WHAT IS CONSTITUTIONALISM?
Constitutionalism is the appreciation of the constitution. The concept is also described as constitutional rule; constitutional government etc. Constitutional government means more according to the terms of the constitution. That is they are not the same according to the provisions of the constitution.
It is also pointed out that constitutional democracy is not the same as democracy as Wheare states. To him if democracy means no more than universal suffrage or equality of conditions then it does not follow constitutional government. It is only when democracy means liberty as well as equality that it can be expected as constitutional government. If democratic government is to be constitutional government it must preserve liberty.
Constitutionalism means government according to predetermined rules. These rules should not only be predetermined but they should also restrain or limit governmental powers.
Before government takes any decision, there should be rules and these rules must be crafted to put breaks on government actions.
These may take several forms:
1. Institutional breaks/ Limitations-Art.78(1) : These are limitations that are placed on the exercise of an institution’s powers or by one institution serving as a limitation on yet another institution’s power. This manifests itself through the principles of separation of powers and checks and balances. A perfect example is that under Article 2(a) and (b) of the 1992 Constitution, the Judiciary is vested with the power of Judicial Review and with this power , the Judiciary can declare null and void any action by the Executive or the Legislature which is found to be inconsistent with any provision of the Constitution.
Another example is that Parliament is given power to vet and approve ministerial appointees made by the President and this serves as a check on the powers of the Executive.-Article 78. The Executive President , likewise, has the power of veto, and with this, bills made by Parliament must be signed by the President before they can become law. This also serves as one check on Parliament.
On the institution of chieftaincy also, jurisdiction in chieftaincy cause or matters are dealt with by the various houses of chiefs and the SC. The High Court has no such jurisdiction as Hayfron Benjamin J as he then was purported to hold in Ex Parte Adu Gyamfi.
2. Procedural breaks– art 106(1)- the power of parliament to make laws shall be exercised by bills passed by parliament and assented to by the president, 106(3)-a bill affecting the institution of chieftaincy shall not be introduced in parliament without prior reference to the National House of Chiefs.-Ware v Ofori Atta
The constitution also lays down the various procedures the president and other appointing authorities must go through before appointments of certain public officers are made. For example, the president can only appoint someone as minister only when the person has had a prior approval of parliament. This manifested itself in the case of J.H. Mensah v Attorney General whereby by a unanimous decision, the Supreme Court held that for any minister to be appointed, whether new or retained, he or she must necessarily go through parliamentary vetting approval.
3. Substantive limitations: These are real or actual limitations that are placed on the exercise of legal powers by substantive laws of the state. They are normally in the form of prohibitions but could also be couched in the form of mandatory injunctions. Under Articles 3(1)-parliament shall have no power to enact a law establishing a one party state.,92(2),58(1)-the executive authority shall vest in the president and shall be exercised in accordance with the provisions of this constitution.,78(2)-the president shall appoint such number of ministers of state as may be necessary for the efficient running of the state. Article 1(2) also enacts that “the constitution shall be the supreme law of Ghana and any other law that is found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency be void”. Article 1(2) is a clear example of a substantive limitation and with this provision , not even the law making body, Parliament, can make laws which are inconsistent with the constitution and will stand.
NPP v AG (1993-94) 2 GLR 35 highlights on this. The facts are that , on 31 December 1981, the Government of Ghana, duly elected under the Constitution , 1979 was overthrown in a coup d’ etat. Subsequently, the military regime which took over the reins of government, the Provisional National Defence Council, declared 31 December a statutory public holiday. Accordingly, each year the anniversary of the coup was celebrated, inter alia, by personnel of the security forces with military parades, route marches and carnivals throughout the country. These activities were financed with public funds. On 7 January 1993 the reign of the PNDC came to an end with the assumption of power by a civilian government which had been elected into office under the Constitution, 1992. When on 19 December 1993 the government announced that 31 December 1993 would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the registered political parties in the country, claiming that the celebration would be unconstitutional, brought an action under Article 2(1) of the Constitution 1992 against the Attorney-General for a declaration that the public celebration of the coup d’ etat of 31 December out of public funds was inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 particularly Articles 3(3) –(7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the celebration and refrain from carrying out the celebration with public funds.
