The main Area of law that can be deduced from the facts is Judicial review (specifically Judicial review of the Legislature). However, this cannot be successfully discussed without touching on the Supremacy of the Constitution, Separation of powers, respect for the Rule of law, Constitutionalism, Independence of the judiciary, Doctrine of ripeness, etc.
Introduction
Judicial review refers to the power conferred on the courts to review the acts of itself, the Executive, the Legislature and administrative bodies in respect of the 1992 Constitution of Ghana. This work would consider the supremacy of the constitution, touch on the separation of powers and some limitation expressed by the Constitution. It would also take a critical look at the role of the Legislature and the Judiciary and finally, the nuances between the aftermath of Prof. Mike Ocquaye’s ruling and that of the RT. Hon Bagbin.
The 1992 Constitution of Ghana is the Supreme law of the land such that any law or any act or omission which is found to be inconsistent with the constitution, shall by the extent of
inconsistency be declared null and void.[1] The constitution, 1992, is the source of authority for the three arms of government namely the Executive, the Legislature and the Judiciary (Tuffour v AG)[2].
The primary mandate of the Executive is to ensure that laws are enforced, the Legislature makes laws, and the Judiciary interpret the laws. This displays the theory of Separation of powers (though Ghana’s separation of powers allows for some form of interactions among the coordinate organs).
The Executive authority of Ghana is vested in the president, and it is exercised in accordance with the provisions of the constitution.[3] The Legislative power is vested in the parliament and it is exercised in accordance with the provisions of the constitution, 1992.[4] The Judicial power of Ghana is vested in the Judiciary and accordingly neither the President nor parliament nor any organ or agency of the president or parliament shall have or be given final judicial power.
As a corollary, limitations have been placed on the extent to which the various organs may act or conduct their affairs. The Executive power as stated above, is to be exercised in accordance with the Constitution and same applies to all other organs. Meaning, where they act beyond the authority bestowed on them, that would be in contravention of the 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 the manner and within the limits laid down in the Constitution. This reemphasizes the theory of constitutionalism; limitations placed on the various arms to forestall the abuse of power.
THE LEGISLATURE AND THE JUDICIARY
The Legislature is vested with the power to make laws under Article 106, through the passage of Bills and subsequent assent by the president. The legislature may also make laws under Article 11(7) of the Constitution, 1992 by either annulling a bill or allowing it to come into force after the expiry of 21 sittings. Again, through amendments of provisions of the constitution under Article 290 & 291 of the 1992 constitution. The constitution also places some limitations on the legislature, these include restriction of parliament in making a law that establishes a one-party state[5], restriction of parliament in overturning the decision made by a court,[6][7] restriction of parliament in making laws derogating or removing the dignity and honour from a chief, considering a bill bothering on chieftaincy without prior reference to the National House of Chiefs for their advice7, etc. In carrying out their duties they are to do so within the dictates of the Constitution. Some cases in point are Ezuame Mannan v A-G[8], Francis Osei-Bonsu v A-G, Okane v A-G, Opremreh v. A-G, Justice Abdulai v. A-G, Derrick Osei-Boateng v. A-G, etc.
Even though Parliament is guided by their standing orders, their standing orders are subservient to the dictates of the 1992 Constitution. As the learned Koulendi JSC espoused in the case of Justice Abdulai v. A-G, the standing orders that the legislature call their master, has a master which is the constitution,1992.
The Judiciary is mandated by the constitution to interpret laws. The court exercises this power under Articles 130. Per Article 130 of the 1992 Constitution the Supreme court has the original jurisdiction to enforce and interpret any provision of the constitution subject to the High court’s original jurisdiction in enforcing the fundamental human rights under Article 33 of the Constitution, 1992. Therefore, any agency or organ of government that attempts to interpret any provision of the constitution would be usurping the powers of the Supreme court and thus would be in contravention of Article 130 of the 1992 constitution. In Ex-parte Zanetor Rawlings, the learned judge’s expression that Article 94 was clear, was deemed an interpretation of the said provisions and thus the decision was quashed by the supreme court.
Again, Article 99(1) of the 1992 constitution states that the High court shall have jurisdiction to hear and determine any question as to whether a person has been validly elected as a member of parliament or the seat of a member of parliament has become vacant[9][10].
From the facts, the RT. Hon. Bagbin attempted to interpret Article 97(1)(g) of 1992 Constitution, a mandate constitutionally bestowed upon the bosom of the judiciary, specifically, the supreme court and subsequently declared their seats vacant, again a mandate entrusted to the High court. Article 97(1)(g) provides that a member of parliament shall vacate his seat in parliament if he leaves the party of which he was a member at the time of his election to parliament to join another party or seeks to remain in parliament as an independent member. I will tersely have a take on this provision while hasting to add that the authority to interpret the Constitution rest with the supreme court and the supreme court alone.
