WHAT IS SEPARATION OF POWERS?
This is the concept that embodies ideas reflecting human history. Monopoly of power takes the totality of power among several players. The concept of separation of powers is a body of ideas based on our collective human experience as long as our thinking objective is liberty , freedom.
This is a body of ideas which addresses the relationship among governance.
DIFFICULTIES OR PROBLEMS
1. State the need to differentiate the legislative , judiciary and executive functions
2. Legal incompatibility of multiple officer holders. For some it means the same person should not belong to more than one of the three branches.
3. Isolation of the different opinion from each other
4. It means checks and balances to some people
OBJECTIVES
• Avoidance of tyranny or as Montesquieu puts it political liberty
• Efficiency , thus to promote efficiency in government
• Good or just laws. Thus those who make the laws will make good laws if it affects them, vice versa. It ensures that those who make the laws make good laws and those who interpret them are not partial.
Within a system of government, there are legislative, executive and judicial functions to be performed and the primary organs for discharging these functions are the legislature, executive and the courts respectively. Henderson, a legal historian in his foundations of English Administration law has remarked : the threefold division of labour between a legislator, an administrative official and an independent judge is a necessary condition for the rule of law in a modern society and therefore democratic government itself. In a mature democracy, it is important that judges are independent both of Parliament and government, and that parliament is not merely a rubber stamp for the cabinet. Indeed it may be argued that the essential values of law, liberty and democracy are best protected if the three primary functions of a law based government are discharged by distinct institutions.
In the case of Blackburn v. AG, Lord Denning argued that the power of entering into treaties was a responsibility that was in the hands of the crown and not the courts. “The treaty –making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting on the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts”
Per Salmon LJ “Whilst I recognize the undoubted sincerity of Mr Blackburn’s views, I depreciate litigation the purpose of which is to influence political decisions. Such decisions have nothing to do with these courts. These courts are concerned only with the effect of such decisions if and when they have been implemented by legislation. Nor have the courts any power to interfere with the treaty-making power of the Sovereign. As to Parliament, in the present state of the law, it can enact, amend and repeal any legislation it pleases. The sole power of the courts is to decide and enforce what is the law and not what it should be-now, or in the future.”
Per Stamp LJ “…The Crown enters into treaties; Parliament enacts laws and it is the duty of this court in proper cases to interpret those laws when made; but it is no part of this court’s function or duty to make declarations in general terms regarding the powers of Parliament…”
John Lock in The Second Treaties on Civil Government wrote : “The three organs of state must not get into one hand. It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power making laws, to have also in their hands the power to execute them , whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage”. Locke’s separation of powers seems to deal with regulating the exercise of legislative and executive power. Locke’s statement shows no recognition of the judiciary’s role in the curtailment of human frailty of grasping power ie interpreting both executive and legislative acts.
The second leg of Locke’s treatise, that is, equality before the law (not allowing exemption from the law) seems similar to Dicey’s rule of law, by ensuring that makers of the law are themselves amenable to it.
John Locke was of the view that the executive and the legislative powers should be separate for the sake of liberty. Liberty suffers when the same human being makes the law and executed them. He asserted that in practice it does not take long to make laws and the lawmakers should meet for a short time and disperse. This was to see that the law will be good or just. For him the legislature is the supreme power. He also recognized the executive: the one which interprets the law and adjudicate upon disputes and the executive responsible for the maintenance of external relations.
Montesquieu in his book “The Spirit of Laws’’ asserted that concentrated power is dangerous and leads to despotism of government. As a check against this danger, he suggested to separate the functions of executive, legislature and the judiciary so that one may operate as a balance against the other. Montesquieu’s view is that concentration of legislative, executive and judicial functions either in one single person or a body of persons results in abuse of authority and such an organization becomes tyrannical. He argued that the three organs of government should be so organized that each should be entrusted to different persons and each should perform distinct functions within the sphere of power assigned to it.
