Caught Between Unconstitutional Acts and Political Lawyering

Originally written on 2 February 2009

I have listened with some degree of trepidation to colleague lawyers claim that although they agree, somewhat reluctantly and grudgingly, with my position on the constitutionality or otherwise of the appointment of the Acting IGP and Acting CDS, they do not think that those provisions apply to appointments in an “acting capacity.” Indeed, some move this argument forward by claiming that I am wrong in saying that the provisions of the Interpretation Act, 1960 (CA 4), particularly section 12 apply(ies) to the interpretation of the Constitution. They say that we cannot use the Interpretation Act to inteprete the Constitution. One lawyer was so bold as to state on Joy FM's Newsfile that the Interpretation Act, on account of it having been passed in 1960, has been "overtaken by events" because plans are afoot to amend it. I almost burst an artery.

I am shocked. Let me restate my argument. First, the combined effect of Article 70 and Article 202 is that although the President has the power to appoint an IGP, that power is only exercisable upon consultation with the Council of State. Second, the combined effect of Article 70 and Article 212 is that although the President has the power to appoint the CDS and the service commanders, that power is only exercisable upon consultation with the Council of State. These are pretty unassailable.

With respect to appointment to an “acting capacity”, Article 195(1) provides that with respect to the same appointments, there is the additional requirement, whether the appointment is “to hold or to act in an office in the public services”, of obtaining the advice of the relevant governing council upon consultation with the Public Services Commission. This is expressly and particularly reinforced in Article 202(3) with respect to the IGP, as an office within the Police Service.

I will respectfully refer every reader to Article 295(2)(a) as follows:

“In this Constitution and in any other law… (a) a reference to the holder of an office by the term designating his office, shall, unless the context otherwise requires, be construed as including a reference to a person for the time being lawfully acting in or performing the functions of that office…”

Further Article 297(a) states that:

“In this Constitution and in any other law… (a) the power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove the persons from office…”

That is why I wonder how anyone can advance the argument that the conditions imposed upon the president in making the appointments in question, does not apply if the persons are only appointed to “acting positions”. Really? Can a president simply avoid compliance with those conditions by simply appoint persons to offices in perpetual “acting capacities”?

But, by far the most shocking position is the claim that the Interpretation Act cannot be used to interpret the Constitution. I do not want to think that people are being forced to clutch at straws by taking what is, respectfully, a dangerous and novel position of law that flies in the face of our laws. This might be because they are unable to find answers to the provision in section 12 of the Interpretation Act that if an enactment gives a person the power to make an appointment and subjects the exercise of that power to certain limitations and conditions, those limitations and conditions also apply to the appointment of a person to serve in an acting position. It is in a rather desperate attempt to find an answer to this provision that we now hear of this strange and unsupportable proposition that we cannot use the provisions of the Interpretation Act to interpret the Constitution.

This position clearly ignores, or is probably not aware of, the plethora of legal decision in Ghana to the contrary. But I will just refer to a few of them, and invite my learned friends, particularly those close enough to the Presidency to give legal advice to the occupant of the highest office in this land, to consider these.

First, in Kuenyehia v. Abban, the Supreme Court, per Hayfron-Benjamin JSC, stated clearly as follows:

“Interpretations of statutes and, indeed of this Constitution, within our municipality are governed by the Interpretation Act, 1960 (CA 4) as from time to time amended. If indeed footnotes in a statute are to be read as part of a section of a statute or schedule, then the Act must say so. If it is not to be a part to be used in aid of construction the Act must also say so.”

Second, in Asare v. Attorney-General, where the Supreme Court was called upon to interpret Article 60 of the current Constitution, Dr. Date-Bah JSC, in the leading speech, states as follows:

“… section 19 of the Interpretation Act, 1960 excludes debates in Parliament from being used as an aid to construction and, by analogy, I consider that the actual debates in the Consultative Assembly should be excluded.”

Third, in Republic v. Tommy Thompson & Others, Kpegah JSC said “…by section 19(1) of our Interpretation Act, 1960 (CA 4), we are entitled to use the above to aid us in interpreting the Constitution, 1992.”

Fourth, in NPP v. Attorney-General, where the Supreme Court was requested to determine whether the NPP, as a political party was a “person” who could sue to enforce provisions of the Constitution, the court held, rightly, that the proper role of the Interpretation Act, 1960 (CA 4) was that unless the contrary intention appeared in any enactment, the interpretation of words provided in CA 4 should be applied, except where the context in which the word was used would not permit such an interpretation or where the enactment itself provided an interpretation of any particular words used therein. A “person” was defined in section 32 of CA 4 to include a body corporate. Since that meaning fitted the context in which “person” was used in article 2(1) of the Constitution, 1992 there was no necessity for applying the canons of statutory interpretation to determine its meaning. Moreover, the word “person” had been defined in article 297 of the Constitution, 1992 to include a natural as well as a legal person or a corporate person such as the plaintiff. Accordingly, the plaintiff had locus in the case.Atuguba JSC said specifically as follows:“The purview of article 2(1) of the Constitution, 1992 however plainly comprehends their enforcement. I therefore hold that since article 2(1) relates to actions by a person and since a person under section 32 of the Interpretation Act, 1960 (CA 4) includes corporate and unincorporated persons and the context of the Constitution, 1992, referred to supra, taken as a whole, contemplates enforceability of its provisions by and against such persons, they can sue and be sued under article 2(1) of the Constitution, 1992.

Fifth, in NPP v. GBC, Joyce Bamford-Addo JSC (now Speaker of Parliament) said as follows:

“The Attorney-General, appearing for the defendant, in his submissions argued that the word "fair" in article 163 of the Constitution, 1992 should be interpreted to mean "reasonable" and that what is reasonable depends on what the Ghana Broadcasting Corporation thinks is reasonable. This argument is not only untenable for the reasons given above, but also for this reason, namely that since the word "shall" used in article 163 of the Constitution, 1992 imposes a mandatory, not permissive duty on the Ghana Broadcasting Corporation, the Ghana Broadcasting Corporation has no discretion in the performance of its constitutional duty of mandatorily affording equal opportunities to all parties to present divergent and dissenting opinions to the public on the state-owned news media: see section 27 of the Interpretation Act, 1960 (CA 4) where it is stated that the word "shall" is mandatory and therefore excludes any question of discretion.”

These are clear decisions of the highest court of the land. I could refer to many more from 1963 to date, but time and space will not permit me to. How then can anyone seek to argue that we cannot use section 12 of the Interpretation Act to support and interpret otherwise clear provisions of the Constitution? Beats me. But that is probably the result of what I call ‘political lawyering’. Maybe law and politics do not really mix, because under those circumstances, the lawyering takes a back seat to the politicking... sadly.