WHAT IS RULE OF LAW?
It’s concerned with the values underpinning the constitution i.e. the pillars of the constitution in relation to the use and exercise of public power. It is based on the recognition that the points occupied by each person in the legal system is what will ensure whether we are a society based on rule of law or otherwise. In a formal sense, every society is governed by rules of law but it doesn’t mean that every society lives under the rule of law. As an ideology, it’s about those institutions, processes, roles which allow us to live our lives in peace, security and dignity.
A.V. DICEY-INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION
Dicey had three main interpretations to the rule of law:
• No man can be punished or can be lawfully made to suffer a body or good except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. Dicey was distinguishing the rule of law from arbitrary governments and the exercise of wide discretionary powers. Dicey was also talking about the certainty and clarity of the law. Dicey was of the view that if wide discretionary powers are given to the authority, the individual may not know the rights he has and also retroactive legislation if imposed will place the individual in a situation where his act at a time was lawful and at a later time unlawful.-Articles 19(5) & 19(11)
• No man is above the law , every man and woman , whatever be his or her rank or condition , is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. -17(1). Dicey was concerned with limiting the powers of officials in favour of individual rights. According to dicey this is best achieved if all are subjected to the same law administered by the ordinary courts. Dicey compared the English law to the French law as with the French, there was a special court which dealt with disputes between citizens and the state. These courts dicey thought would unduly favour the government as against individuals.
Dicey’s second point thus, is based on the different treatments that are given to people. That is the concentration should be on the nature of the different treatment. They are different between citizens and military, police officers and civilians, students and their teacher. Therefore there is a problem of saying all should be equal before the law. If the differentiation is based on the nature of the person’s function then it is contrary to the rule of law. Eg. Judges enjoy immunity as opposed to others.
When the differentiation is based on factors such as gender, political belief, religion , then people will say it is contrary to the rule of law as there is no justification for it . Art{17}. Thus the rule of law means there should be unequal treatments based on unacceptable factors as seen from above.
The Supreme Court of Ghana had the occasion to interpret Article 17(1) of the 1992 Constitution in the case of Nartey v Gati [2010] SCGLR 745, the supreme court speaking through Date-Bah JSC held at page 754 that “ …the concept of equality embodied in article 17 is by no means self-evident. To our mind, it is clear what article article 17 does not mean. It certainly does not mean that every person within the Ghanaian jurisdiction has, or must have , exactly the same rights as all other persons in the jurisdiction. Such a position is simply not practicable. Soldiers, policemen, students and judges, for instance, have certain rights that other persons do not have. The fact that they have such rights does not mean that they are in breach of article 17. The crucial issue is whether the differentiation in their rights is justifiable, by reference to an object that is sought to be served by a particular statute, constitutional provisions or some other rule of law. In other words, article 17(1) is not to be construed in isolation, but as part of article 17. This implies that het equality referred to in article 17() is in effect freedom from unlawful discrimination. Article 17(2) makes it clear that not all discrimination is unlawful. It proscribes discrimination based on certain grounds. The implication is that discrimination based on other grounds may not be unlawful, depending on whether this Court distils from article 17(1) other grounds of illegitimate discrimination which are not expressly specified in article 17(2) Thus, for instance, in India, the Supreme Court has there held that mere differentiation or inequality of treatment is not per se equivalent to discrimination within the proscription contained in that country’s equal protection clause. That clause, which is article 14 of the Indian Constitution, reads as follows: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The Supreme Court of India has said in relation to this clause that: “When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object which the legislature has in view.” (See K. Thimmappa v Chairman, Central Board of Directors AIR 2001 SC 467. Quoted in Jain, Indian Constitutional Law,(LexisNexis Butterworths Wadhwa, 2009, 5th Ed.) p. 858.)