Montesquieu, unlike Locke , recognized the role of the judiciary as an organ of government, having a separate function. There is nothing to indicate that Montesquieu, apart form separation of functions, intended separation of personnel as well. Unlike Locke , whose emphasis was on separation of personnel, Montesquieu was more inclined towards institutional separation.
The concept of separation of powers may have variety of meanings. The concept of separation of powers may mean at least 3 different things:
• That the same persons should not form part of more than one of the 3 organs of government, for example that ministers should not sit in Parliament
• That one organ of government should not control or interfere in the work of another, for example the executive should not interfere in judicial decisions; article 107 of the 1992 constitution provides that parliament shall have no power to pass any law to alter the decision or judgment of any court as between the parties subject to that decision or judgment.
• That one organ of government should not exercise the functions of another for e.g. That ministers should not have legislative powers
In considering these aspects of separation of powers, this is neither in theory nor in practice. This is demonstrated in the steel seizure case per Justice Jackson.
In essence , separation of powers is not to structure the government in any particular way but an idea to prevent rivalry, competition and conflict for the ultimate benefit of the liberty of the people.
The Supreme Court in Marbury v Madison, assumed the power to declare acts of the legislature and executive to be unconstitutional should they conflict with the constitution. Even in the US, there is not a complete separation of powers if it means each power can be exercised in isolation from the others. It however provides a basis for checks and balances among the various arms of government .
In France, the ordinary courts have no jurisdiction to review the legality of acts of the legislature or executive in furtherance of the doctrine of separation of powers. The Conseil d’Etat exercises jurisdiction over administrative agencies and officials. The Conseil Constitutionnel , a recent creation , reviews the constitutionality of new laws. Complete separation thus is neither possible in theory or practice.
In Blackburn v AG it was held that treaty making power of England rests in the Crown , the courts have no power to question it.
From the foregoing, separation of powers may be seen in two senses :
• classical / strict form
• flexible form
In the classical or strict form of separation of powers, the various organs of government should be kept separate from each other. This comprise organic separation, functional separation and personnel separation.
The flexible form is a contemporary notion of separation of powers. The flexible notion advocates what is known as ‘checks and balances’. In other words, separation of power is always mediated by the principle of checks and balances. The simple reason is that, government does not function in a disparate manner. Government is itself, a collection of organic entities that collaborate and this collaboration between organic entities is designed to ensure that government act in a coordinated manner because, government has one basic motive and this motive is to ensure that the welfare of its people is maximized.
Under the principle of checks and balances , there is an advocacy for a relationship between the various organs of government based on institutional corporation and collaboration, with the view of ensuring that the organs of government function close ties with each other. This is designed to ameliorate the impact of the principle of separation of powers which , if carried to its logical conclusion, will lead to a breakdown of government.
Secondly, if organs of government are made to follow strict separation of power, there will be conflicts. For example, when there is a strict form of separation of power, legislature can decide that since theirs is law making, they will make any law they like. The executive may also decide that they will not implement laws made by the legislature because they have the function of implementation. The judiciary, likewise, may also decide to strike down laws made and implemented as unconstitutional. To avoid these potential conflicts between the various organs of government, it is proposed that the various organs of government rather cooperate and collaborate. This is what the flexible form of separation of powers seek to achieve.
HOW THE CONCEPT OF SEPARATION OF POWERS LOOK LIKE IN ACTUAL PRACTICE?
The fact that separate articles deal with the various organs makes it to be construed that they practice them. The more flexible conception was provided by Justice Jackson in the Steel Seizure case
IMPLEMENTATION OF THE CONCEPT IN GHANA’S CURRENT CONSTITUTION
The 1992 Constitution reflects a flexible notion of the principles of separation of powers because it contains the broad principle of separation of powers by establishing various organs that are separate. Under the 1992 Constitution, each of the three primary constitutional functions are vested each, in a distinct organ :
1. Legislative power vested in Parliament comprising 275 members-Article 93(2) See Chapter 10
2. Executive power vested in the president assisted by cabinet –Article 58(1) See Chapter 8
3. Judicial power vested in the superior and other inferior courts –Article 125(3). See Chapter 11
There are various provisions in the constitution that make room for checks and balances. The various organs are separated, but the constitution establishes one broad framework of government and in that broad framework of government, there is cooperation, collaboration, checks, and oversight. There is an approval system which serves as oversight-where one organ must approve before the other can undertake or embark on its duties or functions. There are therefore all kinds of collateral or reciprocal checks and balances that are designed to instill some degree of flexibility and avoid rigidity. This flexibility is designed to ensure that, the government functions as a collective entity. There are various provisions in the constitution that make use of the principle of checks and balances.
