DAFEAMEKPOR ROCKSON-NELSON, DR. CLEMENT ABAASINAT APAAK AND FREDERICK NII COMMEY VRS THE ATTORNEY GENERAL

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- A.D. 2024

CORAM: SACKEY TORKORNOO (MRS.) CJ (PRESIDING)

PWAMANG JSC

LOVELACE-JOHNSON (MS.) JSC

PROF. MENSA-BONSU (MRS.) JSC

ACKAH-YENSU (MS.) JSC

ASIEDU JSC

GAEWU JSC

WRIT NO.

J1/13/2021

24TH APRIL, 2024

1. DAFEAMEKPOR ROCKSON-NELSON …………. 1 ST PLAINTIFF

2. DR. CLEMENT ABAASINAT APAAK …………. 2 ND PLAINTIFF

3. FREDERICK NII COMMEY …………. 3 RD PLAINTIFF

VRS

THE ATTORNEY-GENERAL …………. DEFENDANT

JUDGMENT

 

PROF. MENSA-BONSU JSC:

This is an action by the three plaintiffs to challenge the capacity of the Professor Ntiamoa-Baidu Committee appointed by the President under Article 71, to make recommendations on the emoluments of listed public officials under article 71, and deemed by the plaintiffs to be in contravention of Articles 71(1) and Article 2(2) of the Ghana Constitution,1992.

FACTS AND BACKGROUND:

 

As provided under article 71(1) of the Constitution, the President of the Republic is enjoined to set up a Committee to make recommendations in respect of the emoluments and other privileges of Article 71 holders and to examine any other relevant matters which the Committee considered appropriate to its work. The Committee compiled a report dated June 2020, and titled “Report of the Presidential Committee on Emoluments for Article 71 Office Holders January 2017-December 2020.” The Report was presented to Parliament and the Presidency in 2020. On 6th January, 2021 Parliament approved the recommendations contained in the Report.

In the Report, the Committee stated its intention to make proposals to formalize a practice of paying allowances to spouses of the President and Vice-President. The Committee therefore made recommendations to cover spouses of sitting and former Presidents as part of privileges extended to the President and Vice President.

The plaintiffs contend that it is not open to the committee to make recommendations on any matter it so chooses and that such recommendation would be ultra vires the committee. Therefore, the plaintiffs are by this writ invoking the original jurisdiction of the Supreme Court under Articles 2(1)(a) and Articles 130(1)(a) of the Ghana Constitution,1992 seeking the following declarations:

“1. That upon a true and proper interpretation of Article 71(1) of the 1992 Constitution of Ghana, the Prof. Ntiamoah-Baidu Committee appointed by the President of Ghana under Article 71(1), only had jurisdiction to make recommendations in respect of salaries, allowances payable and privileges of Article 71 Office holders under the 1992 Constitution.

2. That upon a true and proper interpretation of the Article 71(1)of the 1992 Constitution ,the Prof Ntiamoah-Baidu Committee had no jurisdiction, mandate or authority to make any recommendations in respect of salaries, allowances payable, facilities and privileges of persons other than persons specified under Article 71 of the 1992 Constitution.

3. That upon a true and proper interpretation of Article 71(1) of the 1992 Constitution, the Prof. Ntiamoah-Baidu Committee exceeded its jurisdiction, mandate and authority when it purported to make recommendations in respect of privileges, facilities, salaries and allowances payable to the 1st and 2nd Ladies of the Republic of Ghana.

4. Further that the recommendation of the Committee, to the extent that it pertains to the 1st and 2nd Ladies of the Republic of Ghana, are null, void and of no effect.

5. That upon a true and proper interpretation of Constitution, 1992, spouses of the President and the Vice President are not Article 71 office holders for the purposes of receipt of wages and emoluments.

6. An order declaring the recommendations in respect of privileges, facilities, salaries and allowances payable to the 1st and 2nd Ladies of the Republic of Ghana as unconstitutional and void.

