FRANCIS OSEI-BONSU 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 OWUSU (MS.) JSC

KULENDI JSC

ACKAH-YENSU (MS.) JSC

KOOMSON JSC

GAEWU JSC

WRIT NO.

J1/18/2023

24TH APRIL, 2024

FRANCIS OSEI-BONSU ………… PLAINTIFF

VRS

ATTORNEY GENERAL ………… DEFENDANT

JUDGMENT

KULENDI JSC:

 

1. The Plaintiff, a legal practitioner and a citizen of Ghana, on the 10th of July, 2023 invoked our original jurisdiction pursuant to Article 2(1) of the Constitution praying for the following reliefs:

i. A Declaration that Section 16(2)(a) of the Citizenship Act, 2000 (Act 591), is null and void on account of having been passed in a manner that is inconsistent with and in contravention of Article 289(2) of the 1992 Constitution.

ii. A Declaration that Section 16(2)(h)-(l) of the Citizenship Act, 2000 (Act 591), are null and void on account of having been passed in a manner that is inconsistent with and in contravention of Article 289(2) of the 1992 Constitution.

iii. An Order striking down Section 16(2)(a) and (h)-(l) of the Citizenship Act, as being unconstitutional.

iv. Any further Orders and/or Directions as the Court may deem fit.

 

2. In a statement of case filed on the 12th of July, 2023, the Plaintiff argues that the original formulation in the Constitution rendered the holding of dual citizenship by individuals 21 years and older, unconstitutional unless the said status was procured by reason of marriage.

 

The said provision, which was captured under Article 8 provided as follows:

 

“(1) Subject to this article, a citizen of Ghana shall cease forthwith to be a citizen of Ghana if, on attaining the age of twenty-one years, he, by a voluntary act, other than marriage, acquired or retains the citizenship of a country other than Ghana.

 

(2) A person who becomes a citizen of Ghana by registration and immediately after the day on which he becomes a citizen of Ghana is also a citizen of some other country, shall cease to be a citizen of Ghana unless he has renounced his citizenship of that other country, taken the oath of allegiance specified in the Second Schedule to this Constitution and made and registered such declaration of his intentions concerning residence as may be prescribed by law, or unless he has obtained an extension of time for taking those steps and the extended period has not expired.

 

(3) A Ghanaian citizen who loses his Ghanaian citizenship as a result of the acquisition or possession of the citizenship of a country other than Ghana shall, on the renunciation of his citizenship of that other country, become a citizen of Ghana.

(4) Where the law of a country, other than Ghana, requires a person who marries a citizen of that country to renounce the citizenship of his own country by virtue of that marriage, a citizen of Ghana who is deprived of his citizenship of Ghana by virtue of that marriage shall, on the dissolution of that marriage, if he thereby loses his citizenship acquired by that marriage, become a citizen of Ghana.”

 

3. This position was however subsequently amended by the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527) which reversed the general prohibition of dual-citizenship, with the caveat however, that such holders of dual citizenship were not allowed to occupy certain public offices which were enumerated within the said Act.

 

Section 1 of the said Act provided as follows:

“

1. Article  8   of   the  Constitution  is   repealed  and  the  following inserted-

 

8. (1) A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.

(2) Without prejudice to article 94 (2) (a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this clause if he holds the citizenship of any other country in addition to his citizenship of Ghana-

(a) Ambassador or High Commissioner;

(b) Secretary to the Cabinet;

c) Chief of Defence Staff or any Service Chief;

(d) Inspector-General of Police;

(e) Commissioner, Customs, Excise and Preventive Service;

(f) Director of Immigration Service; and

(g) any office specified by an Act of Parliament.”

4. The Plaintiff submits that the passage of Act 527 above, was consistent with the procedures stipulated under Articles 289 and 291 and therefore, validly amended the initial terms of the constitution, to usher in a new dispensation under which Ghanaians could validly hold dual citizenship. This shift in the constitutional position was however subject to the condition that such holders of dual citizenship were ineligible to occupy the offices specified in Article 8(2) above.

 

5. The Plaintiff however contends that the Citizenship Act, 2000 (Act 591) which received presidential assent on the 19th of December, 2000, in section 16(2)(a) and 16(2)(h)-(l) purported to replace Article 8 of the Constitution, by amending or altering the list of offices that dual citizens could not legally hold.

The impugned section states as follows:

 

“(2) Without prejudice to article 94(2)(a) of the Constitution, a citizen does not qualify to be appointed as a holder of an office specified in this subsection if the citizen holds the citizenship of any other country in addition to the citizenship of Ghana:

(a)  Chief Justice and Justices of the Supreme Court;

(b)  Ambassador or High Commissioner;

(c)  Secretary to the Cabinet;

(d)  Chief of Defence Staff or any Service Chief;

(e)  Inspector-General of Police;

(f)  Commissioner, Custom, Excise and Preventive Service;

(g)  Director of Immigration Service;

(h) Commissioner, Value Added Tax Service;

(i) Director-General, Prisons Service;

(j) Chief Fire Officer;

(k) Chief Director of a Ministry

(l) the rank of a Colonel in the Army or its equivalent in the other security services; and

(m) any other public office that the Minister may by legislative instrument prescribe.”

 

6. The Plaintiff submits that the addition of seven other offices to the list of offices set out by Article 8(2) of the Constitution amounts to an alteration or amendment of the Constitution. This is because, in the Plaintiff’s estimation, the list of offices under section 16(2) of Act 591, which dual citizens cannot occupy, are more than those stipulated in Article 8 of the Constitution. Plaintiff contends this is more so because the list of prohibited public offices contemplated by the framers of the Constitution under Article 8 is exhaustive and therefore admits of no additions except in the manner prescribed by Article 289 and 291 of the Constitution. Therefore, any addition to this list of public offices, to which dual citizens are ineligible, in a manner that does not accord with the amendment procedure stipulated in Articles 289 and 291 aforesaid, constituted an alteration to the constitutional scope which had been defined by Article 8(2) and therefore was inconsistent with and in contravention of the Constitution.