Relationship between Executive and Legislature
The president is assisted in his functions by a cabinet. Unlike USA, where members of Congress cannot hold Ministerial appointment, the 1992 Constitution makes it obligatory for a portion of the cabinet members to be Members of Parliament (See Article 78(1)). There is thus a certain amount of fusion of legislative and executive personnel.
The President and Legislature
The President is not part of parliament. He is expected to deliver a Sessional Address at the beginning of a session and on the dissolution of parliament (Article 67). However, some members of his cabinet are also members of parliament. Bills are usually initiated by the executive.
Parliament by its own internal procedure considers bills and may approve or reject a bill. After the approval of a bill it requires the assent of the president to become an Act of Parliament. Thus an Act of Parliament is a bill that has been approved by Parliament and assented to by the president. The President may refuse to assent to a bill passed by parliament (veto-refer to article 106 for detailed legislative procedure). Where the president refuses to assent to a bill passed by Parliament, Parliament may by 2/3 majority vote to overturn the veto. In this case, the President shall assent (Article 106 (10)).
Legislative Control of the Executive
a. The president has the prerogative of nominating persons as ministers. However, nominees are subject to vetting and approval by parliament. (Article 78(1)). See Mensah v Ag
b. The Executive has the power to initiate all fiscal policies, but only Parliament has power to authorize the use of money and raising of taxes (Article 174 and 178)
c. The Executive negotiates and enter into treaties on behalf of the country. Trreaties and loan agreements entered into by the Executive requires Parliamentary ratification, (Article 75 (treaty), Article 181 (loans)).
d. Parliament has the power to begin impeachment proceedings against the President on stated grounds in Article 69. Parliament can also vote to censure Ministers for misconduct (Article 82)
The Judiciary and the Legislature :
Unlike the executive and the legislature where there is some amount of fusion of personnel, there is a distinct separation of both personnel and functions of the Judiciary and the Legislature. Though the two are separate, the judiciary is dependent on the legislature for the approval of appointments to the superior courts including the Chief Justice. Judges of the Supreme Court are appointed by the President and vetted by parliament (Article 144). Even though the constitution guarantees the financial independence of the judiciary, Parliament controls the release of moneys to the judiciary.
The judiciary has power to declare an Act of Parliament unconstitutional (Article 2). Also under the principle of implied repeal, the judiciary may amend or repeal an existing law which is inconsistent with a latter one.
Judiciary and Executive:
There is separation of both personnel and functions, though with regards to functions, there are administrative tribunals and quasi-judicial bodies that exercise some form of judicial power, eg. CHRAJ , Commission of Enquiry.
In spite of its financial independence, the executive controls the purse of the Judiciary. Judges of the Superior Courts are appointed by the President. Judges may also be removed on stated grounds by the President acting upon a recommendation of a committee (Article 146). The President also exercises the prerogative of mercy which is the highest form of judicial decision (Article 72).
Edward Wiredu JSC, wrote in the case of Ghana Bar Association v Attorney General that;
“The scope and extent of the doctrine of the separation of powers, in my respectful view, and, as I understand it, under the Constitution, 1992 is to ensure that each arm of state in the performance of its duties within the framework of the Constitution, 1992 is to act independently and should not be obstructed in the exercise of its legitimate duties or be unduly interfered with [by the Constitution]. In other words, all arms of the State are answerable or responsible to the Constitution, 1992. It is also to ensure the smooth administration either judicial, legislative or executive governance of the State whilst checks and balances are provided to ensure strict observance by each arm of state of the provisions of the Constitution, 1992.”