In giving judgment for the plaintiff, Aikins JSC , in his concurring opinion held: Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a “one-party state, or make a party leader President for life or crown him emperor. As the fundamental or basic law the Constitution, 1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.
He said further; In my view, even though Parliament has the right to legislate, this right is not without a limit, and the right to enact a law that 4 June and 31 December should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation must be within the parameters of the power conferred on the legislature, and under Article 1(2) of the Constitution, 1992 any law found to be inconsistent with any provision of the Constitution shall to the extent of such inconsistency, be void. This constitutional criterion is what is used to test the validity or otherwise of all statutes or laws, and it is against this criterion that PNDCL 220 must be tested.
According to Marshall writing the limits of the constitution will tell us what the limits are and if they are exceeded it will easily be detected.
OTHER AUTHORITIES
WARE V OFORI ATTA : The plaintiff was the Gyasihene of Ejisu. The order which gave rise to this action was made by the Minister of Local Government under Ejisu Stool Property Order made under Statute Law, Act 1957. The plaintiff averred that the Act was passed contrary to the Ghana Constitutional Order-in-Council which laid down procedures before a bill could be declared to have been passed by Speaker of the House of Assembly. The Order-in-Council provided that where the bill affected the traditional functions or privileges of a chief , the Speaker was required to refer it to the House of Chiefs of the Region before the second reading of the bill could be moved in the House of Assembly at least three months after. This was not followed and the Governor gave his royal assent to it. Eight months later, the minister of Local government authorized another to take possession of the stool property pertaining to Ejisu stool. The plaintiff claimed that the Statute Law ( Amendment) (No. 2) Act 1957 was invalid as it contravened the Order in Council. HOLDING : The court per Murphy J held that the act directly affects the traditional functions of a Chief and that the procedure laid down in section 35 of the Constitutional Order in Council mandating it to be referred to the house of chief ought to have been followed. Since the procedure was not followed, the Act was invalid and it follows therefore that the Order which was made by the Minister under the Act is also invalid. See Article 106(3) of the 1992 Constitution “A bill affecting the institution of chieftaincy shall not be introduced in Parliament without prior reference to the National House of Chiefs.”
Shalabi v A-G: The plaintiffs were Lebanese born in the Gold Coast and hence British subjects. They obtained Ghanaian passports in 1968 by virtue of the Ghana Nationality Decree, 1967 (NLCD 191) when they renounced their British nationality. In 1970, the Ghanaian Business (Promotion Act, 1970 (Act 334) was passed which sought to restrict the participation of foreigners in certain sectors of the economy. The plaintiff therefore sought to confirm their Ghanaian citizenship in the light of NLCD 333. The Attorney General argued inter alia that the NLC, being the sovereign body of the land could do whatever it liked including depriving persons of their citizenship, and that by NLCD 333, paragraph 1 of NLCD 191 had been obliterated by retrospective substitution and consequently every person who acquired citizenship under NLCD 191 ought to be deemed never to have acquired such citizenship.
Issues :
• Whether NLC as a sovereign body could legislate to take citizenship away from persons who had acquired citizenship under a different statute
• Whether NLCD 333 could obliterate NLCD 191 by retrospective substitution
HELD:
• The NLC as a constitutional interim government has as its object according to the Proclamation to uphold the suspended constitution, excepting for as it had to derogate from it under the doctrine of necessity, thus re-establishing the rule of law and other democratic principles
• By the declaration, 1966, the NLC was established to provide for the “proper administration of the country” and this did not include depriving Ghanaians of their basic right of citizenship.
• Citizenship once conferred can be lost through processes specifically stated instrument conferring that citizenship and not by ambiguity.
• It was impossible for NLCD 191 to have been amended by NLCD 333 unless NLCD 191 was in existence before NLCD 333. That no one can substitute one thing for a thing which has never existed. The plaintiffs therefore acquired citizenship under NLCD 191 and NLCD 333 did not specifically divest those who had so acquired citizenship of their rights. By Article 5 and 6 of the 1969 Constitution, the plaintiff remained Ghanaian citizens, and the new definition of citizen in the Ghana Nationality Act, 1971 (Act 361) is void and of no effect in so far as it seeks to restrict citizenship within narrower limits than those prescribed in the Constitution.