 

7. The Plaintiff anchors his claim on the express text of Article 289 which provides that:

“ 1) Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution.

(2) This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless –

(a)  the sole purpose of the Act is to amend this Constitution; and

(b)  the Act has been passed in accordance with this Chapter.”

 

8. On the basis of this provision, the Plaintiff argues that, firstly, Act 591 was not promulgated for the sole purpose of amending the Constitution and secondly, Act 591 was not passed in accordance with Chapter 25 in general and in article

291 in particular. Plaintiff concludes that notwithstanding the failure of Parliament to abide the terms of Articles 289 and 291, the terms and effect of section 16(2) is to directly alter Article 8(2). Consequently, the said additions and alterations obviously sins against the clear intent, language and meaning of Article 289 and is for that reason, null and void in terms of Article 1(2) of the Constitution.

 

9. The Plaintiff further contends that the effect of section 16(2) of the Citizenship Act, 2000 (Act 591) is that it imposes an additional ‘qualification criterion’ which can only validly be prescribed by the Constitution. He argues that the additional offices introduced by section 16(2) are not included in the offices listed in Article 8 of the Constitution. Therefore, unless the Constitution is expressly amended by recourse to the procedure prescribed in Chapter to include these offices, any Act of Parliament which purports to impose a ‘non dual-citizenship’ qualification clause on the holder of a public office other than the offices specified in Article 8, contravenes the Constitution and is inconsistent with the express terms of Articles 289 and 291 and for that matter, null and void.

 

10. The Plaintiff further argues that quite apart from adding to the list of offices which dual-citizens are disqualified from holding, the said section 16(2)(a) of Act 591, has the effect of amending the constitutionally prescribed qualification for Justices of the Supreme Court under Article 128(4).

Article 128(4) of the Constitution provides that:

 

“A person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity and is of not less than fifteen years' standing as a lawyer.”

11. The Plaintiff argues that the criteria set out in the above provision constitutes the full and final qualification criteria that any Justice of the Supreme Court can constitutionally be subjected to, and therefore, an Act of Parliament enacted in a manner that does not conform with the requirements of Articles 289 and 291 and yet, has the effect of directly or indirectly altering or amending the qualification criteria amounts to an unconstitutional amendment.

12. The Plaintiff submits that it is immaterial whether or not the alteration occasioned by the Act was a direct or tangential amendment of the Constitution. According to the Plaintiff, as long as the effect of the provisions of the Act was either a direct or indirect amendment of the Constitution, then same ought to have been enacted pursuant to the process spelt out in Article 291, which pertained to the amendment of non-entrenched provisions in the Constitution.

 

13. An apt summary of the Plaintiff's case can be found at paragraph 16 of his statement of case where he contends thus:

“It is the plaintiff’s case that section 16(2)(a) and (h)-(l) of the Citizenship Act was not passed in accordance with Chapter 25 of the Constitution. Accordingly, to the extent that section 16(2)(a) and (h)-(l) of the Citizenship Act purports to “amend or alter” whether directly or indirectly” the Constitution, it is null and void.’

14. In an uncommon but impressive and for that matter commendable turn of events, the Attorney General and Minister of Justice, principal legal advisor to Government, filed a statement of case on the 26th of July, 2023, where “in the spirit of intellectual honesty” and after “careful consideration”, he expressed his substantial support for the views and positions canvassed by the Plaintiff.

 

15. While underlying the fundamentality and materiality of citizenship, the Attorney General argued that the phrasing adopted even in the amended Article 8(2), lent credence to the view that the list of offices set out thereunder, were exhaustive and could only be augmented upon an amendment of the Constitution in accordance with the procedure prescribed for such an amendment of the Constitution.

Article 8(2) of Constitution provides as follows:

 

“Without prejudice to article 94 (2) (a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this clause if he holds the citizenship of any other country in addition to his citizenship of Ghana … ”

16. According to the Attorney General this close ended phrasing gave rise to a mutatis mutandis application of the “expressio unius” principle, as it pertained to the list of offices enumerated under the said Clause. Against this backdrop, the Attorney General submits that an addition to the list of offices which dual citizens cannot occupy amounts to an amendment of the Constitution and therefore ought to be carried out pursuant to Article 289 and 291.

 

17. The Attorney General argues that his ideological asymmetry with the Plaintiff stems from an understanding of the fact that since, in his view, all major incidents of citizenship are provided for in the Constitution itself, the imposition of a limitation to this sacred right ought to find expression in the Constitution as well.

 

18. Furthermore, the Attorney General urged on this Court, the view that a purposive interpretation of the entirety of Chapter Three of the Constitution, which deals exclusively with citizenship, would reveal that the framers intended to limit legislative interference and opportunity for alteration in issues that pertained to the subject of citizenship. Consequently, he contends that it would be contrary to the spirit of the Constitution to find that the legislature was given a free hand to determine the scope of a person’s citizenship right and its incidents and limitations.

 

19. Flowing from this, the Attorney General rehashes the Plaintiff’s view on the fact that the failure of the legislature to submit Act 591 to the constitutional prescriptions of Article 289 and 291, renders the alterations in sections 16(2)(a) and 16(h)-(l) a flagrant violation of the Constitution and consequently, void.

JURISDICTION:

 

20. In the case of Bimpong Buta v. General Legal Council [2003-2004] SCGLR 1200, at page 1215, Her Ladyship Akuffo JSC (as she then was) underscored the primacy of the question of jurisdiction in the following words

:

“Jurisdiction is always a fundamental issue in every matter that comes before any court and, even if it is not questioned by any of the parties, it is crucial for a court to advert its mind to it to assure a valid outcome...”

