Seperation of Powers in Ghana
Seperation of Powers in Ghana
ISSN 1727-3781
2014 VOLUME 17 No 6
http://dx.doi.org/10.4314/pelj.v17i6.13
MO MHANGO PER / PELJ 2014(17)6
MO Mhango*
1 Introduction
An overreach of the powers of judges, their intrusion into issues which are beyond
their competence or intended jurisdiction or which have been deliberately and
carefully constructed legally so as to ensure that the other arms of the state deal
with these matters, can only result in jeopardy for our constitutional democracy. In
this dispute I am not prepared to create a juristocracy and thus do more than that
which I am mandated to do in terms of our constitutional model.3
*
Mtendeweka Owen Mhango. BA (Morehead State University) JD (Michigan State University) LLM
(Wayne State University). Associate Professor, University of the Witwatersrand, Johannesburg.
Member of the Harambe Law Scholars. Email: [email protected]. I would like to
thank all the blind reviewers for their useful comments.
1
Mazibuko, Leader of the Opposition in the National Assembly v Sisulu MP Speaker of the National
Assembly 2012 ZAWCHC 189 (22 November 2012) (hereafter Mazibuko v Sisulu).
2
See Mazibuko v Sisulu 256E-J.
3
See Mazibuko v Sisulu 256H-J. Also see Mazibuko, Leader of the Opposition in the National
Assembly v Sisulu MP Speaker of the National Assembly 2013 ZACC 28 (27 August 2013) para 83
(Jafta J minority opinion) (noting that "political issues must be resolved at a political level; that
our court should not be drawn into political disputes, the resolution of which falls appropriately
within the domain of other fora established in terms of the Constitution").
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elected branches of government for resolution.4 As a result, such questions are non-
justiciable and require the judiciary to abstain from deciding them if doing so would
intrude upon the functions of the elected branches of government.5 The underlying
theme is that such questions must find resolution in the political process.6
This article examines the development and current status of the theme of the
political question doctrine in Ghanaian jurisprudence, which was developed from
American jurisprudence. It begins by briefly discussing the history of the political
question doctrine and its modern application in the United States of America. It then
discusses the application of the political question doctrine in Ghana. It argues that
while there are differences of opinion around the application of the political question
doctrine, the doctrine is firmly part of Ghanaian constitutional law. It observes that
the differences of opinion among judges in Ghana is over the proper application of
the doctrine rather than whether or not it forms part of Ghanaian constitutional law.
The article also discusses another related issue, which is the constitutional status of
Directive Principles of State Policy in chapter 6 of the Constitution of Ghana and
whether or not these principles are justiciable.
The political question doctrine was first enunciated in Marbury by the United States
Supreme Court when it held that the principle of the separation of powers makes
certain questions non-justiciable because adjudicating those questions would intrude
4
See Redish 1984 NWU L Rev 1031; Breedon 2008 Ohio NU L Rev 523 (explaining that the
purpose of the political question doctrine is twofold. The first purpose, which is rooted in the
Constitution's separation of powers, is to ensure proper judicial restraint against exercising
jurisdiction when doing so would require courts to assume responsibilities which are assigned to
the political branches. The second purpose is to ensure the legitimacy of the judiciary by
protecting against the issuing of orders which courts cannot enforce); Wechsler Principles 11-14;
Yoshino 2009 Willamette Law Review 559 (arguing that the political question doctrine is a
doctrine of justiciability, noting that other such doctrines include standing, ripeness, mootness,
and the bar on advisory opinions; that the justiciability doctrines underscore the idea that there
can be rights without judicially enforceable remedies); and LaTourette 2008 Rutgers LJ 219
(arguing that the political question doctrine is a function of the separation of powers).
5
Redish 1984 NWU L Rev 1031; Breedon 2008 Ohio NU L Rev 523; Wechsler Principles 11-14;
Yoshino 2009 Willamette Law Review 559; LaTourette 2008 Rutgers LJ 219.
6
Redish 1984 NWU L Rev 1031; Breedon 2008 Ohio NU L Rev 523; Wechsler Principles 11-14;
Yoshino 2009 Willamette Law Review 559; LaTourette 2008 Rutgers LJ 219.
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The 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
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.9
With this pronouncement the court in Marbury instructed the judiciary to dismiss
cases if the constitution's text, structure, or theory signified that an issue should be
decided by an elected branch of government.10 Based on this articulation, Marbury
recognized a clear distinction between legal questions that the judiciary must decide
and political questions they must allow the political branches to remedy.11 As Fallon
has commented, Marbury not only represents the fountainhead of judicial review,
but also "... furnishes the canonical statement of the necessary and appropriate role
of the judiciary in the constitutional system founded on the principle of separation of
powers".12 It is for this reason that some commentators have defended the political
question doctrine on the grounds of the separation of powers, arguing that a
Constitution should be viewed as assigning responsibility for interpreting or enforcing
certain constitutional provisions to the elected branches of government.13
Since Marbury, the Supreme Court has applied the political question doctrine in a
number of cases.14 The case of Baker v Carr15 is perhaps the clearest articulation of
7
Marbury v Madison 5 US (1 Cranch) 137 (1803) 170 (hereafter Marbury). For a discussion of the
evolution of the political question doctrine, see Atlee v Laird 347 F Supp 689 (DCPa 1972) 692.
8
Marbury 177.
9
Marbury 170.
10
Pushaw 2002 NCL Rev 1192-1193.
11
See Shrewsbury 2002 Mil L Rev 166; Stephens 2004 Tenn L Rev 241, 245; and Price 2006 NYU J
Int'l L & Pol 323, 331.
12
See Fallon 2003 CLR 5.
13
Chemerinsky Constitutional Law 77; Imam et al 2011 Afr J L & Crim 50; Koohi v United States
976 F 2d 1328 (9th Cir 1992); EEOC v Peabody W Coal Co 400 F 3d 774 (9th Cir 2005) 785.
14
See Luther v Borden 48 US 1 (1849); Colegrave v Green 328 US 549 (1946); Gray v Sanders 372
US 368 (1963); Reynolds v Sims 377 US 533 (1964); Wesberry v Sanders 376 US 1 (1964);
Avery v Midland Country 390 US 474 (1968); and Wells v Rockefeller 394 US 542 (1969).
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the criteria for determining what constitutes a political question. Briefly, the case
involved the question of whether an equal protection challenge to malapportionment
of state legislatures is a non-justiciable political question. The court in Baker v Carr
set out what could be described as the modern articulation of the political question
doctrine and ruled that a determination of whether state malapportionment of state
legislatures violated the plaintiffs' equal protection rights under the United States
Constitution was not a political question.16 Justice Brennan, who wrote for the
majority in Baker v Carr, announced six criteria for assessing when a case may be
dismissed under the political question doctrine.17 These criteria are:
15
Baker v Carr 369 US 186 (1962) (hereafter Baker).
16
Baker 197-198.
17
Baker 217.
18
Baker 217. Also see Tribe American Constitutional Law 96 (discussing the different strands of the
political question doctrine announced in Baker).
