiality) and audi alteram partem (right to a fair
hearing, mandating notice and opportunity to respond). These apply to judicial, quasi-judicial, and
administrative functions affecting rights, interests, or legitimate expectations, rendering violations void.
Constitutional provisions include Article 23 (administrative bodies must act fairly and reasonably), Article
19 (fair trial in courts), Article 296 (no arbitrariness or bias in discretionary powers), and Article 14
(personal liberty protections).

For bias, the test is "real likelihood" (objective: what a reasonable person would conclude), proved on a
balance of probabilities, as in Republic v High Court, Denu; Ex parte Agbesi Awusu II (No. 2) [2003-2004]
SCGLR 907. Types include pecuniary (irrebuttable, e.g., Dimes v Grand Junction Canal (1852) 3 HLC 759)
and personal (e.g., foreknowledge of facts disqualifies, as in Republic v Judicial Committee of the Ahanta
Traditional Council; Ex parte Bosomakora II [2007-2008] SCGLR 106). Exceptions exist for necessity or
acquiescence.

For fair hearing, it requires notice of charges, evidence access, representation (discretionary, considering
seriousness, as in R v Secretary of State for the Home Department; Ex parte Tarrant [1985] QB 251), and
reasoned decisions. In Republic v Chieftaincy Committee; Ex parte Oppong Kwame [1996-1997] SCGLR
401, denial of hearing invalidated the decision. Influenced by Ridge v Baldwin [1964] AC 40, extending to
administrative actions.

Ouster Clauses

Ouster clauses in Ghanaian law are provisions that limit or exclude court jurisdiction over specific
matters, often to protect executive or legislative actions, but they are strictly construed and cannot
shield fundamental rights violations or jurisdictional errors. Under the 1992 Constitution, examples
include transitional provisions like sections 15(2)-(4) and 16, which bar challenges to actions taken or
purportedly taken by the Armed Forces Revolutionary Council (A.F.R.C.), even for procedural non-
compliance, to ensure post-revolutionary stability. Article 273(3) ousts jurisdiction in chieftaincy
matters, reserving them for Houses of Chiefs, while Article 33(2) limits human rights enforcement to the
High Court via writs like certiorari or habeas corpus. Transitional provisions also prevent trials for aiding
constitutional overthrows (Section 34).

In Kwakye v Attorney-General [1981] GLR 944, the Supreme Court (majority) upheld the ouster under
transitional provisions for a "purported" A.F.R.C. special court sentence in absentia, interpreting
"purported" broadly as actions with semblance of legality (e.g., intention to try based on a dossier),
shielding irregularities like lack of evidence or notice to prioritize stability; dissenters viewed it narrowly,
excluding nullities from breaches of natural justice or Decree requirements, citing Anisminic Ltd v
Foreign Compensation Commission [1969] 2 AC 147, where ousters do not protect jurisdictional flaws or
rights infringements. In Benneh v The Republic [1974] 2 GLR 47, the court validated NLC decrees under
transitional provisions, rejecting challenges based on property rights. Courts preserve jurisdiction over
fraud, ultra vires acts, or constitutional breaches.

The Doctrine of Justiciable Political Question

The political question doctrine in Ghanaian law, derived from U.S. jurisprudence (Marbury v Madison
(1803)), renders certain constitutional issues non-justiciable as they are committed to political branches
under the separation of powers (Articles 1, 58, 93, 125 of the 1992 Constitution), preventing judicial
overreach. It applies where there is textual commitment to another branch, lack of judicially
manageable standards, or prudential reasons for non-intervention. Introduced in Tuffour v Attorney-
General [1980] GLR 637, where parliamentary actions intra vires were non-reviewable.

In New Patriotic Party v Attorney-General (31 December Case) [1993-94] 2, the Supreme Court
(majority) rejected the doctrine's application to a public holiday declaration, affirming justiciability under
Articles 2 and 130, as the Constitution is enforceable law, not mere policy; dissenters saw it as a political
choice. In Ghana Bar Association v Attorney-General [2003-2004], the Court applied it to Chief Justice
appointments under Article 144, deeming it a non-justiciable political matter for executive and
legislature. In JH Mensah v Attorney-General [1996-97], a "compromised" version was endorsed:
applicable only if no constitutional violations occur, allowing review for breaches. It also relates to
Directive Principles (Chapter 6), presumed justiciable unless textually non-enforceable, as in New
Patriotic Party v Attorney-General (CIBA) [1996-97] SCGLR 729. The doctrine remains contested but
established as a separation-of-powers tool

Question 12
Grounds for impeachment of president

The 1992 Constitution of Ghana provides for the removal of the President from office through an
impeachment process outlined primarily in Article 69. This mechanism ensures accountability while
safeguarding the stability of the executive branch, requiring a rigorous procedure involving
parliamentary initiation, judicial oversight, and a supermajority vote. The grounds for impeachment are
explicitly enumerated to prevent arbitrary removals and focus on serious breaches of duty, misconduct,
or incapacity.

