Introduction of British rule:
Gold Coast was politically part of Sierra Leone and was therefore ruled by its governor until 3rd July, 1821 when the West African Act was passed to annex the GC to existing Crown dependencies where the forts and possessions were vested in the crown and the Company of Merchants dissolved. Although GC was initially ruled by a Committee of Merchants, on 17th October 1821 Letters if Patent were issued annexing forts and any possessions of the Crown to Sierra Leone. From Sierra Leone came Sir Charles McCarthy, the first governor of GC but was killed in the battle of Nsamankow in 1831, (21st January, 1824 was the battle of Nsamankow and in 7th August, 1826 was the battle of Dodowa which defeated the Asantes leading to the signing if a peace treaty in 1831 and transfer of forts back to a Committee of Merchants. In 1829/30 Captain George Maclean was appointed president of the Council of Merchants leading to the irregular extension of British jurisdiction under our Legal System after which GC was returned to the Merchants in 1843. British rule was formalized in the GC through the passage of two Acts of 1843; British Settlement Act of 1843: Enabling orders in council to be made for establishment of laws, institutions and ordinances for peace, order and good governance.
Foreign Jurisdiction Act of 1843: Authorizing the exercise of political powers acquired by agreement or usage of territories which had not become part of British dominion. Lt. Governor H.W. Hull reached an agreement with the Fanti Confederation on March 6, 1844, thus the bond of 1844. This bond acknowledged the power which had been de facto exercised in their territories adjacent to the British forts and settlements, and agreed that human sacrifice, kidnapping of hostages of debt and other barbarous customs are abominations and contrary to law and that serious crimes shall be tried by the British officials sitting with the chiefs in order to mould the customs of the country to the general principles of British Law. Then 3rd September, 1844 Order in Council extended the British jurisdiction. The Royal Charter of 24th January, 1850 Constitution was significant for the seizure of the GC forts and settlements to be dependent on Sierra Leone (Thus, separating GC form Sierra Leone) and GC given its own governor assisted by a Legislature Council (Governor with other two persons to make laws only proposed by governor, institutions and ordinances) and Executive Council (Governor, a Judicial Assessor and Collector of Customs to discuss matters only proposed by governor in administering forts and settlements, grant lands, pardons and punishments) Also, the Danish king ceded his forts, houses and plantation to the British Crown for a fee. In 1853 there was creation of the Supreme Court Ordinance establishing a Supreme Court with civil and criminal jurisdiction within the forts and settlements, and in 4th April, 1856 an Order in Council giving the SC the same jurisdiction outside the forts. On 19th February, 1866 there was the revocation of the GC Charter of 1850 and placement of GC once again under Sierra Leone and abolition of the SC and its replacement by ‘the Court of Civil and Criminal Justice’ presided over by the chief magistrate.
Creation of GC Colony: This was done in 1874 (On 24th July 1874 the applicable UK law was the only law applicable in GC, creating GC once again inclusive of Lagos and separated from Sierra Leone, thus revoking the Commission of 1866) in the Treaty of Fomena drawn by Sir Garnett Wolseley after he led the defeat of the Asantes in the Sagrenti War. This treaty opened other territories for British rule, thus Asantes renouncing their claim over Elmina and other coastal states. This charter/treaty was similar to the 1850 constitution creating Executive and Legislative Councils. In expanding the jurisdiction of the British courts, the GC SC was reestablished under the 1876 Supreme (High) Court Ordinance abolishing the court of civil and criminal justice. Appeals from which went to the Privy Council in UK. In 1877 the seat of government moved from Cape Coast to Accra. The colonial government passed the Lands Act of 1894 and 1897 with the intention of vesting all waste lands, forest and minerals in the crown but the indigenes led by the elites forming the Aborigines Right Protection Society (ARPS) protested against it and was withdrew and in 1900, passed the Concessions Ordinance (No. 14). The British in 1890 offered the Asantehene a treaty under which Asantes would come under British rule and was refused but in 1896, the defeat of Asantes exiling Agyeman Prempeh to Seychelles led to the acceptance of this treaty by most Asante chiefs. In 26th September, 1901 Orders in Council, immediately after the Yaa Asantewaah War Asante and territories to the south not then part of GC were annexed and declared a protectorate over the Northern Territories.
