Context and approach

The aftermath of the Second World War saw the rise of written constitutions in many post-colonial states, including Ghana.Footnote ²Constitutionalism was seen as a way to guarantee political stability, promote the rule of law and deliver the aspiration of economic development.Footnote ³In Ghana, before the 1992 Constitution which has seen some stability, four separate constitutions were experimented with: 1957, 1960, 1969 and 1979.Footnote ⁴All these four were overthrown by military adventurers who justified their coups partly because the supposed democratic institutions created under them did not produce their expected dividends.Footnote ⁵

The appetite for coups and insurrections in new states even in the face of written constitutions that outlaw them drew attention to the need for radical reforms in constitution-making.Footnote ⁶To achieve stability, the 1992 Constitution of the Republic of Ghana (the Constitution) adopted principles typical of written constitutions in stable democracies.Footnote ⁷This bundle of principles has defined the limits of the various state organs to ensure the balance of power.Footnote ⁸However, the interpretation and application of these principles have sometimes produced a conflict of values.Footnote ⁹This conflict sometimes emerges in the exercise of the court’s power of judicial review over legislation and legislative processes. Judicial review of legislative acts seeks to ensure that enactments conform with the Constitution.Footnote ¹⁰

How far the judiciary can go and under what circumstances may implicate the principle of separation of powers and its objectives.Footnote ¹¹Article 2(1) and (2) and article 130(1)(b) of the Constitution give power to the Supreme Court to strike down any action found to be inconsistent with the Constitution.Footnote ¹²The broad power given to the Supreme Court has been interpreted to include a power to interfere with all processes and procedures in Parliament leading to or preceding an enactment in so far as those processes are found to violate the Constitution.Footnote ¹³Whether or not a particular method or procedure in Parliament is unconstitutional may first require interpretation.Footnote ¹⁴Thus, the court must find the correct meaning of the constitutional provision under controversy. The court may be confronted with choices between several plausible meanings in seeking the proper interpretation. This article argues that the purposive approach to interpretation, correctly applied, helps navigate these complex choices. The work is presented in five sections.

The first, as detailed in this section, provides the background and outline of the study. The second part provides further context by focusing on the principle of constitutionalism as a bundle of values. The third examines the principle of separation of powers and checks and balances and establishes their interaction with judicial review within the context of written constitutions. The fourth section discusses the purposive approach to interpretation and how various academic and judicial opinions deconstruct its complexities. The fifth section examines relevant case law on the purposive approach in Ghana with particular focus on the most recent Ghanaian decision of Ezuame Mannan v Attorney General and Speaker of Parliament and evaluates the extent to which the courts effectively utilize the tools of the purposive approach to achieve the goals of constitutionalism. The final section provides a conclusion highlighting the study’s key observations.

Constitutionalism as a bundle of values

There is a broad understanding that social contract theory which emerged in the seventeenth century and sought to justify a more secular foundation for government provided the catalyst for what today is known as constitutionalism.Footnote ¹⁵Contractarianism in its basic form opines that in exchange for their collective peace and security people are prepared to surrender their self-interest to the control of a sovereign.Footnote ¹⁶In Locke’s view, the sovereign remains legitimate so far as he can guarantee public order and not interfere with three fundamental natural rights: life, liberty and estate.Footnote ¹⁷

Hobbes held a similar view. To him, individuals as rational beings give their allegiance to a government because it is in their rational self-interest to do so.Footnote ¹⁸Hobbes asserts that without government, life will reflect the state of nature where life was short, nasty and brutish.Footnote ¹⁹Contractarians however broadly accept that the power to rule is constrained by goals that promote the common interest of the citizenry.Footnote ²⁰Governments must therefore be guided by values that broadly promote mutual co-existence.Footnote ²¹The concept of constitutionalism resonates with this thinking.Footnote ²²It broadly represents a set of values that limits the powers of state organs with the ultimate goal of safeguarding individual liberties.Footnote ²³The question about what should be the ultimate source of these limitations has yielded differing opinions.

Two broad viewpoints are dominant; political and legal constitutionalism. Political constitutionalists assert that legislation should provide the limits within which governmental power should operate.Footnote ²⁴This view holds that a parliament should define the values that must constrain governmental action and enforce these values through a system of political accountability.Footnote ²⁵The justification for this is that it is parliament that represents the people and therefore has the legitimate authority to determine what rights are and how they should be enforced. Simply put, the political process manifested by parliaments’ political debates, consultations and compromises is considered to be more effective in promoting rights. Thus, to political constitutionalists, embedding rights in a document and handing over its interpretation to a supreme court only projects a view of rights as understood by an elite few who constitute the courts. Bellamy summarises the point in the following words: “The test of a political process is not so much that it generates outcomes we agree with as that it produces outcomes that all can agree to, on the grounds they are legitimate”.Footnote ²⁶To Bellamy, where there are competing visions and opinions about which values are the best for society, majority opinion is the fairest approach to resolving disagreements.Footnote ²⁷Also, to him, since what society considers the right values keeps evolving, it is counterproductive to set up these rights in a rigid political document called a constitution.Footnote ²⁸