1. Willful Violation of the Oath or Constitutional Provisions

The President may be removed if found to have acted in willful violation of the oath of allegiance, the
presidential oath (as specified in the Second Schedule of the Constitution), or any other provision of the
Constitution. This ground emphasizes deliberate disregard for the fundamental legal framework
governing the presidency, such as failing to uphold the rule of law or exceeding constitutional powers.
For instance, this could include actions that undermine democratic institutions or infringe on citizens'
rights protected under the Constitution.

2. Conduct Bringing the Office into Disrepute

Impeachment is warranted if the President's conduct brings or is likely to bring the high office of the
President into hatred, ridicule, contempt, or disrepute. This broad category targets behaviors that erode
public trust in the presidency, such as ethical lapses, scandals, or actions perceived as unbecoming of
the role. It serves as a safeguard against personal misconduct that could damage the institution's
integrity, even if not explicitly illegal.

3. Prejudicial Conduct to the Economy or State Security

The President can face removal for conduct deemed prejudicial or inimical to the economy or security of
the state. This ground addresses actions that endanger national interests, such as economic sabotage,
corruption leading to financial harm, or decisions compromising national defense. It reflects the
Constitution's emphasis on the President's role in promoting stability and prosperity, allowing
impeachment for gross negligence or intentional harm in these areas.
4. Incapacity Due to Infirmity

Removal is possible if the President is rendered incapable of performing the functions of the office due
to infirmity of body or mind. This non-culpable ground focuses on health-related impairments that
prevent effective governance, rather than misconduct. In such cases, a medical board is convened to
assess the President's condition, ensuring an objective evaluation rather than political opportunism.

5. Commission of a High Crime

The Constitution also allows for impeachment on grounds of committing a "high crime," which is cross-
referenced in other articles. For example, Article 2(4) explicitly states that failure to obey or carry out a
Supreme Court order or direction constitutes a high crime, punishable by removal from office. Broader
interpretations, drawn from Article 94(2), may include high treason, treason, offenses involving state
security, fraud, dishonesty, or moral turpitude, or convictions carrying severe penalties (e.g., death or
imprisonment exceeding 10 years). This category aligns impeachment with criminal accountability,
though the process remains political-judicial rather than purely prosecutorial.

These grounds are not exhaustive in practice but are interpreted strictly to avoid abuse, as evidenced by
the Constitution's requirement for a prima facie case established by a tribunal of senior justices before
parliamentary debate and a two-thirds majority vote. Notably, Article 60(14) extends these same
grounds to the Vice-President, ensuring consistency across the executive. While Ghana has not
impeached a sitting President under this framework since 1992, the provisions underscore the balance
between executive immunity during tenure (per Article 57) and post-tenure accountability, where civil
or criminal proceedings can be initiated within three years after leaving office for acts committed in
office. This structure promotes democratic oversight without destabilizing governance

Grounds for superior courts justices’ removal

Under Article 146 of the 1992 Constitution of Ghana, a Justice of a Superior Court (including justices of
the Supreme Court, Court of Appeal, and High Court) can only be removed on the following three
exclusive grounds:

1. Stated misbehavior

This refers to proven misconduct or unethical conduct that brings the judicial office into disrepute.
Examples from constitutional interpretations and cases include corruption, abuse of power, misuse of
public funds, or serious ethical breaches (e.g., as alleged in recent high-profile petitions involving
administrative misconduct). The term "stated" implies that the misbehaviour must be clearly specified
and substantiated, not vague or unsubstantiated allegations.

2. Incompetence

This ground covers a demonstrated inability to adequately perform judicial duties, such as repeated
errors in judgment, failure to apply the law correctly, or lack of the required professional capability. It is
not mere disagreement with a judge's rulings but evidence of systemic or gross failure in competence.