This approach is a reasonable one and flows from the obvious fact that no two human beings are equal in all respects. Accordingly, if the law were to treat all human beings rigidly equally, it would in fact result in unequal outcomes. Rigid equal treatment would often result in unfair and unequal results. Accordingly, it is widely recognized that equality before the law requires equal treatment of those similarly placed, implying different treatment in respect of those with different characteristics. In simple terms, equals must be treated equally, while the treatment of unequals must be different. The law must be able to differentiate between unequals and accord them the differentiated treatment which will result in enabling them, as far as practicable, to attain the objective of equality of outcomes or of fairness. In effect, equality of opportunity will often entail the law treating people differently in order to give them a fighting chance of attaining equality of outcomes or of fairness. If the differentiated legal rights arising from such an approach to the law were to be struck down as not conforming with the constitutional prescription that all persons are equal before the law, it would be thoroughly counterproductive.”
• The general principles of the constitution (as for example the right to personal liberty, or the right to public meeting ) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; According to dicey , in English law , the fundamental rights and liberties of citizens emanate and depended upon the ordinary laws of the land and not upon any special Bill of Rights or other declaration in a written constitution. To dicey the protection given to the rights of the individual in the united kingdom are superior to that given in countries with a special bill of rights since if a right is infringed remedy can be given with ease as compared with resting on the content of a declaration.
As Kumado suggests, there should also be effective judicial remedy rather than looking at the value of the rights . i.e. effective judicial remedy protect the people better than the rights of articles in the constitution.
IVOR JENNINGS-THE LAW AND THE CONSTITUTION
To Jennings rule of law is used to denote a society where there is law and order. It is used to distinguish between a society of anarchy from one with law and order. To him there could be rule of law in military regimes or in an absolute government so far as law and order prevails and that Dicey’s conception of the rule of law was just to distinguish a democratic government from a dictatorship.
For Jennings the rule of law embodies the notion that all government power, save those of the legislature be distributed and determined by certain precise laws. For instance, before a King or a person acting on behalf of the state exercise power, he must point to a particular law which authorizes his act.
Ivor Jennings in criticizing dicey’s second concept was of the view that saying ‘’all are equal before the law’’ could be misleading but rather it should be ‘’among equals there should be equality’’. His reason was that there were certain people such as the President who enjoys immunity from prosecution by the courts.
The whole concept of the rule of law can therefore be summarized into five main headings:
1. Supremacy of the Law : The law must be supreme to everybody in the state and must regulate every action of individuals in a state. Vis-à-vis the government and the law, the law is supreme and that any action of government which is inconsistent with the law will be null and void. Article 1(2) of the 1992 Constitution provides thus “ This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency , be void.”
2. Equality before the law : There must be equal treatment to all persons by the law. It implies two things :
* All persons are under the law
* There is an avoidance of discrimination (i.e. treating similarly situated people differently on the basis of race, colour, ethnicity, religion, gender etc.)
For this reason, article 17(1) (2) and (3) provides :
(1) All persons shall be equal before the law
(2) A person shall not be discriminated against on grounds of gender , race, colour , ethnic origin, religion, creed or social or economic status
For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description which are not granted of persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”
3. Predictability of the Law : This presupposes that the law must be made in advance of the action or conduct that is sort to be regulated. Predictability of the law forbids retrospective legislation. Article 19(5) of the 1992 Constitution stipulates “ A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.”
4. Certainty of the law : This presupposes that the law must be easily ascertained. This simply means that laws must be published after they have been passed, laws should be written with reasonable clarity to avoid unfair enforcement and also laws must avoid contradictions. With the certainty of the law, people may not be punished arbitrarily since they can easily access the law to know whether their conducts fall within the confines of the law. In this regard , the 1992 Constitution of Ghana has provided some articles to achieve the aim of certainty of the law. An example is Article 106(11) which provides “Without prejudice to the power of Parliament to postpone the operation of a law, a bill shall not become law until it has been duly passed and assented to in accordance with the provisions of this Constitution and shall not come into force unless it has been published in the Gazette.”
As part of the factors inhibiting the effective realization of certainty of the law is the ambiguity and legalistic language of the law thereby making its understanding difficult even sometimes to persons of legal background.