Many modern republican constitutions, with the USA being a typical example, adopt the legal constitutionalist approach.Footnote ²⁹The central feature of these constitutions is that they are often codified in one document spelling out the functions and powers of various organs of government. As captured by Griffiths, the theory behind a written constitution is that it is antecedent to government and forms the basis of all governmental powers.Footnote ³⁰As stated expressly in its text or subsequently interpreted by courts, written constitutions provide two complementary but also sometimes contradictory mechanisms for limiting governmental power.Footnote ³¹First, they establish a balance of power through separation of powers and checks and balances among the various organs of government so that no arm of government can rule without consulting the other.Footnote ³²Second, a system of judicial review, by which the courts are empowered to determine whether the actions of the various organs of government are constitutional.Footnote ³³

Following the Second World War and the collapse of the Soviet Union, it is not in doubt that many states including post-colonial states in Africa such as Nigeria, Kenya, South Africa and Ghana have adopted written constitutions that incorporate these mechanisms in varying degrees.Footnote ³⁴Any categorization of these constitutions as political or legal will however be inaccurate. Though these constitutions significantly show features of legal constitutions such as the power of the judiciary over legislative acts, there are also significant notable features about political constitutions such as political checks by parliament through its oversight roles as well as systems of ministerial responsibility and accountability through parliament.Footnote ³⁵Even in the UK, where elements of political constitutionalism seem to be dominant, there are several elements of legal constitutionalism including the power of the judiciary to strike down subordinate legislations and define the content of rights and the limits of state power in relation to rights.Footnote ³⁶What is remarkable in the constitutional practice in Ghana and many post-colonial states in Africa however is the adoption of the twin principles of separation of powers and checks and balances, and judicial review of legislative actions as part of their constitutional design.Footnote ³⁷These tools are broadly viewed as essential vehicles for preventing arbitrariness and protecting and promoting the fundamental rights and values that the Constitution stands for. However, where the various organs push beyond their limits, this constitutional design may lead to results counterproductive to constitutionalism. An activist judiciary may for instance excessively interfere in the legislative process beyond what its constitutional power allows it to do which may lead to undesired conflicts and hamper institutional cooperation.

An appropriate balance must therefore be struck between constitutional values to ensure stable and effective governance. This work argues that correctly utilizing the tools of purposive interpretation produces interpretative outcomes that harmonize constitutional values and advance the goals of constitutionalism.

Separation of powers and checks and balances

The standard understanding of the principle of separation of powers divides the functions of states between three organs of government which are the legislature, executive and judiciary.Footnote ³⁸The two main goals of the principle are to ensure efficiency and promote liberty.Footnote ³⁹The functional division of labour achieves the efficiency rationale by ensuring that the task is performed by the particular organ structurally well-equipped to do so.Footnote ⁴⁰

The liberty rationale thrives on the assumption that liberty and a strong state are rivals and so the only way by which the freedom of the individual can be ensured is through institutional conflict between the branches.Footnote ⁴¹The complementary device of checks and balances provides the context for healthy conflict and friction within which the individual branches correct constitutional errors of each other.Footnote ⁴²In Ghana, separation of powers and checks and balances are important underlying values of the Constitution. Wood CJ, in illustration of this fact, held that “[s]eparation of powers and the equally salutary principle of checks and balances, with the aim of ensuring that all organs of State, as far as is possible, operate harmoniously within the constitutional framework is a core value underpinning the 1992 Constitution”.Footnote ⁴³

The objective of checks and balances is to reinforce the constitutional limits within which all the organs should operate.Footnote ⁴⁴It reinforces the mutual watchdog role of each organ over the other.Footnote ⁴⁵In Ghana, unlike the USA, the power of judicial review of legislation is a creation of the Constitution itself. Acquah JSC affirms this in the following words:

From the above statements of Wood CJ and Acquah JSC, it could be deduced that separation of powers and checks and balances on one hand and judicial review on the other are both underlying commitments of the Constitution. Also, it is clear that both operate to achieve the common goal of constitutionalism which is to limit the state and its organs. The need for interpreting the constitutional text in a manner that harmonizes these principles need not be over-emphasized. In advancing this solemn goal of constitutionalism, judicial review must ensure that it keeps all organs of states within its constitutional limits including the judiciary itself.