3. Inability to perform the functions of office arising from infirmity of body or mind
This includes physical or mental health conditions that permanently prevent the justice from effectively
carrying out their responsibilities. It requires medical evidence and is aimed at protecting the judiciary's
functionality without punishing illness.

These grounds apply uniformly to all Superior Court justices, though the procedure differs slightly
depending on whether the justice is the Chief Justice or another Superior Court justice:

For a non-Chief Justice: A petition goes to the President, who refers it to the Chief Justice to determine if
there is a prima facie (on the face of it) case. If yes, a committee investigates.

For the Chief Justice: The President consults the Council of State directly, and if a case is established,
appoints a special committee (including Supreme Court justices and non-legal experts).

If the investigating committee finds the grounds proven, it recommends removal, and the President
must act accordingly (removal is mandatory if recommended). Proceedings are generally held in camera
(privately) to protect judicial integrity.

These provisions aim to balance judicial independence with accountability, ensuring removal is not
arbitrary but based on serious, proven issues. In practice, as seen in recent events (Torkonoo), these
grounds have been invoked for alleged misbehavior, sparking debates on clarity and fairness in the
process

Question 13
Council of State

The Council of State is an advisory body established under the 1992 Constitution of Ghana to provide
counsel to the President and other public institutions on matters of national importance, including
appointments, policies, and legislation. It consists of 25 members, including former high-ranking officials
(such as a former Chief Justice, Chief of Defence Staff, and Inspector-General of Police), the President of
the National House of Chiefs, one elected representative from each region, and 11 members appointed
by the President. Members serve until the end of the President's term and elect their own Chairman.
The Council meets at least four times a year and can form committees or consult experts with
presidential approval.

Its legal effects on Ghana include:

Advisory Role in Governance: It must advise the President on key appointments (e.g., Governor of the
Bank of Ghana, Auditor-General, Chief Justice, and heads of various commissions), which helps ensure
balanced and consultative decision-making. This advice is generally non-binding but can influence the
validity of appointments if not followed where required by the Constitution.

Influence on Legislation and Policy: The President may refer bills or other matters to the Council for
advice, which must be provided within 30 days (or 72 hours in urgent cases). This promotes deliberation
and can prevent hasty executive actions.
Promotion of Accountability: Members are subject to oaths of secrecy, declarations of interest in
contracts, and removal procedures requiring parliamentary approval, fostering transparency. The
Council's operations are funded from the Consolidated Fund, ensuring independence from budgetary
pressures.

Broader Impact on Institutions: It advises on the establishment and operations of bodies like the Public
Services Commission, National Commission for Civic Education, and regional coordinating councils,
thereby shaping public administration and decentralisation in Ghana.

These provisions are primarily outlined in Chapter 9 (Articles 89–92) of the Constitution.e27d28

Electoral Commission

The Electoral Commission (EC) is an independent constitutional body responsible for managing Ghana's
electoral processes. It comprises a Chairman, two Deputy Chairmen, and four other members, all
appointed by the President on the advice of the Council of State. The Commission operates
autonomously, with its decisions not subject to direction from any person or authority except as
provided by law.

Its legal effects on Ghana include:

Electoral Administration and Integrity: The EC compiles and revises the voters' register, conducts and
supervises all public elections and referenda, and educates the public on electoral laws. This ensures
free, fair, and transparent elections, with voting by secret ballot and immediate announcement of
results at polling stations, upholding democratic principles.

Boundary Demarcation: It divides Ghana into constituencies for parliamentary elections and reviews
boundaries at least every seven years or after a census, which can be appealed to a tribunal and then
the Court of Appeal. This affects political representation and prevents gerrymandering.

Regulatory Powers: The EC makes regulations for elections and referenda, appoints its own staff (in
consultation with the Public Services Commission), and certifies results for constitutional amendments
via referenda. Non-compliance with its regulations can invalidate electoral processes.

Financial Independence: Expenses are charged directly to the Consolidated Fund, and members'
emoluments are determined by a presidential committee, protecting the EC from executive interference
and ensuring stability in Ghana's multi-party democracy.

These provisions are primarily outlined in Chapter 7 (Articles 43–55) of the Constitution.