Per Hayfron Benjamin JA(As he then was) “ I am of the view that the doctrine of legislative omnipotence is a logical abstraction and ought not be applied to practical issues. I hold that the National Liberation Council was an interim government for the re-establishment of the rule of law and other principles necessary for the proper functioning of democracy. It could therefore not purport to deprive citizens of their right of citizenry. The backdating of NLCD 333 to take effect on the same day as NLCD 191 did not have the effect of depriving those who had acquired citizenship under NLCD 191 of that citizenship. Rights of citizenship are not to be deprived by ambiguity or inference. NLCD 333 should as such have been explicit because citizenship once conferred , can only be lost by processes specifically stated.”
NPP V IGP : The plaintiffs sought a declaration that sections 7,8, 12(c) and 13 of the Public Order Decree, 1972 (NRCD 68) were unconstitutional. These sections of NRCD 68 required a prior police permit before holding any public meeting and it was an offence to hold such meetings without police permission. In the face of this, the plaintiff contended that the sections in question were inconsistent with the constitutionality guaranteed right of assembly and demonstration. According to the plaintiff, these Sections invested an unfettered discretion in the police that the Constitution does not contemplate. To accept them as law would render the freedom of assembly illusory. The defendant countered that the said provisions were a reasonable limitation on the right of assembly as envisaged by Article 21(4) of the 1992 Constitution. HELD: The Supreme Court, composed of seven justices reached the unanimous conclusion that sections 7, 8, 12 and 13 of the Public Order Decree were in contravention of Article 21(1)(d) of the 1992 Constitution and were therefore unenforceable. It was the expressed view of the Court that, having regard to the spirit of the Constitution, which could be gleaned from the Directive Principles of State Policy, especially the political objectives, and, taking cognizance also of the emerging trend on the international scene, one would frown at any suggestion that a permit is required to assemble, go on procession or demonstration.
Justice Aikins echoed as follows “Any law that extends to give authority to any person or persons to prohibit or grant a permit to other persons to take part in procession and demonstrations curtails the freedom of such persons and cannot be said to be justifiable in terms of the spirit of the Constitution, 1992”. Justice Hayfron-Benjamin also observed that “an unfettered discretion is to place those who assert their constitutional right so f assembly, procession and the demonstration at the mercy of the police.” Relying further on the framers intent, Justice Hayfron-Benjamin held tht the Constitution was “intended that the citizens of this country should enjoy the fullest measure of responsible Human and Civil Rights. Therefore any law which seeks to abridge these Rights and Freedoms must be struck down as unconstitutional. The requirement of a permit or licence is one of such abridgment of the constitutional right.”
Fattal and Another v Minister for Internal Affairs and Another, the two plaintiffs, Lebanese by birth, acquired Ghanaian citizenship by naturalization under the then Ghana Nationality Act of 1971, Act 361 in 1973 and 1976. In August 1978 the Supreme Military Council (SMC) passed the Ghana Nationality (Amendment) Decree, SMCD 172, which revoked the acquired citizenship of the plaintiffs. Deportation orders were then issued for the two by the Minister for Internal Affairs. In 1980 the plaintiffs invoked the original jurisdiction of the Supreme Court under the 1969 constitution (article 2 (1), seeking inter alia that SMCD 172 purporting to revoke their citizenship without a court order was ultra vires the powers of the SMC as being contrary to the National Redemption Council (Establishment) proclamation and the 1979 constitution and its continued operation was inconsistent with or in contravention of chapters 5, 9 and 12.