In my opinion, the framers in drafting each provision of the 1992 Constitution were guided by some historical antecedents and until the rationale for including this provision is well understood, any attempt to interpret the provision would end in a fiasco.
The provision seems straight forward, first of, the member of parliament must leave the party of which he was a member at the time of his election or must seek to remain in parliament as an independent member.
The question is:
- What does it mean to say a member of parliament has left the party of which he was a member at the time of his election or has sought to remain in parliament as an independent member? Is it through express words or by conduct?
- What parliament is the provision referring to? Is it the current parliament for which that member of parliament is a member?
I believe having sure answers to these questions would be very helpful.
THE NUANCE BETWEEN THE AFTERMATH OF PROF MIKE OCQUAYE RULING AND THAT OF THE RT. HON BAGBIN.
Both Prof. Mike Ocquaye and RT. Hon Bagbin usurped the interpretative powers of the Supreme court. However, the subtle difference is that, under Prof. Aaron Mike Ocquaye, his ruling was not challenged whiles in the current case the ruling has been challenged.
The law is clear under Article 2(1) of the 1992 Constitution, it says that a person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment: or
Any act or omission of any person is inconsistent with a provision of this constitution, may bring an action to the supreme court for a declaration to be made.
The effect of Article 2 is that;
A person, someone (must be a citizen of Ghana, be it natural or juristic; NPP v. AG-CIBA case) must first bring an action to the supreme court for a declaration to be made. Suffice it to say that the Court does not act like a busy body looking for cases to adjudicate on. Meaning, until someone or a person brings an action for review, the supreme court would not assume jurisdiction on the matter. So, if no question is brought to it, the status quo continues or remains even in its invalidity.[11] This was succinctly established in the case of Centre for Juvenile Delinquency v. GRA & AG. In that case, Mrs. Adenyira JSC (as then was) speaking for the majority established the two cardinal principles for the judicial review of the Legislature:
- The presumption of the validity of the Legislature’s work even in its apparent invalidity until the contrary is established.
- The principle of severability of impugned legislation.
Flowing from the first principle, just like the dictates of Article 2 (together with Article 130), until a person challenges or subjects the action or inactions of the Legislature or any organ or any person to constitutional propriety, for a decision to be made, the act of the Legislature remains the status quo even in its invalidity.
Article 2 of the 1992 Constitution is termed as the LITMUS TEST for Constitutionality.
- The action or inaction that a person seeks to challenge, must have taken place before such an action can be brought to the Court for a decision to be made accordingly. This was espoused in the case of NPP v. NDC; this is considered as the Doctrine of ripeness.
In conclusion, the constitution, 1992 has vested separate powers into the three arms of government. This, many believe was influenced by the fall outs from the 1960 constitution and the seeming abuse of power by the executive under the first Republic. Baron de Montesquieu asserts that a concentrated power is dangerous and may lead to despotism of government.[12]John Locke posits that it will be dangerous to human frailty should all the powers of government be entrusted into one arm.[13] Thus, it would be unconstitutional for one arm to assume the powers of another and perform a task which has not been bestowed upon it by the constitution. The power to interpret any provision of the constitution and to declare a seat vacant is only vested in the supreme court and the High court respectively such that no other organ or agency can successfully usurp that authority given to the court.
Be that as it may, for the Supreme courts’ jurisdiction to be invoked, someone must lead the way. Article 2 enjoins a person, a citizen of Ghana (be it natural or artificial persons) to bring an action for a declaration to be made where he or she alleges that an act or omission of an organ or a person runs afoul of any provision of the constitution. The courts only act or respond where they have been accordingly and properly called upon to do so. The court does not act in isolation.
Therefore, considering the combined effect of Article 2, 130, 99, 97(1)(g) and decisions of the relevant cases cited above, I would be tilted more in tandem with the ruling of the Supreme court on the Stay of Execution Application filed by the plaintiff in the case of Alexander Afenyo Markin v. Speaker of Parliament & A-G.
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[1] Article 1(2) of the constitution
[2] [1980] GLR637
[3] Article 58(1) of the 1992 constitution
[4] Article 93(2) of the 1992 constitution
[5] Article 3
[6] Article 107
[7] Article 106
[8] [TLP-SC-2022-115]
[9] Asare v A-G
[10] Zakaria v, Nimakan
[11] Mensima v A-G
[12] L’Espirit des Lois (The spirit of the Law)
[13] The second treatise of civil Government (1960)