7. An order restraining the President of the Republic of Ghana or any other arm of government, ministry, department or agency of the executive, from implementing any recommendations of the Prof. Ntiamoah-Baidu’s Committee which pertains to the 1st and 2nd Ladies of the Republic of Ghana.

8. Any further order or direction(s) as this Honourable Court may deem necessary to make.”

 

 

PLAINTIFFS’ CASE

 

This action according to the plaintiffs is one of interpretation and enforcement of the Constitution and not in respect of their own personal rights citing Sam (No.2) v. Attorney General [2000] SCGLR 305; [1999-2000] 2 GLR 336 and FEYDAG v Public Universities Ghana & Others [2020] SCGLR 265. In Sam (No.2) v Attorney General supra, Akuffo JSC (as she then was) eloquently restated the position at pp.

371-372 thus:-

 

“In my view, article 2(1) is one of the most important provisions of the Constitution, 1992 since it deals with enforcement. To limit its scope below the levels intended by the framers of the Constitution would be to enfetter on one of the most crucial built-in mechanisms for assuring the people of Ghana that their constitution will always remain a living and vibrant instrument of social and political management and good governance. Every citizen of Ghana, by virtue of such citizenship, has an innate interest in the integrity of the supreme law of the land, the National constitution. As such, therefore any perceptible insistency or contravention in any enactment or act or omission of any person with the constitution constitutes a sufficient occasion for the invocation of article 2…. In the context of article 2(1) therefore there can never be an officious bystander or nosy busybody. Every Ghanaian is and must be an interested party.”

The plaintiffs, thus, base their action on Article 2(1)(b) of the 1992 Constitution of Ghana.

As this action was presented in the form of constitutional litigation, the parties sought to establish their capacity to bring the suit and to invoke the original jurisdiction of the Supreme Court, as established under article 2(1) of the Constitution 1992 and in a long line of authorities. See Tuffuor v Attorney-General [1980] and 637; and Amidu (No. 2) v. Attorney-General & Isofoton [2013-2014] 1 SCGLR 167.

The plaintiffs submit that they are citizens of Ghana and are entitled to invoke the original jurisdiction of the Court pursuant to articles 2(1) (b) and 130(1) (a) of the Constitution of Ghana, 1992.”. In Amidu (No. 2) vs AG & Isofoton , supra, Dr. Date-

Bah JSC at p. 180 stated firmly that

 

“The plaintiff, as a citizen of Ghana, is entitled as of right to challenge in this Court any act or omission which is inconsistent with, or in contravention of, a provision in the Constitution, even if the Attorney-General is also in court against the same defendant in a civil case.”

 

The substance of the plaintiffs’ case is that the jurisdiction of the Ntiamoah-Baidu Committee has been prescribed and determined by Article 71 of the 1992 Constitution which expressly provides that the Committee appointed by the President only has jurisdiction to make recommendations in respect of salaries, allowances payable and privileges of President, the Vice President and other holders of Article 71 Office under the 1992 Constitution. Therefore, when the Committee purported to make recommendations in respect of the spouses of the President and Vice-President, they exceeded their jurisdiction. In specific terms, the plaintiffs submit in paragraph 5.4 of the Statement of Case that

“The committee cannot just make any recommendations on any subject matter that tickles its fancy. Per Articles 71(1) and (2) of the 1992 Constitution, the committee is only authorized to make recommendations in respect of salaries allowances payable, facilities and privileges and nothing more. This means that any recommendation made by the Committee on any subject matter outside those provided for in Articles 71(1) and (2) of the 1992 Constitution would be in excess of the Committee’s jurisdiction and therefore unconstitutional and void.”

The plaintiffs further submit that the Committee’s jurisdiction is

 

“confined to only persons specified under Articles 71(1) and (2) of the 1992 and no one else. Therefore any recommendation in respect of any person not specifically provided for in either Articles 71(1) or (2) of the 1992 would be unconstitutional and consequently null and void.”

