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1992 Constitution of Ghana (came into force 7th January 1993) The Constitution v. Parliament
• Article 2(1) serves as a substantive limitation on
parliament’s power to make ‘just’ any law.
DEFINING A CONSTITUTION • Article 3(1): cannot enact a law that makes Ghana a one-
• Definition in Two Senses party state.
-Broad sense: a body of fundamental rules, principles, • Article 107: cannot make law to alter the decision of any
practices, conventions, understandings, attitudes, court or retrospective laws.
usages relating to the system of government of a • Adofo v AG: “this constitutional provision unequivocally
country. and authoritatively establishes a doctrine of supremacy of
- Narrow sense: a selection of legal rules which govern the constitution in the Ghanaian jurisdiction. The doctrine
the government of that country and which have been implies that the supremacy of parliament is limited and that
embodied in a document. enactments by parliaments and those of previous
• Characteristics legislatures are subject to the supremacy of the
- Product of the constituent power: (Article 1: the constitution.” (Date-Bah JSC)
sovereignty of Ghana resides in the people) • NPP v AG (31st December Case): “In my view, even
- It established the state, it’s division and system of though Parliament has the right to legislate, this right is not
government without limit… It is for the courts, as the guardians of
- It is the law as well as the source of all legal power. legality, to ensure that all agencies of the State keep within
[Article 1(2): const. is the supreme law of the land] their lawful bounds.” (Amua-Sekyi JSC)
- It is made up of the rules, practices etc. (Article 11- • TUFFOUR V AG: “A written Constitution such as ours is
sources of law) not an ordinary Act of Parliament. It embodies the will of a
- Establishes or constitutes the system of government people. It also mirrors their history… The Constitution has
• Features its letter of the law. Equally, the Constitution has its spirit.
- Contains something on the ideas, aspirations and values (Per Sowah)
of the society concerned –Chapter 6 • MABURY V MADISON: “the particular phraseology of
- Contains some information on the structure and the Constitution of the US confirms and strengthens the
organization of the government and some information principle, supposed to be essential to all written
on the rights and responsibilities of individuals. constitutions, that a law repugnant to the Constitution is
- Contain rules for its amendments depending on the void, and that Courts, as well as other departments, are
history, experiences, and aspirations bound by that instrument. (Per Marshall)
• Classification & Focus Relationship with International Law
- Rigid/Flexible: based on the rules for the amendment • Article 75: makes Ghana a dualist nation.
of the Constitution. “a treaty, agreement or convention executed by or under the
- Monarchical/Republican: based on the attributes of the authority of the President shall be subject to ratification by (a)
head of state either hereditary (monarchical) or elected Act of Parliament; or (b) a resolution of Parliament supported
- Presidential/Parliamentary: focuses on the relationship by the votes of more than one-half of all the members of
between the legislature and the executive. Parliament”
- Single/Multi-Party • Article 37(3): The State shall be guided by international
- Unitary/Federal: based on the centralization or human rights instruments which recognize and apply
devolution of constitutional powers. particular categories of human rights to development
- Diarchical: where the Constitution distributes power processes
between two or more institutions NPP v. A-G: Ghana does not need to ratify all international treaties,
- Written/Unwritten agreements and conventions before they become binding so long as
- Unicameral/Bi-Cameral Ghana is a state-signatory to those instruments which are self-
K.C Wheare: “the constitution then for most countries in the world is executing.
a selection of legal rules which govern the government of that country
and which have been embodied in a document”

Sources of Constitutional Law CONSTITUTIONALISM

1. Organic law legislation: i.e. legislations which organize • It may be described as a governance system in which there
institutions and regulate the exercise of public powers are predetermined rules which places limits on the exercise
through the organs of government which the constitution of governmental power.
has established. E.g. The Courts Act, Local Government • It’s not finite, but an on-going process which requires the
Act. (income tax is excluded.) gov’t to acknowledge that it derives its authority from the
2. Judicial decisions: i.e. the interpretations of the courts. people and to submit to institutionalised mechanisms of
3. Customary Law: the part which deals with the institution of power control for the protection of the interests and liberties
state or chieftaincy is critical. of the citizenry.
4. Textbooks e.g. Dicey; Mensah Sarbah; J.B. Danquah • It makes arbitrariness unacceptable
• Forms of Limitations
- Institutional limitation: involves the sharing of power
CONSTITUTIONAL SUPREMACY between gov’t institutions. E.g. Art 78: ministers are
appointed by the executive with prior approval of
• Here the constitution defines and establishes the principal parliament.
organs of the state. It is a source of their authority and - Procedural limitation: the procedure that must be
prescribes the manner in which their functions are to be followed. E.g. Art 106
exercised.
• It is possible only where the constitution is written and - Substantive limitation: it indicates the boundaries that
rigid. institutions must not go beyond based on the powers
conferred.
• 1992 Constitution • Conditions necessary
- Article 1(2): “This Constitution shall be the supreme - an independent judiciary
law of Ghana and any other law found to be inconsistent - Guaranteed respect for human rights & natural justice
with any provision of this Constitution shall, to the - Rule of Law; separation of powers; judicial review
extent of the inconsistency, be void.” - Free & fair elections
- Article 2(1): a person alleging that any enactment, act • Re Akoto
or omission is in contravention of the constitution may
bring a case before the SC for a declaration to that effect.
THE CONSTITUTION V. EXECUTIVE ACTIONS
SEPARATION OF POWERS
• means the distribution of powers of government amongst
• Agyei Twum v AG: the president’s action of appointing a the three arms of government: the legislature, the executive
committee under Article 146(6) to look into a petition and the judiciary.
brought before him under the same Article for the removal • “Monopoly of political power is the end of political
of the then Chief Justice, George Acquah, was said to be liberty”- Montesquieu; L’Espirit des Los
unconstitutional since there was no prior establishment of a
prima facie case. Chapter 8 (The Executive)
• JH Mensah v AG: the president’s decision not to present
ministers of previous government for vetting was held to be • Art 58: The executive authority of Ghana"; which includes
unconstitutional. "execution and maintenance of the Constitution and all laws
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made under or continued in force" by the Constitution; is • Judiciary and Executive

vested in the President. - There is separation of both personnel and functions,
• The power is exercised by the President in accordance with though with regards to functions, there are
the provisions of the Constitution directly or through administrative tribunals and quasi-judicial bodies that
subordinate officers exercise some form of judicial power, eg. CHRAJ,
• Relationship between Executive and Legislature Commission of Enquiry.