Case law also dilutes the certainty of the law since under the guise of interpretation, the judiciary may in substance change some clear elements of the law. An example is the case of Adjei Twum v. Attorney General and Akwetey , where a prior establishment of a prima faice case was not provided under Article 146(6) as a prerequisite for a committee to be established to start the impeachment process of the Chief Justice.
CASES:
AMIDU V PRESIDENT KUFUOR [2001-2002] SCGLR 86 Per Adjabeng JSC “ It must be noted that our 1992 Constitution has firmly established the rule of law in the country. The Constitution makes it clear that everybody in this country, including His Excellency, the Presdient, is under the Constitution and the law. This is clearly what we mean by the rule of law…And I have no doubt that adherence to this policy will indeed bring about real democracy…and therefore real freedom, justice and prosperity.”
IN RE M : The applicant M. who was a citizen of Zaire came to the united kingdom on 23 September 1990 to seek asylum. This was based on allegation that he was a refugee within the meaning of the Geneva Convention relating to the Status of Refugees (1959). After being interviewed, the Home Secretary refused his claim for asylum by a letter dated 16 November 1990. M was re interviewed on 2 December 1990 and was giving an opportunity to comment on the letter of 16 November 1990 for reconsideration. He was however disqualified for asylum under the terms of the convention by a letter dated 17 December. He was informed that he would be returned to Zaire on 1 May, 1991 .the applicant applied for leave of review On 20 March 1991, the application was refused by Kennedy J. the removal was then scheduled for 28 March 1991. M applied promptly to renew his application for leave before the Court of Appeal but his solicitors not being able to file the appropriate documents resulted in his application not being listed. New counsels were arraigned for the applicant who applied to the high court for a leave of judicial review on new grounds on 2 May. The judge therefore indicated that the applicant’s removal be postponed pending the consideration of the application, however the Secretary of State did not abide by this and continued with the deportation of the applicant. Aggrieved by this, the applicant brought an action against the Secretary of state and the Home Office for contempt of court and failing to comply with the order made on 2 May. HOLDING-Per Lord Templeman: The law cannot be enforced by judges against the crown as monarch but rather as executive, hence if a litigant complains of a breach of the law he can bring an action against the crown as executive by suing the particular minister in his official position. Therefore injunctions can be granted against the Secretary for Home Affairs in his official capacity for going contrary to the law.
ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V. WEDNESBURY (LORD GREENE) :Section 1 of The Sunday Entertainments Act, 1932 legalized the opening of entertainments on Sundays and gave the local authority the power to impose conditions which it thinks fit to impose. The defendant, Wednesbury Corporation imposed a condition preventing any child below the age of 15 years from any entertainment whether in the company of the parents or not. The plaintiffs who were proprietors of a cinematograph theatre in Wednesbury, sought for a declaration that the imposition of the condition was ultra vires the defendant. HOLDING : The court in dismissing the appeal held that it could only interfere with an act of an executive authority only if it could be showed that the authority has contravened the law. The court was of the view that the local authority had been given the power by the Act and so far as it exercised their authority within the jurisdictnion as the Act says so, the court could not interfere with the legislation by Parliament.
The court reasoned that to have the right to intervene, the court would have to form the conclusion that :
• the corporation, in making that decision, took into account factors that ought not to have been taken itno account, or
• the corporation failed to take account factors that ought to have been taken into account or
• the decision was so unreasonable that no reasonable authority would ever consider imposing it.