The plaintiffs buttress the requirement for jurisdiction and the Committee’s lack of jurisdiction status by citing a number of authorities: Republic v. High Court, Accra(Industrial & Labor Division) and Other(CJS/53/2017) dated 20th July,2017; and Republic v Judicial Committee of Asogli Traditional Council-Ho,Ex parte Christian Letsu Avenor & 6 Others and Emmanuel Azameti and 3 Ors, Civil Appeal No. J4/28/2017 decided on 23rd May,2013 in which Appau JSC quoted with approval the decision in Republic vs Krachi Traditional Council Ex Parte Anane(1975) 1 GLR 276. In all these authorities, the legal expression “lack of jurisdiction” was held to mean, “not having authority or incompetent to decide or adjudicate”.

Thus, the recommendations made by the Presidential Committee on Emolument (2020) at p.61 of their document which is captured as “Spouses of sitting and former presidents should be catered for by the state as part of privileges extended to the President and Vice President” in the view of the Plaintiffs are unconstitutional and parallel to the admonishment in Yeboah v. J.H Mensah (1998-99) SCGLR 492 that the “Constitution is the supreme law of the land and all must look at it and adjust their actions accordingly”. They further say that the outcome of the Committee’s work amounts to a re-writing of the Constitution.

 

 

THE DEFENDANT’S CASE

 

The defendant, the Attorney General in its Statement of Case objected to the submissions of the plaintiffs and maintained that the Prof. Ntiamoa-Baidu Committee appointed by the President of the Republic of Ghana under Article 71(1) did not exceed its jurisdiction when it purported to make recommendations in respect of privileges, facilities, salaries and allowances payable to the 1st and 2nd Ladies of the Republic of Ghana as part of the facilities, privileges and benefits given to the President and Vice President of the Republic of Ghana.

It was the position of the Defendant also that the recommendations of the Prof. Ntiamoah-Baidu’s Committee in respect of spouses of the President and Vice President respectively of the Republic of Ghana were done within the law and never intended to create new Article 71 Office Holders.

Thus, relying on the cases of Kuenyehia v. Archer [1993-1994] 2 GLR 51 per Adade JSC ; Tuffuor v AG, supra, at p.667 per Sowah and New Patriotic Party v. Attorney-General (31st Dec.)[1993-1994] 2 GLR 35 urged that a liberal and broad interpretation to the provision of Article 71 in relation to the work of the Committee would show that the Committee did not breach any provision of the Constitution and that the plaintiffs have no cause of action since the outcome of the work of the Committee are mere recommendations. In support of this position the defendant cited the authority of Asare-Baah III & Ors v. Attorney-General & Electoral Commission [2010] SCGLR 463.

The parties in their joint Memorandum of issues set down the following issues for determination:

1. Whether or not the Plaintiff properly invoked the original jurisdiction of the supreme court?

2. Whether or not the Prof. Ntiamoah-Baidu Committee appointed by the President of the Republic of Ghana under Article 71(1) exceeded its jurisdiction when it purported to make recommendations in respect of privileges, facilities, salaries and allowances payable to the to the 1st and 2nd Ladies of the Republic of Ghana as part of the facilities ,privileges and benefits given to the President and Vice President of the Republic of Ghana?

3. Whether or not the recommendations of the Prof. Ntiamoah-Baidu’s Committee in respect of spouses of the President and Vice President of the Republic of Ghana are null, void and of no effect?

4. Whether or not the recommendation of the Prof. Ntiamoah-Baidu’s Committee was intended to create new Article 71 Office Holders?

 

Issue 1 - Jurisdiction

 

Have the plaintiffs properly invoked the Supreme Court’s original jurisdiction under Articles 2 and 130 respectively of the 1992 Constitution of Ghana? The meaning of ‘jurisdiction’ has been explained in Ghana Bar Association v. Attorney-General and Another [2003-2004] SCGLR 250 at p. 266 per Edward Wiredu JSC (as he then was) thus:

“‘Jurisdiction’ is simply the power of a court to hear and determine a cause or matter brought before it, lack of which would render any decision taken or order made null and void and of no effect. If jurisdiction is granted a court by a statute, then what is already specified therein determines the nature and extent of that jurisdiction so granted to that court which cannot be extended or modified. Where jurisdiction is wrongly assumed, however, all proceedings taken would be a nullity.”