- The president is assisted in his functions by a cabinet. - Judges of the Superior Courts are appointed by the
- Article 78: majority of ministers must come from MPs President.
• The President and Legislature - Article 146: Judges may also be removed on stated
- Bills are usually initiated by the executive. grounds by the President acting upon a recommendation
- Parliament by its own internal procedure considers bills of a committee
and may approve or reject a bill. After the approval of a - Art 72: The President also exercises the prerogative of
bill it requires the assent of the president to become an mercy which is the highest form of judicial decision
Act of Parliament. Article 106
- He is expected to deliver a Sessional Address at the
beginning of a session and on the dissolution of THE DOCTRINE OF THE NON-JUSTICIABLE
parliament. Article 67
POLITICAL QUESTION
• Founded, primarily on the doctrine of separation of powers
Chapter 10 (The Legislature) • Means that when under the Constitution, the determination
• Article 93: "Subject to the provisions of this Constitution, of a particular matter is exclusively committed to one
the legislative power of Ghana shall be vested in Parliament branch or branches of government i.e. the executive and the
and shall be exercised in accordance with this Constitution." legislature, the judiciary, cannot or is precluded from
• Legislative Control of the Executive interfering with the determination of that particular
- Parliament can vote to censure Ministers for misconduct question.
Article 82 • NPP v. AG (31st December Case): on whether the
- Parl. has the power to begin impeachment proceedings president could use State funds to mark the anniversary of
against the President on stated grounds in Article 69. the overthrow of a democratically elected government.
- Art 75 (treaty) ●Art 181 (loans): The Executive Held: the doctrine of non-justiciable political question was
requires Parliamentary ratification or domestication of inapplicable to the Ghana Constitution
treaties and loan agreements negotiated and entered into • GBA v AG (Abban Case): Ps sought a declaration, inter
on behalf of the country by the executive. alia, that Justice Abban "is not a person of high moral
- The Executive has the power to initiate all fiscal character and proven integrity" and as such should not be
policies, but only Parliament has power to authorize the appointed by the President as the CJ. Held that the principle
use of money and raising of taxes. Art 174 and 178 of non-justiciable political question was applicable to the
- Article 78: The president has the prerogative of Constitution, 1992. That the principle was inherent in the
nominating persons as ministers. However, nominees concept of separation of powers where certain functions
are subject to vetting and approval by parliament. were committed to a specific branch of government; that in
JH Mensah v AG such situation a political question could not evolve into a
judicial question determinable by the Supreme Court.
Chapter 11 (The Judiciary) • Tuffuor v AG: Held that the courts could not look into
- Article 125: justice emanates from the people and shall parliamentary proceedings and matters. As such Speaker
be administered in the name of the Republic by the was removed as defendant.
judiciary which is independent and subject only to this
constitution.
- The judicial power of Ghana shall be vested in the DOCTRINE OF MOOTNESS
Judiciary, accordingly, neither the President nor • Comes into play when in the course of hearing a suit or
Parliament nor any organ or agency of the President or claim, an event or changed circumstances occur which
Parliament shall have or be given final judicial power. render the continued hearing or determination of the claim
• Ghana Bar Association v AG (Abban Case): "The scope pointless or unnecessary.
and extent of the doctrine of separation of powers … under • JH Mensah v AG. Held: laying down the guiding
the Constitution, 1992 is to ensure that each arm of state in principles
the performance of its duties within the framework of the - Before refusing to decide a question on the ground that
Const. is to act independently and should not be obstructed it was moot, it must be established that subsequent
in the exercise of its legitimate duties or be duly interfered events had made it absolutely clear that the alleged
with. In other words, all arms of the State are answerable or wrong behaviour could not reasonably be expected to
responsible to the const. re-occur.
• Tuffuor v AG: SC declined to look into affairs relating to - Where it was not so established the court would go into
parliamentary proceedings and thus held that the Speaker the question to forestall multiplicity of suits.
could not be a defendant in that case. Amidu v President Kufuor. It was publicly announced by the
• Whilst the three arms of government are independent of government that 3 persons had been appointed by the President,
each other, they do not operate independently/ in isolation Kufuor, to assist him in the performance of his official duties. P sued in
without reference to each other. the SC, under Article 2 (1) for a declaration that, on a true and proper
- Art 144: president appoint judges subject to interpretation of, inter alia, Art 91(1) of the Constitution, 1992 and
section 4(1) of the Presidential Office Act, 1993 (Act 463), Kufuor,
parliamentary approval could not appoint the persons as Staff at the Office of the President
- Tsatsu Tsikata v Chief Justice & AG: filed a suit without consultation with the Council of State. Subsequently the
challenging the AG swearing affidavit on behalf of CJ. persons were appointed as ministers with parliamentary approval.
Claimed CJ should have answered personally since the
suit was in relation to the power of the SCs to sit on Held: “The subsequent approval by Parliament had unequivocally
constitutional matters. shown that the offices complained of were not those contemplated
- Amidu v President Kufuor: Although power is under Act 463, and had glaringly exposed the fallacy underlying the P’s
dispersed among the various organs of government, it action and rendered same pointless for adjudication. The P’ action is
should not be at the expense of harmony.” nothing but an exercise in futility.”
- Youngstown Sheet & Tube Co v Sawyer (Steel
Seizure Case): the constitution diffuses power to secure
liberty. It contemplates that practice of separation of RULE OF LAW
powers will integrate the disposed power into workable • It’s concerned with the values underpinning the constitution
gov’t (Per Jackson J) i.e. the pillars of the constitution in relation to the use and
• The Judiciary and the Legislature exercise of public power.
