CONSTITUTIONAL INTERPRETATION Flashcards
MENSIMA V. AG
Per Art 2 and Art 130(a) SC struck out regulation of the Manufacture and Sale of Spirits Regulation made under the parent Liquor Licensing Act, 1970 (Act 331) as unconstitutional and inconsistent with the spirit and letter of the law by requiring every person to first join co-operative before being allowed to distill akpeteshie. SC held that it contravened Art 21(4) - Freedom of association
SEPARATION OF POWERS AND THE DOCTRINE OF SUPREMACY
The Doctrine of Supremacy of the constitution is important because it informs parliament, executive and all other organs and bodies to act within provisions of constitution or else acts and omissions will be contrary to constitution. The doctrine makes parliament and the executive amenable to judicial review of appropriate court, except to some extent where a court may consider a political question.
IS JUDICIAL REVIEW AVAILABLE TO NON-GHANAIANS?
No, Only natural and artificial (corporate) persons/citizens of Ghana have Judicial review available. Not available to non-Ghanaians.
What is the Constitution?
- The Constitution is a unique document with unique qualities that make its interpretation different from the interpretation of all other documents.
- The 1992 Constitution of Ghana is the Supreme Law of the land. It has a number of different attributes that set it apart from all other documents. These include the fact that:
- The Constitution is a legal and political testament.
- The Constitution is sui generis.
- It is organic in nature.
- It has its letter as well as its spirit
- The Constitution is the fountain head of the arms of government amongst others.
Supremacy of the Constitution
By virtue of the fact that the constitution is supreme, all other laws are subordinate to it and as such, any other law which is found to be inconsistent with any provision in the constitution is void to the extent of the inconsistency, per Article 1(2) of the Constitution.
Given the supremacy of the constitution, it must be protected. The Supreme Court is charged with the mandate of being the custodian of the constitution. Per Article 2(1) of the Constitution- A person who alleges that-
an enactment or anything contained in or done under the authority of that or any enactment, or
any act or omission of any person;
is inconsistent with or is in contravention of a provision of the Constitution may bring an action in the Supreme Court for a declaration to that effect.
What are the four grounds outlined in Republic v Special Tribunal ex parte Akosah under which an issue for the interpretation or enforcement of the Constitution would arise?
- Where a provision in the constitution is unclear, imprecise and ambiguous.
- Where rival meanings had been placed by the litigants on the words of any provision of the Constitution.
- Where there is a conflict in the meaning of two or more articles or provisions of the constitution and the question was raised as to which provision should prevail.
- Where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution..
What can the Supreme Court do to any laws inconsistent with the Constitution?
The Supreme Court in the exercise of its exclusive jurisdiction, can strike out and hold as invalid, any Act of Parliament or subsidiary legislation that is made in excess of the power conferred by law.
Adofo v Attorney General & Cocobod
In this case it was held that PNDC 125 was inconsistent with Article 140 and Chapter 4 and 5 of the Constitution and therefore void to the extent of the inconsistency.
Adjei-Ampofo v Attorney General & President of the National House of Chiefs
In this case, s63(d) of the Chieftaincy Act, 2008 (Act 759), which criminalised one’s wilful refusal to honour a call from a chief was struck out by the Supreme Court, by virtue of the fact that it offended the Constitution.
Osei Akoto v The Attorney General
In this case, the Supreme Court struck out executive instruments which were made in excess of the powers conferred on the executive.
Sam (No 2) v Attorney-General.
A citizen of Ghana who invokes the original jurisdiction of the Supreme Court to enforce or interpret the Constitution can be either a natural person or an artificial body.
Adjei Ampofo (No 1) v Accra Metropolitan Assembly & Attorney General
The court held that where enforcement is personal to the applicant, the High Court is the proper forum for commencing the action but where it is for the enforcement of public interest, the Supreme Court is the appropriate forum. (The person does not need to prove that he or she has a personal interest in the outcome of the matter).
Bimpong- Buta v General Legal Council
In this case, the Supreme Court held that: where an issue brought before the court was about the enforcement of a plaintiff’s fundamental human rights the action should be commenced in the High Court rather than the Supreme Court.
-The High Court has exclusive original jurisdiction in the enforcement of personal Fundamental Human Rights and Freedoms. Per Article 33 of the Constitution, where a person alleges that a provision of the constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him/her, the person may apply to the High Court for redress.
A ‘person’ under Article 33 is not restricted to citizens of Ghana and as such includes any individual who alleges that their fundamental human rights have been breached.
What is the right forum for commencing an enforcement action based on personal human rights?
Where one is to commence an enforcement action based on fundamental human rights infringements that are personal to him or her, the right forum for commencing the action is the High Court and, this right of enforcement is not restricted to Ghanaian citizens only.
What is the nature of a constitution?
A Constitution of a country is both legal and political document; a living organism and which must therefore not be restrictively construed by the courts but should rather be broadly and liberally construed.
