Constitutional law

PREAMBULAR LESSONS (1992 CONSTITUTION)

- "In the Name of the Almighty God". -Ultimate power belongs to the people. -Power granted in the Constitution is to be exercised on behalf of and for the welfare of Ghanaians. -powers granted in the 1992 Constitution must be exercised with the provisions of the Constitution. -it is the fundamental law of the land.

JUDICIARY ARM (1957 CONSTITUTION)

- Birthed the Court of Appeal and High Court in 1957. (before 1957, the Ghanaian Court structure was High Court - West African Court of Appeal(WACA) - Judicial Court of the Privy Council). -At Independence, the WACA was replaced with the COurt of Appeal. -the Privy Council was abolished when Ghana became a Republic in 1960. -Chief Justice selected by the Prime Minister( CJ could not act without consulting the Prime Minister)

Formal Colonization

- Gold Coast Colony was formally setup in July 1874 - The Gold Coast colony was separated from Sierra Leone in 1874. -Lagos Colony remained part of the Gold Coast. -Gold Coast Colony was made up of 3 geographical parts; (a) Western Province (Western Region) (b) Eastern Province (Eastern, Oti, Volta, Accra). - The Ashanti Empire was subjugated in 1901. -An Order-in-Council declared Asante a Colony but was administered from the Gold Coast Colony. -In 1902, by an Order-in-Council, formal protectorate was proclaimed over all territories in the Northern areas of the colonies. -Boundaries between Asante and Northern Protectorate drawn by 1901 and 1906 Orders-in-Council. -Trust territory of Togoland placed under British in 1922.

COLONIAL GOVERNMENT REDESS

1. A Select Committee of the legislative Assembly was formed. 2. Appointment of Sir Fredrick Bourne to advise on federalism question. 3. Organization of Achimota Conference to consider Bourne's Report.

BURNS CONSTITUTION OF 1946

- Introduced representative government for both colony and Asante. -African majority in the Legislative Committee since 1850. -Inclusion of members from Asante must owe allegiance to the Golden Stool. -Inclusion of Joint Provincial Council Chiefs to Legislative Council. -Conversion of Legislative to a representative legislature. -Property franchise from municipal members Legislative committee. -Ashante was formally integrated into the Gold Coast Colony under the Burns Constitution in 1946.

LEGISLATIVE ARM (1957 CONSTITUTION)

- Introduced the term Parliament. -it was made up of the Queen and National Assembly. -Limitations were placed on legislatie powers (Eg. is the Cases of Lardan vs Attorney General Nos 1 and 2(1957) where the Othman Lardan and Amadu Baba Act, 1957 was enacted.....and.... Balogun vs Edusei (1958,Deportation(Indemnity Act,1958).

LEGISLATURE (1969 CONSTITUTION)

- Minimum of 140 members and a maximum of 150 members. - being a member of Parliament was not a paid office(Article 90). -members of Parliament must declare their assets(Article 89). -Conflict of interest(Article 82)Members who have a stake or an interest that will jeopadize their nuetrality in a government transaction must make it known. ​

RESOLUTION OF ELECTORIAL DISPUTES (1992 CONSTITUTION)

- Presidential elections shall be handled by the Supreme Court. -Any citizen of Ghana can bring an action, such a peron need not be a candidate. (Nana Addo Dankwa Akufo-Addo vs John Dramani Mahama). -Ammendment of C.I 16 by C.I 99, 2016 makes it possible for only candidates to be petitioners. -Action to be mounted 21 days after the declaration of results. -JDM vrs NADAA was mounted on the basis of C.I 99. -by C.I 99, presidential petitions are to be determined within 42 days from the date of filing. ​

1960 REPUBLICAN CONSTITUTION

- The 1960 Constitution was the handiwork of Parliament. -came into force on 01/07/1960. -affirmed the sovereignty of Ghana. -changed Ghana's Monarchical status. -established a President who was both Head of State and Head of Governement(Executive President). -President could pass law without recourse to Parliament (Article 55 of 1960 Constitution). - appointment of Presidential Commission. ​

FORMATION OF WATSON COMMITTEE.

- The Watson Committee was setup to investigate the disturbances and other acts of civil disturbance. -Described 1946 Constitution outmoded at birth. -Government set up the Coussey Committee to propose constitutional reforms based on the recommendations of the Watson Report.