- Article 144: the judiciary is dependent on the legislature
for the approval of appointments to the superior courts Main Tenets
including the Chief Justice. i. Supremacy of the Law: The law must be supreme to
- Even though the constitution guarantees the financial everybody in the state and must regulate every action of
independence of the judiciary, Parliament controls the individuals in a state. Any action of government which is
release of moneys to the judiciary. inconsistent with the law will be null and void. [Art 1(2)]
- Article 2: The judiciary has power to declare an Act of ii. Equality before the law: There must be equal treatment to
Parliament unconstitutional. all persons by the law.
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- There is an avoidance of discrimination (i.e. treating Forms

similarly situated people differently on the basis of race, • Direct/constitutional review: challenge of constitutionality
colour, ethnicity, religion, gender etc.) or legality of legislation
[Article 17: equality of all persons] • Indirect review: interpretation of provisions in the
- Nartey v Gati: It certainly does not mean that every constitution
person within the Ghanaian jurisdiction has, or must • Ultra Vires: determining the legality of administrative
have exactly the same rights as all other persons in the actions where the actions are done in excess of
jurisdiction. Such a position is simply not practicable. power/jurisdiction.
The crucial issue is whether the differentiation in their • Intra Vires: where although the administrative body has
rights is justifiable, by reference to an object that is acted within its powers but the decisions are unreasonable
sought to be served by a particular statute, constitutional or illegal. (abuse of power)
provisions or some other rule of law
iii. Predictability of the Law: The law must be made in Grounds: [Council for Civil service Unions v Minister of
advance of the action of conduct that is sort to be regulated. State for Civil Service (GCHQ case)- Lord Diplock]
Forbids retrospective legislation.
Article 19(5): “A person shall not be charged with or held to be guilty i. Illegality: a decision maker must understand correctly
of a criminal offence which is founded on an act or omission that did the law the regulates his decision-making power and
not at the time it took place constitute an offence.” give effect to it. E.g:
- Irrelevant considerations are taken into account or
iv. Certainty of the law: The law must be easily ascertained. relevant considerations are ignored.
i.e. laws must be published after they have been passed, - Court has exceeded jurisdiction as conferred on them by
should be written with reasonable clarity to avoid unfair law (ultra vires)
enforcement and must avoid contradictions. - Error of law/ error of fact: the court will quash a decision
- Article 19 (11): No person shall be convicted of a where the authority has misunderstood the legal term or
criminal offence unless the offence is defined and the incorrectly evaluated a term in.
penalty for it is prescribed in a written law. - Use of power for improper purpose
- Article 106: a bill is not duly passed unless it is assented - Not exercising an authority in fulfilment with the
to by the president and is not duly in force unless it is requirements of law
published in the gazette. - Where a decision heavily interferes with people’s rights
• Amidu V President Kufuor: “It must be noted that our
1992 Constitution has firmly established the rule of law in ii. Irrationality/ Unreasonableness
the country. The Constitution makes it clear that everybody - Associated Picture Houses v Wednesbury Corp: where
in this country, including His Excellency, the President, is the decision is in defiance of logic or below the moral
under the Constitution and the law. This is clearly what we standards it is deemed as unreasonable
mean by the rule of law…And I have no doubt that
adherence to this policy will indeed bring about real iii. Procedural Impropriety: based on
democracy…and therefore real freedom, justice and - Statutory procedure requirements / statute
prosperity.” ▪ Duty to give notice
• Associated Provincial Picture Houses ltd v. ▪ Decision to be taken in consultation with certain
Wednesbury: Under what circumstances an action taking people.
by a public body will be held to be void: illegality, - Common law rules of natural justice/duty to be fair
irrationality and procedural impropriety.
• AB Dicey (The law of the constitution): 3 elements: Functions
- No one should suffer a penalty except for a distinct • It is an important instrument for social ordering
breach established before the ordinary courts. • Constitutions provide for change which may take the form
- Equal subjection of all classes to the ordinary laws of of total replacement or replacement of some parts
the land administered by the ordinary courts (amendment). Constitutional review allows a constitutional
- Fundamental rights & liberties of citizens emanate and system to grow without formal amendment.
depend upon ordinary laws of the land (i.e. judicial • The process gives teeth to the arrangements, the values,
decisions) and not from any special bill of rights/ other checks and balances, provided in the constitution i.e.
declarations in a written constitution. policing of the constitution.
• 1959 Delhi Declaration: Awuni v WAEC: the serious default against Art. 23 was a gross
- Individual is possessed of certain rights and freedoms injustice on the appellants and an unreasonable exercise of power.
and is entitled to the protection of same by the State. Where an authority fails to act within requirements of law, that decision
- Absolute need for independent bar and judiciary and is illegal. (The WAEC regulation said where students collude in more
effective mechanism for the protection of human rights than 1 subject, the entire results would be cancelled. The students only
colluded in maths so the council acted ultra vires their own regulation)
and freedoms.
- Establishment of socioeconomic, and cultural Anisminic v Foreign Compensation commission: as a result of the
conditions would permit men to live in dignity and fulfil Suez crisis some mining properties were seized by Egyptian authorities.
legislative aspirations. Act establishing the Foreign compensation Commission ousted the
Rule of Law Today jurisdiction of the court and made the decision of the commission final.
• Discretionary powers are inevitable but a system of legal A’s application for compensation was rejected on grounds that the
and political safeguards must be established to control the successor in title was not British.
exercise of these powers. Held: the court was not precluded from inquiring whether/not the order
of the tribunal was a nullity on the ground that it misconstrued the
- Art 31: president’s power to declare state of emergency legislation. The term successor in title was misconstrued by the tribunal
however the circumstances under which it may be as such the determination that A did not qualify to be paid
declared and actions to be taken after is also set. compensation was null.
Error by law of a public body in arriving at its decision will make
the decision ultra vires.