19
Baker 217; Free 2003 Pac Rim L & Pol'y J 467, 489 (arguing that the political question doctrine
does not allow courts to dismiss suits merely because they address controversial political issues);
LaTourette 2008 Rutgers LJ 282 (arguing that given the complexities associated with
anthropogenic global warming, and the highly politicized nature of the issue, there is an obvious
concern that courts will continue to use the political question doctrine to ward off otherwise
justiciable controversies that relate to climate change); Barkow 2002 Colum L Rev 253, 262-263
(discussing the prudential strand of the political question doctrine and its problems arguing that
it allows courts to avoid rampant activism by staying out of certain matters); Fickes 2009 Temp L
Rev 525, 531 (noting that the judiciary can hear politically charged cases without invoking the
political question doctrine, and discussing the case of Bush v Gore 531 US 98 (2000), which was
heard even though it involved political questions); Willig 2010 Cardozo L Rev 723, 732 (arguing
that it is a mistake to assume that every case which touches on foreign policy is nonjusticiable);
Chase 2001 Cath U L Rev 1045, 1055 (observing that although recognising that the political
question doctrine serves to protect the separation of powers doctrine, the adjudication of certain
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benefit and purpose of the political question doctrine is to preserve the separation of
powers and minimise claims that have the potential to undermine this principle.20
Some members of the United States federal bench have gone so far as to suggest
that the political question doctrine serves to prevent the federal courts from
intruding unduly on certain policy choices and judgments that are constitutionally
committed to the United States Congress or the executive branch.21 According to this
view, a nonjusticiable political question exists when, to resolve a dispute, a court
must make a policy judgment of a legislative or executive nature, rather than resolve
the dispute through the application of the law.22
claims remains possible because the political question doctrine does not prevent a court from
hearing a case simply because it involves a political issue).
20
Baker 217; Tribe American Constitutional Law; Free 2003 Pac Rim L & Pol'y J 467, 489;
LaTourette 2008 Rutgers LJ 282; Barkow 2002 Colum L Rev 253, 262-263; Fickes 2009 Temp L
Rev 525, 531; Willig 2010 Cardozo L Rev 723, 732. Also see Lane v Halliburton 529 F 3d 548
(2008).
21
Koohi v United States 976 F 2d 1328 (9th Cir 1992).
22
EEOC v Peabody W Coal Co 400 F 3d 774 (9th Cir 2005).
23
Scharpf 1996 Yale LJ 517, 567, 583-584.
24
Bickel Least Dangerous Branch 183-197 (advocating for the prudential political question
doctrine); Scharpf 1996 Yale LJ 517, 538.
25
Bickel Least Dangerous Branch 183-197; Scharpf 1996 Yale LJ 517, 538.
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political question doctrine provides the Supreme Court with techniques for refraining
from deciding cases on the merits when doing so would be unwise.26
Since Baker v Carr was decided, the Supreme Court has dismissed cases on the
basis of the political question doctrine. The first notable case was Gillian v Morgan,27
where the Supreme Court ruled that courts should not examine the training of the
Ohio National Guard because doing so would invade critical areas of responsibility
vested by the Constitution in the legislative and executive branches of government.28
In a second case, Nixon v United States,29 the Supreme Court ruled that the
impeachment of a judge was a political question and therefore not justiciable.30
Despite the fact that the Supreme Court has not invoked the political question
doctrine in recent years, federal cases reveal that lower courts frequently apply the
doctrine in the adjudication of constitutional cases.31 Based on the analysis of these
federal cases, it could be argued that the discourse around the political question
doctrine among judges and academics has centered on ensuring a consistent
26
Tushnet 2002 NC L Rev 1203-1204.
27
Gilligan v Morgan 413 US 1 (1973) (hereafter Gilligan).
28
Gilligan 6.
29
Nixon v United States 506 US 224 (1993) (hereafter Nixon). See Levinson and Young 2001 Fla St
U L Rev 925 (discussing Nixon).
30
Nixon 236.
31
See Mulhern 1988 U Pa L Rev 97, 106 (defending the political question doctrine and noting that
the doctrine is more prominent in the opinions of the lower federal courts). For some of the
cases that demonstrate this frequent application of the political question doctrine, see Gonzales-
Vera v Kissinger 449 F 3d 1260 (2006) (where the victims and survivors of human rights abuses
carried out by the Chilean government brought action against the United States alleging torture).
The Court of Appeals affirmed that the claims were non-justiciable under the political question
doctrine. It reasoned that to evaluate the legal validity of the drastic measures taken by the
United States to implement its policy with respect to Chile would require it to delve into
questions of foreign policy textually committed to a coordinate branch of government);
Schneider v Kissinger 412 F 3d 190 (2005) (where the Court of Appeals affirmed the lower
court's decision to dismiss on the grounds that the claims involved non-justiciable political
questions. In addressing concern about the effects of leaving political questions to the political
process, the court reasoned that the lack of judicial authority to oversee the conduct of the
executive branch in political matters did not leave executive power unchecked because political
branches effectively exercise checks and balances on each other in the area of political
questions); Arakaki v Lingle 423 F 3d 954 (9th Cir 2005); Corriee v Caterpillar 503 F 3d 974 (9th
Cir 2007) 980, 982-984 (where the Israeli Defence Forces (IDF) ordered bulldozers directly from
Caterpillar but the United States paid for them. The family members of individuals, who were
killed when the IDF used bulldozers to demolish houses in Palestinian territories brought action
against Caterpillar alleging that it provided the IDF equipment used in violation of international
law. The court affirmed that the political question doctrine barred it from hearing the matter. It
reasoned that allowing this action to proceed would necessarily require it to question the political
decision to grant military aid to Israel); and Schroeder v Bush 263 F 3d 1169 (2001).
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Like in the United States, the political question doctrine has been considered by
courts in Ghana since the early 1980s.35 However, not only have courts and legal
commentators disagreed about its wisdom and validity, they have also varied
considerably over the doctrine's scope and rationale.36 In fact, they have even
diverged over whether or not the doctrine is applicable under Ghanaian
constitutional law, given the contested case authority that adopted it.37 However,
32
See Finkelstein 1924 Harv L Rev 338, 344-345 (noting that there are certain cases which are
completely without the sphere of judicial interference. They are called political questions); and
Redish 1984 NWU L Rev 1031-1032 (arguing that academic debate on the political question
doctrine has centred on the principled use of the doctrine, and that the doctrine is very much
alive in Supreme Court decisions).
33
See Jaffe 2011 Ecology LQ 1033, 1043-1063 (discussing recent cases applying the political
question doctrine).
34
See Rautenbach 2012 TSAR 20, 28 (suggesting that the political question doctrine should not be
adopted in South Africa because it is highly controversial in its land of origin).
35
It was first considered in Tuffour v Attorney-General 1980 GLR 637, 651-652 (hereafter Tuffour)
(holding that "courts cannot enquire into the legality or illegality of what happened in Parliament.
In so far as Parliament has acted by virtue of the powers conferred upon it by the Constitution,
its actions within Parliament are a closed book").
