Art 130 subject to HC jurisdiction in enforcement of fundamental HR in Art 33 SC original jurisdiction in constitution interpretation (2) the referencing, effect that where arises in any other court, stay proceedings and question of law concerned referred to SC, and outcome binding on said court, per R v Maikankan HC refer to SC for interpretation on Art 20(2) and 112(2), held that in combination with Act 30 HC must try with jury in life and death sentences except treason, Edmund Bannerman CJ if in opinion of lower court the answer to submission is clear and unambiguous on face of provisions no reference need be made since no question of interpretation arises and person who disagrees has normal remedy by way of appeal, interpreting Art 106(2) in any other way may encourage frivolous references to the SC to stultify proceedings.
Yiadom I v Amaniampong where issue sought to be resolved is clear and not resolvable by interpretation, we will firmly resist any invitation to construe constitutional provisions per Archer CJ.
Professor Friedman ordinary rules of construction are generally inapplicable in construing a constitution, being a political document, be interpreted flexibly and the general terms used in it must be understood in the light of the changing social and political development.”.
Fundamental concepts which underlie most written constitutions are: the doctrines of the supremacy of the constitution, of separation of powers, of non-justiciable political question, etc. Respect for democratic values including rule of law, justice, human rights etc.
Ascertaining intention: Francois JSC in Kuenyehia v Archer we must be careful to avoid importing into the written constitution what doesn’t appear therein, for there couldn’t be difficulty if an extension was intended as a desired result, rules of construction doesn’t permit a clear passage to be complicated by any info by interpretation
Look for past intention of maker and present values or future consequences of decision per Aaron Barrack it is a living tree as being capable of growth as per Preamble and Memorandum of Act 792 not ordinary law of the land, embodies soul of the people, instrument of rights and limitations and not a catalogue of powers per Brown v Board of Legal Education in segregating blacks and whites in schools is now unconstitutional, in constitutional interpretation time, circumstances and need to keep pace with advancement in social conditions be taken into consideration.
S 1 of Act 792 subjects the interpretation of the constitution to it, argued by Dennis and Maxwell that they are not binding as detract from its supremacy to all inferior laws. Art 34(1) enjoins judge to guide themselves with Chp5 Directive Principles of State Policy in interpreting constitution or any law, per Clause 21 of Bill Art 297 of constitution lays principles for interpretation of all laws.
Acquah JA in Rep v Regional Lands Officer Ho; ex parte Kludze language of Art 38(6) is so clear and unambiguous that it would be outrageous to read into it what isn’t stated therein, Agyei-Twum v AG & Akwetei SC implied the word ‘prima facie’ into Art 146(6) to make it reasonable, Rep v HC, Accra; ex parte CHRAJ (Anane) Aninakwah used dictionary meaning for the word ‘complaint’, a constitutional provision about power must be strictly construed and not to be construed in favour of power in the case of doubt. Rep v Yebbi & Avalifo not always that constitutional provision be construed benevolently or liberally as a gen rule.
Memorandum of Act 792 judges to construe constitution in manner that promotes ROL and value of good governance, advances HR and freedoms, promotes creative development and avoid technicalities which defeats purpose per S 10(4).
It is a document on its own
Interpreted differently from all other statutes as it allows for a lot of flexibility as per Adade in Kuenyehia v Archer. Interpretation Act merely persuasive not binding thereon. Interpretation of any statute or document shouldn’t contradict it.
No specified rules adopted in its construction and as political document per 31st December case, must be understood in the light of changing political and social circumstances as per the history and aspirations of the people. Interpretation borders on the protection of the individual’s interest as against that of the state and vice versa.
Key concepts in interpretation are supremacy, separation of powers, history, rule of law, human rights, justice and democratic values as per Articles 1(2), 2(1) and the Preamble. Mensima v AG per Acquah JSC, Article 1(2) contains an inbuilt repealing mechanism of all provisions which are inconsistent with the constitution and need not necessarily need parliamentary repeal before recognized as such.
As a living Organism
Not ordinary Act, it’s language is capable of growth and development, embodies people’s will and mirrors history, landmark for search for progress, aspirations and hopes, has its letter and spirit, source of power, determines governance by organs upon creating them, broad and liberal or benevolent but not narrow approach preferred for its interpretation to bring it in conformity with needs of time, no doctrinaire approach, per Sowah in Tuffour v AG. Acheampong v AG, literal meaning is always flawed in its interpretation as it regards only the plain meaning as against the purpose.
Its Letter and Spirit
In determining the intent of the constituent assembly or constitution, the words and intention in consonance with spirit, per Sallah v AG. NMC v AG, per Acquah JSC, constitutional powers, duties, rights, obligations to be exercised and enforced in accordance with not only letter but spirit also.31st December case, per Francois JSC, its letter are the words and spirit is its lifeblood both of which leverage interpretation task, but per Archer JSC, relying on the spirit which is used in foreign countries per their circumstances isn’t reliable as may lead to Kantian obfuscation, nothing like spirit, only letter.
Rep v HC, Ex Parte Daniels, only letter no spirit, because it is a written document. Not to legislate to usurp powers of legislature. Not to alter or amend or repeal just because we dislike or disagree with it. Basic principle to be respected is judge not to substitute wisdom for collective parliamentary wisdom. Memorandum to Interpretation Act accepts of constitution being both written and unwritten, spirit if given prominence will avoid amendments.
Context: Per Tuffour v AG in construing the word shall be deemed, be given its natural meaning in regards to its context, thus deemed used in other parts of the 1979 constitution, to mean a thing said to be something else when in fact it was not, per Kwakye v AG judicial action taken or purported to have been taken given literal ordinary dictionary meaning, an action which wasn’t a judicial action properly so called but looked like or was intended to be or had appearance of judicial action
Separation of Powers of organs
Independent, but no breach for supervisory powers. Where president is unable to perform functions (include death, absence, mental or physical illness), then vice, then speaker, then CJ. Where death, elections conducted within 3 months by speaker, per Asare v AG, Articles 60(8), (11), (13) of constitution.
As a Legal and Political Document
Directive Principles of State Policy
Guides everybody, organs, government, on the interpretation of the constitution and supplements human rights under chapter 6 of constitution. 31st December case, all parts of constitution are justiciable and DPSP are same else it would have been stated so. But in NPP v AG (CIBA case), the DPSP were not legally enforceable but merely provided goals for the organs and to aid interpretation by judiciary.
Finally, GH Lotto Operators Association v National Lotto Authority, there is presumption of justiciability of the whole of DPSP, until such is rebutted in respect of specific provisions which don’t lend themselves to enforcement, it doesn’t merely serve as aids to interpretation but also legally enforceable on the executive, thus every successive government, especially the economic objectives. The CIBA case court should have satisfied itself that the non-justiciability attempt by the committee of experts was rejected by the constituent assembly upon drafting, political question doctrine
Human Rights Construction and enforcement
Political Question Doctrine
JH Mensah v AG what happens in parliament cannot be questioned in court, their proceedings and debates are closed book