JUDICIAL REVIEW
• Refers to the power of the court to review the Constitutional Review
constitutionality of a statute, treaty or the administrative • Under Art. 2 & 130, the SC has the power to maintain the
decision of a public official to determine its constitutional supremacy of the constitution by reviewing Acts of
validity. parliament to determine whether they are consistent with
• (Marshall J) Madbury v Madison: “It is emphatically the the constitution.
province and duty of the Judicial Department to say what ▪ The court may be able to protect the minorities by
the law is”. using this form to police parliament
(JB Danquah esq) Re Akoto: judicial review is measuring ordinary • Where the supervisory jurisdiction of the courts are
enactments against the entrenched clauses of a written constitution to exercised. [Art 141 (for HC); Art 132 (for SC)]
determine whether/not they are in harmony. • Supervisory jurisdiction for special matters
- Constitution in a growing nation is itself a vital growing part of
the nation and requires the highest order of judicial statesmanship
to determine its true meaning. The meaning of broad and generic Ouster clauses
terms, e.g. freedom, must be concrete which deepens and grows as • Kwakye v AG: defines OC as a provision embodied in a
the political and social institutions of the country matures. document, constitution/statute which seeks to
- The ability to make sure that “effective laws have been made rests partially/totally oust/ restrain the ordinary jurisdiction of the
on the court taking it through due process where challenged. courts.

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• Types: • 1966: Most successful and binding UN Charters

i. Non-statutory: contractual documents - International Covenant on Civil & Political Rights
ii. Statutory Clause: emanates from acts of parliament eg. - International Covenant on Social, Economic & Cultural
Chieftaincy Act. Rights
iii. Constitutional: the indemnity clauses in the • African charter on Human & People’s Rights
constitution (ACHPR)- The Banjul Charter;
- Adopted 28 June 1981
• Essilfie v Tetteh: where a preclusive or exclusionary clause - Came into force 21 Oct 1986
in the rules/ regulations of an association, club or union was - It attempts to protect HRs taking into consideration the
discretionary only and left it open to a member to have African-socio-economic situation
recourse to the courts in certain circumstances and in
situations where the justice of the case so required the court History in Ghana
will deem it valid. • PNDC era gained notoriety for HR abuses including torture,
- However, where the rule/ regulation was so imperative lack of legal representation, mock executions etc.
or inflexible as to oust or completely exclude the [Amnesty International Report]
jurisdiction of the courts, it will be held to be illegitimate. Re Akoto: arrested and detained under the Preventive Detention Act.
• GBA v Ward-Brew: while the parties to a contract and PDA allowed a person to be detained without trial for a renewable
members of private associations were free to determine to period of 5 years. Application to HC for habeas corpus denied. Appeal
finality the facts governing the relationship of the parties to to SC:
Held: that the effect of Art. 20 of 1960 constitution made parliament
the contract, they could not determine to a finality to the sovereign and supreme and as such could pass the PDA even in peace
exclusion of the court, the legal rights of its members. time. The declaration by the President on the assumption of office, was
- If they did, such determination will be contrary to public similar to the Coronation Oath of the Queen of England and that such a
policy and invalid. declaration did not constitute a bill of rights, creating legal obligations
enforceable in a court of law. Article 13(1) of 1960 constitution merely
• Accra Hearts of Oak v GFA: the courts would respect the created a moral right, and not a legally enforceable right was, to say the
wished of parties in an agreement to submit to arbitration least, indefensible
where the dispute related to ordinary conditions of the
contract.
- But where there was an allegation of the breach of the
rules of natural justice, no preclusive clauses in any DOMESTIC PROVISIONS [Chapter 5 (Art. 12 - 33)]
agreement could exclude the jurisdiction of the court to • Preamble of the constitution: indicates the working values
entertain the matter. For where the principles of natural underpinning the preservation of HR, liberty, equality etc.
justice were breached, there was no forum superior to the Provides that the fundamental HR and freedoms be the
courts where redress could be sought. priority goals of the government and must be protected for
the present and for posterity.
• Lee v Showmen’s Guild (Lord Denning): people have a • Article 12(1): the fundamental HRs and freedoms as
right unless expressly or impliedly debarred to insist for the enshrined in the chapter: "shall be respected and upheld by
access to the courts of general jurisdiction of the State. If the Executive, Legislature and the Judiciary and all other
the parties should seek by agreement to take the law out of organs of government and its agencies and, …shall be
the hands of the court and put it into the hands of a private enforceable by the courts…"
tribunal without any recourse at all to the courts in case of • Art 13: right to life
error of law, then the agreement is to that extent contrary to • Art 14: protection of personal liberty
public policy. • Art 15: respect for human dignity i.e. no torture, cruel,
inhumane or degrading treatment whether or not the person
is arrested or detained.
HUMAN RIGHTS - Human dignity is inviolable
• Entitlement provided for by law of a state which the courts • Art 17: equality and freedom from discrimination.
of that state will enforce • Art 18: protection of privacy of home and other property
• Entitlements due human beings by virtue of the fact that • Art. 19: provisions for due process rights in criminal justice
they are human beings codifies natural justice rules of fair trial and innocent until
• Generally act as a counterweight to the exercise of proven guilty.
governmental powers by limiting the extent to which • Art 21: general fundamental freedoms: assembly; practice
government can interfere with the liberties of the citizen. any religion and manifest such practice; movement;
association; speech and expression
Classification/Typology • Art 23: administrative justice: administrative bodies and
officials must act fairly and reasonably and comply with the
i. The Generational Category requirements imposed on them by law.
- First generation rights: civil and political rights. Deal - Read with Article 296
essentially with liberty and participation in political life. • Article 33(5): Rights not specifically stated can be sought
e.g. freedom of expression, right to vote, freedom of to be enforced provided the right being sought contribute to
movement the dignity of mankind.
- Second generation rights: socio economic rights. They • Art 24: economic rights and rights to work under safe,
guarantee different members of the citizenry equal satisfactory and healthy conditions and receive equal pay
conditions and treatment. E.g. a right to be employed in for equal work without distinction of any kind.
just and favourable condition, rights to food, housing and • Art. 25 & 26 appear to be a replica of the International
health care. Covenant on Social, Economic and Cultural Rights
- Third generational rights: culled out of the 2nd generation. - Art 25 (educational rights): for the full realisation of
It includes Group and collective rights; right to self- the right to equal education and facilities in that basic
determination; to a healthy environment; natural education shall be free, compulsory and available to all.
resources to economic and social development Secondary education in its different forms shall be
made available and progressively free.
ii. Positive & Negative Rights: - Art 26 (cultural rights): right to enjoy, practise, profess,
- Negative rights: causes the State to refrain from doing maintain and promote any culture, language tradition
something thus protecting the individual from excesses of and religion except degrading and dehumanizing
the state. i.e. 1st generational rights cultural practices.