36
See Asare 2006 http://www.ghanaweb.com/GhanaHomePage/NewsArchive/
artikel.php?ID=113967 (arguing against the application of the political question doctrine in
Ghana); JH Mensah v Attorney-General 1996-97 SCGLR 320 (hereafter Mensah) (holding that the
political question doctrine as applied in the United States is not applicable in Ghana); Amidu v
President Kufuor 2001-2002 SCGLR 138, 152 (hereafter Amidu) (Kpegah dissenting opinion)
(arguing that the political question doctrine is applicable to Ghana); Ghana Bar Association v
Attorney-General 2003-2004 SCGLR 250 (hereafter Ghana Bar Association) (holding that the
political question doctrine barred the Supreme Court from scrutinising the decision of the
President to appoint the Chief Justice); New Patriotic Party v Attorney-General (31st December
Case) 1993-94 2 GLR 35 SC (hereafter 31 December Case); Asare v Attorney-General (AP)
unreported case number 21/2006 (15 September 2006).
37
See Bimpong-Buta Role of the Supreme Court 129-130 (suggesting that there is no proper legal
authority for the application of the political question doctrine in Ghana); Redish 1984 NWU L Rev
1031 (making similar observations about the disagreements of the application of the political
question doctrine in the United States context); Asare v Attorney-General (AP) unreported case
number 21/2006 (15 September 2006) (where the political question doctrine was most recently
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there is agreement that the political question doctrine is a function of the separation
of powers principle enshrined in the Ghanaian Constitution, and that its
jurisprudential basis was influenced by case law from the United States Supreme
Court.38 Justice Kpegah, who was one of the strongest advocates of the doctrine in
the Ghanaian Supreme Court, has offered the most comprehensive and convincing
articulation of the basis of the political question doctrine under the Ghanaian
Constitution.
In his dissenting opinion in Amidu v President Kufuor,39 Justice Kpegah explains that
the Constitution of Ghana is written and underpinned by the principle of the
separation of powers. In his view, being a written Constitution, it has certain
attributes. Among them is that the form of government envisages three important
arms of government, namely the executive, legislature and judiciary.40 Another
attribute, maintains Justice Kpegah, is that these various arms of government have
their respective power laid down with limits not to be infringed by any other arm of
government.41 Justice Kpegah reminds us that these limits expressed in the
Constitution would be meaningless and serve no purpose if freely ignored or
infringed by any arm of government.42 Constitutional commentators agree with
Justice Kpegah's pronouncement, arguing that:
applied). See Wishik 1985 Wash L Rev 697 (discussing that scholars disagree on whether the
political question doctrine exists at all, and if it does exist, on whether it is constitutionally
defined or is a flexible, prudential tool to protect the court's authority).
38
See Ghana Bar Association (Hayfron-Benjamin concurring opinion) (explaining that although in
Tuffour, the Supreme Court did not use the term non-justiciable political question, they reached
conclusions which accord with justice Brennan's dictum in Baker).
39
Amidu v President Kufuor 2001-2002 SCGLR 138.
40
Amidu 153.
41
Amidu 153.
42
Amidu 153-54.
43
See Magill 2000 Va L Rev 1127; Calabresi and Larsen 1994 Cornell L Rev 1045, 1052 (arguing
that a separation of personnel, as well as of institutions, is absolutely vital to the fostering of
competition and to the de-concentration of power); Redish and Cisar 1991 Duke LJ 449, 451;
Redish Constitution As Political Structure ; Calabresi and Rhodes 1992 Harv L Rev 1153; Liberman
1989 Am U L Rev 313; Bruff 1979 Yale LJ 451; Strauss 1978 Cornell L Rev 488; Farina 1989
Colum L Rev 452.
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Justice Kpegah goes on to explain that while the Constitution of Ghana is expressed
as the supreme law of Ghana, there is an inherent indication in the text that the
policy which informs or should inform any legislation and the desire to enact such
legislation are matters for the political branches of government to determine.44 On
the other hand, Kpegah concedes that the interpretation and enforcement of the law
passed by the legislature fall within the functions of the judiciary. In his view, the
question of whether an Act of parliament is constitutionally valid or not is not a
political question and the judiciary is not barred from deciding it.45 He teaches us
that when the judiciary examines whether parliament has breached the
constitutional limits on its legislative powers it is not engaging in determining
political questions, because judiciaries have the power to make these
determinations. For Kpegah, this distinction is important and must be maintained.46
One of Kpegah's colleagues on the bench, Chief Justice Archer, agreed with the
importance of maintaining this distinction when he said:
The Constitution gives the judiciary power to interpret and enforce the Constitution
and I do not think that this independence enables the judiciary to do what it likes
by undertaking incursions into territory reserved for Parliament and the executive.
This court should not behave like an octopus stretching its eight tentacles here and
there to grab jurisdiction not constitutionally meant for it. I hold that this court has
no constitutional power to prevent the executive from proclaiming 31 December as
a public holiday.47
Clearly, Justice Kpegah and other justices of the Supreme Court of Ghana are of the
view that the political question doctrine did not evolve in American jurisprudence
due to the fact that the courts were not expressly endowed with the power of
judicial review in the United States Constitution.48 Instead, they view the doctrine as
44
Amidu 154.
45
Amidu 154.
46
Justice Ngcobo agrees with the need to maintain this distinction and explains that "when a court
decides whether parliament has complied with its express constitutional obligation, such as a
provision that requires statutes to be passed by a specified majority, it does not infringe upon
the principle of separation of powers or determine a political question". Ngcobo maintains that
"what the court is simply doing in such a case is to decide the formal question of whether there
was the required majority". See Doctors for Life International v Speaker of the National Assembly
2006 12 BCLR 1399 (CC) para 25 (hereafter Doctors for Life International).
47
Amidu 154 citing 31 December Case 49.
48
Amidu 154.
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The first case that considered the political question doctrine was New Patriotic Party
v Attorney-General (31 December Case).50 The plaintiff in this case was the New
Patriotic Party (the New Party), the main opposition political party at the time. It
brought a law suit seeking a declaration pursuant to section 2(1) of the Constitution
1992 that the planned public holiday and celebration of the coup d'état in Ghana on
31 December 1981 was in conflict with the Constitution. In its defence the
government invoked the political question doctrine as articulated in Baker v Carr to
bar the Supreme Court from adjudicating the matter. The government argued that
the question of whether or not 31 December should be declared a public holiday was
a non-justiciable political question.
In a five to four decision, the majority of the Supreme Court led by Justice Adade
rejected the government's argument. It reasoned that since the "... Constitution is
essentially a political document almost every matter of interpretation or enforcement
which may arise from it is bound to be political, or at least to have a political
dimension",51 which fact cannot be a basis to deprive the Supreme Court of its
judicial powers. Further, it explained that the Supreme Court has jurisdiction to
determine political questions in exercising its constitutional duty of enforcing or
interpreting the Constitution under articles 2(1)52 and 130.53 According to the
49
Amidu 155. Also see Birkey 1999 CLR 1271 (arguing that the political question doctrine is a
function of the separation of powers doctrine); Reich 1977 Colum L Rev 466 (arguing that the
judiciary's reluctance to decide political questions stems from its respect for the separation of
powers between the judiciary and the elected branches of government); and Harvey 1988 J
Marshall L Rev 341, 356 (arguing that the political question doctrine is based on the separation
of powers).