1964 AMENDMENTS

- brought into force One-party State(Article 2). -the President conferred the power to remove judges of Supreme Court or High Court from office(Article 8).

WHAT IS A COMMISSION OR COMMITTEE OF INQUIRY

- defined as a person, or a body of person appointed to truthfully and impartially inquire into a report on a matter of public importance. -there could be a sole commissioner such as the commissioner for judgement debts -serves critical governance and regulatory purposes as it is a valuable instrument and other bodies to inquire into matters of immense public interest , establish facts truthfully and impartially, and seek expert analysis and advise and establish facts on a bread of issues. - Commission of inquiries employed both national and international circles to hold persons accountable for flouting national and international laws.

NKRUMAH"S CONSTITUTION OF 1957.

- the 1957 Constitution defined the functions and powers of the 3 organs of Government. -Installed the cabinet system. -Legislative Assembly enlarged from 84 to 104. - Chief Justices appointed by Governor in consultation with the Prime Minister.

GOLD COAST DISTURBANCES (1946-1948)

-Boycotts of European businesses led by the Osu Alata Mantse(Nii Okai Bonney). -Formation of UGCC and CPP. -Declaration of Positive Action in 1949 by Nkrumah. -Battle slogans by UGCC and CPP.

LEGAL REVOLUTION OF COMMISSIONS OF INQUIRY IN GHANA

-Commisions of Inquiry Ordinance of 1893(Cap 209) Govenor had mandate to apooint a commissioner(s) to inquire into the conduct of a public service,chief,any department of public service or any matter, in the opinion of the Governor, be for public public welfare. -in 1935, Cap 209 was re-enacted asthe Commissions of Inquiry Ordinace (Cap 249) -Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962(Act 121) bothered on the mechanisms of commissions of inquiry. -Act 121 received presidential assent on 12/06/1962 and by its Long title the purpose of the Act was to make better provision for the protection of public property and for the investigation and punishment of corrupt practices. -Act 121 appears to be the first attempt by the state to use COI as instruments for the investigation of allegations of corrupt practices as prelude to the commencement of criminal prosecutions. -In 1964, Cap 249 was replaced by the COI Act 1964(Act 250) -aside a change in the drafting style, Act 250 reproduces in a substantial manner the provisions of the previous COI Ordinances(Caps 209 and 249). ​

LEGAL EVOLUTION OF COMMISSIONS OF INQUIRY IN GHANA

-Commissions of Inquiry have a long history in English Law. Royal Commissions have existed in some form in England as far back as ther year 1606. The origin of power to appoint Royal Commissions comes from the power to appoint officials to perform duties in the anme of the crown , as with judges, sheriffs and colonial governors, for example. The earliest commissioners appointed in this way exercised not only investigative functions, but also administrative and judicial functions. -as earlier noted, commssions of inquiry have been a regular feature in Ghana's legal system, with historical record with the reports of various commissions -The British Ghana's colonial masters, regularly made recourse to commission/ paliamentary delect committees. - it is used to a. as a precursor to major constitutional reforms. b. to impartially establish the facts of a crisis such a riot, disturbance or dispute. c.to understand the workings of indegenous governance institutions such as chieftancy d. to inquire into the affairs of public institutions particularly where there are allegations or concerns about mis-governance ,sleaze,corruption or some other form of malfeasance. - it was for the appointing authority(executive) to determine what to do with the findings -expressed control over the findings of the commission through issuance of white papers to accept or reject the findings.

CONSLUTATIVE ASSEMBLY (1992 CONSTITUTION)

-Consultative Assembly vs Constituent Assembly. -Appointed by the PNDC law 253. -considered the proposals of the committee of experts. -took into account the 1957,1960,1969 and 1979 Constitutions. -the Assembly's final work was areflection of 95% of the 1969 and 1979 Constitutions. -Ghanaians approved the 1992 Constitution through a referendum on 28/04/1992. -the 1992 Constitution came into force on 07/01/1993.

COUSSEY COMMITTEE REPORT.

-Coussey Committee brought about the Coussey Constitution of 1951. -Protectorates were given representation in the legislative. -Legislative Council renamed the Legislative Assembly. -Membership enlarged to 84 with 75 being elected. -Local government streamlined. -Coussey Committee Report was rejected by Nkrumah who described it a bogus and fraudulent.