The colonies of the British were therefore three:
1. The Gold Coast Colony.
2. The Asante Colony, and
3. The Northern Colony.
In 1914 the First World War broke up. After these events, various constitutions evolved in the GC…
The 1916 Clifford Constitution: Drawn by Sir Hugh Clifford a governor of the colony in 1912. Legislative members were increased from 9 to 22, made up of both officials and unofficial members, adding three paramount chiefs.
The Guggisberg Constitution of 1925: Drawn by Sir Gordon Guggisberg who succeeded Clifford in 1919 to 1927, passed the GC Colony (Legislative Council) Order in Council giving the colony a representation for the first time, consisting of the governor with 14 official and 15 unofficial members. Its section 15 provided for the establishment of the Provincial Councils to be headed by its paramount chiefs. Passed the Native Administration Ordinance of 1927 which provided for the election and destoolment of chiefs and jurisdiction of the native tribunals, protected the office if chieftaincy and removed governors powers to depose chief for misconduct.
In 1928, the West African Court of Appeal was established, thus appeal from the SC went there without going to the Privy Council though it was still the final appeal court. The Courts Ordinance of 1876 was reenacted in 1935 extending its jurisdiction to the whole of GC.
The Burns Constitution of 1946: Drawn by Sir Alan Burns the governor appointed in 1941. Africans were appointed to the Executive Council, thus Sir Ofori Attah and K.A. Korsah were appointed as unofficial members of the Executive Council. There was introduction of self government for the municipalities such as Accra, Cape Coast, Kumasi and Sekondi-Takoradi and introduced Universal Adult Suffrage. In 1943 Income Tax Ordinance, income tax was introduced into GC for the first time. This constitution extended the operation of the legislative council to Asante. The elected members of the legislative council could not enact any law against the wish of the Governor, in all there were a total of 21 African members out of 30. The Executive council was responsible to the governor and not to the Legislative council. Though it made a wide range of reforms, it failed to satisfy the demands of the nationalists who labeled it as outmoded. The United Gold Coast Convention (UGCC) was formed in 1947 at Saltpong by J.B Danquah and Paa Grant to fight colonial powers causing the collapse of the Burns Constitution, leading to the 1948 shooting incident and public riot. The GC government constituted the Watson Commission to identify the causes of the 1948 riots, which found reason; the political frustration among the educated Africans, governance of the colony through the chiefs, thus the native authorities still having large traditional powers, and the Burns constitution being out of date. It therefore concluded that a constitutional reform will help. These recommendations were directed to the Coussey Committee, made up of 40 prominent GC Africans under the chairmanship of Justice Coussey to make considered proposals on the Watson’s recommendations. The committee proposed for a fully representative government directly or indirectly elected by popular vote, and that governor’s reserved powers may be exercised only in times of emergency and with the approval of the Executive Council or Secretary of State for the colonies.
The Constitution of 1951: Under this constitution, the Legislative Council was replaced with the Legislative Assembly (Speaker, 3 officio members, 3 representatives of the Chambers of Commerce, 3 representatives of the Chamber of Mines and 75 elected members) consisting entirely of Africans. The Executive council (Governor as president and a number of ministers) was answerable to the governor but not the legislative assembly and one of its members elected as the Leader of Government Business in the Legislative Assembly. The General Election which followed led to the 34 out of 38 seats won by Convention People’s Party (CPP), founded in 1949 (which broke away from the UGCC) by Dr. Kwame Nkrumah through popular vote who described the constitution as ‘bogus and fraudulent’ and in 1952 made a number of amendments with the creation of the office of the Prime Minister in place of Leader of Government Business, with Nkrumah being the prime minister.