50
31 December Case.
51
31 December Case 65.
52
Section 2 of the Constitution of the Republic of Ghana, 1992 provides as follows: "(1) A person
who alleges that - (a) an enactment or anything contained in or done under the authority of that
or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in
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Supreme Court, the question of whether the celebration of the 31 December seizure
of power from the then Government of Ghana was in conflict with the Constitution
required an interpretation of the Constitution, which the Supreme Court had
jurisdiction to determine. It held that the political question doctrine was not
applicable in Ghana because the Supreme Court as the ultimate interpreter of the
Constitution pursuant to articles 2(1) and 130 may lawfully decide controversies of a
political nature. There is general agreement among commentators upon the views of
the Supreme Court in 31 December Case that nothing prevents courts from deciding
political controversies; however, that cases that are too political fall within the
political question doctrine.54
Throwing his weight behind the majority decision, Justice Amua-Sekyi made the
following observation about the reach of the Supreme Court's powers under the
Constitution:
It was said that the issue is a political one that the plaintiff ought to have made its
complaint to Parliament. However, there is nothing to stop it from making a legal
issue of it and coming to this court for redress. As the fundamental law, the
Constitution controls all legislation and determines their validity. It is for the courts
to ensure that all agencies of the state keep within their lawful bounds.55
contravention of a provision of this Constitution, may bring an action in the Supreme Court for a
declaration to that effect."
53
Section 130 of the Constitution provides in pertinent as follows: "The Supreme Court shall have
exclusive original jurisdiction in - (a) all matters relating to the enforcement or interpretation of
this Constitution; and (b) all matters arising as to whether an enactment was made in excess of
the powers conferred on Parliament or any other authority or person by law or under this
Constitution."
54
See Free 2003 Pac Rim L & Pol'y J 489; LaTourette 2008 Rutgers LJ 282 (arguing that the
political question doctrine can be used to avoid deciding cases that are too complicated or
politically charged); Fickes 2009 Temp L Rev 531 (arguing that the Supreme Court's willingness
to determine the most politically contentious issues in recent years demonstrates that the courts
will not shy away from resolving legal disputes merely because they touch upon politically
controversial issues); Willig 2010 Cardozo L Rev 732; Chase 2001 Cath U L Rev 1055; May 2008
Denv U L Rev 919, 953 (arguing that a political issue and a political question are two different
things. The former allows judicial oversight; the latter suggests that overriding separation of
powers concerns warrant judicial restraint); Ekpu 1996 Ariz J Int'l & Comp L 1.
55
31 December Case 130.
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Bamford-Addo reasoned that "... the fixing of 31 December as a public holiday was
not offensive to the Constitution but a policy choice".56 According to Justice
Bamford-Addo, any government has the freedom to adopt a policy choice, through
legislation, to scrap or insert 31 December from the list of public holidays in the
legislation.57 Thus, since the fixing of 31 December was a policy choice, the minority
view was that the political question doctrine barred the Supreme Court from deciding
the matter as a means of demonstrating respect to the other arms of government.
In his support of the minority views, Justice Archer defended the theme of the
political question doctrine and reasoned that:
It is important to point out that while siding with the majority on the question of 31
December celebrations, Justice Hayfron-Benjamin differed from the majority on the
broad question of whether the political question doctrine was applicable in Ghana.
Justice Hayfron-Benjamin confidently stated that:
Despite the ruling in 31 December Case, the Supreme Court in Ghana Bar
Association v Attorney-General60 categorically held that the political question
doctrine was applicable in Ghana.
56
31 December Case 153.
57
31 December Case 153.
58
31 December Case 52.
59
31 December Case 179.
60
Ghana Bar Association.
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In Ghana Bar Association, the President acting under articles 91(1)61 and 144(1)62 of
the Constitution nominated Justice Abban as the Chief Justice for approval by
Parliament. In turn, Parliament approved the nomination and Justice Abban was duly
appointed by the President on 22 February 1995. The Ghana Bar Association (GBA)
objected to this appointment. It brought a lawsuit before the Supreme Court in
which it sought a declaration that Justice Abban was not a person of high moral
character and proven integrity and thus not appointable as Chief Justice. The GBA
also sought a declaration that the appointment of Justice Abban by the President as
Chief Justice, as well as the advice of the Council of State and the approval by
Parliament of his nomination, was unconstitutional.
The government defended the case by challenging the jurisdiction of the Supreme
Court to hear the matter. Anyone who is familiar with Barkow's work on the political
question doctrine would understand that the reason the threshold question raised by
the government was directed at the courts' jurisdiction was that the "… political
question doctrine requires courts at the outset of every case to determine whether
the Constitution gives some interpretive authority to the political branches on the
question being raised and to specify the boundaries of what has been allocated
elsewhere".63 Barkow argues that "… just as legislation may commit a question
entirely to agency discretion, so too does the Constitution recognize that some
constitutional questions rest entirely within the absolute discretion of the political
branches".64
61
Section 91(1) of the Constitution of the Republic of Ghana , 1992 reads as follows: "The Council
of State shall consider and advise the President or any other authority in respect of any
appointment which is required by this Constitution or any other law to be made in accordance
with the advice of, or in consultation with, the Council of State."
62
Section 144(1) of the Constitution of the Republic of Ghana, 1992 reads as follows: "The Chief
Justice shall be appointed by the President acting in consultation with the Council of State and
with the approval of Parliament."
63
Barkow 2002 Colum L Rev 239.
64
Barkow 2002 Colum L Rev 239
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In line with Barkow's thinking, the government's main argument in Ghana Bar
Association was that by virtue of the principle of separation of powers enshrined in
the Constitution, the appointment of Justice Abban as Chief Justice was a non-
justiciable political question specifically committed to the President, Council of State
and Parliament. On the contrary, the GBA argued that the Supreme Court, pursuant
to articles 295 and 125(3) of the Constitution, has the final judicial power to
determine whether any person or authority has properly performed his, her or its
functions under the Constitution or any other law. As a result, the political question
doctrine was not applicable to Ghana.65
Justice Kpegah, who wrote for the majority, held that the political question doctrine
was applicable to Ghana. He reasoned that the doctrine was implicit in the concept
of the separation of powers, where certain functions are committed to a specific
branch of government. In such a constitutional design, he reasoned, a political
question cannot evolve into a judicial question.66 In support of Justice Kpegah,
Weinberg has argued that in "a system where government is composed of three co-
equal branches, the interpretation and enforcement of the constitutional law cannot
be entrusted entirely to the judiciary or the elected branches" but must be
understood as a shared responsibility.67 To a great extent, this view is shared by
Barkow. In her view, the political question doctrine "… reflects a constitutional
design that does not require the judiciary to supply the substantive content of all
constitutional provisions".68 Consistent with these views, Justice Kpegah held that
article 144 of the Constitution committed the appointment of the Chief Justice to the
executive branch and legislative branch, and that any attempt by the Supreme Court
to claim a power to be able to declare null and void the appointment of the Chief
Justice would justly be described as a usurpation of the constitutional functions of
both the executive and legislative branches.69 Kpegah was convinced that by
65
Defenders of the political question doctrine oppose arguments like this one raised by the GBA,
which presuppose that the judiciary has the final say on the interpretation of the Constitution.