1925 Guggisberg Constitution

-Guggisberg Constitution introduced limited elected representatives. -Greater representation of chiefs. -Provincial councils of chiefs. -Joint Councils of chiefs. -Aboriginal Rights Protection Society. -National Congress of British West Africa. NB: 1. Clifford Constitution of 1916 was the 1st Constitution in the Gold Coast. 2. Guggisberg Constitution recognized and gave room for chieftaincy. 3.Guggisberg reformed the inadequacies in Clifford's Constitution.

JUDICIARY (1964 AMENDMENTS)

-Introduction of the Supreme Court and High Court. -independence of the Judiciary granted in Article 45 but was rendered redundant by the 1964 amendments. -removal of Sir Arku Korsah.

MILITARY REGIMES

-National Liberation Council(NLC) = 1966 -NAtional Redemption Council(NRC) = 1972 -The Supreme Military Council(SMCI) = 1975 -The Supreme Military Council(SMCII) = 1978 -Armed Forces Revolutionary Council(AFRC) = 1979 -Provisional National Defence Council(PNDC) = 1981 NB: 1. All these regimes had their enactments being referred to as decrees except the PNDC, which referred to them as laws. 2. All the military regimes are establised by a proclamation, the foundation foral/the decrees/laws. 3. These procalamations would abolish the former constitution, dissolve parliament and allow certain provisions of the past(abolished) constitution to be in force(there is no total abolition of the past constitution). ​

COMPOSITION OF THE EXECUTIVE (1992 CONSTITUTION)

-President -Vice President -Cabinent to assist the determination of general policy. -President to preside over Cabinet, Vice President in his absence. -President to determine which ministers are part of Cabinet. -Cabinet is merely to asisst, it does not have power to make any decision. -Article 58 of the 1992 Constitution, affirms beyond doubt that the President is the Government ( see clauses 1 and 1 of Article 58). -the President may carry out his unctions through subordinates to him. -the 1992 Constitution avoided the Cabinet Government system like that of the United Kingdom. -decisions of Cabinet are for the President, and is solely responsible for any policy problems.

PRESIDENT'S QUALIFICATION (1992 CONSTITUTION)

-citizen of Ghana by birth. -40 years abd above -must be qualified to be elected as MP. -must not be convicted for high crime,high teason,fraud etc. -no language or formal education is a requirement. ​

3rd REPUBLICAN CONSTITUTION (24/09/1979)

-drafted by the Mensah Constitutional Commission of 1978. - the commission used the 1969 Constitution as a guide. -reommended that the disobedience of a Supreme Court order was a high crime (Article 2). -enshrined ciizen's right to resist attempts to abolish constitutional order. -abandoned split executive of the 1969 Constitution. -adopted the Executive President style. -indicated the length of tenure for both the Executive(4years) anf Legislature(5years). -introduced Directive Principle of State Policy. - Introduced the rule of No Carpet Crossing in Parliament for the first time. -changed office of Parliament to a paid one (Article 80).

EXECUTIVE ARM (1992 CONSTITUTION)

-found in chapter 8 of the Constitution. -created an executive President as Vice. -shows an intention to vest total executive power in the President. -Articles 201,206,and 211 gave the Vice President direct Constitutional responsibilities. -these articles were repealed after Vice President Arkaah's episode, thereafter no constitutional responsibilities for the Vice President. -the power of the President is not without qualification.( the President's power is not absolute). The 1992 Constitution itself provided for some internal constraints such as to act; a. on the advice of b. in accordance with the advice c. with prior approval d. in consultation with. CASES 1. Emmanuel Noble Kor vs Attorney General and Anor. ( Prez to determine the salaries of some specific persons on the recommendations of a committee of not more than 5 persons appointed by him in accordance to the advice of the Council of State as provided for in Article 71 is mandatory) 2. Ghana Bar Assoc and others vrs Attorney General & Anor. ( President to appoint Supreme Court Judges on the advice of the Judicial Council)

PRESIDENTIAL ELECTIONS (1992 CONSTITUTION)

-held not earlier than 4months, nor later than 1 month before the expiry of the imcumbent's tenure. -where the election is ocassioned by the creation of a vacancy, 3 months after the creation of that vacancy. -must be elected with 50% plus 1% of the valid votes casted in the elections. -21 days for a run-off possibilities.