The Constitution of 1954: Repeated many features of the 1951 constitution. Introduced for the first time, detailed provisions on the judiciary and public finance, the Executive consisted of not less than 8 ministers appointed from the Assembly on advice of the Prime Minister. The governor ceased to be a member of the cabinet which was responsible to the Legislative Assembly (Speaker and 104 members elected through universal adult suffrage) The Governor had the prerogative to insist on the introduction of new bill. Defence and external affairs were the preserve of the governor. The Attorney-General ceased to be a minister. The Judicial Service Commission was set up consisting of CJ and 2 other judges, the Attorney General and the chairman of the Public Service Commission. The general election under this constitution was held in June 1954 and was won by the CPP (71 out of 104 seats) Agitations for federalism and bicameral legislature were made by the NLM (National Liberation Movement), an Asante based group. NLM was launched in September, 1954. The government decided to appoint a committee of the Assembly to examine the question of federal system of government and the related question of second chamber. The committee rejected the request and argued that the unitary system is simple while that of the federal system is complicated. The upper chamber was also rejected. In 1955 the governor appointed a constitutional advisor, Sir Frederick Bourne to consider the proposals submitted and recommended for defined regional boundaries, chieftaincy, creation of regional assemblies, and unitary government. The government convened a conference at Achimota in 1956 to consider the Bourne report but was boycotted by the opposition, so the government accepted the report for the independence of the GC under the name Ghana. By a plebiscite held in May 1956, Togoland under UK Trusteeship was included in Ghana. The general election of July 1956 was won by the CPP.
The 1957 Independence Constitution: On February 7, 1957 the Ghana Independence Act received the Royal assent. This constitution embodied the principles of parliamentary supremacy, rule of law, independence of the judiciary and rights and equality. The effects of this constitution was that, upon coming into force, no Act of UK parliament extended to Ghana unless consented to by Ghana’s parliament. Her Majesty was thereafter not responsible for the government of Ghana. However, enactments passed or made before independence were still in force. The Colonial Laws Validity Act (1865) ceased to apply to any law made by Ghana’s parliament. The independence Act was followed on March 6, 1957 with the Ghana Order in Council (constitution) which had the following features: The Executive power was vested in the Queen and could be exercised by her or the Governor-General as her representative. The Governor was replaced by the Governor-General and no act or omission of the GG could be questioned in any court. Cabinet was responsible to Parliament. There was to be a Prime Minister (Dr. Kwame Nkrumah) who was appointed by the GG. Legislative power was vested in Parliament consisting of the Queen and the National Assembly (all Ghanaian citizens of 25 able to speak English) All bills were assented to by the GG and the life of the Assembly was extended from 4 to 5 years. The Judiciary was headed by the CJ appointed by the GG acting on the advice of the PM, other justices appointed on the advice of the Judicial Commission. The Court of Appeal was created and the SC had the original jurisdiction in all proceedings in which the validity of any law called in question. Even if such case arises in the lower courts, proceedings is stayed and issued to the SC for decision. Citizenship in Ghana under the Ghana National and Citizenship Act, 1957 May provided for citizenship by birth, descent, registration and naturalization. The British Nationality Act of 1948 (where determination of citizenship was that persons born in the colony or Asante were UK citizens and colonies) ceased to apply to those born after 1957. Regions and Regional Assemblies were elaborated for local administration. Ghana was divided into 5 regions (Trans Volta/Togoland, Asante, Eastern, Western and Northern). Under the constitution, a Regional Assembly was to be established for each region by an Act of parliament. A Regional Constitutional Commission under the chairmanship of Justice Van Lare was mandated to present a report on the composition and work of the Regional Assemblies, and presented a report including the vesting of both legislative and executive powers in the regional assemblies. By the Regional Assemblies Act, 1958, the government converted the RA into merely advisory bodies. On March 14, 1959 the Regional Assemblies Act was repealed and all Regional Assemblies dissolved. Chieftaincy was created under customary law and usage with an office of chiefs. A House of Chiefs was required to be established by an Act of parliament. A bill affecting chieftaincy in parliament was required by the Speaker to refer it to the appropriate House of Chiefs for three months to make known its views (procedural limitation under constitutionalism).