Also, Kpegah JSC, in the same case gave an intelligent account of the history and on how the constitution reflects on the doctrine of separation of power. He said; “In 1960, Ghana had a Constitution, 1960 which, for the first time, introduced the American concept of the doctrine of separation of powers as an important doctrinal underpinning of our Constitution—the separation of powers between the executive, the legislature and the judiciary. This was also to be the case with the Second Republican Constitution, 1969; although this Constitution provided for a ceremonial President in favour of a Prime Minister. In the case of the Third Republican Constitution, which was introduced in 1979, the presidential system of government was reintroduced with the same concept of separation of powers underpinning it. In the Constitution, 1992 which is the fourth in our history and under which we currently operate, the presidential system of government was retained and the framers consciously and meticulously allocated state authority among the executive, the legislature and the judiciary. The doctrine of the separation of powers is indicated in the discrete manner each branch of government is dealt with in chapters eight, ten and eleven of the Constitution, 1992.
This principle, as was pointed out in the Memorandum to the Draft Proposals for the 1979 Constitution of Ghana, which is still relevant, requires that the executive, the legislative and the judicial powers of state should be assigned to separate institutions and organs with each having power to check the power of the others in order to ensure that they do not encroach on one another’s sphere of competence. Such an arrangement is necessary so that, in the words of President Woodrow Wilson, there can be “effective check on power by power.”
In the same Memorandum on the 1979 Constitution at para 49, p 19, it was pointed out as follows:
“. . . the principle does not require that the executive, legislative and judicial organs of State should operate in complete isolation from, or open conflict with, one another. On the contrary, they are expected to work in harmony to the end that the various functions of government will complement each other.”
So a careful reading of our Constitution, 1992 reveals that the separation is not intended to be airtight; very often, there is overlapping of powers as an aspect of check and balances. For example, the power of the Supreme Court to strike down a legislation which is inconsistent with any provision of the Constitution; the power of the President to appoint the members of the superior courts, in some cases, with approval of Parliament. So also the procedure for the impeachment of the President and his vice: a combination of co-operation between the judiciary and the legislature. As to the jurisprudential implications or derivatives of the doctrine of the separation of powers, I hope to deal with it later
The Ghanaian Constitution, 1992 has been influenced not only by our past experiences but also by thinkers like Montesquieu, in the allocation of state power to the three branches of government—the executive, the legislature and the judiciary. The adoption of the concept of separation of powers by the framers of our Constitution, 1992 aims not only at the prevention of the exercise of arbitrary power with its attendant tyranny, but also aims at the promotion of efficiency and avoidance of friction or conflict between the various arms of government. See the case of Tuffuor v Attorney-General (supra) where the Court of Appeal sitting as the Supreme Court declined jurisdiction to examine proceedings in Parliament and consequently struck out the Speaker of Parliament as the first defendant. And in the case of Youngstown Sheet & Tube Co v Sawyer (The Steel Seizure Case), 343 US 579 at 635 (1952), Justice Jackson said of the concept of the separation of powers:
“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
WHAT ARE THE DISADVANTAGES OF SEPARATION OF POWERS?
Government is an organic unity. The various parts are closely interwoven. Therefore absolute separation of powers is both impossible and undesirable. In every modern government the executive has some kind of law making power to fill the gaps in the structure.
Maclvet feels that this concept of Separation of powers leads to isolation and disharmony. The various branches of the government tend to exhibit a sense of understanding and cooperation to achieve its end when they work together. But when they are separated to carry on exclusive work of their branch they become arrogant and refuse to work with other branches of government. This gives rise to lots of administrative complications. Every branch suffers from the vice of exclusiveness leading to loss of cooperation and harmony producing inefficiency of the government.
• The concept of separation of powers which upholds the system of checks and balances for the sake of equality of powers is based on wrong assumptions. It is not possible to accept the view that all organs of government mutually check each other.
• The relationship between public liberty and separation of powers is not very significant. Liberty of the individual largely depends on the psych of the people, their outlook, the existing institutions, traditions, customs and political consciousness. In Great Britain, the people are not less free than that of U.S.A because there is less separation of powers in the former.