The Legislature

The Legislature, known as Parliament, is the unicameral law-making body of Ghana, consisting of at least
140 members elected from single-member constituencies for four-year terms. It is headed by a Speaker
elected from among its members or outsiders, with Deputy Speakers from different parties. Parliament
regulates its own procedures through standing orders and operates with committees for oversight and
legislation.
Its legal effects on Ghana include:

Law-Making Authority: Parliament has supreme legislative power to enact laws (subject to presidential
assent), including on taxation, appropriations, and public corporations. Bills must be published, debated
in at least three readings, and can be referred back by the President, ensuring checks on executive
overreach. No law can establish a one-party state or be retrospective in certain cases.

Oversight and Accountability: It approves budgets, loans, international agreements, and natural
resource contracts, and debates reports from bodies like the Auditor-General. Committees can
investigate matters, summon witnesses, and punish contempt, promoting transparency and anti-
corruption measures.

Constitutional Amendments: Parliament amends the Constitution, with entrenched provisions requiring
referenda certified by the EC. It can extend its term in wartime and approves states of emergency,
safeguarding fundamental rights.

Representation and Immunity: Members enjoy freedom of speech and immunity from arrest or civil
proceedings while performing duties, but must vacate seats for reasons like party defection or criminal
convictions. This fosters open debate while maintaining ethical standards in governance.

These provisions are primarily outlined in Chapter 10 (Articles 93–106) of the Constitution.

The Executive

The Executive branch is vested in the President, who serves as Head of State, Head of Government, and
Commander-in-Chief of the Armed Forces. It includes the Vice-President, a Cabinet of 10–19 Ministers
(mostly from Parliament), and various councils like the National Security Council and National
Development Planning Commission. The President is elected for a maximum of two four-year terms and
exercises authority through ministers and public officers.

Its legal effects on Ghana include:

Policy Execution and Administration: The Executive enforces laws, initiates policies, and manages
government affairs, including international relations and defence. It must maintain the Constitution and
can declare emergencies (with parliamentary approval), enabling swift responses to crises.

Appointment Powers: The President appoints key officials (e.g., ministers, judges, ambassadors) with
advice from the Council of State and parliamentary approval where required, influencing the
composition of other branches and institutions.

Checks and Balances: The Cabinet assists in policy determination, while the Attorney-General provides
legal advice and handles prosecutions. The President can be removed for incapacity or misconduct via
parliamentary processes, preventing abuse of power.

Development and Security: Through commissions, it formulates national development plans, safeguards
security, and integrates economic policies. Executive actions are funded via parliamentary
appropriations, ensuring fiscal accountability and promoting sustainable development.

These provisions are primarily outlined in Chapter 8 (Articles 57–92) of the Constitution.
The Judiciary

The Judiciary is the independent branch responsible for interpreting and applying the laws of Ghana. It
comprises the Superior Courts (Supreme Court, Court of Appeal, and High Court) and lower courts
established by Parliament. The Chief Justice heads the Judiciary, with judges appointed by the President
on the advice of the Judicial Council and (for superior courts) parliamentary approval. Judicial
independence is guaranteed, with judges removable only for stated misbehavior or incapacity.

Its legal effects on Ghana include:

Interpretation of Laws: Courts have exclusive jurisdiction to interpret the Constitution, declare
inconsistent laws void, and enforce fundamental human rights. The Supreme Court handles
constitutional references, election petitions, and appeals, serving as the final arbiter.

Adjudication and Justice Delivery: The Judiciary settles disputes, administers justice impartially, and
supervises lower courts. It can issue writs like habeas corpus and certiorari, protecting citizens from
unlawful actions by the state or individuals.

Checks on Other Branches: It reviews executive and legislative actions for constitutionality, such as
validating parliamentary membership or presidential elections. Retroactive laws altering court decisions
are prohibited, preserving judicial finality.

Administrative Independence: Funded from the Consolidated Fund, with a Judicial Council advising on
appointments and administration, the Judiciary promotes the rule of law, accountability, and separation
of powers in Ghana's democracy.

These provisions are primarily outlined in Chapter 11 (Articles 125–161) of the Constitution

Question 14
Directive Principles of State Policy (DPSP) in Ghana

The Directive Principles of State Policy are enshrined in Chapter 6 of Ghana's 1992 Constitution (Articles
34–41). These principles serve as non-binding guidelines for the state, citizens, and institutions in
formulating and implementing policies to foster a just, free, and prosperous society. They emphasize
socio-economic, political, educational, cultural, and international objectives, along with citizens' duties.
Unlike the fundamental human rights in Chapter 5 (e.g., right to life under Article 13, equality under
Article 17), DPSP are generally considered non-justiciable, meaning they cannot be directly enforced by
courts. Instead, they function as interpretive aids for the Constitution and laws, and the President is
required to report annually to Parliament on progress toward their realization (Article 34(2)). Their non-
enforceability stems from their nature as aspirational goals requiring legislative or executive action,
often involving resource allocation and policy discretion.