Barber points to a very important dimension of the principle of separation of powers and checks and balances which, in his view, is essential to constitutionalism.Footnote ⁴⁷This element must be contemplated by the judiciary in defining the limits within which it interacts with the legislature. This is what he calls defense mechanisms.Footnote ⁴⁸He defines this mechanism as powers and immunities that serve to protect institutions or officials within those institutions from unjustifiable interference from other organs.Footnote ⁴⁹He exemplifies this as follows: “For example in many systems debates in the legislature are often insulated from part of civil or criminal law”. Barber opines that the defense mechanisms limit how disagreement between the branches can be expressed and also limit the level of control that may be exercised by one institution over the other.Footnote ⁵⁰Negative defense mechanisms according to him act as a shield by preventing certain types of interference. Positive defense mechanisms act as a sword by providing a sanction or threat that one institution can use against others.Footnote ⁵¹

In Ghana, a typical defense mechanism for Parliament is provided for in article 115 of the 1992 Constitution. It states “[t]here shall be freedom of speech, debate, and proceedings in parliament and that freedom shall not be impeached or questioned in any court or place outside parliament”. The Ghanaian Supreme Court has in recent decisions recognized this insulating mechanism. In Abdullai v Attorney General, the Supreme Court observed that the court should exercise restraint in matters that entirely concern parliamentary procedure. The court observed:

The court has also in several cases upheld the common law position that acts of parliament are presumed to be valid and has gone further to set a high threshold for dislodging this presumption.Footnote ⁵³The court requires proof of clear transgression by Parliament before a claim that an act of parliament is unconstitutional can be sustained.Footnote ⁵⁴This standard of review set by the Ghanaian court in relation to legislative acts is consistent with the attitude of the judiciary in analogous jurisdictions with similar constitutional structures. In South Africa, the Constitutional Courts have emphasized that the courts will intervene in the legislative process where there are breaches of a constitutional obligation.Footnote ⁵⁵The Kenya court succinctly expressed the nature of the court’s powers in the following words:

Broadly, what is obvious from these constitutional arrangements and their related judicial opinions is that legislative acts will only yield to the court’s power of judicial review where it is clear that there are manifest breaches either in the manner in which the legislation was passed or in its substance.

The purposive approach to constitutional interpretation

Courts have broadly approached the interpretation of an enactment from three theoretical perspectives: originalism, textualism and purposivism.Footnote ⁵⁷To the originalist, the meaning of an enactment is fixed at the time the enactment is made.Footnote ⁵⁸As such, interpretation should reflect the meaning of the words as intended by the lawmakers at the time of enactment. Meaning from the point of view of the originalists, it must be construed from the semantic context as well as all background materials related to the enactment at the time it was passed.Footnote ⁵⁹

Textualists, on the other hand, posit that the meaning of enactment should be ascertained from the plain words used by the maker within its semantic context and not by resorting to extraneous materials.Footnote ⁶⁰In the words of Scalia J, “where the language of the law is clear, we’re not free to replace it with unenacted legislative intent”.Footnote ⁶¹Scalia J argues strenuously that the statutory text always overrides unenacted legislative intent.Footnote ⁶²To the textualist, purpose is only an accessory in understanding what the text says. It only becomes useful when semantic ambiguity arises. In the absence of any such ambiguity, the text must prevail.Footnote ⁶³

There is a growing consensus that judges have moved away from finding the meaning of constitutions and other enactments based on the plain or dictionary meaning.Footnote ⁶⁴The contemporary approach called the purposive approach finds the meaning of words by giving effect to the purpose of parliament or the framers.Footnote ⁶⁵This requires the judge to pay attention to the underlying principles or values of the text under interpretation.Footnote ⁶⁶The ascendancy of the purposive approach as a technique for constitutional interpretation in the Ghanaian jurisdiction could be linked to the rise of the purposive approach to statutory interpretation in the common law world.Footnote ⁶⁷

Indeed, references to this approach in the context of constitutions by Ghanaian judges have heavily drawn from the principles as they pertain to statutory interpretation with little or no modifications.Footnote ⁶⁸In several decisions in which the purposive interpretation has been invoked in relation to the interpretation of the Ghanaian Constitution, reference has been made to English cases in which the purposive approach has been applied to interpret statutes.Footnote ⁶⁹

More recently, the Ghanaian court has stated clearly that the modern purposive approach to interpretation is reflected in section 10(4) of the Interpretation Act, 2009 which provides as follows:

Clearly from the above, we see that the law makes no distinction between the purposive approach as it relates to the Constitution on one hand and as it relates to other enactments on the other. The Supreme Court has, in several decisions, applied the above provision of the Interpretation Act to both the Constitution and statute without any distinction.Footnote ⁷⁰The Ghanaian situation is similar to the approach adopted by the Kenyan courts. Section 10(4) of Ghana’s Interpretation Act is similar to section 259 of the Kenya Constitution. The latter provides “1) This Constitution shall be interpreted in a manner that (a) promotes its purposes, values, and principles; (b) advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance”. In practice, the Kenyan courts just like its Ghanaian counterparts make no distinction between the purposive approach as it applies to statutes and as it applies to the Constitution. Mativo J, citing several authorities, in Stephen Wachira Karani and another v Attorney General and 4 others demonstrates this in the following words: “[t]he purposive approach (sometimes referred to as purposive, or purposive construction, or purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause of a constitution) within the context of the law’s purpose”.Footnote ⁷¹

This trend is consistent with practices in other analogous common law jurisdictions.Footnote ⁷²Also, it accords with theoretical perspectives on the purposive approach. Barak, who provides one of such leading perspectives, makes no distinction between a purposive approach to the Constitution on one hand and statute law on the other. To him, the purposive approach is a technique for ascertaining the “purpose” of a legal norm.Footnote ⁷³