WHAT ARE THE ADVANTAGES OF SEPARATION OF POWERS?
• According to Montesquieu, separation of powers is the best guarantee of the liberty of people.
• Separation of power promotes efficiency in the administration.
However, separation of powers is useful if used judiciously to bring about a balance between the vigorous action of the welfare state and the enjoyment of the liberty of the people.
Ghana though is claimed to be practicing separation of powers, some members of cabinet belong to the legislature. Hence there cannot be absolute separation of powers.
ACCORDING TO KUMADO, SEPARATION OF POWERS IS A CONCEPT AND NOT A DOCTRINE AS STATED BY SOME PEOPLE.
In the case of Duport Steels Ltd v Sirs , Lord Diplock stated that : at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution , though largely unwritten is firmly based on the separation of powers ; Parliament makes the laws , the judiciary interpret them.
Also in Hinds v R, Lord Bingham observed : whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers , the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described… as ‘a characteristic feature of democracies’.
In “separation of powers in Ghana, the role of parliament, review of Ghana law 1980” , Nii Josiah Aryee proposed for a system, in which the Executive and the Legislature are separate and independent of each other, but complementary to each other and obliged to co-operate with each other if each is to be able to perform its functions effectively.
TUFFOUR V. AG: Chief justice Apalloo was appointed by the President as Chief Justice before the coming into force of the constitution , 1979. During that time the highest court of the land was the Court of Appeal. Upon the coming into force of the Constitution 1979, Justice Apalloo‘s appointment as Chief Justice and President of the Superior Court was submitted to the legislature where Apalloo was subsequently called to be vetted by the Parliament Committee. Apalloo was subsequently denied appointment. The plaintiff Dr. Amoako Tuffour filed a petition that the Chief Justice should remain. The respondent in the case raised a preliminary objection as to the competency of the Speaker as the first defendant where the court held that: It could not and cannot inquire into how Parliament went about its business. It went on further that by the provisions of the Constitution, the freedom of speech, debate and proceedings of Parliament should not be questioned in any court or place outside parliament and that in so far as Parliament had acted by virtue of the powers conferred upon it by the provisions of article 9(1), its actions within parliament were a closed book and the speaker need not be a party to the case. Articles 96,97 and 103 of the constitution.
EX PARTE BANNERMAN: On 18 January 1967, the National Liberation Council (NLC) in the exercise of the powers conferred on it by section 1 of the commissions of Enquiry Act , 1964(Act 250) , appointed by an executive instrument , a commission of inquiry to inquire into the management and other matters relating to the State Fishing Corporation. The terms of reference of the commission were contained in E.I . 16 of 1967 , para. 3 of the Commission of Enquiry (State Fishing Corporation) instrument. During the April sittings of the commission of inquiry, certain allegations of larceny were made against the applicant, the distribution marketing manager of the corporation. On 26 June 1967, the chairman of the commission of inquiry (State Fishing Corporation)Mr. S.A.Wiredu wrote to the applicant Mr. V.O. Bannerman, the distribution marketing manager of the State Fishing Corporation. Relieving him of his duties and responsibilities and a copy of this letter was sent to the office of the N.L.C. the applicant instituted proceedings for orders for certiorari to quash the decision of the commission of inquiry and prohibition to prevent the chairman of the commission from suspending, dismissing, interdicting or in any manner interfering with the applicant in the performance of his duties as distribution marketing manager of the State Fishing Corporation. The court held that the commission or its chairman in suspending the applicant acted in excess of their jurisdiction having regard to the terms of reference in paragraph 3 of the commission of enquiry (state fishing corporation), instrument, 1967(E.I6) . The purported decision to suspend the applicant was ultra vires the commission or its chairman, .The court recognized the dual capacity occupied by the NLC in that it has powers to enact Decrees which have the force of an Act of Parliament and it also occupies an executive position such as that of the deposed president. Commenting on the State Fishing Corporation Instrument , 1965 (L.I. 397), part XIV which deals with the special Powers of the President ( NLC) which states “notwithstanding anything to the contrary in this instrument, the [national liberation council] may at any time, if it is satisfied that it is in the national interest so to do , take over the control and management of the affairs or any part of the affairs of the Corporation and may , for that purpose, reconstitute the Board; appoint , transfer, suspend or dismiss an y of the employees of the Corporation ; and do, in furtherance o the interest of the Corporation , any other act…”, the court was of the view that the conditions which may exist to enable the Council to take over the control and management of the corporation rest entirely within the absolute discretion ft he Council and the
STEEL SIZURE CASE: During the Korean War, in the latter part of 1951 a dispute arose between steel companies and their employees over terms and conditions for new collective bargaining agreements; in 1952 the Steel Workers Union gave notice of a nationwide strike. The indispensability of steel as a component of all weapons led the President to believe that the proposed strike action would jeopardize national defence and that a governmental seizure of steel mills was necessary to assure the continued availability of steel.