LEGISLATURE (1964 AMENDMENTS)

-legislature consisted of 104 members. -the President ceased to be a Member of Parliament. -10 slots for womwn. -Introduced for the first time the office of the Speaker of Parliament. - total cap for number of members was 114. -Article 20 provided limitation on the comoetence of Parliament. (The Supreme Court held in the case of Re-Akoto that, it is the only ssource of limitation and not Article 13).

LEGAL REVOLUTION

-mandate of Commission of Inquiry could be advisory, investigative or judicial. -need not to be purely investigative bodies. They could perform other functions in light of relevant legal framework by appointing authority. ​

1957 INDEPENDENT CONSTITUTION

-the 1957 Constitution adopted the cabinent system as introduced by Nkrumah. -the constitution was a Monarchical Constitution. -it was not contained in a single document. -real executive power was vested in the Prime Minoster and Cabinet. -the Governor General's actions were subject to the wishes of the majority in the Natioanl Assembly.

1969 CONSTITUTION (22/08/69)

-the Akufo-Addo Constitution Commission drafted the 1969 Constitution. - the 1969 Constitution declared the President as Head of State. -the Prime Minister as Head of Government. -the Prime Minister and Cabinent were part of Parliament. -Prime Minister and Cabinent were collectively responsible for the National Assembly. -President by this Constitution was to be elected by Electoral College system. -Edward Akufo-Addo was President.

JUDICIARY (1969 CONSTITUTION)

-the structure of the Ghanaian Judicial System was Supreme Court - Court of Appeal - High Court. -laid down the grounds for the removal of Judges; i.by stated behaviours in in law. ii. infirminty of body or mind. -Entrenched the security of the tenure of Judges.(Supreme Court Judges). - the removal of any Judge from the bench was done by a tribunal and through Parliamentary impeachment.

PROCEDURE FOR THE REMOVAL OF THE PRESIDENT.

1. Notice in writing signed by 1/3 of the total membership of Parliament. 2. Notice submitted to the Speaker of Parliament. 3. Speaker to immediately transmit notice to the Chief Justice. -a medical borad to deal on mental grounds. -tribunal chiared by the Chief Justice and 4 most senior Supreme Court Justices for any other grounds. -Parliament to deal with the findings through a resolution whether the President should be removed.

Effects of the Bond of 1844

1. Regularization of British Jurisdiction beyond forts and settlements. 2. Abolition of Barbarous and obnoxious customs . 3. Respect for traditional authority and individual property rights. 4. Extension of access to British justice on serious offenses such as murder and robberies. - The British Settlement Act established the legislative and Executive Councils in 1850 in the Gold Coast. -They were reduced to forts, castles and adjoining settlements. -In 1853, the first Supreme Court in the Gold Coast was established.

FINDINGS OF BOURNE

1. The country was too small for federalism. 2.There was a genuine concern for yhe devolution of power.

REMOVAL OF THE PRESIDENT (1992 CONSTITUTION)

Grounds; a. willful violation of oath of office. b. willful violation of the Constitution. c. conduct that will disdain his office. d. conduct that is prejudicial or iminical to the economy or security of the state. e. physical or mental incapacity. f. disobeying an order of the Supreme Court.

THE 1992 CONSTITUTION AND THE CONSTITUTIONAL LAW OF GHANA

Background -there were local government reforms in the 1980's. -collapse of Communism ad Socialism in the Soviet Union( Ghana was an ally of the Soviet Union). -fall of the Berlin Wall in 1989 ( A war which brought down the wall separating east and west Germany). - the PNDC government depended on Donor Economic Reforms. -formation of the National Commission for Democracy (NCD). -the NCD Report and the appointmen of Committee experts headed by DR. SKB Asante.