To Barak, a legal norm is an abstract concept made up of both subjective and objective purposes. The first reflects the intention of the text author and the second, the intention of the reasonable author as reflected in the fundamental values of the legal system. The first reflects the true intention at the time the text was made and does not change with time; the second reflects the meaning that the reasonable interpreter will give to it taking into account the values of the legal system. The first is a fact established in the past; the second represents a legal norm that reflects the present.Footnote ⁷⁴In Barak’s view, to diagnose the objective purpose, the hypothetical reasonable man must be guided by the current normative environment including relevant judicial case law in which the text that has come up for interpretation operates.Footnote ⁷⁵Where the subjective and objective intent clash the interpreter should choose the outcome from objective interpretation so as not to enslave today’s generations to the values of past generations.Footnote ⁷⁶

Burrow’s views of the purposive approach are substantially similar to Barak’s. Burrows agrees broadly with Barak that the essence of the purposive approach is for the judge to ascertain the meaning of words by looking at their context including its policy environment. Burrows however takes the view that the use of the term parliamentary intent and its further categorization into objective and subjective is misleading.Footnote ⁷⁷

Burrows, in support of Kirby J’s view, strongly argues that judges exercise the power of interpretation in finding meaning to words by making sense of the context and not by merely giving effect to the intent of parliament.Footnote ⁷⁸This comes out clearly in his words as follows:

Similar to Barak, Burrows points out that purposive interpretation requires that the law evolves according to current circumstances and needs.Footnote ⁸⁰To him, an enactment must be interpreted with the benefit of hindsight to save it from being ossified in the past.Footnote ⁸¹Burrows points out three key legacies of the purposive approach to the law of interpretation.Footnote ⁸²First, he argues that the purposive approach has come to subsume many of the so-called old canons of interpretation. To him, these rules have lost primacy with the demise of literalism and will only be relevant to the extent that their application leads to arriving at the purpose of the object of interpretation.Footnote ⁸³

Second, he argues that legislative history is now admissible as part of the context of interpretation.Footnote ⁸⁴Third, he asserts that in exceptional cases the court has power to amend the words of legislation if it can establish that there has been a drafting mistake. Such a situation may arise where the words used in the statutory provision conflict with the statutory purpose.Footnote ⁸⁵

The opportunity offered to the judge by the purposive approach to resort to non-legal considerations sometimes leads to radical change in the ordinary meaning of an enactment. Changing the ordinary meaning without sufficient basis in the text itself and historical documents relating to it may lead to the conclusion that the judiciary is pushing its constitutional limits too far through judicial law-making. Even more problematic is what constitutes a “sufficient basis” for changing the ordinary meaning of an enactment duly enacted by the lawmaker. Some judicial opinion has suggested that the power of the court to stray outside the text is nearly limitless. The concurring opinion of Mutunga CJ of the Kenya Supreme Court in laying down the interpretative powers of the court under section 3 of the Kenya Supreme Court Act is revealing:Footnote ⁸⁶

Mutunga CJ’s ambitious statement extends the judges’ interpretative powers beyond the historical documents that precede the text. Ghanaian judicial opinions regarding how far the judge can go beyond the text in this purposive endeavour further demonstrate these complexities. Three cases are illustrative.

The first is the case of Asare v Attorney General. Footnote ⁸⁸The constitutional provision that generated the controversy was article 60(11) of the 1992 Constitution which provides: “[w]here the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be”.

The president and vice president had temporarily travelled outside the jurisdiction as such and the speaker of parliament was sworn in as president in accordance with article 60(11) of the Constitution. The plaintiff filed a public interest action at the Supreme Court, invoking the court’s original jurisdiction. The plaintiff argued that in the light of the principle of separation of powers, a narrow interpretation should be placed on the words “unable to perform the functions of the President” in article 60(11), such that it is confined to situations of real inability to perform the functions such as “grave or terminal illness affecting physical or mental capacity, kidnapping, absconding, missing – and not temporary travel of the President”.Footnote ⁸⁹

Referring to the purposive approach to interpretation as laid down in previous decisions including English decisions relating to purposive statutory construction, the court stated that the phrase “unable to perform his duty” includes situations where the president is temporarily absent. The court speaking through Date Bah JSC explained what constitutes purpose and context:

Date Bah JSC strived to provide clarity in the Asare case by stating what purpose is composed of and how it can be ascertained. The interesting formula he presents, however, is not without some confusion. The first is that it mixes intention and purpose. He explains objective purpose as the objective intention of the author and subjective purpose as the subjective intention of the author. This approach appears to create conceptual difficulties in light of fine academic distinctions made between intention and purpose.