The power of the Supreme Court to exercise its ‘original’ jurisdiction to the exclusion of all others has been provided for under Article 130(1) of the 1992 Constitution of Ghana thus:

“130(1) 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 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 Condition.”

As expounded on by Acquah JSC (as he then was) in Adumoah Twum II v. Adu Twum II [2000] SCGLR 165 at p.167:

“the original jurisdiction vested in the Supreme Court under Articles 2(1) and 130(1) to interpret and enforce the provisions of the Constitution is a special jurisdiction to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution ;or enforcement of the a provision of the Constitution ;or a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the Constitution”.

In Edusei v Attorney-General & Anor [1996-97] SCGLR and Gbedemah v. Awoonor-Williams (1970)2 Gyandoh & Griffiths 438, it was held that the enforcement jurisdiction of the Supreme Court relates to all the provisions of the Constitution except those under chapter 5 dealing with the enforcement of Fundamental Human Rights which has been exclusively vested in the High Court.

The interpretative jurisdiction which belongs exclusively to the Supreme Cout, is exercised on a number of principles. In Kwabena Bomfeh v. Attorney-General [2019-2020] 1 SCLRG 137; per Sophia Adinyira JSC at pp. 151-152,

“The real test as to whether there is an issue of constitutional interpretation is whether the words in the constitutional provisions the court is invited to interpret are ambiguous, imprecise, and unclear and cannot be applied unless interpreted. If it were otherwise, every conceivable case may originate in the Supreme Court by the stretch of human ingenuity and the manipulation of language to raise a tangible constitutional question. Practically, every justifiable issue can be spun in such a way as to embrace some tangible constitutional implication. The Constitution may be the foundation of the right asserted by the plaintiff, but that does not necessarily provide the jurisdictional predicate for an action invoking the original jurisdiction of the Supreme Court.”

This position is reiterated in Benjamin Komla Kpodo &Another v. Attorney-General Writ No. J1/03/2018; judgment dated 12th June, 2019 (Unreported), Chief Justice Sophia Akuffo restated the principle thus:-

“Where the words of a provision are precise, clear and unambiguous, or have been previously interpreted by this court, its exclusive interpretative jurisdiction cannot be invoked or exercised. This is important for ensuring that the special jurisdiction is not needlessly invoked and misused in actions that, albeit dressed in the garb of a constitutional action, might be competently determined by any other court. Consequently, it has become our practice that in all actions to invoke our original jurisdiction, whether or not a Defendant takes objection to our jurisdiction, or even expressly agrees with the Plaintiff that our jurisdiction is properly invoked, we take a pause to determine the question of the competence of the invocation of our jurisdiction, before proceeding with the adjudication of the matter or otherwise”.

 

A careful look at the plaint of the plaintiffs shows that the constitutional provisions they are seeking interpretation on are clear, precise, unambiguous and without rival meanings. The locus classicus on this point is the famed case of Republic v Special Tribunal, Ex parte Akosah. [1980] GLR 592. Speaking for the Court of Appeal, Anin J.A. at p. 605 explained the principles as follows:-

 

“From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution … arises in any of the following eventualities:-

(a) Where the words of the provisions are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;

(b) Where rival meanings have been placed by the litigant on the words of any provisions of the Constitution;

(c) Where there is a conflict in the meaning and effect of two or more articles of the Constitution and the question is raised as to which meaning shall prevail;

(d) Where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.

On the other hand, there is no case of ‘enforcement or interpretation’ where the language of the article of the Constitution is clear, precise and unambiguous. In such an eventuality, the aggrieved party may appeal in the usual way to a higher court, against what he may consider to be an erroneous construction of those words; and he should

certainly not invoke the Supreme Court’s original jurisdiction under article 118. Again, where the submission made relates to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises.”