PRESIDENTIAL DUTIES (1992 CONSTITUTION)

a. Head of State. b. Head of Government. c. Commander-in-Chief of the Ghana Armed Forces. ​

LEGAL PRIVILEGES OF THE PRESIDENT (1992 CONSITUTION)

a. The President enjoys absolute immunity from civil and criminal proceedings as Head of State. b. His actions as Head of Government may be challenged under Articles 2, 33(1) and 130 {1992 Constitution} and prerogative writs or orders. c.President may ot be personally taken to court as Head of Government. d. All legal actions against the President as Head of Government are to be brought to the Attorney-General as nominal defendant. (NPP vs Rawlings & Anor). e. The first 3 years after the President has retired from office is the time frame that legal actions can be brought against the President. After the 3 years has elapsed, any action brought against the President will statute barred.

chieftancy

about chieftaincy

THE LAW ON COMMISSIONS OF INQUIRY IN GHANA

INTRODUCTION -it is a great deal of importance to the work of the commissions of inquiry -yet commissions have been regarded as ready tools in the politician's toolkit of political tricks( to avoid dealing with unpleasant issues). -one biting critique of commissions of inquiry is that nothing is intended to come out of their work. -address quite serious sand substantive matters of public policy and governance. -for this and other reasons, a discussion of the law of commission of inquiry in Ghab=na is approprite becos a.commission of inquiry

MAIN POINTS FROM THE COMMITTEE OF EXPERTS (1992 CONSTITUTION)

Suggested -a split government where the President is the Head of State and a Prime Minister is the Head of Government. -Council of State as a second chamber with a Judicial Committee to have prior review powers. -Unicameral with some Ghanaian languages to be used. -Judicial Committee of Council of State to handle Parliamentary electoral disputes.

CONSTITUTIONAL EVOLUTION IN GHANA (POST INDEPENDENCE ERA 1957-DATE)

The immediate days before independence was characterized by tensed political activism. A number of political parties with deep ethnic and sectorial interests emerged. 1. The National Liberation Movement (NLM) an Ashanti based party fromed in 1954. 2. Northern People's Party (NPP) 3. The Togoland Congress Party (TCP) 4. The Ga MAshie Party (GMP) 5. The Moslem Association Party (MAP) The focal point of constitutional development in this period was what should be the appropriate constitutional structure be it associations and institutions for the governance of the country. The debates were centered around two issues. i. Bicameralism vs Unicameralism ii. Federalism vs Unitarism NB: The principal protagonists in these debates and demands was the NLM, which was headquartered in Kumasi. -debates were conducted in an atmosphere of voilence especially in Kumasi. -much intolerance were shown to political opponents. -CPP members in Kumasi had to leave and seek refuge in Accra.

Colonial Acts

Two Acts of Parliament were passed from the 1843 investigation; (a) Foreign Jurisdiction Act. (b) British Settlements Act. -Eleven treaties were signed by the chiefs of the Coastal estates with Lieutenant General Commander Hill between 1843 and 1844. -A composite document of these treaties was signed by 8 Fante and other Coastal Chiefs in 1844.

Constitution Revolution (Gold Coast)

hierarchy 1800-1956 - British interests was framed mainly in forts by merchants from 1800-1820. -This was carried out by companies and other trade entities. -In May 1821, a legal instrument was enacted which dissolved the administration of the companies. - The result was the assumption of direct rule of the settlements of the companies in the Gold Coast, Nigeria and Sierra Leone. -The headquarters was in Sierra Leone and this was the case until 1830. -Captain Maclean came in after McCarthy died in 1824 as the leader of the merchants. -Maclean's regime was represented by the coastal chiefs for two reasons; i.(a) loss of revenue arising from the abolition of slave trade. (b) extension of access to British justice to chiefs subjects which was a drain on revenue to the chiefs. 2. Refusal to pay grand rent by merchants. -Complaint by the chiefs led to a formal investigation in 1843. -found that assumption of control of are as beyond British holdings was irregular. - Regularization of their holding through treaties of friendship.

SUCCESSION OF THE PRESIDENT (1992 CONSTITUTION)

the 1992 Constitution provides the hierarchy of succession when the President is unable to perform his duties. President - Vice President - Speaker of Parliament - Chief Justice. -Justice Kludze in Asare vs Attorney General, it was indicated in this case that the Chief Justice shall act in the absence absence of the Speaker of Parliament. Sir Professor Kumado said it is not supported by law. -in the case of Attah-Mensah vs Attorney General & Doe Adjaho, the Supreme Court held that, the Speaker of Parliament must take the oath of the President each time he is to act as President) [some scholars have argued and asked the question if that should be the case even if the Speaker has sworn the oath of the President once].