21. It is trite learning that parties cannot by agreement or acquiescence, confer jurisdiction on a Court where the exercise of such jurisdiction is prohibited, or not provided for by law.

 

22. This principle was underscored in a judgment of this Court dated 9th March, 2022 with Writ No.:J1/07/2022 entitled Justice Abdulai v. The Attorney- General, which I had the privilege of authoring. In the said case this Court held as follows:

“This preliminary exercise is anchored on the premise that parties cannot confer jurisdiction on a court where there is none and an improper exercise of jurisdiction, may almost always lead to the resultant decision being susceptible to be set aside for nullity.”

 

23. In the Bimpong-Buta v. General Legal Council case supra, this court per Kludze JSC said as follows:

 

“The intention of the framers of the Constitution 1992 is not to transform the Supreme Court, the highest court of the land into a forum for the original adjudication of ordinary civil disputes. It is only in cases of apparent ambiguity or inconsistency of the provisions of 1992 Constitution that the original jurisdiction of the Supreme Court may be invoked to interpret the 1992 Constitution”

24. The salutary position of law therefore is that for the original and exclusive jurisdiction of the Supreme Court to be properly invoked pursuant to Article 2(1), there must be the existence of a real interpretative or enforcement issue.

 

25. This Court held, on the 9th of February, 2009 in a case with Suit No.: 3/94 entitled Baafour Kwame Fante Aduamoa II And 6 Others v. Nana Gyakorang Adu Twum II And Another that:

“ When then does a real or genuine issue of interpretation or enforcement of a provision of the Constitution arise for determination by the Supreme Court either in the exercise of its original jurisdiction under article 130(1)(a) or in its reference jurisdiction under article 130(2) of the 1992 Constitution?

In Tait vrs. Ghana Airways Corporation (supra) at page 528, the court said:“...unless the words of an article of the Constitution are imprecise and ambiguous, an issue of interpretation does not arise, where the language of the constitution is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. The mere fact that a party invokes in support of his case, a provision of the Constitution which is couched in plain unambiguous language, does not turn an action the true nature of which is one of wrongful dismissal into one relating to the interpretation of a provision of the Constitution within the meaning of article 106(1)(a)”.

 

In the Republic vrs. Special Tribunal, ex parte Akosah (supra), the court after examining the relevant authorities on the subject came to the conclusion 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 provision are imprecise or unclear or ambiguous. In other words, if one party invites the court do 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 litigants on the words of any provision 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 provision 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.

At page 605 of the report, the court continued: “... there is no case of enforcement or interpretation where the language of the article of the Constitution is clear, precise and unambiguous ... 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 of interpretation arises”

In summary then, whereas the original jurisdiction to interpret and enforce the provisions of the 1992 Constitution is vested solely in the Supreme Court, every court and tribunal is duty-bound or vested with jurisdiction to apply the provisions of the Constitution in the adjudication of disputes before it. And this jurisdiction is not taken away merely by a party's reference to or reliance on a provision of the Constitution. If the language of that provision is clear, precise and unambiguous, no interpretation arises and the court is to give effect to that provision.”

26. We must however be quick to point out that no court, save the Supreme Court, has the power to strike down an Act of Parliament on grounds of same being inconsistent with the provisions of the Constitution. Therefore, where a Plaintiff, such as in this instance, alleges that an Act is inconsistent with the provisions of the Constitution, and thereby invokes the Court’s jurisdiction to have the said inconsistent portions struck down, then this Court ought to investigate the basis of the claim to ascertain the viability of the Plaintiff’s action within the framework of this Court’s exclusive original jurisdiction.

27. This position accords with our reasoning in the case of Sumaila Beilbeil v. Adamu Dramani, where this Court, speaking through Gbadegbe JSC. said as follows:

“The provision in article 130(1) is concerned with the enforcement jurisdiction of the Supreme Court in relation to the High court’s enforcement jurisdiction in cases of alleged violation of fundamental human rights. A careful reading of article 130(1) reveals that the word “and” is used in respect of the two special or exclusive jurisdictions of the Supreme Court that are not available to the High Court and is not intended to mean that for this Court to have jurisdiction in cases of enforcement, the question for decision must also involve the question whether an enactment was made in excess of the powers conferred on Parliament or any other person by law or under this Constitution. A contrary interpretation of article 130(1) would render article 2(1) of the Constitution superfluous.

In my opinion the jurisdiction conferred on the court in making declarations under article 130(.1) coupled with the ancillary power conferred on it under article 2(2) to “make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made” is an effective tool in ensuring and or compelling observance of the constitution. These provisions require us to measure acts of the legislative and executive branches against the constitution and where there is a violation to declare such acts unconstitutional provided the act in question does not come within the designation of a “political question”. It is worthy of note that article 2(1) confers the right to seek a declaration that an act or omission of any person is inconsistent with or in contravention of a provision of the constitution while article 130(1) provides the means by which a person may exercise the right conferred on him to seek relief in cases where provisions of the constitution have been breached. The special jurisdiction that this Court exercises in such cases is described by the constitution as original in contradistinction to the appellate or supervisory jurisdiction. I think articles 2(1) and 130(1) confer on us the jurisdiction of judicial review although there are no specific words in the constitution to that effect”

28. In applying these principles, we find that the pith of the Plaintiff’s case is that Section 16(2)(a) and (h)-(l) of the Citizenship Act, 2000 (Act 591) is unconstitutional as it amends Article 8(2) of the Constitution and yet, this amendment was not effected in a manner consistent with the strict provisions of Article 289 and 291.