In the above quote, Justice Anin reinforces the distinction between interpretation or enforcement of the Constitution and the rules relevant thereto on one hand and application on the other hand. Thus, if no issue of interpretation or enforcement arises then the plaintiffs have not properly invoked the original jurisdiction of the Supreme Court under article 130.

However, whether or not the case concerned meets the test in Ex-parte Akosah supra, the Supreme Court has on a number of occasions exercised its original jurisdiction whenever any branch of government is deemed to have acted in excess of powers conferred on it by the Constitution. In National Media Commission v. Attorney-General [2000] SCGLR 1 the President was alleged to have acted in excess of the powers conferred on him by the Constitution, when he purported to appoint the Chief Executive Officers of Public Corporations managing state-owned media, when the clear language of the Constitution vested the power of these appointments in the National Media Commission. Although the said provision was clear, the Supreme Court exercised its enforcement jurisdiction to invalidate the exercise of power by the President in excess of powers conferred by the Constitution.

In Okudzeto Ablakwa & Anor v. Attorney General & Obetsebi-Lamptey [2011]2 SCGLR 986 a preliminary objection was raised to the invocation of the original jurisdiction of the Supreme Court since the provisions under consideration were clear, precise and unambiguous within the test set in Ex -parte Akosah, supra. However, Sophia Adinyira JSC, pointed out that the plaintiffs’ case alleged that the Government had acted in excess of its powers when it made a grant of land to the second defendant in breach of the Article 20(5) of the 1992 Constitution which provides as follows:

“(5) Any property compulsorily taken possession of or acquired in the public interest or for a public purpose shall be used only in the public interest or for the public purpose for which it was acquired”.

Consequently, that though the provision was clear, the basis of the plaintiffs’ case was that the act of the government was in excess of the powers conferred on it. Such acts in excess of constitutional powers conferred, could be checked by judicial review under the original enforcement jurisdiction of this Court.

The powers of Parliament also came up for scrutiny in Adofo v. Attorney-General [2005-2006] SCGLR 42. Three plaintiffs invoked the original jurisdiction of Supreme Court for declaration that PNDCL 125 (by which the plaintiff and 70 others were retrenched from their jobs at Ghana CocoaBoard in September 1994) was unconstitutional. This was eventually limited to Sections 5 and 6 thereof, by which those affected were denied access to the Courts by the purported ouster of the jurisdiction of the courts. In this regard, Dr. Date-Bah JSC at pp. 46 – 47 stated the law thus:

“The power to strike down legislation in conflict with any provision of the 1992 Constitution is one of the most important jurisdiction of this court. It is a power to safeguard liberty from encroachment by the legislature whether constituted under our current Constitution or under any earlier Constitution or constitutive document subject to the transitional provisions of the various constitutions we have had….This constitutional provision unequivocally and authoritatively establishes a doctrine of supremacy of the Constitution in the Ghanaian jurisdiction. This doctrine implies that the supremacy of Parliament is limited and that enactments by Parliament and those of previous legislatures are subject to the supremacy of the Constitution.”

At p. 51, Dr. Date-Bah JSC continued thus:

 

“The unhampered access of individuals to the courts is a fundamental prerequisite to the full enjoyment of fundamental human rights. This court has a responsibility to preserve this access in the interest of good governance and constitutionalism. Unhampered access to the courts is an important element of the rule of law to which the 1992 constitution is clearly committed. Protection of the rule of law is an important obligation of this court. Accordingly, we are willing to uphold that, quite apart from the legal reasoning based on article 140 (1) of the Constitution… it is incompatible with the necessary intendment of Chapter 5 of the 1992 Constitution for a statute to provide for a total ouster of the jurisdiction of the courts in relation to rights which would otherwise be justiciable.”

The said legislation, which was very clear, did not prevent the Supreme Court from exercising its judicial review powers under Article 130(1) and (b), to invoke its enforcement jurisdiction to strike down the said legislation as same was in violation of fundamental human rights provided for under Chapter five of the 1992 Constitution.