The 1960 First Republican Constitution: Was not meant only for the people of Ghana but desirable to achieve African liberation and unity. The Constitutional Amendment Act, Act 224 introduced the concept of people’s power as the source and guidance of state power. Neither Parliament nor the constitution was sovereign as overall sovereignty resided in the people. Executive: elimination of Queen as head of state of Ghana and creation of the office of the president who was both the Head of State and Government and Commander in Chief and Fountain of Honour Neither the office of the PM nor Vice President was established and in the absence of the president, the Presidential Commission acted. President (Dr. Kwame Nkrumah) as the head of the Executive was to act in his own discretion and was not bound by the advice of his cabinet. Under Article 9 the term of office of the president was not expressly provided (The election of the president happen when he resigns, dies or National Assembly dissolves). Under Article 55, the president was given legislative powers, give directives by legislative instrument and such instrument made may alter any enactment other than the constitution. The power of the president to grant loan from public funds did not require ratification of parliament. Legislature (parliament headed by the Speaker) consisted of president and National Assembly (104 members) and 10 seats for women. Under Article 20(6) parliament was considered sovereign with unlimited legislative powers although overall sovereignty was in the people. Parliament could not amend entrenched provisions without a referendum. The Judiciary power was vested in the superior (SC and HC) and inferior courts, headed by the CJ appointed by president from among the justices of the SC. Provided hybrid position for the Attorney General as a minister unlike the 1957 constitution, and responsible for both criminal and civil proceedings, unlike the 1957 constitution providing for only criminal proceedings. Amendments to the 1960 constitution was made in 1964 by a referendum by parliament under the Constitutional (Amendment) Act, Act 224 making Ghana a one party state and CPP as the national party, power was given the president to dismiss judges of the superior courts when it appears to him sufficient and the parliament giving power to adjudge president incapable of exercising his functions. The CPP government was overthrown by the military on 24th February 1966 by the National Liberation Council (NLC) and suspended the 1960 constitution and introduced its own basic laws as proclamations. The NLC in 1968 mandated Justice Akuffo-Addo to prepare a constitutional proposal, being mindful of CPP’s dictatorship, which formed the basis of the 1969 constitution.
The 1969 Second Republican Constitution: The constitution returned to the Westminster (British parliament) type as practiced under the 1957 constitution. This constitution embodied the principles of chieftaincy, sovereignty of the constitution, sovereignty of the people, unitary government, fundamental safeguard of rights, independent electoral commission for voting by 21 years citizens through universal adult suffrage elections, separation of powers, head of state different from head of government, cabinet established and headed by PM, term of president being 2 four years term and no vice president and the establishment of an Ombudsman (a parliamentary officer to investigate complaints from citizens aggrieved with the decision of the government officials and departments). The main objectives of the drafters of the constitution were to restore the sanctity and supremacy of the constitution and prevent the future occurrence of dictatorship as per the preamble. Legislature was made up of president and 140 – 150 members who could as well be ministers. PM (Head of government and leader of majority) was selected from the party with majority in parliament by president, where absence of leader with clear majority, president appoints whoever has the support of the majority. In the absence of both, president dissolves parliament. President vested with the executive power, elected by secret ballot by a Presidential