LAKER AIRWAYS LTD. V. DEPT OF TRADE :The appellant Laker wanted to start an air service project ‘’skytrain’’, and on 18 October 1972 t he Civil Aviation Authority in England granted him a license for ten years , from 1 January 1973 to 31 December 1982 for the route Stansted to New york under the Civil Aviation Act 1971 . However, the Civil Aeronautics Board in the United States decided to issue him a permit but will take effect after the approval by the president of the United States . whilst lying in wait, Laker purchased three jumbo jets and the training of crew and staff to run them. He spent almost seven million pounds on the project. On 29 July the Secretary of State of the United Kingdom informed the House of Commons that Skytrain would not start and followed this by the issue of a White Paper entitled ‘’Future Civil Aviation Policy Guidance’’in February 1976 withdrawing the license of skytrain. Laker aggrieved by this issued a writ claiming that the secretary of state was acting unlawfully and was ultra vires. The declaration was granted in his favour whereupon the Secretary of State also appealed. HOLDING-PER LORD DENNING :The court in dismissing the appeal held that since the old policy had been laid down by an Act of Parliament, in order to reverse it therefore, the secretary of state should have introduced an amending bill and got parliament to sanction it.
RIDGE AND BALDWIN :The appellant, Ridge in 1956 was appointed chief constable of the County Borough of Brighton. The appellant and two of his colleagues were arrested on an allegation that they had conspired to obstruct public justice and were tried afterwards. The watch committee being the police authority decided to suspend him from his duty on October 29, 1957 of which he would be given certain suspension allowances in accordance with regulation 15. On February 28 the appellant was acquitted after a trial which lasted for 19 days but his two companions were imprisoned. Again, the appellant was charged with corruption and was arraigned for trial on March 6, 1958. He was acquitted on the grounds of no evidence. The next day, the appellant was notified by a letter from the watch committee that he had been dismissed because he had been negligent in executing his duties.
HOLDING :The court by a majority ruling was of the view that the appellant should have been given the chance to be heard by the watch committee. According to the court, the appellant was entitled to and did not receive natural justice by the watch committee. This therefore made the allegations against the appellant by the respondents invalid.
CAPTAN V. AG : Omar Ibrahim Captan, the plaintiff a Lebanese Citizen was granted a residential permit in Ghana for a stated period of time. Acting under the Aliens Act, 1963(Act 160), ss. 5, 7 and 8 , the defendant revoked the residence permit before it had run its course and without assigning any reasons for the revocation. ISSUES
• Whether the minister in the exercise of his discretionary power to expel an alien has to give reasons for such expulsion
• Whether or not article 24(1) vests in an alien the right to immunity from expulsions from Ghana
HOLDINGS
• A minister in expelling an alien from Ghana under sections 7 and 8 ,of the Aliens Act 1963, (Act 160) does not exercise such a discretionary power as falls within the purview of article 173 and he is not obliged to assign reasons.
• Article 24 does not vest in an alien the right of immunity from expulsion from Ghana . that right is enjoyed by a citizen of Ghana.
“The aliens Act, which regulates the exercise of the state’s power over aliens, provide for revocation of a residence permit ‘at any time’ (section 7), and it does not provide for anything like a quasi-judicial enquiry or some form of adjudication as a prelude to revocation of residence permits such as would give the courts the power of judicial review over the Minister’s decision , and the courts cannot impose judicial intervention wehre the law has not provided for it. The Act does not require the Minister to assign any reasons for revoking an alien’s permit. Indeed according ot the principle of international law governing an independent country’s jurisdiction over aliens only the home country of an expelled may demand reasons which the expelling country is not obliged to give. The matter is one that is dealt with entirely by diplomatic intercourse, and it is wholly outside the purview of judicial intervention Any suggested amelioration of any severities found to be attendant upon the operation of the Aliens Act must be sought in political action not in judicial initiative.”
RE AKOTO : Baffour Osei Akoto and 7 others were arrested and detained under an order made by the governor general and signed on his behalf by the minister of interior under section 2 of the PDA, 1958. The PDA was enacted by parliament in 1958 to serve during emergency times. The applicants after they had been refused an order for habeas corpus from the High Court, applied for an appeal in the Supreme Court. They contended inter alia that the PDA was inconsistent with the constitution 1960 particularly article 13, captioned ‘Declaration of Fundamental Principles’ this declaration was read by the president on his assumption of office. However it was decided by the court that Article 13 of the 1960 Constitution was similar to the coronation oath sworn by the Queen, a moral aspiration and not a justiciable right to be granted by the court.