Key provisions include:

Article 34: Mandates that DPSP guide all state organs, citizens, and bodies in interpreting the
Constitution, laws, and policies. The President must report to Parliament on steps to achieve objectives
like basic human rights, a healthy economy, and access to work, education, and healthcare.

Article 35 (Political Objectives): Emphasizes democracy, sovereignty of the people, national unity, non-
discrimination, regional balance in appointments, decentralization, and eradication of corruption.

Article 36 (Economic Objectives): Directs the state to manage the economy for maximum welfare,
provide employment and basic necessities, promote agriculture and industry, ensure gender integration,
and protect the environment.

Article 37 (Social Objectives): Focuses on equality, participation in development, protection of

vulnerable groups, population policy, sports promotion, and social security schemes.

Article 38 (Educational Objectives): Requires provision of educational facilities, free compulsory basic
education, equal access to higher education, and adult literacy programs.

Article 39 (Cultural Objectives): Encourages integration of customary values, abolition of harmful

practices, and preservation of languages and heritage.

Article 40 (International Relations): Promotes peaceful international order, respect for international law,
and adherence to organizations like the UN and African Union.

Article 41 (Duties of Citizens): Outlines obligations such as upholding the Constitution, promoting unity,
working conscientiously, protecting public property, paying taxes, and safeguarding the environment.

Justiciability of DPSP has been debated in case law. In New Patriotic Party v. Attorney-General (31st
December Case) [1993-94] 2 GLR 35, the Supreme Court held by a 5-4 majority that the Constitution as a
whole is justiciable, rejecting blanket non-justiciability for DPSP absent explicit exclusion. The case
challenged a law declaring December 31 a public holiday as revolutionary, and the court used DPSP (e.g.,
Articles 35(1) and 41(b)) interpretively to strike it down as inconsistent with constitutional spirit.
However, dissenting judges like Bamford-Addo JSC argued DPSP are non-justiciable guidelines.

In New Patriotic Party v. Attorney-General (CIBA Case) [1996-97] SCGLR 729, the court clarified that
DPSP are generally non-justiciable but become enforceable when they qualify or link to justiciable
fundamental rights in Chapter 5. Here, Article 37(2)(a) and (3) (on participation in development) was
linked to Article 21(1)(e) (freedom of association), making it justiciable to invalidate a law restricting
district assembly members' party affiliations.

In Ghana Lotto Operators Association v. National Lottery Authority [2007-2008] SCGLR 1088, Date-Bah
JSC presumed DPSP justiciable unless proven unenforceable, reinforcing their interpretive role.
Conversely, Abass v. Accra Metropolitan Assembly [2002] SCGLR 358 rejected squatters' claims based on
DPSP (e.g., livelihood under Article 36), treating them as non-enforceable without linkage to rights like
dignity (Article 15).493487411485c4d585

Political Question Doctrine (PQD) in Ghana

The Political Question Doctrine is a judicial principle, imported from U.S. jurisprudence (e.g., Baker v.
Carr 369 U.S. 186 (1962)), under which courts decline to adjudicate issues constitutionally committed to
the executive or legislature, lacking judicially discoverable standards, or involving policy choices better
resolved through political processes. In Ghana, it is tied to the separation of powers (implicit in the 1992
Constitution's structure: Executive in Chapter 8, Legislature in Chapter 10, Judiciary in Chapter 11) to
prevent judicial overreach and maintain branch interdependence. Unlike DPSP, which are textual
provisions, PQD is a doctrinal tool for assessing justiciability across various matters, such as
impeachments, diplomatic appointments, or policy decisions. Courts apply it prudentially, considering
textual commitment, judicial expertise, and potential for conflicting branch decisions.

No specific constitutional provision codifies PQD, but it derives from Articles 2 (supremacy of the
Constitution) and 130 (Supreme Court's jurisdiction), balanced against the judiciary's review powers. Its
evolution in Ghana shows inconsistency: early adoption in the 1980s, but often rejected due to the
Constitution's emphasis on judicial guardianship.