 

29. Article 289 speaks to the fact that an Act of Parliament would be incompetent to amend a provision of the Constitution unless the said Act is passed according to the process stipulated under Articles 290, 291 and 292. Therefore, the Plaintiff first calls on this Court to examine the terms of the section 16(2) of Act 591 to ascertain whether or not it “directly or indirectly” amends the terms of the Constitution. In this sense, the Plaintiff brings into the foray Article 8(2) of the Constitution and argues that portions of section 16(2) of the Citizenship Act, 2000 (Act 591) directly amends the clear and express terms of the Constitution by adding to the list of offices designated by Article 8(2) which cannot be occupied by persons with dual citizenship.

 

30. Should the above enquiry elicit an affirmative response from this Court, the Plaintiff invites us to then assess whether or not this amendment, which is encapsulated within the terms of Section 16(2)(a) and 16(2)(h) – (l), was passed in accordance with the amendment processes stipulated under Articles 289 and 291. It is on the basis of the foregoing, that we hereby find that our jurisdiction is properly invoked.

  

31. On the 14th of November, 2023, this Court directed both Parties to file a submission in response to the following enquiry:

“Whether or not Parliament can by statute expand indications of class of rights and obligations given by the Constitution or when the Constitution creates a class of rights and obligations they are to be considered fully exhaustive such that Parliament cannot by its legislative function expand on same.”

32. While the Plaintiff’s submission offered a little assistance in distilling and resolving the thorny legal issue in contention, the submissions by the Attorney General offered more perspective on the issue at hand.

 

33. On the back of a long list of authorities, the Plaintiff concluded on the point as follows:

“In conclusion my Lords, we submit that Parliament can by statute expand the class of rights and obligations as given by the Constitution because the Constitution vests legislative power in Parliament. However, Article 93(2) of the Constitution provides that Parliament’s legislative power is “subject to the provisions of this Constitution and shall be exercised in accordance with this Constitution”. Where Parliament exercises its legislative power in a manner not in accordance with the Constitution, as in the instant case, the resulting legislation is unconstitutional void and we pray your Lordships so to find.”

34. In his written submissions in answer to the question posed by this Court, the Attorney General submitted, from paragraph 6 of his statement of case as follows:

‘Where the Constitution, in addition to the procedure by which appointments may be made to certain offices, specifically (and deliberately) limits the holding of the offices to persons who are qualified to be elected as members of Parliament. It is submitted that in such situations, by necessary implication, such persons cannot or must not be dual citizens.

Where the Constitution, in addition to the procedure by which appointments may be made to certain offices, states the qualifications to those offices but does not require the holders of such offices to be persons who are qualified to be elected as members of Parliament. By necessary implication, there is no requirement for such persons to be dual citizens under the Constitution. A holder of such an office will have no constitutional impediment in terms of his status as a dual citizen or not.

Where the Constitution does not state qualifications to certain offices created by the Constitution but only states the procedure by which the holders of the offices shall be appointed. In such cases, it is our respectful submission that Parliament has power to, by legislation, prescribe qualifications for the holding of such offices.’

35. At paragraph 12, the Attorney General then submits thus:

 

“Whilst agreeing that Parliament may "expand the indications of class of rights and obligations given by the Constitution", any resolution, decision or enactment by Parliament must be consistent with the Constitution. A demonstration of unconstitutionality with any decision or enactment of Parliament renders such decision or enactment liable to be struck down by this Court in exercise of its judicial review powers under article 2 of the Constitution. In our submission, sections 16(2)(a),(h),(i), (j),(k) and (l) of Act 591 imposed a burden or obligation on a citizen by requiring that he ought not be the holder of dual citizenship before he can be appointed to the offices specified therein. This obligation was not in the Constitution and in fact violated the minimum standards set by the Constitution for such offices. It is submitted that Parliament has no power to impose further obligations on the citizenry in situations where the Constitution specifically addressed a subject matter and imposed no such obligation. To permit same to stand on our statute books will amount to endorsing a clear excess or abuse of Parliament's legislative powers.”

36. While commending the display of ‘intellectual honesty’ on the part of the Attorney General, we must yet emphasize that in considering the matter before a Court, the mere fact of agreement between the parties as to the position of law does not abrogate the Court's solemn duty to diligently interpret and apply the law, particularly in matters implicating an interpretation or enforcement of constitutional provisions.

37. Therefore, while the convergence of views between the parties may streamline the proceedings, it does not relieve this Court of its obligation to meticulously examine the legal issues at hand and scrutinize the relevant statutes and constitutional provisions. The judiciary's sacred and sworn duty is not merely to ratify agreements between litigants but to uphold the rule of law and ensure justice not only for the parties involved but also for society as a whole. Therefore, this Court remains steadfast in its commitment to impartially assess the legal merits of the case and render a just and equitable decision in accordance with the provisions of the Constitution.

 

38. Both parties before the Court have made copious reference to the case of Professor Stephen Asare v. Attorney-General [2012] 1 SCGLR 460 where this Court was faced with the determination of the related issue of whether or not the prohibition in in section 1(2) of the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527) and by extension section 16(2) of Citizenship Act, 2000 (Act 591), proscribing dual citizens from holding certain offices was inconsistent with Articles 15 and 17 of the Constitution.

 

39. In the said case, this Court resolved the above in the negative, but struck down as unconstitutional, section 16(2)(m) of Act 591, which invested the Minister of Interior with the authority to prescribe other offices, by legislative instrument, which could not be occupied by dual citizens.