Electoral Commission was to act in accordance with the advice of the Cabinet and in consultation with the Council of State (a body made up of respected statesmen). Article 3 and 3(3) prohibited parliament from amending entrenched provisions and passing a law making Ghana a one-party state and any activity of a person or group of persons which seeks to suppress the lawful political activity of any other person or persons generally was unlawful. Article 71 provided for qualification and disqualification of members of parliament. In the case of AWOONOR-WILLIAMS v GBEDEMAH (2 G&G) 442 the plaintiff who lost in the Keta Constituency election to the defendant sought for a declaration that by reason of Article 71 (Not qualified if one is declared bankrupt, reported by commission of inquiry as incompetent, acquired assets unlawfully or defraud the state prejudicial to the interest of the state) and the report of the Jiagge Commission of inquiry which found that during the term of office of the defendant as a Minister of state he over expended a sum of state’s money, the defendant was not qualified to be a member of the National Assembly and an injunction restraining him from taking his seat. The COA held the defendant not qualified to be a member of the National Assembly, thus upholding the claims of the plaintiff. The Judiciary was independent. Judges of the superior courts could be removed only for inability to perform functions whether by infirmity of body or mind or for stated misbehaviour. The SC performed judicial review. Fundamental Human Rights were detailed in the provisions of this constitution, their protection and liberty under Article 12, being justiciable provisions enforceable by the High Court to redress all abuses of human rights, issuing orders in nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto. Ombudsman was also set up by Act of parliament and an investigative organ into the administrative actions of a Ministry or department, public service or armed forces.
The Progress Party (PP) headed by Dr. K.A. Busia was overthrown in 1972 by the military, National Redemption Council (NRC) under Colonel Kutu Acheampong. The NRC was metamorphosed into the Supreme Military Council 1 and 2, until it was overthrown in 1979 by the Armed Forces Revolutionary Council (AFRC) under Flt. Lt. Jerry John Rawlings. After three months of government, power was handed down to a constitutionally elected government headed by Dr. Hilla Limann in 1979 under the third republican constitution.
The 1979 Third Republican Constitution: Modeled on that of the United States. This constitution returned to Executive Presidency as was in the 1960 constitution, though with reduced powers. The framer called the division between the president and the prime minister in the 1969 constitution as unjustified. The Executive was headed by the President assisted by his cabinet. He was both the head of state and the head of government. Ministers were to be appointed by the president in consultation with parliament. Ministers were not to be members of parliament, a parliamentarian who is nominated as a Minister was to vacate his seat. Similar to the 1969 constitution, various institutions were set up to check exercise of executive powers. Legislature consisted of Speaker and 140 members. The Judicial power was vested in the superior and inferior courts with headed by the CJ appointed by the president in consultation with the Council of State and with approval of parliament. In the case of TUFFOUR v ATTORNEY-GENERAL (1980) GLR 637 . There were cumbersome procedures for the removal of judges as well as entrenched provisions on fundamental human rights. Article 114(3) conferred on the judiciary administrative and financial autonomy to ensure judicial independence. The SC had the power for judicial review.
The 1979 constitutional government was overthrown in 31st December, 1981 by the Provisional National Defence Council (PNDC) headed again by Flt. Lt. Jerry John Rawlings. PNDC established a proclamation, PNDC Law 42, which became the basic law of Ghana until the restoration of the constitutional government under the 1992 fourth republican constitution.