Key cases include:

Ghana Bar Association v. Attorney-General (Abban Case) [1995-96] SCGLR 598: The court applied PQD,
holding the Chief Justice's appointment (Article 144) is committed to the executive and legislature,
lacking judicial standards for review. Kpegah JSC outlined criteria: constitutional commitment to another
branch, need for extra-judicial expertise, and prudential avoidance.

New Patriotic Party v. Attorney-General (31st December Case): The court rejected PQD, asserting judicial
duty to review for constitutionality, as the Constitution is supreme and political matters are not immune.

J.H. Mensah v. Attorney-General [1996-97] SCGLR 320: Narrowed PQD, allowing review if actions have
constitutional implications beyond internal branch matters.

Martin Alamisi Amidu v. President Kuffour [2001-2002] SCGLR 138: Deemed PQD inapplicable,
emphasizing no ouster of judicial scrutiny under Article 2.

Justice Abdulai v. Attorney-General (Writ No. J1/07/2022): The court stressed adjudication of
constitutional challenges without abstention, limiting PQD.

Vincent Ekow Assafuah v. Attorney-General (Writ No. J1/18/2025): Kulendi JSC advocated balanced
restraint, applying PQD to preserve interdependence without permitting violations.

Differences between DPSP and PQD in the Ghanaian Context

Conceptual Nature and Origin:

DPSP are explicit constitutional provisions (Chapter 6) outlining policy aspirations, modeled after similar
frameworks in Ireland and India but adapted to Ghana's context.

PQD is an implied judicial doctrine, not textually enshrined, derived from separation of powers to
manage justiciability.

Scope and Application:

DPSP focus on specific socio-economic and governance goals (e.g., education access, corruption
eradication), guiding policy without direct enforcement.

PQD applies broadly to any "political" issue (e.g., holidays, appointments, impeachments under Article
69), where courts abstain to respect branch autonomy.
Justiciability and Enforcement:

DPSP are generally non-justiciable but can gain indirect enforceability through linkage to Chapter 5
rights (as in CIBA Case) or interpretive use (31st December Case).

PQD renders issues entirely non-justiciable, leading to dismissal without merits review (e.g., Abban
Case), though Ghanaian courts often limit it to uphold review powers.

Relation to Separation of Powers:

DPSP non-justiciability aligns with PQD by treating them as policy matters for elected branches, but
DPSP allow interpretive influence.

PQD directly enforces separation by preventing judicial intrusion, sometimes encompassing DPSP (e.g., if
a claim solely relies on DPSP without rights linkage).

Judicial Treatment and Evolution:

DPSP cases show a shift toward partial justiciability (from non-enforceability in dissents to linkage in
CIBA).

PQD cases reflect tension: affirmation in Abban vs. rejection in 31st December and Abdulai, highlighting
Ghana's preference for robust judicial review over U.S.-style abstention.

In summary, while both concepts limit judicial intervention in policy realms, DPSP provide substantive
guidance with potential indirect teeth, whereas PQD is a procedural gatekeeper preserving political
accountability. Their interplay underscores Ghana's hybrid approach to constitutionalism, balancing
aspiration with pragmatism.

Extent of Applicability of the Political Question Doctrine in Ghana

The political question doctrine is applicable in Ghana, derived from the 1992 Constitution's separation of
powers framework (e.g., Articles 58–92 for executive powers, 93–106 for legislative, and 125–161 for
judicial), though it is applied sparingly to avoid undermining the judiciary's role in upholding
constitutional supremacy under Articles 1(2), 2(1) (allowing declarations of unconstitutionality), and 130
(granting the Supreme Court original jurisdiction in constitutional interpretation). Unlike in the U.S.,
where it is more rigidly used, Ghanaian courts have evolved the doctrine through case law, balancing
judicial review with respect for political branches, and it is not explicitly codified but inferred from
separation principles. Its extent is limited: it applies only where issues lack judicially manageable
standards, involve textual commitment to other branches, or require policy decisions, but courts often
reject it to assert review powers.

Key cases illustrate its application and limits:

New Patriotic Party v. Attorney-General (31st December Case, 1993–94 GLR 35): The Supreme Court (5-4
majority) rejected the PQD, holding that declaring 31 December a public holiday (linked to a coup) was
justiciable under Articles 2 and 130, as it violated constitutional spirit. The minority favored the doctrine,
viewing it as a policy matter. This case emphasized that Ghana's Constitution prioritizes judicial
enforcement over broad non-justiciability.