- Positive Rights: compel the State to take action. i.e. 2nd
and 3rd generation rights
iii. Civil & Political Rights or Socio-Economic Rights: ENFORCEMENT
- C& P: 1st generation • Under Articles 33(1), 130(1) and 140(2): a person who
- S&E: 2nd & 3rd generation alleges a breach of the fundamental HRs and freedoms as
enshrined in chapter 5 may seek redress in the HC
• Common Principles: Indivisibility; Interdependence; • Article 69: The President is liable to be removed from
Interrelated and Universal. office if he wilfully violates any provision of the
Constitution, inclusive of the provisions relating to
INTERNATIONAL PROVISIONS: •
fundamental human rights and freedoms.
Section 15(1) of the Courts Act, 1993 (Act 459), as
• Universal Declaration of Human Rights: 10th Dec 1948; amended by the Courts (Amendment) Act, 2002 (Act
UN- not binding
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620), vests HC with “jurisdiction to enforce the • Art 34: the directive Principles shall guide all citizens,
Fundamental HRs and Freedoms guaranteed by the Parliament, the President, the Judiciary, the Council of
Constitution.” State, the Cabinet, political parties and other bodies and
NPP v IGP- the freedom of assembly granted the citizen under art. 21 persons in applying or interpreting this Constitution or any
of the Cons, 1992 encompassed the right of the citizens to come other law and in taking and implementing any policy
together to petition for redress of their grievances or take part in decisions, for the establishment of a just and free society.
processions and demonstrations in support of or in opposition to a - Mandatory duty on the president to report once a year
cause, policy or event. But the consent or permit requirements under to parliament on steps taken to ensure realization of the
section 7 of NRCD 68 sought to demand leave of the Minister for the principles.
Interior for the exercise of those rights, with the necessary implication
that contrary to the provision of art 21, processions were prohibited by • Art 35 (political objectives): Ghana shall be a democratic
law unless sanctioned by the minister or anyone authorised by him thus state dedicated to the realization of freedom and justice;
vesting the constitutional right at the mercy of authorities. Since, the - Cardinal principle is that sovereignty resides in the
generality of NRCD 68 was to create a prior restraint and a clog on the people from whom the government derives its powers
rights of the citizen under article 21(1)(d) and thereby denied him those and authority through this Constitution.
freedoms to which he was entitled, it was inconsistent with the letter - The State shall promote respect for HR, culture of
and spirit of article 21(1)(d) of the Constitution, 1992 and accordingly political tolerance, eradicate corrupt practices and
unconstitutional. abuse of power as well as prohibit discrimination and
prejudice.
• Art 36 (economic objectives): state to take all necessary
RESTRICTIONS (Clawback Clauses) action to ensure that the national economy is managed in
• Clauses that impose restrictions on the enjoyment of the such a manner as to maximise the rate of economic
rights per se development and to secure maximum welfare, freedom and
• Rights can be taken away or suspended in the interest or happiness of every person in Ghana.
protecting a higher national value e.g. public order or - Equal economic opportunity to all citizens and full
morality. integration of women into main stream economic
- General reasons for claw back in constitution is in the development
interest of defence, public safety or public order, public - Government to roll out economic and social
health or the running of essential services, town and development policies within 2 years of assuming
country planning. office.
- The exercise of executive power must be done in such a • Art 37 (social objectives): protect social order founded in
way as to maintain the equilibrium between the principles enshrined in Chapter 5 including probity,
enjoyment of individual’s rights and, freedoms and the accountability and justice
preservation of law, order and welfare of the public. - State to enact appropriate laws to ensure effective
- Neither the individual’s exercise of his fundamental participation in development process and protection
rights or the exercise of executive power can be done of rights and freedoms.
limitlessly as they are both the products of the - Provision of adequate facilities for sports so as to
constitution. promote health.
• Art 38: Educational Objectives
• Article 21(4): restrictions may be imposed on the • Article 39: Cultural Objectives
movement or residence within Ghana • Article 40: Duties of citizen (may have been influenced by
- of any person; or any class of persons (citizen or not) similar provisions in the Banjul Charter)
- any person either as a result of his having been found - Respect rights, freedoms and legitimate interests of
guilty of a criminal offence under the laws of Ghana others.
- or for the purposes of ensuring that he appears before - Work conscientiously in his lawful occupation to
a court at a later date for trial for a criminal offence promote the well-being of the community within
or for proceedings relating to his extradition or lawful which the citizen lives as well as protect and
removal from Ghana; or safeguard the environment.
- that is reasonably required for the purpose of
safeguarding the people of Ghana against the
teaching or encourages disrespect for the nationhood JUSTICIABILITY OF CHAPTER 6
of Ghana, the national symbols and emblems, or • Can an action be brought against the State for failing to
incites hatred against other members of the fulfil directive principles or is it just a political question.
community except so far as that provision or , as the • Justiciability: legally enforceable by the court
case may be, the thing done under the authority of that • 3 major line of cases:
law is shown not to be reasonably justifiable in terms
of the spirit of this Constitution. 1. NPP v AG (31st December Case): based on Art 35 and 41.
• Article 20: property of any description or interest in or right - Adade JSC for the majority stated that the
over any property shall be compulsorily taken possession of constitution as a whole was a justiciable document
or acquired by the State where: and that if the framers did not intend for it to be
- It is necessary in the interest of defence, public safety, justiciable, that intention was not carried out in the
public order, public morality, public health, town and constitution.
country planning or the development or utilization of - Bamford Addo JSC: they are not justiciable.
property in such a manner as to promote the public - Case did not conclusively conclude on the matter as
benefit; and the other judges did not address the subject.