The 1992 Fourth Republican Constitution: Came into force on January 7, 1993, maintained a large measure of the 1979 constitution and modeled on the American Constitution. The President under Article 57 was the head of the Executive branch of government, both the head of state and government, as well as the commander in chief of the Ghana Armed Forces. The president takes precedence over all persons and in descending order, the vice president, the speaker and chief justice. As a fountain of honour, article 57(4) provides immunity for the president that shall not while in office, be liable to proceedings in any court for the performance of his functions or for any act done or omitted to be done in his performance. This provision is however, without prejudice to the provisions of Article 2. However, criminal or civil proceedings may be instituted against a person within 3 years after his ceasing to be president, being his personal acts or omissions and not official acts, per 57(5). In the case of NEW PATRIOTIC PARTY v RAWLINGS (1994-95) 2 GBR 680 the court held among others that article 57(5) and (6) gave complete immunity to the president while in office but this immunity was not absolute. It did not confer immunity against prerogative writs and actions brought under article 2. Even so, it wouldn’t be appropriate for one to proceed directly against the president as defendant, but plaintiff ought to have proceeded against the Attorney-General on behalf of the government as provided under Article 88(5). In this case, the president JJ Rawlings was required by the Local Government Law 1988 (PNDCL 207) to appoint district secretaries. Plaintiff filed a writ against the president and the AG for a declaration that the said appointments made were in contravention of the constitution. The issue arose as to whether the president was made a proper party to the suit. Amua-Sekyi dissenting in the opinion of the court said, ’if words have any meaning, the term ‘any person’ under article 2 must include the president of the republic. It would be a breach of the audi alteram partem rule not to make him a party to such an action. Although the president is the first citizen, he is not above the law. We would be well within our rights in bringing an action against him personally under Article 2 if he should exhibit any conduct likely to lead to the overthrow of the constitution’. Aikins JSC also dissenting said ‘the provisions in article 57(4) is without prejudice to the provisions of article 2 which makes the president personally liable for any act done in the performance of his functions of the constitution and the operation of the prerogative writs. He cannot hide behind the AG because whatever orders that are to be issued are to be directed to him. He is subject to prerogative writs in other words, the orders if mandamus, certiorari and prohibition because he has public duties to perform the performance of which can be compelled against him’. The majority held that the immunity given the president was not absolute, thus official acts of the president could be challenged either by prerogative writs or actions in the SC under article 22. However, it wouldn’t be right to make the president a defendant but the AG only as defendant on behalf of the government of Ghana. The president is the head of government and state vested with executive authority which he exercises as the government of Ghana. The office of the president deserves respect.
As held similarly in the case of SALLAH v AG (1970) 2 G&G 493, SC when the COA sitting as SC held that although the president’s official acts could be challenged in court, the AG was the proper defendant in such proceedings. His immunity from court proceedings does not extend to proceedings taken against him by any of the prerogative writs. Archer JA said ‘In Ghana, the sensible reason for not suing the president in court is to preserve his dignity’. Also the case of AMIDU v PRESIDENT KUFFOUR (2001-02) SCGLR 86 which dismissed the application relying in the NPP V RAWLINGS (above). Per Acquah JSC, ‘what is meant or implied by suing the president personally? Certainly not by using the personal name of the president but by naming the presidency as the defendant. Like His Excellency, the President of the Republic of Ghana (Mr. J.A. Kuffour). For as long as he is in office he is entitled to be addressed properly anywhere he is mentioned’. Where following the victory of president Kuffour in the 2000 elections he appointed a number of persons as assisting the president in the performance of his official duties which aggrieved the plaintiff and thus instituted this present action in the SC seeking a declaration that the appointments were inconsistent with the constitution. Kpegah JSC disagreeing with the AG’s contention that the president is immune from any judicial proceedings in the performance of his functions said ‘what happens when the president refuses to perform a public duty imposed on him by statute? He must, like anybody, be amenable to the prerogative writ of mandamus to compel him to discharge the duty’. Atuguba JSC said ‘the president’s immunity shields him from suits in respect of performance of his functions, actual or purported under the constitution but his acts in those respects can still