J.H. Mensah v. Attorney-General (1996–97 GLR 320): The Court expressed reservations, proposing a
"compromised" PQD where it applies only if executive/legislative actions stay within constitutional
bounds without violations. It ruled the retention of ministers’ post-election justiciable, limiting the
doctrine's scope.

Ghana Bar Association v. Attorney-General (2003–2004 SCGLR 250): Explicitly upheld the PQD,
dismissing a challenge to the Chief Justice's (Abban) appointment under Articles 91(1) and 144(1) as
committed to the President, Council of State, and Parliament. The Court adopted U.S. criteria from
Baker v. Carr (e.g., lack of standards, risk of multifarious pronouncements), marking a shift toward
greater acceptance.

Asare v. Attorney-General (2006): A High Court applied the doctrine to Parliament's grant of indefinite
leave to an MP (Eric Amoateng), deeming it an internal legislative matter not subject to judicial scrutiny
on reasonableness.

Overall, the doctrine is recognized but not absolute in Ghana—it evolves case-by-case, often overridden
by the judiciary's mandate to protect the Constitution. It applies most to internal political processes
(e.g., appointments, party affairs) but less to clear constitutional violations, ensuring checks and
balances

Question 16
The superior courts of Ghana, also known as the Superior Courts of Judicature, are established under
Article 126(1) of the 1992 Constitution and comprise the Supreme Court, the Court of Appeal, the High
Court, and Regional Tribunals.b1efc9bdb4e0 These courts form the upper tier of the judiciary, with
jurisdiction over all civil and criminal matters, including constitutional issues, and they operate as courts
of record with the power to punish for contempt. Below is a discussion of their composition and
jurisdiction.

Supreme Court

Composition (article 128): The Supreme Court consists of the Chief Justice and no fewer than nine other
Justices, all appointed by the President in consultation with the Judicial Council and with parliamentary
approval. Cases are typically heard by panels of at least five Justices, with the Chief Justice presiding or
designating a senior Justice to do so in their absence. Justices must be of high moral character and
proven integrity, with at least 15 years of standing as lawyers.

Jurisdiction (article 129 – 135): As the highest court and final appellate authority, the Supreme Court
has exclusive original jurisdiction in matters involving the enforcement or interpretation of the
Constitution, challenges to acts of Parliament or other authorities for constitutional violations, and
determinations on whether official documents are prejudicial to state security. Its appellate jurisdiction
covers appeals from the Court of Appeal (as of right in certain civil and criminal cases or with leave
otherwise) and exclusive appeals in high treason cases. It also exercises supervisory jurisdiction over all
lower courts, issuing orders like writs of certiorari, mandamus, prohibition, and quo warranto to enforce
its authority. The court's decisions are binding on all lower courts, though it may depart from its own
precedents. A single Justice can handle incidental matters, subject to review by the full court.

Court of Appeal

Composition (article 136): This court includes the Chief Justice and at least ten other Justices, with the
potential to include additional Superior Court Justices as designated by the Chief Justice. It sits in panels
of at least three Justices, with the most senior presiding if the Chief Justice is absent. Justices require
high moral character, proven integrity, and at least 12 years of standing as lawyers. The Chief Justice
may create divisions for efficiency.

Jurisdiction (article 137 & 138): The Court of Appeal primarily handles appellate matters from the High
Court and Regional Tribunals, with appeals as of right in specified cases. It has full powers to hear,
determine, amend, or enforce judgments in appeals, and its decisions are binding on lower courts while
it is bound by its own precedents. A single Justice can manage non-substantive matters, reviewable by
the full court.

High Court

Composition (article 139): Comprising the Chief Justice and no fewer than 20 Justices, the High Court
may also include other Superior Court Justices upon request. It is typically constituted by a single Justice
(potentially with a jury or assessors), but requires three Justices for treason trials. Justices must have
high moral character, proven integrity, and at least 10 years of legal standing. The Chief Justice can
establish specialized divisions (e.g., commercial, criminal, human rights, and land).