An authority based on a scenario which is apposite to the situation in the instant case is Agbevor v. Attorney-General [2000] SCGLR 403. In that case, the President, acting on the recommendation of the Judicial Council, purported to remove the Deputy Judicial Secretary, from office. This was in violation of the clear provision in article 151 which conferred the power to remove that official on the Chief Justice. Though the provision of article 151 of the Constitution was very clear, the Supreme Court did not see that as an impediment to the exercise of its enforcement jurisdiction to limit the powers of the President to so act, and in exercise of its enforcement jurisdiction. It went ahead to declare that the President had no power to remove the plaintiff from office, and therefore the purported removal was a nullity.

What makes this case more interesting for the present purposes is that the President was “acting on the advice of the Judicial Council”, but it was not the act of the Judicial council in rendering that advice that was deemed unconstitutional, but that of the President who accepted the recommendation and purported to act thereon. This is more important because the enforcement action is hinged on an allegation that Parliament, an authority or person has exceeded the powers conferred on them by the Constitution. Therefore, further examination of the Enforcement jurisdiction of the apex Court must be done to establish whether indeed the Committee acted in excess of the powers conferred on the it. Consequently, the original jurisdiction of the Supreme Court has been properly invoked by the plaintiffs.

Issue 2 - The Prof Ntiamoa-Baidu Committee

 

“Whether or not the Prof. Ntiamoa-Baidu Committee appointed by the President of the Republic of Ghana under Article 71(1) exceeded its jurisdiction when it purported to make recommendations in respect of privileges, facilities, salaries and allowances payable to the to the 1st and 2nd Ladies of the Republic of Ghana as part of the facilities, privileges and benefits given to the President and Vice President of the Republic of Ghana?”

Article 71(1) provides that an ad hoc constitutional committee of not more than five persons be appointed to make recommendations to the President and Parliament on the “salaries and allowances payable, and the facilities and privileges available,” to named officials whose entitlements are a charge on the Consolidated Fund. These officials include the President, Vice-President and Parliament. The Committee is thus a body to be appointed for a particular purpose, namely the determination of emoluments chargeable under the Consolidated Fund.

Can such a body make recommendations on any subject of its choosing? The Supreme Court has stated that it cannot. In Apasera & 42 Others v. Attorney-General & Anor Suit No. J6/03/2020; judgment delivered on 3rd December, 2020; [2020] JELR 92049(SC) the Supreme Court, held, that the Committee cannot add to its mandate.

The Court considered article 71(3) which provides that

 

“(3) For the purposes of this article, and except as otherwise provided in this Constitution, "salaries" includes allowances, facilities and privileges and retiring benefits or awards.”

Speaking through Gbadegbe JSC, it reasoned that the framers of the Constitution had not intended to provide “pension” to Members of Parliament after the end of their service as such Members of Parliament, but only “gratuity” and that this was shown by expressly using the word “gratuity” and excluding “pensions”. By the specific mention of “gratuity” in Article 114(1), and not “pension”, the maxim ”expressio unius est exclusio alterius ” had placed a limit on the entitlement of former Members of Parliament.

Consequently, the ad hoc committee under article 71, had no mandate to make recommendations on other forms of emoluments other than what had been specifically mentioned as coming within the mandate of the Committee.

It is also clear from Apasera that the Committee’s recommendations, even when within mandate, are not binding on the Executive and Parliament. According to article 71 (2) of the 1992 Constitution, the

“salaries and allowances payable, and facilities available, to the President, the Vice-President, the chairman and other members of the Council of State; Ministers of State and Deputy Ministers, being expenditures charged on the Consolidated Fund, shall be determined by Parliament on the recommendations of the committee…”(emphasis supplied.)