- the necessity for the acquisition is clearly stated and is
such as to provide reasonable justification for causing 2. NPP v AG (CIBA Case): issue was inter alia on Chapter
any hardship that may result to any person who has an 37 right to form their own associations.
interest in or right over the property. - Bamford Addo: The Directive principles provide
• Article 30: nothing in, or done under the authority of, an “principles of state policy” and “goals for legislative
Act of Parliament shall be held to be inconsistent with, or programs” and though not generally justiciable they
in contravention of, articles 12 to 30 of the Constitution to are enforceable rights when linked in some way with
the period when a state of emergency is in force of measures other parts of the constitution which are justiciable.
that are reasonably justifiable for the purposes of dealing - i.e. in instances where some provisions of the
with the situation that exists during that period directives form an integral part of some of the
Mensima v AG (per Bamford-Addo): the 1992 constitution makes it enforceable rights because they either qualify them or
abundantly clear that the enjoyment of the fundamental HRs and can be held to be rights in themselves.
freedoms is not absolute but subject to the rights of others…It should - E.g. in the present case. Art 37 can be said to qualify
be noted that the exercise of the rights naturally calls for the observance Art 21(1)
of duties. So that one cannot enjoy his rights if in doing so he interferes
with the rights of his fellow beings… 3. Ghana Lotto Case; current position of the law
- (Date Bah JSC)- Chapter 6 should be presumed
DIRECTIVE PRINCIPLES OF STATE POLICY justiciable unless the nature of a particular provision
(Chap 6; Art. 34-40) or its context otherwise indicates.
• Constitutes a barometer by which the people can measure
the government in the long run. It seeks to provide the core
principles around which national, political and economic
life will revolve.
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NATURAL JUSTICE - Adjei Twum v AG

• Requires that the decision maker approaches the decision-
making process with equity, fairness and equality,
reasonableness
• What is fair is determined on a case by case basis. CHIEFTAINCY
- Lord Steyln: “The rules of natural justice are not cast Chieftaincy Act,2008(Act 759)
on tablets of stone” Chapter 22 (Articles 270-277) 1992 Constitution

1. AUDI ALTERAM PARTEM (The Right to Fair Jurisdiction: exclusive jurisdiction to hear or determine a
Hearing) cause/matter affecting chieftaincy matters is vested in judicial
committees of traditional council and houses of chiefs
• A decision maker who makes a decision affecting the rights
and legitimate interests of others has an imposed i. Traditional Council: exclusive jurisdiction on
requirement that the affected person must be heard. cause/matter which arises within the area not being one to
• Biblical reference to Garden of Eden God which the Asantehene or a paramount chief is a party. [Sec.
• Components: 29(1) of CA)
- Equality of all persons before the law [Article 17] ii. Regional House of Chiefs:
- Prior notice of decision must be given - Original jurisdiction in matters relating to a paramount
- Changes to the nature of the hearing must be stool/skin or the occupant of same including
communicated to the parties in advance. queenmother. [Sec 26 of CA; Art 274(3)]
- Right to fair trial [Article 19] - Appellate jurisdiction against judgement made by a
▪ Includes right to legal representation, traditional council within its region on cause/matter
presumption of innocence, fair hearing within affecting chieftaincy [Sec 27 of CA; Art 274(3)]
reasonable time.
- Art 23: fair use of administrative power iii. National House of Chiefs
- Article 296: discretionary power shall be deemed to - Original jurisdiction in matters either within competence
imply a duty to be fair and candid. Exercise of of 2/more RHC stool/skin or not properly within
discretionary power shall not be arbitrary capricious or jurisdiction of RHC. [Sec 22 of CA; Art 273(5)]
bias and shall be in accordance with due process. - Appellate jurisdiction against determination made by
Awuni v WAEC: students of Notre Dame Sec had their SSCE results RHC [Sec 23 of CA; Art 273(1)]
cancelled by WAEC and were given a 3-year ban from writing any iv. Supreme Court: appellate jurisdiction only
WAEC exams. None of them was questions, reprimanded by any of R’s
agents either before, during or after the exams in respect of any • Article 270: guarantees the institution of chieftaincy,
allegations. together with its traditional councils as established by
Held: The phrase to “act fairly and reasonably” under Art 23 imports a customary law and usage
duty to observe the common law maxim of audi alteram partem. One - Parliament has no power to confer on any person/
can’t be said to be acting fairly if he did not give either notice or hearing authority the right to accord/withdraw recognition to or
to another who was entitled to such notice before taking a decision from a chief for any purpose
which adversely affects his rights. Or if he acted as a judge in his own • Article 275: a person convicted of a crime of high treason,
cause or biased in his decision. treason, high crime or for a crime involving the security of
the state, fraud or moral turpitude cannot be a chief.
• Article 276: chief cannot take part in active office and must
2. NEMO JUDEX IN CAUSA SUA (Rule Against resign if he seeks election to be an MP. A chief can however
Bias) be appointed to public office.
• Natural justice requires objectivity and that a decision make • Article 277: definition of chief:
be partial to the law and impartial to the parties. - Chief means a person who hailing from the appropriate
• The decision-maker cannot proceed to make the decision family and lineage, has been validly nominated, elected or
where there is an operative bias or prejudice on his part. selected and enstooled, enskinned or installed as a chief
• Test of bias or queenmother in accordance with the relevant custom
- Personal interest and usage. [Sec 57 of CA]
- Relational/ familial interest
- Pecuniary interest: where decision maker has financial Cause/matter affecting chieftaincy [S.76 of CA]
gains on the case • The nomination/election/selection/installation of a person
- Pre-conceived notions or claim of same.
- Foreknowledge of facts (except academic knowledge) • Deposition/ abdication of a chief
• Metropolitan Properties Company v Lannon: (Lord • The right of a person to take part in the
Denning): ‘The court looks at the impression which would nomination/election/selection/installation/deposition/
be given to other people. Even if he was as impartial as abdication of a chief.
could be, nevertheless if right-minded persons would think • The constitutional relations under customary law between
that, in the circumstances, there was a real likelihood of bias chiefs.
on his part, then he should not sit. And if he does sit, his • The recovery/ delivery of stool property in connection with
decision cannot stand nomination/ election/ selection/ installation/ deposition/
AG v Sallah: Apaloo JA was accused of having so close a relationship abdication of a chief
with Sallah that “it would be difficult if not impossible for him to decide
the case fairly”. Sowah JA was also accused of having interest in the
matter because one of the persons affected by Sec. 9(1) of the
Transitional provisions was married to his half-sister.
