Advocates for Christ Ghana (A4CG) has described President Akufo-Addo’s decision to await the decision of the Supreme Court in relation to the writ filed by a private legal practitioner over the passage of the anti-LGBTQ+ Bill as abdication of responsibility.
The organization contends that the Supreme Court itself, cannot act on the writ because the Bill is not yet law.
This is contained in a statement issued by the A4CG on March 8.
“We at A4CG believe that such an action by the President would be an abdication of executive responsibility in the constitutionally mandated process of law making. Not only that, if the Supreme Court actually does entertain the various suits questioning the constitutionality of a bill that has not yet become law, it would raise serious questions of the constitutionality of the court’s actions with regards to the justiciability (ripeness) of the actions. That would also be an unmitigated violation of long-established doctrine of separation of powers because the judiciary would be interfering with the execution of powers reserved for the executive and the legislative arms of government,” they explained.
Please read full statement below:
Introduction
Apropos of certain statements attributed to the President of the Republic of Ghana, and which are making rounds on social media, regarding the Human Sexual Rights and Family Values Bill, Advocates for Christ Ghana (A4CG) is making these observations concerning the constitutionality of the purported action of the President of Ghana.
Recent news suggests that the President is apparently planning on deferring his responsibility to assent or not to assent to the recently passed Human Rights and Family Values Bill, until the Supreme Court has made a decision, or decisions on the multiple legal challenges to the Bill.
We at A4CG believe that such an action by the President would be an abdication of executive responsibility in the constitutionally mandated process of law making. Not only that, if the Supreme Court actually does entertain the various suits questioning the constitutionality of a bill that has not yet become law, it would raise serious questions of the constitutionality of the court’s actions with regards to the justiciability (ripeness) of the actions. That would also be an unmitigated violation of long-established doctrine of separation of powers because the judiciary would be interfering with the execution of powers reserved for the executive and the legislative arms of government.
Law Making Process in the 1992 Constitution
The constitution of Ghana is the supreme law of the land and any law or action that is inconsistent with the constitution is void to the extent of the inconsistency. Article 1 Clause 2 of the 1992 Constitution of the Republic of Ghana states, “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”
The constitution has reserved the law-making powers for the Legislature – Parliament and has also laid down the processes by which law is made. Article 106 (1) says, “The power of Parliament to make laws shall be exercised by bills passed by parliament and assented to by the President.” The implications of Article 106 (1) are quite clear. A bill does not become law until it has been assented to by the president.
Clause (7) of Article 106 continues, “Where a bill passed by Parliament is presented to the President for assent he shall signify, within seven days after the presentation, to the Speaker that he assents to the bill or that he refuses to assent to the bill, unless the bill has been referred by the President to the Council of State under article 90 of this Constitution.”
The law-making process as laid down by the constitution dictates that when Parliament has passed a bill and presented it to the executive, the President “shall” indicate to the Speaker of Parliament, within seven days, his intent to assent to the Bill or not assent. Once a bill has been presented to the President, he is therefore obliged under the constitution to indicate his planned action within seven days.
Article 106 (8) states, “Where the President refuses to assent to a bill, he shall, within fourteen days after the refusal –
(a) state in a memorandum to the Speaker any specific provisions of the bill which in his opinion should be reconsidered by Parliament, including his recommendations for amendments if any; or
(b) inform the Speaker that he has referred the bill to the Council of State for consideration and comment under article 90 of this Constitution.
Article 106 (9) indicates, Parliament shall reconsider a bill taking into account the comments made by the President or the Council of State, as the case may be, under clause (8) of this article.
The President of Ghana therefore has seven days after a bill passed by Parliament has been presented to him, to signal whether he intends to assent or not. At this stage of presentation, the bill is not yet law and the only constitutional manoeuvres legally allowed to the President are:
- Assent
- Refuse to assent and:
(i) within fourteen days inform the Speaker of Parliament in a memorandum specifically outlining the provisions he disagrees with or (ii) inform the Speaker that the bill has been referred to the Council of State under Article 90.