be challenged suing the AG under article 88(5)’. Article 62 provides for the qualification of presidency: citizen, 40 years and above, qualified to be elected as Member of Parliament. Another requirement being to owe allegiance to Ghana and no other country was made in the case of BILSON V RAWLINGS (1993-94) 2 GLR 413 where the plaintiff filed an application for an interim injunction against the defendant from holding himself out as a candidate of NDC and an order restraining the 2nd defendant (E.C) from including 1st defendant’s name in the performance of its functions pending the trial of the case. Plaintiff claimed that the Rawlings was not fit to hold office as president of Ghana because he was not a Ghanaian national and therefore disqualified under the Presidential Elections Law, 1992 (PNDCL 285). Essilfie-Bondzie J dismissing the application tackled the issue of dual nationality, ‘Rawlings had on several occasions sworn allegiance to the Republic of Ghana so that even if on attaining the age of 21 then he had dual citizenship (Born in Accra in 1947 of a mother born in Keta in 1919. At birth therefore a British subject a citizen of UK and Colonies by the British Nationality Act, 1948. In May 1957 became a Ghanaian citizen by birth by the Ghana Nationality and Citizenship Act, 1957), and that he doesn’t owe allegiance to any foreign government. Taking the oath of allegiance to the government of Ghana should be construed as clear evidence of renunciation of any other allegiance he might owe to a foreign country’. The disqualification of convicted persons to stand as presidential candidates was determined in EKWAM V PIANIM (1996-97) SCGLR 120 where it was brought before the SC for a declaration that the defendant was not qualified to contest the 1996 presidential elections for NPP by reason of being convicted by a public tribunal of an offence involving the security of the state (preparing to overthrow in 1982 the then government of the PNDC contrary to the Public Tribunals Law, 1982 [PNDCL 24]). Held per Atuguba JSC for the majority, that the defendant was not qualified to contest in the elections for the office of the president because his contention of having the right to do so in resisting any person who seeks to abolish any part of the constitution under 1979 Constitution Article 1(3) was itself suspended on the 31st of December 1981 as per the proclamation that established the then government PNDC. Wiredu JSC dissenting said ‘the particulars set out in the charge sheet did not describe the offence as one against the security of the state. An offence under PNDCL 24 against the security of the state comes specifically under section 3(2) (c). This was not the offence the defendant was charged, tried and convicted of. It is not open to this court therefore to substitute any other charge for the one he was specifically charged, tried and convicted. The present constitution re-echoes what the 1979 Constitution regarded as a duty enjoining all citizens to resist any attempt to overthrow the constitution’. Article 66 provides that an elected president has a term of 4 years with the option of re-election for another 4 year term, after which he cannot serve as such again. The office of the president may become vacant permanently (Dies, resigns or is impeached) or temporarily (Resigns, absent or unable to perform functions), the vice president in both instances assumes the position as president but it’s only for permanent vacancy that he subscribe to the presidential oath, under Article 60 (6) (8) and (9). Different from that of the Speaker who assumes office where both the president and vice are unable to act as president whether permanently or temporarily, assumes full office of the president and subscribe to the presidential oath under Article 60 (11) and (12). The issue as to what constitutes ‘inability’ to perform functions whether being mere absence from the country or not was settled in the case of ASARE v ATTORNEY-GENERAL (2003-04) SCGLR 823 where the plaintiff a concerned citizen brought an action in the SC for a declaration that the purported swearing in of the Speaker, Hon. Peter Adjetey, as president for the absence of both president Kuffour (attending Commonwealth Heads of Government Meeting) and his vice out of the country, his swearing of the presidential oath and acting for the president was inconsistent with the constitution and an injunction restraining him from acting as such. Dr. Phillip Bondzi-Simpson, counsel for plaintiff argued that to allow the speaker act as such will be a contravention of the principle of separation of powers as the words ‘unable to perform the functions of the president’ be narrowly interpreted to mean real inability such as great or terminal illness affecting physical or mental capacity and not temporary travel as the president acts outside the country still as the president on behalf of the state. The SC unanimously dismissed the application and held using the purposive approach of interpretation that article 60(11) was to ensure that whoever exercised the functions of the president was physically present in Ghana. Thus purposively, absence would be regarded as ‘unable to perform the functions of the president’ and the Speaker would be obliged to perform these functions.