The question flowing from this provision is whether the recommendations of the Committee on the matters confided to its remit are, therefore, binding on the Executive and Parliament respectively. The Supreme Court thought not. The provision employs the phrase, “shall be determined by Parliament on the recommendations of the committee”. What does it mean to “determine”? The Chambers Dictionary (2006) gives two meanings that are applicable to this context: (i.) “to find out or reach a conclusion about something by gathering facts, making measurements, etc”; (ii.) “to fix or settle the exact limits or nature of something”. In neither meaning of the word does “determine” connote passivity. In Kor v. Attorney-General & Justice Duose [2015- 2016] 1 SCGLR 114, at pp.140-141 Atuguba JSC speaking on a similar matter concerning whether or not recommendations by an Article 71 Committee had binding force stated:

“ we do not think that the President is inflexibly bound by the recommendations of the Committee otherwise the power conferred on him to determine those emoluments would be otiose since he would then have nothing really to determine.

… We would conclude that the President being the determining official of the said emoluments can vary the recommendations of the said Committee but having regard to the intent, spirit and policy behind the wording of article 71 (1) the President’s variation should neither contravene article 127 (5), nor exceed reasonable bounds”.

On his part, Gbadegbe JSC at pp. 132-133

 

“In my view, it is unreasonable to contend that the President in whom the executive power of the State is vested cannot, after appointing the Committee specified in article 71(1) vary, alter or modify the recommendations but is obliged to give effect to same. That contention seems to undermine the authority of the President and leaves in the hands of an unaccountable body,… the sole responsibility for determining the emoluments of article 71 employees. … I think that by the clear provisions of article 71(1), the determination of the emoluments of the specified public officers is a matter for the President subject to receiving recommendations from a committee appointed by him for that purpose. As the committee is only to make recommendations to him, it seems a fair reading of the applicable constitutional provision that the determination of emoluments, is his constitutional mandate.”

In much the same vein as the President, Parliament’s power is not a passive one, but an active one to be exercised with the assistance of recommendations provided by the Committee.

The defendant urges on us that the Constitution must be interpreted liberally and loosely to allow for recommendations in respect of provisions made as regards the spouse of the President and Vice-President as part of their privileges to be subjected to some analysis. At the same time, the defendant’s position is that the Committee’s work is a mere recommendation for Parliament or the President to act on as they see fit. That is a correct statement as the authorities cited have established. Thus, although it is true that it is the Committee’s work that begins the whole process of deciding the emoluments of Article 71 office holders, it is not an end in itself. Neither the President nor Parliament is a passive agent in this matter, as the Constitution prescribes that final “determination” in respect of emoluments of the Executive is by Parliament, and those of Parliament is by the President. Therefore, the work of Parliament in determining the emoluments on the recommendations of the Committee is not limited to wholesale approval of the recommendations. It may vary the recommendations of the committee in its function “to determine” the emoluments, and it has the final say under the provision. Were the contrary the case, it would have been purposeless to use “determined” to grant such a power. Thus it is open to Parliament, as to the Executive, to accept the recommendation wholly, or in part, or to reject them altogether.

As it is obvious from Apasera & 42 Others supra, and Kor, supra, that the President was not obliged to accept all recommendations of the Committee and, indeed, not all recommendations of past presidential committees on emoluments were accepted and implemented by the respective Presidents. However, it is after such determination by Parliament or the President that the “recommendation” matures into a “decision” which may be amenable to judicial review. Therefore, the constitutionality of those acts of the Executive or of Parliament could come within the purview of the enforcement jurisdiction of the Supreme Court only after Parliament has acted to convert the recommendations made to it, into a legislative act by its acceptance for implementation.

See also: Kwame Baffoe @ Abronye v. Attorney-General, Suit No: J1/12/2021; decided on 24th April 2024.

In follows, therefore, that in the instant case, the recommendations did not ripen into justiciable acts by Parliament or the President respectively, until when the two bodies accepted the recommendations and made them their own. Therefore the standard of unconstitutionality cannot be applied to the recommendations of the Ntiamoah-Baidu Committee’s recommendations.

 

Issue 3 – Recommendations on spouses void?

 

Whether or not the recommendations of the Prof. Ntiamoah- Baidu’s Committee in respect of spouses of the President and Vice President of the Republic of Ghana are null, void and of no effect?