As Burrows puts it within the context of statutory interpretation, “[w]hen we are talking of purpose, we are looking for the policy behind a statute or statutory provision. Identifying the provision is not dependent on identifying any person’s intentions. Interpretation requires focusing on the law to be interpreted and not on its author or framer”.Footnote ⁹¹Thus, to Burrows, the concept of parliamentary intention is a fiction. What interpretation requires is ascertaining the plausible meaning of the provision in issue from the words, context and purpose. In this argument nonetheless, the distinction between subjective and objective purpose may be of no practical relevance. This is because as stated by Date Bah JSC, the subjective purpose will only have relevance if it agrees with the objective purpose. Once it disagrees, the objective purpose overrides.Footnote ⁹²

The second is his enunciation of the term “context”. Date Bah JSC’s context seems to plunge the interpreter into an open-ended endeavour. In relation to context, he talks about the underlying legal system, history, values, etc of the society. This is a very broad spectrum within which to draw the meaning of a provision. At another breadth, he includes the purpose in the context. He says, “[a]n important part of this contextual analysis is the determination of the purpose of the provision under construction”.Footnote ⁹³These semantic complexities perhaps plunge his formula into further conceptual difficulty. In this regard, Bingham in the Quintavalle caseFootnote ⁹⁴appears to be more conservative and clearer with what constitutes context. As observed, he talks about context being the whole statute as viewed in its historical context.Footnote ⁹⁵

Date-Bah JSC had the opportunity to further clarify his approach in the case of Frank Agyei-Twum v Attorney General.Footnote ⁹⁶The case concerned the requirements for the removal of the chief justice under the 1992 Constitution of Ghana. The removal of a justice of a superior court is initiated by a petition to the chief justice.Footnote ⁹⁷The chief justice is first required to establish a prima facie case. Once this is done, the chief justice is required to refer the matter for investigation by a committee which membership is prescribed by the Constitution.Footnote ⁹⁸In the case of removal of the chief justice, the process is initiated by petition to the president.Footnote ⁹⁹The president is required to refer the petition to a committee set up by him in consultation with the council of state. Unlike the case of justices of superior courts, he is not required to make a prima facie determination before reference of the petition to the committee.

The question before the court in Agyei Twum was whether on a true and proper interpretation of the 1992 Constitution, in removing the chief justice, a prior requirement of prima facie determination by the president must be read into the Constitution to precede the requirement of reference to a committee as provided for in the Constitution. Before proceeding to resolve the issue, Date-Bah JSC laid down his preferred approach to interpretation as follows:Footnote ¹⁰⁰

What happens when the literal meaning is completely in disagreement with its purpose as discerned from the context? What must the judge do?

According to Date-Bah JSC, once an interpreter concludes that the literal meaning of words do not make sense in the light of its context and purpose, the interpreter should explore other semantic possibilities including inserting new words, to achieve a meaning that is consistent with the context and purpose of the provision.Footnote ¹⁰¹This approach is similar to the English “filling in” approach canvassed by Burrows and already mentioned.Footnote ¹⁰²

Date Bah JSC made this point by relying on portions of the judgment of Taylor J in Sasu v Amua-Sekyi. Footnote ¹⁰³This was a case in which the court sought to rectify the absurdity in the literal interpretation of a statute by reading words into the provision. Taylor J, relying on English authorities, observed: “[t]he judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute”.

This filling-in device employed by Date Bah JSC as part of the purposive approach seems to be substantially similar to the power to rectify a statute as expressed in the Inco Europe case.Footnote ¹⁰⁴Just as Date Bah JSC refers to the inherent limitations in exercising this jurisdiction, that is to say, it must be used to make explicit what is already implicit, the English court was clear that it must only be used when legislative errors are patent. This constraint takes into account the constitutional strictures of separation of powers within which a judge performs his role. Cooke J clarifies further: “the Courts must try to make the Act work while taking care not themselves to usurp the policy-making function, which rightly belongs to Parliament. The Courts can in a sense fill gaps in an Act but only in order to make the Act work as Parliament must have intended”.Footnote ¹⁰⁵The Ghanaian Supreme Court has expressed similar views in the following words:

As observed by Date Bah JSC, a core objective of the purposive approach is to ensure that underlying values are accounted for within the meaning of a constitutional provision. The filling in or amendment jurisdiction utilized in finding a purposive meaning must therefore ensure a balanced engagement of these principles.

How far has Ghana fared in reconciling constitutional values in its application of the purposive approach? How can the purposive approach effectively respond to the needs of a harmonious construction? Three cases from Ghana’s constitutional history discussed below are illustrative.

Purposive interpretation and the Ghanaian Constitution

The case of Tuffour v Attorney General Footnote ¹⁰⁷represents one of the significant judicial applications of the purposive approach in Ghana. The plaintiff, acting in the capacity of a public interest litigant in accordance with article 2 of the Constitution, brought an action before the Supreme Court seeking among other things, a declaration that upon the coming into force of the 1979 Constitution, the chief justice (Apaloo J) immediately preceding the Constitution should be deemed as the chief justice in accordance with article 127(8) of the 1979 Constitution. Article 127(8) provides: “[s]ubject to the provisions of clause (9) of this article, a Justice of the Superior Court of Judicature holding office as such immediately before the coming into force of this Constitution shall be deemed to have been appointed as from the coming into force of this Constitution to hold office as such under this Constitution”.