Held: the proper test was whether a real likelihood of bias existed. A
CITIZENSHIP
Citizenship Act, 2000 (Act 591)
mere allegation against a judge was not enough to disqualify him and Chapter 3 (Articles 6-10) 1992 Constitution
the maxim justice must not only be done but must manifestly be seen
to be done did not mean that all steps must be taken even to satisfy the
views of the unreasonable, for otherwise, frivolous objections would Who is a citizen?
make it impossible to do justice at all • Section 1: persons who were citizens by law before the
coming into force of the constitution remain citizens
• Exceptions to nemo judex rule • Section 3: born before 6th March 1957
i. Necessity: where insisting on the rule means the case can’t - Born in GH and one of his parents or grandparents was
be heard also born in GH
ii. Waiver - Born outside GH and one of his parents or grandparents
iii. Acquiescence: party should raise the objection at the first was also born in GH
opportunity or as soon as he becomes aware of the facts.
iv. Where a person has a statutory duty • Section 4: born on or after 6th March 1957 but before 22nd
Akufo-Addo v. Quarshie Idun: the function of the CJ was to August 1969
constitute benches of the Court of Appeal. As long as he remained in - Born in or outside GH and either of his parents and one
office and in the country, he performed that as part of his administrative of his grandparents or great grandparents was also born in
duties. The only situations in which another might be nominated to GH
perform his functions were when he was ill or absent from the - If the neither of his parents was born in GH then at least
country. Where a statute enjoined a person to perform an act, he had to one grandparent was born in GH.
do it even if its performance conflicted with the strict rules of natural
justice
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▪
(doesn’t apply if person through whom he claims has
lost his citizenship)
PROCEEDINGS AGAINST THE STATE
Proceedings against the state Act, 1998 (Act 555)
- Person born in GH and at the time of his birth either of his Article 293: Claims Against Government
parents were citizens by registration or naturalization.
- Person born outside GH and at the time of his birth both • Article 88: The Attorney General is the person responsible
of his parents were citizens by registration or for instituting, conducting and defending all non-criminal
naturalization. actions against the state. [Sect 9 of Act 555]
• Section 5: persons born under 1969 constitution • Sect 1: Civil claims can be brought against the State as a
(i.e. on or after 22nd Aug 1969 but before 24th Sept 1979) matter or right.
- Born in or outside GH and at the time of his birth either - i.e. they can be enforced without grant of fiat or petition
of his parents was a citizen of GH of right to the State before an action is brought.
• Section 6: persons born under 1979 constitution - Abolishes the “Fiat Justicia” i.e. Let Justice be Done
(i.e. on or after 24th Sept 1979 but before 7th Jan 1993)
-
Born in GH and at the time of his birth either of his parents • Sect 2: for purposes of contract, the State is deemed a
or one grandparent was a citizen of GH private person with full age and capacity for:
- Born outside GH and at the time of his birth either of his - Express/ Implied Contract
parents was a citizen of GH - Recovery of taxes paid or overpaid
- Liquidated and unliquidated claims
• Section 7: persons born under 1992 constitution
(i.e. on or after 24th Sept 1979 but before 7th Jan 1993)
- Born in or outside GH and at the time of his birth either • Sect 3: in relation to torts, the State as tortfeasor is deemed
of his parents or one of his grandparents was a citizen of a private person with full age and capacity.
GH • The State can be:
- made liable for the conduct of his employees and agents
• Section 8: Foundlings- child not more than 7 years found provided the act which is the subject of the claim must
in Gh whose parents are not known is presumed to be a have been done whiles the person is acting within the
citizen by birth [Art 6] scope of an agent or employee of the State’s employment.
- held for breaches of his employer’s duty.
• Section 9: Adopted children: child not more than 16 years - Sued in respect of occupier’s liability, ownership and
adopted by a citizen shall be citizen by virtue of adoption. premises issues.
[Art 6] • No action in torts can lie against the State; an employee or
servant of the State unless it is proved that the action is
• Section 10: citizenship by registration i.e. marriage maintainable against a private individual.
- To register as Ghanaian citizen a person must be of good - i.e. The State is liable in same way in statutory duties as
character and be able to speak and understand at least one private individuals.
indigenous language of Ghana. [Art 7]
• Section 13: naturalisation- resident for aggregate of 5 • Section 4 (Non-Liability of State): The State is not liable
years in a period of 7 years and resident in GH the last 12 for any neglect of person discharging responsibilities of a
months. judicial nature.
Bilson v Rawlings: B instituted an action claiming inter alia a • A public officer: a person
declaration that R was not a citizen of Gh by birth and that he was unfit - Appointed by the State at the material time
and unqualified to be president as he had dual citizenship. - Was paid with respect of his duty from public funds or
Held: The law was that he who alleged had to prove. Since R had failed monies voted by parliament.
to give particulars in his pleadings as to how R acquired his citizenship - Certified by the public service commission that he is an
of UK. As such the assertion was speculative and would be dismissed employee.
• Section 5: Where the state is subject to liability by virtue of
NOTES this Act, the law relating to indemnity and contribution shall
• A person who brings an action under Art. 2 need not have a be enforceable –
personal interest in the matter. [Sam No 2; Tuffuor v AG] - Against the state by an employee of the State who is acting
• A person need not be a citizen to bring an action under in the proper execution of his duties in respect of the
Chapter 5 but must have a personal interest in the case. liability to which the person is subject; or
[Adjei Ampofo] - By the state against any person other than an employee of
• The police may arrest and detain a person for 48 hours the State, in respect of the liability to which it is subject,
without bringing a charge upon reasonable suspicion. as if the State were a private person of full age and
• Compensation after acquittal is not automatic but based on capacity.
the facts. • Section 6: State carries same responsibility in infringement
• Order of precedence in the country [Art. 57] of intellectual property as a private individual.
i. President • Section 7 (Provisions Relating To The Armed Forces): The
ii. Vice President state carries no liability to a person for things which happen
iii. Speaker in military establishments, military aircrafts, vehicles, etc.
iv. Chief Justice - State provides itself with immunity because an action
• Performance of presidential functions [Art. 60] cannot be brought by a member of Armed Forces.
i. President ▪ There is a fund available to the Minister to make ex
ii. Vice President gratia payments to servicemen for acts done against
iii. Speaker them is the Minister certifies that it happened while
• Presidential candidate must nominate a Vice President. the serviceman was on duty.