They argue that the judiciary shares interpretive authority with the other branches of
government. See Mulhern 1988 U Pa L Rev 101; Bickel Least Dangerous Branch 183-197.
66
Ghana Bar Association 294.
67
See Weinberg 1994 U Colo L Rev 887.
68
Barkow 2002 Colum L Rev 239.
69
Ghana Bar Association 301.
2717
MO MHANGO PER / PELJ 2014(17)6
assuming the jurisdiction to adjudicate the matter, the Supreme Court would be
entering upon policy determinations for which judicially manageable standards were
not available.70 In other words, by assuming jurisdiction the Supreme Court would
be supplying substantive content to the constitutional provisions concerning the
appointment of a Chief Justice, which, in his view, it cannot do.71
70
In Nigeria appellate courts have taken a view similar to that of Ghanaian courts. See Onuoha v
Okafor 1983 NSCC 494 (holding that the lack of satisfactory criteria for a judicial determination
of a political question is one of the dominant considerations in determining whether a question
falls within the category of political questions); and Balarabe Musa v Auta Hamzat 1983 3 NCLR
229, 247 (holding that the impeachment of a State governor was a political question not
appropriate for judicial review. Justice Ademola reasoned that "impeachment proceedings are
political and for the court to enter into the political thicket as the invitation made to it clearly
implies in my view asking its gates and its walls to be painted with mud; and the throne of
justice from where its judgments are delivered polished with mire"). Also see Mhango 2013 AJLS
249 (discussing the development and application of the political question doctrine in Uganda).
71
Barkow 2002 Colum L Rev 239.
72
Tuffour (Justice Sowah opinion); 31 December Case (Archer opinion; and Jutice Hayfron-
Benjamin opinion).
73
Ghana Bar Association 300.
74
Ghana Bar Association 294.
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MO MHANGO PER / PELJ 2014(17)6
grounds upon which the jurisdiction of this court may be ousted".75 He went on to
say that Tuffour, which is cited as authority for the political question doctrine in
Ghana, "… reached conclusions which accord with Justice Brennan's dictum in Baker
v Carr".76 While Justice Kpegah in Ghana Bar Association recognised the application
of the political question doctrine in Ghana, he accepted the limits of its application
and held that the mere fact that a lawsuit seeks the protection of a political right
does not mean that it presents a non-justiciable political question.77 The decision in
Ghana Bar Association was considered in Mensah v Attorney-General, in which the
Supreme Court reached a different conclusion about the application of the political
question doctrine in that case.
In Mensah v Attorney- General the term of office of President Rawlings had ended
on 6 January 1997. The next day, President Rawlings, who had been re-elected as
President in the previous month, was sworn in as President for a second term of four
years. Soon after the swearing in, it was announced that the President had decided
to retain in office some of his previous ministers and deputy ministers. It was also
announced that since the appointment of those retained ministers had been
approved by the previous Parliament, there was no need for them to be reapproved
by the new Parliament. That decision was opposed by the opposition party in
Parliament. Subsequent to this announcement it was also announced that one of the
retained Ministers, the Minister of Finance, would appear before Parliament to
present the 1997 Budget Statement. Before the Minister could do so the leader of
the opposition party Hon. Mensah filed a lawsuit in the Supreme Court. The Plaintiff
asked the Supreme Court to declare, among other things, that the Constitution
prevented anyone from acting as a Minister without the prior approval of the newly
elected second Parliament. The government defended the lawsuit by arguing, inter
alia, that the process by which Parliament exercised its powers such as the approval
75
Amidu v President Kufuor 148, citing Ghana Bar Association.
76
Amidu v President Kufuor 148, citing Ghana Bar Association.
77
Ghana Bar Association 295.
2719
MO MHANGO PER / PELJ 2014(17)6
The Supreme Court, as per Justice Acquah, held that every presidential nominee for
ministerial appointment, whether retained or new, required the prior approval of
Parliament. Justice Acquah reasoned that unlike the United States Supreme Court
which derives its power of judicial review through jurisprudential authority, the
Supreme Court of Ghana derives its power of judicial review from articles 2 and 130
of the Constitution. Any limitation on that power, he argued, would have to find
support in the language of those articles. On this point, Barkow has remarked that
although judicial review is the norm, as Justice Acquah suggests, there are
exceptions which are expressed in particular provisions in a Constitution.78 In the
American context, Barkow asserts that the Constitution carves out certain categories
of issues that may be resolved as a matter of legislative or executive discretion.79
Under this view of the political question doctrine, judicial abstinence is seen as
constitutionally required and not discretionary.80
However, in his analysis Justice Acquah expressed some reservations about the
political question doctrine. Specifically, he saw one potential interpretation of the
doctrine which could be perceived as granting political immunity for breaches of the
Constitution by the elected branches of government. In turn he offered his preferred
understanding of the doctrine which, in his view, complied with Ghana's
constitutional design. I call his preferred understanding the "compromised political
question doctrine". He says:
78
Barkow 2002 Colum L Rev 247-248.
79
Barkow 2002 Colum L Rev 247-248
80
Barkow 2002 Colum L Rev 247-248; Wechsler 1959 Harv L Rev 9 (arguing that the only
judgment that may lead to an abstention from decision is that the Constitution has committed
the determination of the issue to another agency of government than the courts); Gouin 1994
Conn L Rev 759, 780, 796-797 (discussing the classical version of the political question doctrine
and noting that the Constitution committed some constitutional issues to the political branches);
Cutaiar 2009 Loy LA L Rev 393, 398 (arguing that the political question doctrine is a product of
constitutional interpretation rather than judicial discretion).
2720
MO MHANGO PER / PELJ 2014(17)6
If by the political question doctrine, it is meant that where the Constitution allocates
power or function to an authority, and that authority exercises that power within
the parameters of that provision and the Constitution as a whole, a court has no
jurisdiction to interfere with the exercise of that function, then I entirely agree that
the doctrine applies in our constitutional jurisprudence. For this is what is implied in
the concept of separation of powers. But if by the doctrine, it is meant that even
when the authority exercises that power in violation of the constitutional provision,
a court has no jurisdiction to interfere because it is the Constitution which allocated
that power to that authority, then I emphatically disagree.81
In explaining the distinction that must be made in cases involving political questions,
Redish offered a useful suggestion which (while made in the American context
during the 1980s) addresses Justice Acquah's assertion above. Redish postulates
that in those cases that raise separation of powers concerns and should be
dismissed, the "… judiciary does not abdicate its power to interpret and enforce the
Constitution"; rather it simply holds "… that nothing in the Constitution directs the
political branch as to how to exercise its constitutionally granted power".83 Redish
further maintains that "… when the Constitution's framers intended that one of the
political branches has discretion to act, the text says so, by vesting decision making
power in those branches without simultaneously indicating the parameters of that
81
Mensah 368
82
Cowper and Sossin 2002 Sup Ct L Rev 343. Also see Price 2006 NYU J Int'l L & Pol 323; and May
2008 Denv U L Rev 919, 953 (arguing that a political issue and a political question are two
different things. The former allows judicial oversight and the latter suggests that overriding
separation of powers concerns warrant judicial restraint).
