WHAT ARE THE CHARACTERISTICS OF THE 1992 CONSTITUTION OF GHANA?
• Largely written
• Supreme
• Rigid in terms of procedural amendments of entrenched provisions
• Unitary
• Separation of Powers and Checks and Balances
• Presidential
• Unicameral
• Multiparty
WHAT IS THE SUPREMACY OF A CONSTITUTION?
This concept is more relevant in countries with written constitutions such as Ghana. Article 1(2) of the 1992 Constitution provides that any enactment which is inconsistent with the constitution to the extent of the inconsistency is void and of no effect. In this regard the Supreme Court of Ghana is given the power of Judicial Review under Article 130 so as to ensure that legislation conforms to the constitution.
Kpegah JSC in the case of YEBOAH V JH MENSAH (1998-99) SCGLR 492 at 517 stated that ‘the constitution is the supreme law of the land, and all person must look at it and adjust their actions accordingly, the Supreme Court apart from adjudicating constitutional matters, is promoting and safe-guarding constitutional values’.
Sowah JSC in TUFFOUR V ATTORNEYP-GENERAL (1960) GLR 637 at 647 viewed that ‘a written constitution such as ours is not an ordinary Act of Parliament. It embodies the will of the people and mirrors their history. The constitution has the letter of the law and has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises; it created them and gives them their sustenance’.
WHAT IS PARLIAMENTARY SUPREMACY?
UK can be said to be an exception to this rule because of their principle of Parliamentary Sovereignty. Thus their constitution has no greater legal sanctity than other laws, thus the law at any time can be altered by an ordinary Act of Parliament, thus the principle of Parliamentary Sovereignty not Constitutional Sovereignty.
Some judges may be amenable to use the spirit of the constitution to the use of the spirit of the constitution in determining the meaning of the constitution. Archer CJ dissenting in the case of NPP V ATTORNEY-GENERAL (1994-95) 1 GBR 1 popularly the 31st December case said ‘whether the word spirit is metaphysical or transcendental concept, I wish to refrain from relying on it as it may lead me to Kantian obfuscation. I would rather rely on the letter and intendment of the constitution’. Also Bamford-Addo JSC also dissenting held that ‘the intended public celebration of 31st December as a public holiday was not against the spirit of the constitution or Article 35(1) and 41(b) of the constitution. The constitution must be interpreted according to both the letter and the spirit‘
Francois JSC in KUENYEHIA V ARCHER (1993-94) 2GLR 525,SC stated that ‘a constitutional document must be interpreted sui generis to allow the written word and the spirit that animates it to exist in perfect harmony’.
WHAT IS ENFORCEMENT OF A CONSTITUTION?
Article 1(1) of the 1992 Constitution provides that the sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in a manner and within the limits laid down in this constitution. Per Article 2(1) it is the constitutional right of a person to ensure the enforcement of the constitution through the Supreme Court by a declaration, where he alleges that an enactment, act or omission has been committed in breach of the constitution, irrespective of whether the person has any personal interest in the matter. Article 130(1) also provides that the Supreme Court shall have exclusive original jurisdiction in all matters relating to the enforcement or interpretation or excess enactment of parliamentary powers.
In the case of TUFFOUR V ATTORNEY-GENERAL (1960) GLR 637 at 647 the plaintiff sought for a declaration that on coming into force of the 1979 constitution, Justice Apaloo was deemed the appointed CJ. Thus his purported vetting and rejection by parliament was inconsistent with the constitution. The AG challenged the locus standi of the plaintiff that the case was a private matter and so plaintiff had no community of interest and this was rejected by the court where Sowah JSC said that the constitution confers on every citizen the right to resist any person seeking to abolish the constitutional order per Article 1(3)-1979 similar to Article 1(2)-1992. One of such method is to seek an interpretation, in such case there would be neither a defendant nor a plaintiff.
Article 33(1) provides that where a person alleges that a provision on human rights and freedoms has been or is likely to be contravened in relation to him; the person may apply to the High Court for redress. Thus the High Court is given original jurisdiction for the protection and enforcement of fundamental human rights. Per EDUSEI V ATTORNEY-GENERAL.NO.2 (1998-99) SCGLR 753 at 76 it was stated by Bamford-Addo JSC the case was not one which calls for the interpretation of the constitution so as to invest the SC with the appropriate jurisdiction under Article 130(1) (a) but rather a case of enforcement of human rights which should have been instituted at the HC. Kpegah JSC also said that in determining the scope of the SC’s jurisdiction Articles 2(1) and 130(1) must be read together.
Thus the exclusive original jurisdiction is in the enforcement of all provisions of the constitution except chapter 5 which deals with fundamental human rights, interpretation of all the constitutional provisions and issues whether an enactment is inconsistent with the constitution. Hayfron-Benjamin JSC dissenting said that in excluding the SC from the enforcement of human rights, this court fails to express the hopes of the framers and expectations of the people in spite of clear authority in support of its jurisdiction in matters affecting the enforcement of fundamental human rights. A critical look at Article 33 shows that in the protection of fundamental human rights, there is no general citizenship right to go to court; the person affected is clothed with the capacity to go to court.
Apaloo CJ in the case of YIADOM V AMANIAMPONG (1981) GLR 3 at 8 said that where the issue sought to be declared is clear and is not resolvable by interpretation, we firmly resist any invitation to pronounce on the meaning of constitutional provisions.