Before initiation of the case, Apaloo J had appeared before Parliament to be vetted for the position of chief justice and had been rejected. The speaker of parliament was made a second defendant in the suit. For purposes of this paper, two of the questions that came before the courts shall be examined.

The first was the correct construction to put on the word “deemed” as used in article 127(8) of the Constitution. The second which was a preliminary question was whether the speaker of parliament was a proper party to the suit. In answering the first question, the court for the first time laid down broad constitutional principles for the construction of the Constitution. Sowah JSC forcefully opined:Footnote ¹⁰⁸

Having laid this foundation, the court proceeded to explain how the so-called letter and spirit should be decoded. It canvassed thus:Footnote ¹⁰⁹

Sowah JSC’s approach had three key features. First, it prescribed what can be termed an evolving approach to constitutional interpretation. By this thinking, Sowah JSC established that the interpretation of the law must be responsive to changing circumstances. Secondly, he established context as an important consideration in interpretation. Finally, he prescribed a solution to rival meanings arising from interpretation – in such a scenario, he opined that the most reasonable interpretation should prevail. Though Sowah JSC’s approach did not expressly mention the word purpose or purposive approach, subsequent Ghanaian decisions have referred to his approach as the hallmark of the purposive approach.Footnote ¹¹⁰Date Bah JSC subsequently stated that Sowah JSC’s use of the term spirit is synonymous with purpose.Footnote ¹¹¹

As much as Sowah JSC offered a useful guide, he was also confounding. He did not tell us the appropriate test to unravel what constitutes reasonable interpretation in a situation where interpretation leads to two inconsistent results.

The court was confronted with the more practical problem of reconciling the principles of separation of powers and judicial review within the framework of the purposive approach when it sought to answer the question of whether the speaker of parliament had been appropriately sued. In answering this question, Sowah JSC approached this difficult balancing task by first stating the applicable principles as follows:Footnote ¹¹²

Having laid down what he considered to be the relevant principles; he concludes:

The Sowah JSC approach represents an attitude of judicial restraint in applying the powers of judicial review. Obviously, it did acknowledge the constitutional power of judges to review legislation but clearly defined the limits of the power as it relates to the business of Parliament. This was in recognition of the fact that the Constitution itself had imposed limits on the power of judicial review within the broad context of the principle of constitutional supremacy.

The case of Justice Abdulai v Attorney General Footnote ¹¹⁴provides a contrasting perspective. The facts are as follows: article 102 of the 1992 Constitution provides that the quorum in Parliament shall except the person presiding be one-third of all members of parliament. Upon the temporal leave of the substantive speaker, a member of parliament who was also the first deputy speaker assumed the position of the speaker of parliament in accordance with the Constitution. While presiding, he counted himself as part of the quorum for the purposes of voting in the house. The main question before the court was whether or not the deputy speaker of parliament when presiding over a siting of Parliament in the absence of the speaker retains his right to vote as a member of parliament in the light of article 102 of the Constitution.

In determining this matter, the Supreme Court pronounced on the applicability of the political question doctrine to the interpretation of the Ghanaian Constitution. The doctrine generally is a feature of American constitutional jurisprudence considered relevant to the separation of powers.Footnote ¹¹⁵It requires the court to restrain itself from adjudicating on matters that falls within the constitutional competence of other organs of state. The seminal USA decision of Marbury v Madison Footnote ¹¹⁶laid the foundation for this principle as follows: “[t]he province of the court is solely to decide on the rights of individuals, not to inquire how the Executive, or Executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the Executive, can never be made in this court”.

A full statement on how a political question should be determined was made by Brennan J in Baker v Carr as follows:

Brennan J further linked the doctrine to the concept of separation of powers. He observed “[t]he no justiciability of a political question is primarily a function of the separation of powers”.Footnote ¹¹⁸The Ghanaian courts have also established that the doctrine is central to the separation of powers.Footnote ¹¹⁹

Kulendi JSC in the Abdulai case outrightly rejected the application of the political question doctrine as inapplicable to Ghana on the preponderance of probabilities. In support of this view, Kulendi JSC frantically made his point as follows: “[t]his Court has predominantly, on a preponderance of the authorities, long held the view that the political question doctrine does not apply within our jurisdiction”.Footnote ¹²⁰

The problem with this categorical statement is twofold. First, having outrightly rejected the political question doctrine it would have been proper for the learned judge to offer an alternative solution that adequately takes into account the limits imposed on the judiciary in the exercise of its power of judicial review within Ghana’s constitutional framework. This is because at the very least, in line with Barber’s thinking, there are negative defense mechanisms that shield the Ghanaian legislature from unrestrained judicial interference.