83
Redish 1984 NWU L Rev 1039. Also see 31 December Case (Justice Adade) (arguing that "to
refuse to hear a constitutional case on the ground that it is political is to abdicate our
responsibilities under the Constitution and breach its provisions").
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MO MHANGO PER / PELJ 2014(17)6
discretion".84 In the South African case of Doctors for Life International, Justice
Ngcobo accepts the distinction advocated by Redish. Ngcobo explains it this way:
If the political question doctrine can be understood in this way, it becomes easier to
see the flaw in Justice Acquah's stance.
In his pronouncement above, Justice Acquah addresses and accepts the application
of the political question doctrine in circumstances where he claims the Constitution
allocates power to the political branches and indicates the parameters for the
exercise of such power. However, Justice Acquah fails to address the instances
where the Constitution allocates power or discretion to the political branches without
at the same time indicating the parameters of that discretion or power. By this
failure Justice Acquah creates the impression that in those other instances the
judiciary will have a final say concerning those constitutional questions. Barkow
disagrees with this suggestion and correctly argues that the "constitution's structure
and the limited powers of the judiciary require political branches to decide
constitutional questions in many instances, and in such instances they have the
same authority to make decisions as the judiciary itself has in other instances.86
Perhaps Justice Acquah would find consolation in the fact that "… the judiciary has
the authority, through constitutional interpretation, to determine whether an issue
presented a political question committed to the political branches to remedy or a
84
Redish 1984 NWU L Rev 1047.
85
Doctors for Life International 1414-1415.
86
Barkow 2002 Colum L Rev 320.
2722
MO MHANGO PER / PELJ 2014(17)6
judicial question, which the judiciary must answer".87 Redish was correct in noting
that it is:
At least to some extent Redish's arguments and comments were directed towards
the views of Justice Acquah and other like-minded jurists.
87
See Scharpf 1966 Yale LJ 538 (explaining that the basic idea of the political question doctrine is
that it is an outcome of constitutional interpretation); Kelly 2010 Miss C L Rev 219, 224
(discussing the idea that the purpose of the political question doctrine is to bar claims that
threaten the separation-of-powers design of the federal government, and thus a determination
as to the justiciability of a claim is a delicate exercise in constitutional interpretation, not merely
plugging facts into factors.); Barkow 2002 Colum L Rev 249; Marbury 167, 170-171.
88
Redish 1984 NWU L Rev 1048-1049.
89
Barkow 2002 Colum L Rev 244, 319 (arguing that the political question doctrine is part of a
spectrum of deference to the political branches' interpretation of the Constitution. Barkow claims
that the political question doctrine requires the judiciary to determine as a threshold matter in all
cases whether the question before it has been assigned by the Constitution to another branch of
government. This initial determination of how much deference is appropriate serves a valuable
function because it reminds the judiciary that not all constitutional questions require independent
judicial interpretation); and Mulhern 1988 U Pa L Rev 124-127 (discussing dissenting voices
against the judicial monopoly and emphasising equal authority among the three branches on
constitutional matters. Mulhern argues that there is no obvious reason why a court's assertion of
judicial power should be any more authoritative than a President's assertion of executive power.
Both are part of our constitutional tradition, and there is no apparent way to establish any
priority between them).
90
Savitzky 2011 NY L Rev 2043.
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MO MHANGO PER / PELJ 2014(17)6
practicalities of this balance, or may not have been convinced that the facts in
Mensah v Attorney-General presented an opportunity to develop that balance.
91
Mensah 344.
92
Mensah 344.
93
Mensah 341.
94
Mensah 348.
95
See Bimpong-Buta Role of the Supreme Court 129.
96
At least Justice Kpegah conceded that the Supreme Court has not been consistent in its
application of the political question doctrine and other justiciability principles derived from the
United States. He observes that the doctrine was applied in Tuffour without the court specifically
saying so, but rejected in the 13 December Case and subsequently applied in Ghana Bar
Association, where the 13 December Case was criticised. See Amidu 145-147.
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MO MHANGO PER / PELJ 2014(17)6
influence in the lower court's application of the doctrine. One of the most recent
lower court cases applying the political question doctrine is Asare v Attorney-
General.97 In this case, a member of Parliament Mr Eric Amoateng was arrested and
detained in the United States for unlawfully importing narcotics into that country.
Under the rules of Parliament, Mr Amoeteng sought leave of absence from
Parliament, which was granted from 17 to 24 November 2005. Further, Parliament's
Committee on Privileges considered the reasonableness of Mr Amoaeteng's absence
from Parliament. On the strength of the criminal law principle that everyone is
presumed innocent until proven guilty by a court of law, and the need to extend
compassion to Amoaeteng due to the slow pace of his criminal trial in the United
States, the Committee on Privileges recommended that Parliament allow Amoaeteng
the required time to defend his criminal charges.
After some debate, Parliament approved this recommendation and decided to grant
Amoaeteng a dispensation to be absent from Parliament indefinitely. This decision by
Parliament was challenged by the plaintiff, Stephen Asare. The plaintiff's claim was
that since the Speaker permitted Amoaeteng to be absent from 17 to 24 November
only, Amoaeteng's seat became vacant by operation of law and neither the Speaker
nor Parliament could grant any other dispensation. Therefore the High Court, in this
case, was seized to determine whether Parliament had the authority to grant a
member of Parliament a dispensation to be absent from Parliament indefinitely.98
Essentially the High Court had to determine at least two important related questions:
firstly, whether the parliamentary seat of Amoaeteng became vacant by operation of
law, and secondly, whether Parliament's decision to grant Amoaeteng a dispensation
to be absent indefinitely from Parliament could be called into question on legal
grounds as being unreasonable and unlawful. Justice Ayebi held that the political
question doctrine applied in this case. In endorsing Justice Acquah's opinion in
Mensah v Attorney-General, Justice Ayebi reasoned that "… it is parliament as the
legislative arm of government which is mandated by the Constitution to determine
97
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006).
98
As Barkow puts it, the threshold question for every court, and in my view the High Court in
Asare, should be to determine if the questions before it have been assigned by the Constitution
to another branch of government. Barkow 2002 Colum L Rev 244.
2725
MO MHANGO PER / PELJ 2014(17)6
To best illustrate the suitability of applying the political question doctrine in this
case, Justice Ayebi employed the following hypothetical scenario and said:
… suppose the member of Parliament in this case was involved in a fatal accident
on this trip and he was only able to inform Mr. Speaker long after fifteen sittings of
Parliament. Doctors attending to him determined that it will take some time for him
to recover. Should the court declare an indefinite dispensation granted to such
Member of Parliament in such circumstances by parliament as unreasonable?
Consequent upon that, should the court declare the seat of the Member of
Parliament vacant? I think not, he observed.99
Justice Ayebi's reasoning was that since Parliament found Amoaeteng's reasons for
absence reasonable and granted indefinite dispensation in the particular
circumstances of this case, that decision should not be subjected to judicial scrutiny.