Consistent with the views expressed above, the Prof Ntiamoah-Baidu committee’s recommendations were recommendations only and could not be said to be “unconstitutional”. However, they could be said to be in excess of the mandate of the committee to make recommendations on “salaries and allowances payable, and the facilities and privileges available,” to named office-holders under article 71. It was Parliament that exceeded its powers by accepting the overly-broad interpretation of the scope of “salaries and allowances payable, and the facilities and privileges available,” to the President and Vice-President respectively, by decoupling the benefits awarded to the spouses of the President and Vice-President, from the entitlement to “salaries and allowances payable, and the facilities and privileges available” of the President and Vice-President respectively, under that provision.

Issue 4 – New article 71 Office holders

 

Whether or not the recommendation of the Prof. Ntiamoah- Baidu’s Committee was intended to create new Article 71 Office Holders?

The Committee expanded the remit of the “facilities and privileges” to the President and Vice President to cover their spouses and also the spouses of past Presidents, thereby creating in effect, a new category of office holders with their own entitlements of “salaries”, rather than leaving them below eye-level as part of the “facilities and privileges” of the President and Vice-President as had been the practice. The President and the Vice President are separate and distinct office-holders holding their offices subject to the 1992 Constitution and its power-conferring provisions. There is no recognition of another category of office-holders termed “spouses” and therefore the spouses only “ride pillion” on the backs of the office-holders and enjoy whatever privileges and facilities provided for the office-holders, but they cannot enjoy separate “salaries, privileges and facilities” in their own right. From the Report, the Committee had no intention or power to create any new category of article 71 office holders, believing that they were regularizing an existing, but somewhat clandestine, practice of providing emoluments to the spouses of the President and Vice-President. Although it was commendable to seek to introduce a measure of transparency in the use of public funds in respect of the First and Second Families, it was not within mandate of the Committee to seek to “regularize” what was, essentially, unlawful, by benchmarking such expenditure to the emoluments of public officers of the grade of Ministers and Deputy Ministers, thereby creating an analogous category of office-holders over whose appointment and retention of office the public had no control. It would have been within the Committee’s remit to draw attention to the irregular expenditure on the spouses of current and former Presidents and Vice-Presidents, and to leave Parliament to attend to it in the exercise of its “power of the purse”.

CONCLUSION

 

The plaintiff’s writ against the Committee is thus misconceived. The Committee’s recommendations had no force or power until accepted for implementation by either the President or Parliament. That was only when the acts could be said to be either within or outside the mandate of the Constitution. As Gbadegbe JSC described the Committee in Kor, it is an “unaccountable body” and its recommendations are of no moment as they can be accepted or rejected. It is only when the relevant bodies adopt them for implementation that conformity with the Constitution or otherwise may become a justiciable matter. Perhaps, the Committee led Parliament into temptation, but the power was Parliament’s, at all material times, to reject any flights of fancy by the Committee. It was the failure of Parliament to exercise its powers within constitutional limits that caused the problem, and not the mere making of recommendations, that Parliament was at liberty to accept or reject. Fortunately, the plaintiffs were Members of Parliament at the material time and should have raised the relevant objection in that capacity, instead of attacking the ad hoc committee whose remit was to make recommendations for the consideration of Parliament.

The plaintiffs have no cause of action against the Prof Ntiamoah-Baidu Committee.

 

 

 

 

 

 

 

PROF. H.J.A.N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT)

 

 

 

 

G. SACKEY TORKORNOO (MRS.) (CHIEF JUSTICE)

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

 

 

 

A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT)

 

 

 

B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT)

 

 

 

S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

 

 

 

E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 

 

COUNSEL

 

NII KPAKPO SAMOA ADDO ESQ. FOR THE PLAINTIFFS WITH HIM, GEORGE KODZO ADABADZE.

DIANA ASONABA DAPAAH (DEPUTY ATTORNEY GENERAL) FOR THE DEFENDANT WITH HER, REGINALD NII ODOI (ASSISTANT STATE ATTORNEY).