 

40. In the said Professor Stephen Asare case however, Her Ladyship Akuffo JSC (as she then was) expressed her premonitions, albeit obiter, of the seeming unconstitutionality of aspects of section 16(2). The venerable judge said as follows:

“Citizenship (whether or not on a dual or multiple basis) of a country is a precious right which carries with it invaluable privileges. The means by which any of these rights and privileges may be limited are normally governed by clear legal provisions, because such limitations derogate from the incidents of citizenship. Thus, in the case of Ghanaians with dual citizenship, the limitations imposed on their eligibility to hold public office are set by article 8(2) of the Constitution, as amended by the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527) which provides that …

Hence, dual citizens of Ghana are prohibited, by the Constitution, from holding these listed positions. Clause (g) however, makes it possible for this list to be expanded by an Act of Parliament, to include other positions. Since the Constitution sets out a certain and specific list, it follows that any addition to the list would amount to an amendment of the Constitution. It is for this reason that, in his Statement of Case, the Plaintiff seeks to argue that the Act of Parliament stipulated in the clause is one that must necessarily comply with the provisions of Chapter Twenty-Five of the Constitution, Article 289 of which provides that …

 

In my view, these clear, specific and basic requirements for a valid amendment of the Constitution were not complied with in the enactment of Section 16(2) of Act 591. The long title of the Act reads as follows:-

 

“An Act to consolidate with amendments the law relating to citizenship of Ghana, to state in respect of citizenship by birth the legal conditions applicable at the given points in time, to bring the law in conformity with the Constitution as amended and to provide for related matters.”

 

The declared purpose of the Act, to my understanding, is therefore that it was being enacted to consolidate and bring into pursuant effect the amended provisions of the Constitution. It was not declared to be, itself, a constitutional amendment act. Thus its sole purpose was not to amend the Constitution, and as far as the Ghanaian public is formally aware, there has been only one amendment of article 8(2) of the Constitution, and the terms of that amendment are those set out in Act 527. Yet it is clear that section 16(2) has purported to amend and alter the provisions of Article 8(2). These amendments added to the list of offices that may not be held by persons holding dual citizenship…

Now, every provision of the Constitution is presumed to be there for a purpose and cannot be disregarded for the sake of convenience. Whilst it may be arguable that the Act of Parliament referred to in article 8(2)(g) of the Constitution (as amended by Act 591) is simply an ordinary Act of Parliament, passed in accordance with Article 106, I am fortified in the position I have taken to the contrary, by the well established principle that in the construction and interpretation of a Constitution, every provision must be given its effect. Therefore, it must be read as whole and not as though each provision exists in isolation, oblivious of the import of any other provisions. Yes, an Act of Parliament to add to the list of offices is referred to in the said clause (g). Yet article 289 also states in categorical terms that an Act of Parliament may not amend or directly or indirectly alter the Constitution unless certain conditions are met. Doubtlessly, in enacting the clause, Parliament was fully aware of Article 289. Hence, if clause (g) was intended to create an exception to the requirements of article 289 it should have been so stated therein expressly that, in respect of the clause, the said requirements are excepted. Clearly this was not done and, therefore, there would be no justification for reading any such exception into the provisions of clause (g). To hold otherwise would be very dangerous and make a mockery of constitutional provisions such as article 8(2), which particularise specific matters, thereby eventually reducing the Constitution to the status of an ordinary statute, as evidenced by what Parliament has attempted to do in section 16(2) of Act 527.

In my humble opinion, therefore, the fact that an ordinary Act of Parliament undergoes certain levels of scrutiny before enactment is not sufficient justification when there is clear non-compliance with the prescribed procedures and processes stipulated, by the same Constitution that empowered Parliament to alter article 8(2), for the enactment of alterations to the Constitution. For the foregoing reasons, I am of the view that the addition of the offices of:- Chief Justice

Commissioner, Value Added Tax Service

Director General, Prisons Service

Chief Fire Officer

Chief Director of a Ministry and the rank of a Colonel in the Army or its equivalent in the other security services in section 16 (2) (a), (h) – (l), to the list of proscribed positions is unconstitutional … I would, therefore, declare those provisions null and void.”

 

41. This view was endorsed by Owusu JSC. in absolute terms and our revered sister opted to rely entirely on the sentiments expressed by Her Ladyship Akuffo JSC.

 

42. In this same case, the distinguished Prof. Date Bah JSC prophetically expressed his concern for the possible implications of Article 8(2)(g) if a restrictive view was not taken to the powers conferred on the legislative authority to add more offices to those already designated under Article 8(2). The distinguished judge said as follows:

“What gives me cause for concern is the power given to Parliament under article 8(2) to specify any office from which dual citizens will then be disqualified from holding. In my view, the spirit of the Constitution imposes a limit on the legislative discretion thus conferred…”

 

43. With the exception of His Lordship Atuguba (then the Acting Chief Justice) in the Professor Stephen Asare case supra, it would seem that all other justices who averted their minds to the constitutionality of Section 16(2) vis-a vis Article 289 came to the conclusion that the said section altered the initial list prescribed by Article 8(2) and thereby constituted an amendment of same. However, since these issues were not in contention in the above case, these views were expressed as obiter.

44. Asare’s Case should be revisited with some clarity and perspective in mind. There are two perspectives to this: the first is the issue of substantive constitutionalism which considers the merit of cross reading of the then impugned statutory provisions with articles 15 (dignity) and 17(equality); and the second issue is on procedural constitutionalism whether Parliament can add to the list of offices that dual citizens might not occupy contrary to a declared procedure.

 

45. On the first issue, this Court provided an apt justification to the proposition that section 16 does not appear in effect to be inconsistent with the provisions of the Constitution. The Court disagreed with Professor Asare’s contention that the imposed legal disabilities on dual citizens were inconsistent with the dignity and equality provisions of the Constitution. This is where the justification of the metaphors of “loyal citizenship” and “not serving two masters” take centre stage.