The court in a majority decision dismissed the action and held inter alia that since 1966, military governments in Ghana had always reserved to themselves the legislative power to either enhance or curtail the judicial power vested in the courts. In the absence of a written constitution that delimited the powers of the various organs of state, a military government was at liberty to do what it likes by Decree which had the force of law. In the absence of constraint, restrictions or limitations on the legislative power, the laws enacted by the legislature, should be enforced by the courts. The NRC by its Proclamation 1972, made the judicial power guaranteed by the 1969 constitution, and indeed all other existing enactments subject to Decrees passed by the council. The Court further stated that although SMCD 172 might appear unjust, unreasonable and even autocratic, yet it was not within the province of the Supreme Court to strike it down merely because it was an unjust or unreasonable law. The days when courts of law could embark on such an exercise were over. When SMCD 172 was enacted, there was no constitution holding the legislative power in leash and no court could have declared SMCD172 invalid, null and void. The Supreme Court could nullify an existing law only if at the time it was passed it was invalid or its continued existence conflicted with the constitution. The court was supreme only within the bounds of the constitution. The court has not within its environment nuances of supremacy, sovereignty or omnipotence. It could not redress injustices perpetrated by military regimes in the past under Decrees regularly enacted by them.
ARTICLE : KUMADO- CONSTITUTIONALISM, CIVIL LIBERTIES AND DEVELOPMENT: A CASE STUDY OF GHANA SINCE INDEPENDENCE [UGLJ]
“A constant state of confusion is the relationship of constitutionalism with democracy. Prof. Nwabueze ‘’ A government is a democracy if it is popularly based , rests on the consent of the governed, which consent is given in universally free elections, and which provides a mechanism for the governed to change the governors in the event of dissatisfaction with their performance’’
Care has to be taken not to confuse a popularly elected and responsible government with a constitutional one.
A constitutional government in modern times may be democratic but a democratic government may not necessarily be constitutional. The democratic institutions such as elections, parties etc. are only for constitutionalizing a government.
Constitutionalism does not merely require the existence of a constitution. A country then, it must be understood can have a constitution without constitutionalism, particularly in situations where the constitution is only an enabling act which sanctions government fiat.
Constitutionalism may be roughly defined as the art of providing a system of effective restrains on the exercise of governmental power.
Government is necessary for the effective running of ordered society. There is however arbitrariness inherent in the power of government. Constitutionalism therefore recognizes the necessity for government while seeking to curb this arbitrariness.
Carl Friedrich puts ‘’ … it embodies the simple proposition that the government is a set of activities organized by and operated on behalf of the people , but subject to a series of restraints which attempt to ensure that the power which is needed for such government is not abused by those who are called upon to do the governing.
It involves the idea that government must be carried out according to pre-determined rules .
which at the same time restrain governmental activity. This idea of restraints developed from medieval notions of natural law superior to any human laws and the Christian doctrine of personality which by emphasizing the worth of the individual opposed any despotic exercise of political authority.
Though federal governments are considered best at entrenching the restraint principle central to the idea of constitutionalism, it does not matter whether the government is unitary or federal. How then do we make these restraints effective?
It is in relation to this that the existence of written constitution is pertinent to the concept of constitutionalism.
Ever since the lead given by france and the united states in the eighteenth century, the view has become firmly established that the restraints on the exercise of government power could be effective embodied in a supreme written document, preferably enforceable, by parties before a judiciary which is independent of the other organs of government.
In Marbury v. Madison , chief Justice Marshal of the J.S supreme Court pointed out that ‘’ the limitations placed on government are known and, therefore , excursions outside these limits can be more easily checked
It is not solely asserted that the judiciary alone sees to the ‘’policing ‘’ of the constitution or simply by hoping that the organs of government will restrain themselves and keep within their boundaries of constitutional powers. Some countries rely both on the judiciary and the legislative where as others leave everything to the legislators.
An appraisal of constitutionalism in a country, either one written document called the constitution will be sadly deficient if it only focused on the constitutional document. there must also exist in the ethos of the particular society belief in the idea the power of government ought to be restrained.”…
“The key concern of constitutionalism is the division of governmental power in such a way that there is an effective restrain on the arbitrariness inherent in power so that the individual society will be the beneficiary. Such a system of restrain may be embodied partly in a written document and partly left to be enforced by tradition. It is important that these restrain be legal and the government restrain be under law and the restraints be enforced under an independent body of arbiters in the event of a claim by an individual of their violation.
Separation of powers, rule of law and judicial review just but a few are all encompassed in constitutionalism.”