While Asare v Attorney-General has been criticised, this criticism has centered on the
failure of Justice Ayebi to properly justify why the political question doctrine should
have determined the case.100 In other words, Asare, who has expressed the most
critical views against the decision in Asare v Attorney-General, agrees that the
political question doctrine is applicable in Ghana, but that a court should offer
convincing reasons for its application in any given case.101 What seems to ignite
Asare's critical views on Asare v Attorney General is that Justice Ayebi's opinion, in
his view, does not justify or explain the rationale for allowing the political question
doctrine to swallow the court's explicit powers in article 99(1)(a) of the
Constitution.102 Further, Asare criticises Justice Ayebi's failure to apply the three-
prong test announced in Ghana Bar Association to the facts in the case. Presumably,
had this been done Justice Ayebi would have been forced to justify the application of
99
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006).
100
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006).
101
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006).
102
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006).
2726
MO MHANGO PER / PELJ 2014(17)6
the political question doctrine in the case.103 Asare's criticism is reflective of the
prevailing discourse around the doctrine in Ghana, namely that it forms part of
Ghanaian law and Ghana Bar Association articulates how it ought to be applied.
Therefore it seems clear from this discourse that the critical views against the recent
application of the political question doctrine are not dismissive of the doctrine but
are rather directed at what should be its proper application.
What is clear from the above analysis is that the application of the political question
doctrine requires an acceptance that there are certain constitutional questions or
provisions that are not justiciable. This is why the doctrine is controversial. However,
the issue of the justiciability or not of certain provisions of the Constitution of Ghana
has been contested since the advent of constitutionalism in Ghana.104 As
commentators have observed, one of the areas where this issue has come to the
fore is chapter 6 of the Constitution.105 In particular, commentators note that Article
34(1), the opening of chapter 6, creates some ambiguity. 106 The article provides
that:
34 (1) The Directive Principles of State Policy contained in this Chapter shall guide
all citizens, Parliament, the President, the Judiciary, the Council of State, the
Cabinet, political parties and other bodies and persons in applying or interpreting
this Constitution or any other law and in taking and implementing any policy
decisions, for the establishment of a just and free society.
The observation from scholars is that the ambiguity arose from the Consultative
Assembly's reliance on the Report of the Committee of Experts on the Proposal for a
Draft Constitution Ghana (Committee of Experts) to conclude that the Directive
Principles in chapter 6 should not be justiciable.107 The rationale for the inclusion of
103
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006).
104
Quashigah date unknown http://www.icla.up.ac.za/images/country_reports/ghana_country_
report.pdf 14.
105
Quashigah date unknown http://www.icla.up.ac.za/images/country_reports/ghana_country_
report.pdf 14; and Atupare 2014 Harv Hum Rts J 71.
106
Quashigah date unknown http://www.icla.up.ac.za/images/country_reports/ghana_country_
report.pdf; and Atupare 2014 Harv Hum Rts J 71.
107
Committee of Experts Report 97-97; 31 December Case 149.
2727
MO MHANGO PER / PELJ 2014(17)6
94. The NCD report speaks of the need to include in the new Constitution
'core principles around which national political, social and economic life will
revolve.' This is precisely what the Directive Principles of State Policy seeks to
do. Against the background of the achievements and failings of our post-
independence experience, and our aspirations for the future as a people, the
principles attempt to set the stage for the enunciation of political, civil,
economic and social rights of our people. They may thus be regarded as
spelling out in broad strokes the spirit or conscience of the constitution. The
Committee used Chapter Four of the 1979 Constitution as a basis for its
deliberations on this subject.
95. By tradition Directive Principles are not justiciable; even so, there are at
least two good reasons for including them in a constitution. First, Directive
Principles enumerate a set of fundamental objectives which a people expect
all bodies and persons that make or execute public policy to strive to achieve.
In the present proposals, one novelty is the explicit inclusion of political
parties among the bodies expected to observe the principles. The reason for
this is that political parties significantly influence government policy. A second
justification for including Directive Principles in a constitution is that,
taken together, they constitute, in the long run, a sort of barometer by
which the people could measure the performance of their government. In
effect they provide goals for legislative programmes and a guide for judicial
interpretation.
According to some scholars, the problem is that the final text of the Constitution
omitted to expressly declare that the Directive Principles are non-justiciable, which
left open the question of whether or not that omission points to the conclusion of
non-justiciablity.109 Indeed, that omission has attracted distinct judicial
pronouncements about the constitutional status of the Directive Principles. I discuss
these pronouncements and how they relate to the application of the political
question doctrine in Ghana.
108
31 December Case 149.
109
Quashigah date unknown http://www.icla.up.ac.za/images/country_reports/ghana_country_
report.pdf 14; and Atupare 2014 Harv Hum Rts J 95.
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MO MHANGO PER / PELJ 2014(17)6
What is more, Justice Adade took issue with the conclusion by the Committee of
Experts that Directive Principles are traditionally non-justiciable. In his view, under
chapter 4 of the Constitution 1979, Directive Principles were justiciable.112 Adade
noted that while the debates in the Consultative Assembly may demonstrate some
intention to make the Directive Principles non-justiciable, he concluded that "... the
intention was not carried into the Constitution, and the debates themselves are
inadmissible to contradict the language of the Constitution."113
On the other hand, two justices wrote minority opinions on the justiciability of the
Directive Principles in the 31 December Case. Justice Abban found that the Directive
Principles were not relevant to the subject matter before the court, and that
reference to them was totally misconceived.114 In her opinion, Justice Bamford-Addo
unambiguously pronounced and reasoned that the Directive Principles:
... are not justiciable and the plaintiff has no cause of action based on these
articles. Those principles were included in the Constitution, for the guidance of
all citizens, Parliament, the President, judiciary, the Council of State, the
cabinet, political parties or other bodies and persons in applying or
110
Atupare 2014 Harv Hum Rts J 95.
111
31 December Case 66-67.
112
31 December Case 69.
113
31 December Case 69.
114
31 December Case 102.
2729
MO MHANGO PER / PELJ 2014(17)6
interpreting the Constitution or any other law and in taking and implementing
any policy decisions, for the establishment of a just and free society. The
judiciary is to be guided, while interpreting the Constitution by only the
specific provisions under chapter 6.115
115
31 December Case 149.
116
Atupare 2014 Harv Hum Rts J 96.
117
Atupare 2014 Harv Hum Rts J 96.
118
Atupare 2014 Harv Hum Rts J 96.
119
New Patriotic Party v Attorney General (CIBA) 1997 SCGLR 729 (hereafter CIBA).
120
CIBA 752-761, 787, 791-803; Atupare 2014 Harv Hum Rts J 97.