A few hours before the strike was to start the President issued an executive order directing the Secretary of Commerce to take possession of most of the steel mills and keep them open and running. He sent a message to Congress of his action. Per Justice Jackson “While the constitution diffuses power to secure better liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” BLACK J-: ordered the president to return the steel mills to their owners. The court affirmed the decisions of the District Court as follows;
• The constitution limits the president’s function in the lawmaking process to the recommendation of the law which he thinks wise and the vetoing of those which he thinks bad. The constitution is quite clear about who should perform the lawmaking function which the president is merely directed to execute.
• In this respect , the only way of making the president’s action valid would be to grant congress to authorize it which he has not done
• The president as Chief Executive should see to it that laws are kept and this does not mean that he should make laws . If he wanted any laws made, he should recommend those laws to congress , not pass them himself.
• No provision of the constitution clearly gives the president such emergency powers.
NIXON V . SYRICA: During the 1972 presidential elections campaign, President Nixon was alleged to have employed spies (the Watergate burglars) to tape conversations of the rival Democratic Headquarters at Watergate. On 16 July 1973, Alexander Butterfield testified before the Senate Select committee on Presidential Campaign Activities that conversation in the president’s office had been recorded automatically at the president’s direction. The president declined to requests by Special Prosecutor Cox and by the senate Select Committee for access to certain tapes, claiming that it was against : executive privilege (which entitles him among others to keep confidential documents), that the president is not subject to compulsory court process and that he had absolute discretion to withhold evidence on the ground of executive privilege. HOLDING: In view of the ease, expedition and safety with which congress can grant and has granted large emergency powers able to embrace this crises(conventions) it need not be affirmed by this court without the benefit of statute.(because the court determines the law even if they do not make it.) The power to legislate for emergencies belongs in the hands of congress, but only congress itself can prevent that power from slipping through its fingers. (This was said in relation to the argument that in the WW2 a similar situation happened and the president undertook similar actions and congress was silent). With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law and that the law be made by parliamentary deliberations.
ASARE V. ATTORNEY-GENERAL : On 21st February 2002 the President of the Republic wrote to the Speaker of Parliament informing the Speaker that the President would be travelling to Australia to attend the Commonwealth Heads of Government Meeting, scheduled to take place from 2nd to 5th of March 2002 and that he would be away from Ghana from 24 February until 10th March. He further informed the Speaker that during that period, because the Vice President would also be absent from the country from the 24 to 27 February, the Speaker was pursuant to article 60(11) of the constitution to act as President for those four days. Accordingly, on 24 February, the Speaker swore the Presidential oath and acted for the President from the 24 to 27 February. The plaintiff filed a writ at the Supreme Court seeking inter alia a declaration that on a true and proper interpretation of article 60(11) of the 1992 Constitution of Ghana the purported swearing –in of the Speaker of Parliament of Ghana is inconsistent with or in contravention of the Constitution and therefore unconstitutional , void and of no effect. The plaintiff argued that merely because the President is away from Ghana does not necessarily mean that he is unable to perform the functions of his office, particularly, in the light of modern technological developments in the area of telecommunications and also because of his authority to delegate power to appropriate subordinates. HOLDING 🙁 PER DATE- BAH JSC)
• It would seem that the drafters of the constitutions of Ghana since 1969 have taken the view that the absence of a President or in his absence, the Speaker is to exercise his functions whilst he is thus disabled.