Second, it failed to take into account the entire context of constitutional history as required by the purposive approach before reaching this conclusion. Even though he claimed to apply a purposive approach, he arrived at his preponderance of probabilities by drawing upon only two relevant cases.Footnote ¹²¹

There existed a litany of Ghanaian judicial pronouncements which he could have adverted his mind to and distinguished where appropriate those that had upheld the doctrine as essential in promoting the constitutional principle of separation of powers.Footnote ¹²²In the Amidu case, for example, Acquah JSC noted as follows:

This approach of the Ghanaian court acknowledges some limits in the application of the power of judicial review. Even though, the court specifically referred to the earlier case of Tuffour v Attorney General in its justification of the purposive approach as the correct approach to interpretation, it failed to consider the case’s pronouncement on the extent of interference that the judiciary could exercise over the legislature. As discussed earlier, the Tuffour case interpreted article 96 of the 1979 Constitution to mean that the courts have no jurisdiction to interfere with the freedoms of Parliament.Footnote ¹²⁴Article 96 of the 1979 Constitution is the same as article 115 of the 1992 Constitution.Footnote ¹²⁵Both provisions emphasize the fact that parliamentary proceedings and debates cannot be questioned in any court of law. Because the Tuffour case was among the few cases that had specifically defined the extent to which the judiciary could interfere in what happens in Parliament, the purposive approach required some look at this very important aspect of the constitutional context of Ghana.

Ironically, in applying the purposive approach, Kulendi relies on the case of Kuenyehia v Archer Footnote ¹²⁶which requires him not to be oblivious to past judicial practices. It states:

Kulendi, in his approach, seemed to have been oblivious to the receding footsteps of the past.

The minority decision in the Supreme Court case of Ezuame Mannan v Attorney General Footnote ¹²⁸in my view provides some insight into how the purposive approach can be effectively deployed to achieve a more harmonious interpretation. The court was almost split in half with four in the majority and three in the minority. The majority opinion was delivered through Kulendi J. Three separate but agreeable dissenting opinions were offered by Tanko J, Amegatcher J and Professor Kotey JJJSC, all of which are worth some analysis.

The facts of the case in so far as material were that the plaintiff brought an action in the Supreme Court questioning the validity of section 43 of the Narcotics Control Commission Act (Act 1019) on grounds that it was not passed in accordance with the manner and procedure prescribed by article 106 of the Constitution. The relevant parts of article 106 which was the subject of controversy read:

After the bill and the memorandum to the now Narcotics Control Act (Act 1019) had been gazetted and introduced in Parliament, section 43 of the act was inserted during the second reading stage as an amendment to the bill.

The initial bill introduced in Parliament intended a blanket prohibition of all forms of cultivation of narcotics without lawful authority. The later introduced section 43 gave power to the minister to grant licenses for the cultivation of cannabis “which has not more than 0.3% THC content on a dry weight basis for industrial purposes for obtaining fibre or seed or for medicinal purposes”.Footnote ¹²⁹Three main claims of the plaintiff formed the basis of the controversy before the court. First, that section 43 was not contemplated or mentioned in the memorandum to the bill neither was there any disclosure of any intended change of the existing law in the memorandum. Second, subsequent changes were not published in the gazette and third, there was no full debate of the changes.

The overall question arising from these claims was whether or not section 43 of the act should be struck out for not complying with article 106 of the Constitution. Speaking for the majority of the court, Kulendi J began by seeking to clarify the constitutional relationship between Parliament and the courts. He stated categorically that Parliament is autonomous but the Constitution is supreme and therefore all acts of parliament are amenable to the review of the courts once they breach a constitutional provision.Footnote ¹³⁰He further establishes that the evidential presumption that acts of parliament are valid is applicable to the circumstances of the case. He explained:Footnote ¹³¹

Kulendi J adopts a very expansive view of judicial review without disclosing the constitutional limits of this power. Even though he says absolute deference is not the standard, he does not state with any clarity the extent of deference permissible or the extent of judicial restraint required. In answering the first claim of whether the memorandum contemplated the changes made by section 43, Kulendi J stated that the modifications fell outside the scope of the memorandum and as such section 43 is unconstitutional.Footnote ¹³²In my view, the starting point for the court should have been whether there was any constitutional requirement for the impugned section 43 to have been specifically expressed in any form in the explanatory memorandum before the debate and subsequent bill amendment.

Article 106(5) and (6) prescribe the procedure that should precede the amendment of a bill. It states that “[t]he report of the Committee together with the explanatory report shall form the basis of full debate of the bill for its passage with or without amendment”.Footnote ¹³³The power of Parliament to amend as part of their proceedings is thus not constrained by a requirement that such amendment should have first been contemplated or expressed in any form in the explanatory memorandum. As provided for in article 106(5), a debate by Parliament leading to an amendment happens after the explanatory memorandum and the bill have been introduced and gazetted. Secondly, the debate by Parliament leading to the amendment is supposed to be based not only on explanatory memoranda but also on the report which contains deliberations on the bill. It can therefore not be the purpose of article 106 that the reasons and principles behind every amendment will be captured in the explanatory memorandum preceding the amendment. As Tanko JSC rightly observed in his dissenting opinion:

In Ghana and many presidential systems of government, most bills are initiated by the executive from a sector ministry. There are several legal and practical limitations on private members’ bills.Footnote ¹³⁵Thus in most cases, explanatory memoranda of bills are essentially prepared by the interested sector ministry in addition to its proposed bill and approved by the cabinet.Footnote ¹³⁶After approval, it is published in the gazette for 14 days as required by law and introduced in Parliament.Footnote ¹³⁷Explanatory memoranda to bills and the bills themselves are thus in most cases executive creations. Following these events, Parliament exercises its power as a corporate body to make inputs to the bill through debates which produce a report with or without an amendment.Footnote ¹³⁸To say that Parliament’s power to amend is controlled and fixed by the content of the explanatory memorandum is in my view to limit the deliberative and amendment powers of Parliament largely to the legislative intentions of the executive as expressed in the memorandum. Separation of powers and checks and balances demand that while the executive may interact with the legislature in the law-making process through the introduction of bills, the core power of the legislature to debate bills and determine its final product as law is also preserved and respected.Footnote ¹³⁹

In the absence of a clear breach of constitutional procedure in the passage of section 43, the approach employed by Kulendi JSC raises many difficult questions relating to the purposive interpretation and the limits of the power of the courts. As observed by Kulendi JSC in the Justice Abdullai case mentioned earlier, a genuine reason for upsetting parliamentary autonomy arises where the Constitution has been breached. The demands of the burden on the plaintiff in this case required that he point specifically to breaches of the Constitution in the procedure leading to the amendment. This duty in my respectful view was not discharged by the plaintiff merely pointing to the fact that the changes in the bill were not contemplated by the memorandum. Tanko JSC in establishing the unconstrained power of Parliament to amend legislation beyond the strictures of memoranda observed as follows:

On the second claim of breach of the publication requirements, the court established a further ground for impugning section 43. The court concluded that the changes captured in section 43 were not published in accordance with the constitutional requirements and as such were unconstitutional. It was evident that the initial bill together with the memorandum had been published for 14 days before its introduction. After the introduction, an amendment was made to introduce section 43. Under article 106(6) an amendment can be made based on a full debate of the explanatory memorandum, the bill and the committee report. No reference was made by the majority to a provision in the Constitution nor its antecedent historical documents that require publication in the gazette after changes by amendments. This leads to the irresistible conclusion that the framers of the Constitution intended to give power to Parliament as a democratic body to determine the evolution of the law after it had been introduced without further constraints.Footnote ¹⁴⁰

The question of whether there was a full debate in Parliament before section 43 was introduced was also answered in the negative by the majority. Similar to the other grounds, they concluded that changes were not debated by Parliament and therefore were unconstitutional. There was no doubt that there was evidence of some proceeding in Parliament at the second reading stage regarding the provision.Footnote ¹⁴¹The plaintiff argued that the proceedings cannot be said to constitute a full consideration of the policy of the bill as required.Footnote ¹⁴²The Constitution does not prescribe the form a debate should take nor does it set a standard or define any elements of the full debate requirement specified in article 106(6). Therefore, what a full debate is or is not becomes a matter of parliamentary procedure and practice. Once Parliament says that a proceeding or its outcome constitutes full debate, devising judicial standards to determine whether or not it is a full debate or otherwise when the Constitution has not provided any standards for such a debate is stretching the boundaries of justiciability. As Tanko J rightfully puts it:

Besides the Constitution, the standing orders of parliament which were before the court did not provide for what full debate constitutes. What constitutes full debate had been purely a matter of parliamentary practice. Questioning whether a proceeding constitutes full debate or otherwise in my view, without reference to the Constitution, was a subtle encroachment on the freedoms of Parliament.Footnote ¹⁴³The underlying principle of separation of powers will require that the judiciary respects the autonomy of the legislature on a matter like this that falls within parliamentary practice.

Amegatcher JJSC, referring to a Ghanaian Supreme Court decision, explains the need for careful restraint by the judiciary in interfering with matters within the domain of Parliament as follows:

Also siding with the minority view, Kotey JSC expressed a similar view: “I have also had the privilege of reading the dissenting opinions of my esteemed colleagues Amegatcher and Amadu JJ.S.C. I agree with them that ‘the original jurisdiction of this Court to determine issues of constitutionality, particularly in relation to constitutionality of an Act of Parliament, must be exercised with utmost circumspection’.”Footnote ¹⁴⁵

As earlier observed, what Barber calls constitutional defense mechanisms which shield the individual organs of government from encroachment on their lawful powers by other organs is evident from several provisions of the Ghanaian Constitution.Footnote ¹⁴⁶Also as demonstrated, the semantic and historical context of article 106, which was the subject matter of interpretation,Footnote ¹⁴⁷offered no basis for judicial interference with section 43 of the Narcotics Control Act. A purposive interpretation that contemplates the principle of separation of powers, checks and balances, and judicial review as complementing values in a constitutional framework would have arrived at an outcome that accommodates the full extent of legislative powers in the Court’s exercise of its powers of judicial review.