 

46. This rationalisation appears to be the focus of Asare’s case. That is, there was much attention to the issue of whether we, as a Republic, should permit dual citizens to occupy certain offices. This preoccupation was consistent with the textual history of the Constitution, as article 8 already provided for such exclusion. But this was not the end because there was a crucial question as to whether we should accept that as being consistent with our long held constitutional values of human dignity and equality. It would appear, as the Plaintiff argued in that case, that such exclusion creates a certain structure of citizenship and grants a certain pre-eminence to some hence the dignity and equality controversies.

 

47. In this limited context, the justification of the Court would appear to be on those original provisions as they exist in the constitution prior to the impugned amendments. That is, the Court did not use its interpretive power in that case to strike down the original provisions. The Court, in fact, deployed its interpretive powers in that case to provide an acceptable constitutional rationalisation for the exclusion of dual citizens from such listed offices. This was basically to underscore the point that the provisions on dignity and equality were not absolute and that the legal disabilities imposed on dual citizens do not necessarily contravene such provisions.

 

48. Be that as it may, the issues of procedural constitutionality implicated by the Asare case, and which was the subject of comment by the majority of the justices therein, was not strictly speaking, addressed. No positive and conclusive pronouncement was made on the addition to the original list, as contained in Article 8(2), which the Plaintiff herein alleges were smuggled in through the back door.

 

49. It is this lack of definite and conclusive engagement of the said issue of procedural constitutionalism which has provided the fertile ground for the current invitation of the Plaintiff. It is essential to underscore the fact that this does not amount to a review of this Court’s rationalisation of the “lack of consistency” argument. We are of the view that the reasoning in Asare justifying the constitutional exclusion of dual citizens from occupying the offices listed under Article 8(2), is sound.

 

50. Again, we must yet emphasize that this decision is not a bid to erode by judicial muscle, the powers of Parliament. We are not suggesting that Parliament is incompetent to add to the list of offices that dual citizens may not occupy. That power is neither bruised nor paled by this Court. We are simply, and consistent with the relevance of procedural constitutionalism, affirming the view that in deploying the powers and authority of Parliament to add to such a list, Parliament is duty bound to follow the prescriptions of the Constitution. The wisdom of Parliament, in our view, is only relevant and legally tenable if it is deployed in accordance with the procedure laid down in our Constitution.

51. The concept of supremacy of the Constitution does not admit of any exception invested in any institution or person to take away or obliterate the Constitution and its values. The prescriptions, letter, values, conventions, and spirit of the Constitution are carried into effect through procedure. Therefore, procedure mandated by the Constitution cannot be negatived by any official or institutional conduct without recourse to the clear tenets of the Constitution. The supremacy of the Constitution is not only entailed in the substantive values of the constitutional provisions but also in the prescribed procedure through which such provisions are executed or amended.

 

52. The free hand of Parliament to amend the Constitution is also constrained by the prescribed procedure, and in some relevant context, the substance. There is no power vested in Parliament to unilaterally ignore the procedure through which the Constitution is to be amended. If Parliament wishes to effect an amendment to the Constitution, it must do so in accordance with what procedure the Constitution laid down, enshrined in Chapter 25.

 

53. A cursory perusal of Article 8(2) against section 16(2) of Act 591 evidently reveals that seven new offices have been added to the list of offices originally set out under Article 8(2). The first question with which we are therefore concerned, is whether this insertion of additional offices to the original list encapsulated in Article 8(2) amounts to an amendment of the Constitution?

 

54. It is settled and trite that in interpreting constitutional provisions, the natural and ordinary meanings must first be accorded the said constitutional provision. On the 8th of November 2017, in Civil Appeal No.: J1/28/2015 intituled Mathias Kofi Boateng v Attorney General, Lands Commission and Office of the Administrator of Stool Lands, this Court held as follows;

“In construing a constitutional provision, and same applies to other enactments, the objective of the court is always to discover the intention of the framers of the Constitution. In Tuffour v. Attorney-General [1980] GLR 637 Sowah JSC (as he then was) at page 659-660 of the report gave the following guidelines to be followed by a court in discovering the intention of the framers of the Constitution;"We start by reminding ourselves of the major aids to interpretation bearing in mind the goals the Constitution intends to achieve. Our duty is to take the words as they stand and give them their true construction having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the context."

 

55. Accordingly, the Black’s Law Dictionary (9th Edition) defines ‘amend’ as “to change the wording of; specifically to formally alter (a statute, constitution, motion, etc.) by striking out, inserting words or substituting words” A mutatis mutandis application of this definition infers that where there is an addition or deletion of words to those originally set out in a constitutional provision, then the said constitutional provision, to the extent of that insertion or deletion, has been amended.

 

56. A perusal of section 16(2) of Act 591 shows that certain offices have been added to the list already provided by Article 8(2) of the Constitution as offices that cannot be occupied by persons with dual citizenship. To that extent, section 16(2) of Act 591 has invariably amended Article 8(2) of the Constitution and we so find.

 

57. Article 289 of the Constitution is clear on the nature and procedure that an amendment of the Constitution ought to take. For ease of reference, we shall state Article 289 which provides that

(1) Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution.

(2) This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless -

(a) the sole purpose of the Act is to amend this Constitution; and

 

(b) the Act has been passed in accordance with this Chapter.

 

58. Section 16(2) of Act 591 with its resultant effect of amending Article 8(2) of the Constitution therefore ought to have been passed in accordance with the mandatory procedural requirements of amending a constitutional provision as stipulated by Article 289 and 291 of the Constitution.

