Constitution Review challenge shot down

The Supreme Court yesterday dismissed an application that sought to challenge the legality of the Constitutional Review Commission (CRC) set up to review the 1992 Constitution.

A US-based Ghanaian lawyer, Prof. Stephen Kwaku Asare, in July 2014, sued the Attorney-General on the grounds that the CRC had usurped the powers of Parliament and for that reason the process must be declared null and void.

The court also dismissed the applicant’s prayer for an order directing the President and state agencies to permanently cease and desist from taking any actions that sought to amend or otherwise disturb the Constitution in so far as such actions were inconsistent with Chapter 25 of the Constitution.

In a 5-2 majority decision, the court, presided over by the Chief Justice, Mrs Justice Georgina Theodora Wood, held that there was no merit in the case.

“Consequently, the action fails and we proceed to dismiss same in terms as stated above. Reasons will be given on Thursday, October 29, 2015,” the court held.

The CRC was set up by the government in 2012 to make proposals and recommendations for the review of the 1992  Constitution.

Its recommendations and proposals will be subjected to a vote in a referendum.

Decision

The Chief Justice and four others, namely Justices P. Baffoe-Bonnie, N.S. Gbadegbe, A.A. Bennin and J. A. Akamba, jointly dismissed Prof. Asare’s suit.

Justices Jones Dotse and Anin Yeboah dissented.

Reliefs

Prof. Asare had sought a declaration that the Constitution Review Commission of Inquiry Instrument, 2010, C.I. 64, was null, void and of no effect, as it contravened the letter and spirit of Article 289(1) of the Constitution.

He said C.I. 64 usurped the powers that “the 1992 Constitution expressly, exclusively and specifically conferred on Parliament”, but the court, in its judgement, held that “this relief fails, as C.I. 64 does not contravene Article 289 (1) of the Constitution”.

He had further prayed the court to declare that the powers granted to the President under Article 278 (1) to appoint a commission of inquiry into any matter of public interest did not include the power to establish a commission to review and propose amendment bills to the Constitution.

That, according to him, was because such powers to review and propose amendment bills to the Constitution had been expressly and exclusively conferred on Parliament.

Nonetheless, the court said “this relief fails, as Article 278 (1) enables the President to set up the commission under C.I. 64, in so far as Parliament does not have the exclusive right or power to initiate moves or take steps in order to amend the Constitution”.

Prof. Asare had also prayed the court to declare that “Article 278 (1) does not grant the President an all-purpose commissioning power but only gives him the power to commission an independent inquiry to investigate and establish the truth relating to an entity’s affairs, activities or some specific occurrence that is in the public interest”.

The court, however, held a different view.

According to the court, that particular “relief fails, as the President’s power under Article 278 (1) encompasses every matter that is of public interest, as defined in Article 295 of the Constitution, provided the President is satisfied that a commission of inquiry be appointed for the purpose”.

Amendment bills

Prof. Asare had also called for a declaration that the mandate given to the Constitutional Review Implementation Committee (CRIC), an offshoot of the CRC, to finalise amendment bills for both the entrenched and non-entrenched provisions was alien to the 1992 Constitution and for that reason unlawful, unconstitutional, impermissible, null, void and of no effect.

The court, however, did not grant his wish.

Declaration

The court agreed in part with Prof. Asare’s call for “a declaration that the 1992 Constitution can be amended only in accordance with the express provisions of Chapter 25 of the Constitution and that the President’s role in any such constitutional amendment is limited to the ministerial tasks stipulated in Article 290 (6), 291(4) and 292 (a)”.

Although it agreed that the Constitution could only be amended in accordance with the provisions of Chapter 25, it noted that “we are of the view that the President is also empowered to propose amendments to the Constitution”.

Relief granted

The court, however, granted the applicant’s request for a declaration that Parliament’s power to amend the Constitution, as stipulated in Article 289 (1), could not be delegated to or usurped by the President.

Prof. Asare’s reaction

In his reaction to the judgement, Prof. Asare said he would leave it to posterity to judge whether a reasonable and honest reading of the Constitution could lead to the results announced by the court’s majority.

“The court said the President could not only set up a commission to review the Constitution and thereby initiate the amendment

process but also he could do it as often as he wanted with commissions whose membership, size, dispositions, values and terms of reference were determined solely by him. In effect, the court’s majority gave judicial blessing to the notion that this country is under an imperial presidency.

“Not only does the holding effectively wrest the power to initiate amendment from Parliament, a legislative body comprising 275 MPs, and outsource it to one man but it also effectively rewrites Chapter 25 of the Constitution in a radical way, puts the President in charge of the process of altering the text and stability of the Constitution and significantly undermines, devalues and erodes confidence in the Constitution as the supreme, paramount and perdurable law of the land.

“In jurisdictions where such reviews are done, the Constitution itself or a Constitutional Review Act sets out in detail how often such reviews are done, how the members are appointed, the scope of the review and the process by which the review output becomes part of the Constitution.

“Plainly, when we seek to amend the Constitution, we should do so by following the Chapter on Amending the Constitution, not the Chapter on Presidential Commission.

“Nevertheless, the Supreme Court is the final arbiter of our Constitutional disputes and we are obliged to accept its opinion on this vexed issue, even while vehemently disagreeing with it,” he added.

Background

The government, on January 11, 2010, inaugurated a nine-member CRC chaired by Prof. Emeritus Albert Fiadjoe, to gather the views and concerns of Ghanaians on the 1992 Constitution and come out with recommendations for possible reforms.

The commission presented its report to the government on December 20, 2011, but the government, in a White Paper, rejected some of its recommendations.

Following from that, the CRIC, chaired by Prof. E.V.O. Dankwa, was. in 2012, sworn into office by Justice Dennis Agyei, an Appeal Court judge.

The committee has been tasked to develop and report on public reactions to the Government White Paper and the Constitution amendment bills for both the entrenched and non-entrenched provisions of the Constitution.

Prof. Asare’s application challenged the entire process but his requests have been turned down by the Supreme Court.