• The period during which the Speaker will ordinarily be required to act for the President will be short. In this present case, it was for only four days. Accordingly such short periods of the executive power being exercised by the presiding officer of the legislature are unlikely to impair the long-term underlying balance of the Constitution. Moreover, in spite of the headship of the executive and the legislature devolving on one person, the legislature, as an institution, and the executive as an institution will each maintain their distinct and separate zones of authority. In this regard it would be desirable for a convention or practice to be observed whereby when the Speaker is performing the functions of President he does not at the same time exercise the powers of the Speaker and he devolves his presiding and other roles to a deputy.
• Where both the President and the Vice-President are absent from Ghana, they are to be regarded as “unable to perform the functions of the President” and thus the Speaker is obliged to perform those functions. …the purpose of the framers of the Constitution was to ensure that whoever exercises the functions of the President is physically present in Ghana.
GHANA BAR ASSOCIATION V ATTORNEY-GENERAL (ABBAN CASE) [1995-9] 1 SCGLR 598 ; [2003-2004] SCGLR 250 : The plaintiffs sought a declaration , inter alia, that the second defendant, Mr. Justice I K Abban “is not a person of high moral character and proven integrity” in terms of article 128 (4) of the Constitution, 1992 ; and also a further declaration that the appointment on 22 February 1995 by the President of the second defendant as the Chief Justice, as well as the advice of the Council of State and the approval by Parliament of his nomination , were done in contravention of articles 91(1) and (2), 128(4) and 144(1) of the Constitution, 1992 and were therefore null and void. The defendants raised a preliminary objection to the assumption of jurisdiction by the Supreme Court which they founded, inter alia, on the defence of non-justiciable political question. The defence contended that the issue of the appointment of the second defendant as the Chief Justice by the President, acting in consultation with the Council of State and with the approval of Parliament, was a non-justiciable question specifically committed by the Constitution, articles 91 (1) (1) and 144 (1) to the President, the Council of State and parliament. In reply, counsel for the plaintiffs argued that having regard to the provisions of articles 125(3) and 295(8) of the Constitution, the doctrine of non-justiciable political question was inapplicable to the 1992 Constitution. The Supreme Court (per Kpegah JSC, Bamford –Addo and Charles Hayfron-Benjamin JJSC concurring) held that the principle of non-justiciable political question was applicable to the Constitution, 1992 ; that the principle was inherent in the concept of separation of powers where certain functions were committed to a specific branch of government; that in such a situation a political question could not evolve into a judicial question determinable by the Supreme Court. The court further held that the Constitution had, under articles 91(1) and 144(1) specifically committed the appointment of the Chief justice to the executive and the legislature.
• On the substantive claim to remove the Chief Justice, the court held on a preliminary objection to its jurisdiction raised by the defendants that applying its earlier reasoning in Tuffour v AG and Yiadom I v Amaniampoing, that the reliefs claimed by the plaintiffs, would have the effect of indirectly removing the second defendant as the Chief Justice without complying with the mandatory special procedure for removing the Chief Justice under article 146 of the Constitution. Thus, the SC by that decision was asserting that no procedure other than that laid down by the Constitution in term of article 146 for removing Justices of the Supreme Court would be resorted to and enforced.
• Per Wiredu JSC (As he then was) “The scope and extent of the doctrine of separation of powers…under the Constitution 1992 is to ensure that each arm of state in the performance of its duties within the framework of the Constitution is to act independently and should not be obstructed in the exercise of its legitimate duties or be duly interfered with. In other words , all arms of the State are answerable or responsible to the Constitution, 1992. It is also to ensure the smooth administration of the judicial, legislative or executive governance of the State whilst checks and balances are provided to ensure strict observance by each arm of state of the provisions of the Constitution 1992”.