 

59. We agree with the Plaintiff and the Attorney General that the effect of section 16(2)(a), which restricts dual citizens from occupying the office of Chief Justice and Justice of the Supreme Court, amounts to an unconstitutional amendment of Article 128(4) as it imposes a further qualification criteria which was not contemplated or endorsed by the Constitution on persons who are serving as justices of the Supreme Court. This backdoor attempt to impose a further qualification criterion on members of the Apex falls foul of not only the principles of procedural constitutionalism by reason of the Acts failure to be passed in accordance with the prescriptions of Article 289 and 291; but also of the substantive text of the constitution as it is directly inconsistent with the scope of the criteria set out in Article 128(4). The qualification criteria set out in Article 128(4) is exhaustive and cannot be arbitrarily increased or reduced by Parliamentary fiat, except in accordance with the dictates of the Constitution.

 

60. In the case of Justice Abdulai v. Attorney General cited supra, I opined as follows:

“While it would have been inappropriate for the Court to answer the third issue if it turned purely on the procedural validity or propriety of the acts of the Speaker and the First Deputy Speaker, we must however say that in contexts and circumstances such as those of the present case, even though Parliament is a master of its procedure, it cannot be overemphasized that all the House's rules, orders, procedures and practices also have a master, the 1992 Constitution of the Republic of Ghana. Specifically, the authority of Parliament to regulate its own procedure is expressly subject to provisions of the Constitution as provided in Article 110(1) of the Constitution in the following terms:

''Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure." (emphasis added)

Consequently,    parliamentary                      standing         orders     are      subservient         to  the Constitution and in any case, no arm of Government or agency of the State, including Parliament, is a law unto itself because, without exception, everyone and everything in Ghana is subject to the Constitution. As a result, an allegation that Parliament has acted and/or is acting in a manner that is inconsistent with, in contravention of and/or ultra vires to the Constitution, will render Parliament, the actions, orders, rules or procedures in issue, amenable to the jurisdiction of this Court”

 

61. This statement goes to underscore the supremacy and pre-eminence of the Constitution and its prescription in a constitutional democracy such as ours. This underscores a critical aspect of constitutional governance: the subordination of all government institutions and actors, including Parliament, to the Constitution. It implies that any action taken by Parliament, whether in the form of legislation, rules, orders, or procedures, must align with the constitutional framework. Any deviation from this alignment renders Parliament and its actions susceptible to judicial review.

 

62. The concept of constitutional supremacy conceives the Constitution’s ability to establish a hierarchical primacy within the sources of law. In that light, constitutional supremacy takes the view that the constitution stands preeminent over all other legal norms and actors in the legal system. Consequently, the supremacy of the constitution also entails the subordination of the legislator.

 

63. It is on this very same jurisprudential footing that Article 93 of the 1992 Constitution prescribes as follows;

‘Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.’

64. From its inception therefore, the lawmaking power of Parliament, is restrained by the limitations and structure set by the Constitution. Cases are legion to the effect that Parliament cannot exercise its legislative mandate in a manner that is antithetical to, inconsistent with or at variance with the Constitution and in cases where Parliament has, whether overtly or inadvertently strayed outside the scope set by the Constitution, such acts have invariably been struck down.

65. There is sound legal and philosophical basis for restricting dual citizens from occupying certain offices, and Ghana, like many other nations, recognizes the importance of allegiance and undivided loyalty from its public officials to safeguard national interests. This loyalty can be crucially maintained by imposing restrictions on dual citizens for holding specific offices within the country.

 

66. The rationale behind this policy lies in the need to prevent potential conflicts of interest and ensure that individuals entrusted with critical roles in governance prioritize the well-being of the nation over personal affiliations with other countries. This restriction helps to uphold the principle of undivided loyalty and fosters a sense of accountability among public officials, reinforcing their commitment to the development and progress of our country.

 

67. These obvious benefits notwithstanding, the Constitution's meticulous delineation of the specific offices barred to dual citizenship holders in Article 8(2) underscores a deliberate and exhaustive attempt by the framers to limit this restriction to just those offices mentioned.

 

68. On this basis therefore, the expansion of this list by Section 16(2)(a) and 16(2)(h-l) of the Citizenship Act, 2000 (Act 591), without recourse to the due process of constitutional amendment prescribed in Articles 289 and 291, clearly contravened the fundamental principles of constitutional supremacy.

69. In the circumstances we find that section 16(2)(a) and 16(2)(h)-(l), which constituted amendments to the Constitution ought to have been undertaken through the prescribed channels of formal amendment as prescribed under Articles 289 and 291. Having failed to do this, we exercise our authority under Article 2(2) of the 1992 Constitution to strike down the said sections as being unconstitutional. Accordingly sections 16(2)(a) and 16(2)(h)-(l) of the Citizenship Act, 2000 (Act 591) are hereby struck down as unconstitutional, same being inconsistent with and contravention of Article 289 and 291 of the Constitution.

 

70. It is for the foregoing reasons that we issued our final orders above on Wednesday, 24th April 2024 and reserved this full judgment to be filed on or before the 29th day of April 2024.

 

 

 

 

 

E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT)

 

 

 

M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT)

 

 

 

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

 

 

 

 

G. K. KOOMSON

(JUSTICE OF THE SUPREME COURT)

E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

 

 

CONCURRING OPINION

SACKEY TORKORNOO CJ:

Introduction

 

1. Article 8 the 1992 Constitution as originally promulgated made no room for dual citizenship for Ghanaian nationals. The Constitution of the Republic of Ghana (Amendment) Act, 1996 Act 527 repealed article 8 of the 1998 Constitution and substituted same in Act 527. It reads:

1. Article 8 of the Constitution is repealed and the following inserted-

 

8. (1) A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.

(2) Without prejudice to article 94 (2) (a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this clause if he holds the citizenship of any other country in addition to his citizenship of Ghana-

(a) Ambassador or High Commissioner;

(b) Secretary to the Cabinet;

c) Chief of Defence Staff or any Service Chief;

(d) Inspector-General of Police;

(e) Commissioner, Customs, Excise and Preventive Service;

(f) Director of Immigration Service; and

(g) any office specified by an Act of Parliament.” (emphasis mine)

 

2. Apart from introducing the right to dual citizenship into the 1992 Constitution, it is evident that the new article 8 of the 1992 Constitution, found in Act 527, reserved certain positions in the country that that cannot be occupied by dual citizens, by setting them out in article 8(2) (a) to (g).