Jurisdiction (article 140 & 141): The High Court has broad original jurisdiction in all civil and criminal
matters as conferred by the Constitution or law, including exclusive authority over the enforcement of
fundamental human rights and freedoms. Its appellate jurisdiction includes appeals from lower courts
such as Circuit Courts (criminal) and District, Juvenile, or Family Tribunals. It exercises supervisory
jurisdiction over inferior courts and authorities, issuing enforcement orders similar to those of higher
courts. In human rights cases, it cannot impose convictions beyond those for treason.

Regional Tribunals
Composition (article 142): Established in each region by the Chief Justice, each tribunal includes one
Chairman and a panel of members (lawyers or non-lawyers) as determined by the Chief Justice. It is
constituted by the Chairman and at least two panel members. The Chairman must meet the same
qualifications as a High Court Justice (high moral character, integrity, 10 years' legal standing), while
panel members require high moral character and proven integrity.

Jurisdiction (article 143): Regional Tribunals have jurisdiction to try offenses against the state and the
public interest as prescribed by Parliament, along with appellate jurisdiction as provided by law. They
possess full powers to amend or enforce decisions in appeals and can enforce rulings from higher
superior courts.edfa89 Their role is specialized, often handling serious public-order cases, and they
coordinate with the High Court in certain matters

Question 17
Debate on impeachment processes and Separation of powers

The 1992 Constitution of Ghana establishes a framework for governance that structurally incorporates
the doctrine of separation of powers, dividing authority among the executive, legislative, and judicial
branches while incorporating mechanisms for checks and balances to prevent any one branch from
dominating. This is evident in the vesting of legislative power in Parliament (Article 93), executive
authority in the President (Article 58), and judicial power exclusively in an independent judiciary (Article
125), with explicit protections for judicial independence under Article 127. However, the debate
referenced centers on whether this separation truly exists or is undermined by interbranch overlaps and
practical imbalances has merit, particularly in light of executive influence over appointments and
removals. I agree with the debate to a moderate extent: the constitution formally upholds separation of
powers, but real-world application often reveals executive dominance that can blur lines, though the
cited examples of interplay (e.g., in impeachment processes) are more indicative of intentional checks
than a breakdown of the doctrine.

To clarify, separation of powers, as conceptualized by thinkers like Montesquieu, does not demand
absolute isolation between branches but rather functional distinction with mutual oversight to
safeguard against tyranny. Ghana's constitution reflects this hybrid model, similar to many presidential
systems. For instance, Article 69 outlines the impeachment of the President, where Parliament initiates
the process via a notice signed by at least one-third of members, but the Chief Justice then convenes a
tribunal of Supreme Court justices (or a medical board for incapacity cases) to determine a prima facie
case. This judicial involvement ensures impartiality in executive accountability, acting as a check rather
than a fusion that negates separation. Similarly, Article 146(3) requires the President to refer petitions
for removing superior court justices to the Chief Justice for a prima facie review, preventing unilateral
executive action and involving the judiciary in its own governance. These provisions exemplify checks
and balances, not an absence of separation—much like how the U.S. Chief Justice presides over
presidential impeachment trials without implying the judiciary and executive are merged.
That said, the debate gains traction from critiques that the executive's broad powers, such as extensive
appointment authority over ministers, judges (via Judicial Council advice), and independent
commissions, create an imbalance that renders separation illusory in practice. Scholars and observers
argue this leads to a "mirage" of separation, where the President's influence over the judiciary (e.g.,
through appointments) and Parliament (via party loyalty in a winner-takes-all system) weakens
oversight, especially when the ruling party holds a majority. Ongoing reform discussions, including
efforts to amend the constitution to curb executive overreach, underscore these concerns.d35af6 For
example, the fusion of the Attorney General's role with the Ministry of Justice has sparked calls for
separation to enhance judicial autonomy.

In contrast, proponents of the view that separation robustly exists point to the constitution's design,
including judicial review powers (Article 2 and 130), parliamentary veto overrides, and independent
bodies like the Council of State, which advise on key decisions. Judicial decisions, such as those enforcing
constitutional supremacy, further demonstrate the branches' ability to check each other despite
pressures.

Ultimately, while I see the constitutional text as clearly intending separation with checks (thus
disagreeing with claims of its total absence), the practical challenges—rooted in political culture, party
dominance, and unaddressed flaws—validate the debate's core contention that implementation falls
short. Strengthening institutions through reforms, such as limiting presidential appointments or
enhancing parliamentary independence, could bridge this gap. If the debate is framed as exists vs.
doesn't, I'd lean toward it existing on paper but requiring "breathing life" into for full efficacy