The presidential oath under the second schedule of the 1992 Constitution obligates the President to at all times, preserve, protect and defend the Constitution of the Republic of Ghana. Coupled with the above mentioned constitutionally mandated actions, the President must not only be seeking to do this, but he must also actively be seen to ensure that the constitution is followed to the letter. The constitution has empowered him to act in specific ways and he is expected to exercise power in line with his constitutional mandate.
The excuse that the “bill” (we are not even talking about the law) has been challenged and so there should be a pause on the provisions of Article 106 (1) and (7) is a strange one because nothing in the constitution, whether directly pertaining to the exercise of executive powers or indirectly from powers assigned to other branches of government, prevents the President from exercising his constitutionally mandated responsibilities. No branch of government can enjoin or prevent him from exercising his Article 106 (7) duties. In any case, there is the inconsistent precedent, just a year ago in March 2022, when the President proceeded to give assent to the e-levy bill, even when a suit was pending before the Supreme Court.
The Jurisdiction of the Supreme Court
Article 125 (5) states, “The Judiciary shall have jurisdiction in all matters civil and criminal, including matters relating to this Constitution, and such other jurisdiction as Parliament may, by law, confer
on it.”
Article 130 (1) adds, “Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in Article 33 of this Constitution, 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.”
Article 2 (1) States, “A person who alleges that –
- 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 contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”
It has long been established that it is within the power of the judiciary to interpret the constitution (Marbury v Madison). In this regard the jurisdiction of the Supreme Court is triggered where there is a case or controversy with regard to the constitutionality of an enactment (act, law or statute). The concept of a case or controversy is rooted in the doctrine of justiciability. Not every case or controversy is justiciable.
For a case or controversy to be justiciable, standing must be established and there must be a live controversy (neither unripe nor moot), among others – in our case, this means that the challenge to the constitutionality of a statute will only be live if the statute has been passed. Put another way, if a bill has not run its full enactment course – from passage by Parliament to assent by the President – then challenging its constitutionality makes such an action unripe for the courts to adjudicate. There is a long trail of precedence supporting the position of the courts’ distaste for unripe controversies.
The combined effect of all these provisions is that the jurisdiction of the Supreme Court to hear a case challenging the constitutionality of an enactment is only triggered when there is an enactment (as Article 130 (1)(b) puts it) or a law (as Article 1(2) puts it). At this point with respect to the Human Sexual Rights and Family Values bill, there is actually no law or enactment and so the jurisdiction of the court is non-existent. Additionally, there is a serious question of standing that has been raised. Article 2(1)(a) gives standing to any person who alleges that an enactment is in contravention of a provision of the Constitution. If there is no enactment as at this point, then there is also no standing for any person to challenge based on its constitutionality.
It is our considered view that the Supreme Court of Ghana is unlikely to disturb the long[1]established foundational truths of constitutional law concerning the justiciability of an unripe case brought before it by persons without standing.
Separation of Powers
Should the Supreme Court entertain such actions as has been filed at this stage of the law-making process, the court would be interfering with responsibilities reserved for the Legislature and the Executive.
Conclusion
From the case made so far, it is clear that the Supreme Court has no jurisdiction to entertain an unripe action and no standing exists for any person to challenge the constitutionality of a bill that is not yet law.
Clearly, all responsibility lies squarely on the shoulders of our President who was elected to exercise certain powers on behalf of the people of Ghana and in their interest and welfare. The people of Ghana will therefore be watching carefully whether H.E. Nana Addo Dankwa Akuffo-Addo is the President on behalf of the people of Ghana or rather the President representing the international community in Ghana and beyond.
Additionally, we would like to point to the hallowed words of Article 1(1) of the 1992 constitution, which states, “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised…” [1]
In this context, it is a good time to remind the Executive and Judiciary, that the Legislature has exercised an enumerated power to enact laws that capture the ethos and aspirations of the people of Ghana in whose name and for whose welfare the powers they wield must be exercised. No group of people, whether within or without, should be allowed to influence our institutions to frustrate the will of the people. Ghana has spoken through her representatives in Parliament, the President and the Supreme Court must respect the voice of the people of Ghana, in whom the Sovereignty of Ghana resides and refrain from utterances or actions that potentially trigger unrest. God bless our homeland Ghana.