[Art 63] - Example: If you are at Burma camp and you are slapped
• Salaries if certain office holders i.e. CJ, speaker, must be by a soldier, you cannot sue the Republic.
done by recommendation by committee if president acting • Section 10: A person who intends to bring an action against
on advice of the council of state. [Art 71] the state or his agent, must bring written notice to the AG at
• Prerogative of mercy is exercised by the president in least 30 days before commencement of action.
consultation with the council of State [Art 72] • Section 20: the requirement of a notice does not apply in a
• The Vice President; Minister or Deputy Minister who is not decision to invoke original jurisdiction of Supreme Court.
an MP can participate in parliamentary proceedings and be • Section 13: In any civil proceedings by or against the State,
accorded all the privileges of an MP but can’t vote. [Art the court shall, has power to make such orders as it has
111] power to make in proceedings between private persons and
• On jurisdiction may give such relief as the case may require.
- For lower courts to have jurisdiction over a subject • Art 293: The state may be plead Act of State as defence.
matter it must be expressly given. - The effect is to oust the jurisdiction of our courts with
- For the Superior court it can be implied where it is not regards to that particular matter.
expressly taken away - Act of State refers to acts carried out by state in its foreign
affairs, and it is geographical in scope. It refers to actions
that takes place in territories outside the Republic.

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PREROGATIVE REMEDIES • Court of Appeal has appellate jurisdiction

- Zakaria v Nyimakan: The Highest court a
• Strictly public law remedies
• Available in 2 main circumstances parliamentary dispute can travel to is the CA.
(Implying that the SC has no appellate jurisdiction
i. The original Human rights jurisdiction of the High Court in parliamentary elections)
[Article 33] 2. Presidential Elections [Art 64]
- HC shall issue directions, orders, or writs in the nature if • Only a citizen can challenge the validity of presidential
habeas corpus, mandamus, certiorari, quo warranto as it election.
may deem appropriate for the purpose of enforcing or
securing any provision of the fundamental HR for which • Challenge must be brought within 21 days
the person is entitled to. • Procedure is by petition
2012 Election Petition case: SC held that the proper respondents are
ii. In the exercise of the supervisory jurisdiction of the HC or the president and the EC. The person who should bring the petition is
SC to regulate, oversee and supervise lower courts and lower the candidate who lost. E.g. Nana Addo Dankwa v John Dramani Mahama v EC
adjudicating bodies in the performance of their duties.
- Art 141: The HC shall have supervisory jurisdiction over
lower courts and lower adjudicating bodies and in the Jurisdiction of various courts (elections)
exercise of that jurisdiction issue order and directions for the 1. Supreme Court
purpose of enforcing or securing the enforcement of its - Appellate jurisdiction in criminal offences
supervisory powers. - Original jurisdiction in presidential petition
- Art 132: The SC shall have supervisory jurisdiction over
lower courts and lower adjudicating bodies and in the 2. Court of Appeal
exercise of that jurisdiction issue order and directions for the - Appellate Jurisdiction for parliamentary electoral disputes
purpose of enforcing or securing the enforcement of its - Appellate Jurisdiction for Criminal offences
supervisory powers.
3. High Court
See remedies under Equity for full notes on the various writs. - Original Jurisdiction for parliamentary electoral disputes
- Criminal jurisdiction in electoral offences
4. Regional Tribunal
RESOLUTION OF ELECTORAL DISPUTES - Criminal jurisdiction in electoral offences
• Electoral disputes arise form the exercise of civil rights to 5. Circuit Court
vote by citizenry. - Criminal jurisdiction in electoral offences
• Definitions
- Enfranchisement: to be given the right to vote or be voted 6. Family Tribunal; None
for
- Disenfranchisement: withdrawal of right to vote or be 7. District Court
voted for. - Criminal jurisdiction in electoral offences
- Plebiscite: fits for a question which relates to a particular
geographical area e.g. Transvolta Togoland 8. District Court
- Referendum: fits for a question which relates to a whole - Criminal jurisdiction in electoral offences
country.
• Article 42: allows universal adult suffrage for all
Ghanaians in public elections and referendum.
- Eligibility to vote [Abu Ramadan No I v EC]
▪ citizen,
▪ 18 years and above,
▪ Of sound mind
▪ Must be a registered voter
- A person is entitled to be registered as part of the right to
vote. [Tein-Addi v EC]

Constitutional Interpretation in Election Dispute

• Republic v Maikankan: The court took the view that the
justice of the HC had some amount if power not to refer the
case.
- Plain Meaning Approach: in the case where the provision
is clear or where there are no competing meanings, the
judge is not bound to refer.
• Ex Parte Zanetor: SC held that the earlier cases were on
the plain meaning approach however purposive
interpretation had to e used.
- There is no room for any judge to say that a matter is plain.
The judge could therefore not elect to say constitutional
issue raised was unambiguous because purporting to say
what is plain is in itself interpretative.
- HC is bound to stay proceedings and refer interpretative
questions raised to the SC for decision.
▪ The issue is then brought back to HC for
determination using the SC interpretative decision.

JURISDICTION
1. Parliamentary Elections [Art 99]
• HC is the proper forum for election disputes relating to
parliamentary elections.
• Procedure is by petition
• Ex Parte Asare: what must be shown prior to
presentation of a petition: That
- There were parliamentary elections
- Results have been declared
- Results are published in the gazette
- The petition was presented within 21 days after
publication of the results in the gazette.
P. Vitoh: Constitutional Law Summary