2730
MO MHANGO PER / PELJ 2014(17)6
... there are particular instances where some provisions of the Directive Principles
form an integral part of some of the enforceable rights because either they qualify
them or can be held to be rights in themselves. In those instances, they are of
themselves justiciable also. Where those principles are read in conjunction with
other enforceable provisions of the Constitution, by reason of the fact that the
courts are mandated to apply them, they are justiciable. Further where any
provision under chapter Six dealing with the Directive Principles can be interpreted
to mean the creation of a legal right, ie a guaranteed fundamental human right as
was done in article 37(2)(a) regarding the freedom to form associations, they
become justiciable and protected by the Constitution.121
While the judgment in CIBA has been welcomed by some commentators,122 Atupare
has criticised the decision arguing that the majority opinions were indecisive about
the justiciability of the Directive Principles.123
Unlike Atupare, I find that the judgment in CIBA, read together with the wisdom of
the minority views in the 31 December Case, clarified the constitutional status of
Directive Principles. In my view the judgment in CIBA brought clarity to the law by
holding that Directive Principles are in general not justiciable except when read with
other justiciable provisions of the Constitution. As Justice Bamford-Addo puts it, the
effect of this judgment is that "... having regard to the test of justiciability of any
particular provision under chapter 6 of the Constitution, it is my view that each case
would depend on its peculiar facts."124 This is because the general rule is that
Directive Principles are not justiciable and the court will have to determine, in every
case, whether the exception as pronounced in CIBA applies. In fact, despite his
criticism of the judgment in CIBA, Atupare concedes that the judgment in CIBA was
clearer than that in the 31 December Case on the question of the constitutional
status of Directive Principles.125
If the judgment in CIBA is not sufficiently clear on the issue of the justiciability of
Directive Principles, as suggested by Atupare, the Supreme Court decision in Ghana
Lotto Operators Association & Others v National Lottery Authority 126 provides further
clarity. In Ghana Lotto Operators Association the Supreme Court considered the
121
CIBA 745-747.
122
Nwauche 2010 AHRLJ 514 (suggesting that courts in Nigeria adopt the approach in CIBA).
123
Atupare 2014 Harv Hum Rts J 97.
124
CIBA.
125
Atupare 2014 Harv Hum Rts J 97.
126
Ghana Lotto Operators Association v National Lottery Authority 2007-2008 SCGLR 1088.
2731
MO MHANGO PER / PELJ 2014(17)6
question of whether chapter 6 was justiciable or not. Justice Date-Bah, who wrote
for the majority, reasoned that the "... starting point of analysis should be that all
provisions in the Constitution are justiciable, unless there are strong indications to
the contrary in the text or context of the Constitution."127 However, Justice Date-Bah
further explains that:
... there may be particular provisions in chapter 6 which do not lend themselves to
enforcement by a court. The very nature of such a particular provision would rebut
the presumption of justiciability in relation to it. In the absence of a demonstration
that a particular provision does not lend itself to enforcement by courts, however,
the enforcement by this court of the obligations imposed in chapter 6 should be
insisted upon and would be a way of deepening our democracy and the liberty
under law that it entails...This court will need to be flexible and imaginative in
determining how the provisions of the chapter 6 are to be enforceable.128
While the ambiguity concerning the justiciability of the provisions of chapter 6 has
been definitively addressed, Justice Date-Bah posits that there are certain provisions
that do not lend themselves to enforcement by courts.129
127
Ghana Lotto Operators Association v National Lottery Authority 2007-2008 SCGLR 1088 1099.
128
Ghana Lotto Operators Association v National Lottery Authority 2007-2008 SCGLR 1088 1106-
1107.
129
Quashigah date unknown http://www.icla.up.ac.za/images/country_reports/ghana_country_
report.pdf 14.
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MO MHANGO PER / PELJ 2014(17)6
The two positions are convergent in that, if a particular provision of chapter 6 does
not lend itself for enforcement by action in court, then in our preferred approach,
the presumption of justiciability would be rebutted; while, similarly, the case by
case approach of Bamford-Addo would result in the court finding that the provision
in question does not create an enforceable right. The advantage of the presumption
of justiciability is that it provides a clear starting rule that is supportive of the
enforcement of fundamental human rights.
4 Conclusion
From the foregoing analysis, it is clear that the holding by the Supreme Court in
Ghana Bar Association that the political question doctrine is applicable to the
Constitution of Ghana has never been overruled.130 Ghana Bar Association and the
wisdom in Mensah v Attorney General and the 31 December Case demonstrate that
the political question doctrine forms part of Ghanaian constitutional law and, as in
other countries where it is applied, it does not apply to every case involving a
political question.131 The Supreme Court has discretion (though interpretative) to
determine which matters are committed to the political branches and can discard
130
For a contrary view see Bimpong-Buta Role of the Supreme Court 134-135 (arguing that the
criticism in Ghana Bar Association on the issue of the application of the political question doctrine
could be read as having overruled the decision in the 31 December Case).
131
Free 2003 Pac Rim L & Pol'y J 489; LaTourette 2008 Rutgers LJ 282; Fickes 2009 Temp L Rev
531; Willig 2010 Cardozo L Rev 732; Chase Cath U L Rev 1055; Barkow 2002 Colum L Rev 253,
262-263.
2733
MO MHANGO PER / PELJ 2014(17)6
them on that basis. I submit that Ghana Bar Association is such a case where the
Supreme Court found that the questions in that case were properly committed to the
political branches and decided to exercise restraint by applying the political question
doctrine.
However, it is clear from the case law that courts acknowledge the importance of
the political question doctrine in Ghana's constitutional democracy, which is
underpinned by the principle of the separation of powers. It is also clear in these
cases and academic commentaries that judges disagree about which questions are
most appropriate for its application. In other words, the debate among judges in
Ghana is not whether or not the political question doctrine forms part of Ghanaian
constitutional law; rather, it is whether or when the doctrine should apply in a
particular case. It is pointless, in my view, to question as others have done132
Tuffour and other local authorities that have been used to justify the political
question doctrine in Ghana.
132
Asare v Attorney-General (AP) unreported case number 21/2006 (15 September 2006) (arguing
that both justice Abeyi and Kpegah improperly rely on Tuffour as the authority for the political
question doctrine; that this doctrine was not an issue in Tuffour, nor was the holding in Tuffour
an endorsement of or even a clarification of the doctrine); and the 31 December Case (where
Justice Adade found that the political question doctrine cannot have any application in Ghana).
Also see Bimpong-But Role of the Supreme Court 128-135 (suggesting that the political question
doctrine should not apply to Ghana).
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MO MHANGO PER / PELJ 2014(17)6
BIBLIOGRAPHY
Literature
2735
MO MHANGO PER / PELJ 2014(17)6
2737
MO MHANGO PER / PELJ 2014(17)6
Wechsler Principles
Wechsler H Principles, Politics and Fundamental Law: Selected Essays
(Harvard University Press Cambridge Mass 1961)
2740
MO MHANGO PER / PELJ 2014(17)6
Case law
2741
MO MHANGO PER / PELJ 2014(17)6
Legislation
Internet sources
2742
MO MHANGO PER / PELJ 2014(17)6
LIST OF ABBREVIATIONS
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MO MHANGO PER / PELJ 2014(17)6
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MO MHANGO (SUMMARY) PER / PELJ 2014(17)6
MO Mhango*
SUMMARY
*
Mtendeweka Owen Mhango. BA (Morehead State University) JD (Michigan State University) LLM
(Wayne State University). Associate Professor, University of the Witwatersrand, Johannesburg.
Member of the Harambe Law Scholars. Email: [email protected]. I would like to
thank all the blind reviewers for their useful comments.