3. Thereafter, the Citizenship Act, 2000, Act 591, was enacted ‘to consolidate with amendments the law relating to the citizenship of Ghana, to state in respect of citizenship by birth the legal conditions applicable at the given points in time, to bring the law in conformity with the Constitution and to provide for related matters’.

Section 16 of Act 591 provides:

 

16. Dual citizenship

 

(1)  A citizen may hold the citizenship of any other country in adition to the citizenship of Ghana

(2) Without prejudice to article 94(2)(a) of the Constitution, a citizen does not qualify to be appointed as a holder of an office specified in this subsection if the citizen holds the citizenship of any other country in addition to the citizenship of Ghana:

(a)  Chief Justice and Justices of the Supreme Court;

(b)  Ambassador or High Commissioner;

(c)  Secretary to the Cabinet;

(d)  Chief of Defence Staff or any Service Chief;

(e)  Inspector-General of Police;

(f)  Commissioner, Custom, Excise and Preventive Service;

(g)  Director of Immigration Service;

(h) Commissioner, Value Added Tax Service;

(i) Director-General, Prisons Service;

(j) Chief Fire Officer;

(k) Chief Director of a Ministry

(l) the rank of a Colonel in the Army or its equivalent in the other security services; and

(m) any other public office that the Minister may by legislative instrument prescribe.”

4. The plaintiff before this court has argued that sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591 ought to be struck down as null and void because to the extent that it adds to the list of offices that dual citizens cannot hold, found in article 8 (2), they constitute an amendment of article 8 of the 1992 Constitution. He also submits that to the extent that these impugned sections constitute an amendment of article 8 (2) of the 1992 Constitution, they could only have been enacted after going through the processes set out in article 289 (2) of the 1992 Constitution

5. Article 289 provides:

 

Amendment of Constitution

 

289 (1) Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend an provision of this Constitution

(2) This Constitution shall not be amended by an Act of parliament or altered whether directly or indirectly unless –

a.  the sole purpose of the Act is to amend this Constitution; and

b.  the Act has been passed in accordance with this Chapter

 

6.  The fundamental question of Jurisdiction

To the extent that this matter requires a pronouncement on the very constitutionality of a provision of an Act of Parliament, including whether it lacks validity on account of having been enacted in a manner that contravenes the directions of the Constitution, as well as being inconsistent with provisions of the Constitution, I am satisfied that this court is properly seised with exclusive original jurisdiction to determine same.

 

7.  Article 1(2) and 2 (1) provide:

Supremacy of the Constitution

(2)This constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provisions of this Constitution shall, to the extent of the inconsistency, be void.

8. Enforcement of the Constitution

 

2. (1) A person who alleges that –

(a) An enactment or anything contained in or done, under te 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

9. The supporting jurisprudence developed along our constitutional journey has been well set out in the lead and dissenting opinions of my brothers.

Despite agreeing with the final orders of the majority decision in the case at hand, that sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591 ought to be struck down as null and void, I must point out my point of departure with the reasoning of the majority. In the majority opinion herein, sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591 constituted an amendment of article 8 (2). This is where I differ. And my reason is simple.

10. Substitution of article 8 (2)

 

I think that it is instructive that in re-enacting article 8 of the Constitution as found in Act 527, Parliament, in exercising its power to amend non entrenched provisions of the Constitution, did not leave the exclusions of offices that dual citizens cannot hold at sub clause (f). It added the conjunctive ‘and’ to sub clause (f) and continued in sub clause (g) of article 8 (2) with the words: (g) any office specified by an Act of Parliament

11. The direction on the face of article 8 (f) and (g) of the 1992 Constitution found in Act 527 therefore reads:

 

f) Director of Immigration Service; and

(g) any office specified by an Act of Parliament.” (emphasis mine)

12. Article 295 (1) defines an Act of Parliament to mean an ‘..an Act enacted by Parliament and includes and Ordinance’. Simply, and without more. It is a generic term of art that refers to the output of enactments by Parliament. So what can an ‘Act of Parliament’ mean in article 8(g)? Can it be stretched from its generic meaning of the exercise of regular legislative power of Parliament as provided for in article 93, or does it mean an Act of Parliament to amend the Constitution? Contrary to the majority reasoning herein, I think that it can only mean the exercise of the regular legislative power of Parliament.

13. It is a trite appreciation of our constitutional order that apart from article 1 (2) already referred to, which places constitutional provisions in a supremely separate order of law, article 11 of the 1992 Constitution further distinguishes between the Constitution and other forms of law. It settles the distinction between constitutional provisions as being in a higher order of law than enactments of Parliament in Clause

(1) sub-clauses (a) and (b)

 

Article 11 (1) of the 1992 Constitution directs:

 

The Laws of Ghana

 

11 (1) The laws of Ghana shall comprise –

a. This Constitution

b. Enactments made by or under the authority of the Parlament established by this Constitution;

c. Any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution

d. The existing law; and

e. The common law.

 

14. From reading article 11, it is clear that when the Constitution uses the conjunctive ‘and’, it reflects an intention to include what follows after the ‘and’ within the group of items listed above.

Had it therefore been the intention of the framers of the Constitution to require that the list of offices that dual citizens cannot occupy shall or may not be expanded without the intervention of amending the Constitution itself, it would not have made room for the expansion in article 8(f) with the conjunctive ‘and’ and the words that followed.

15. Again, it would not have directed in article 8 (g) that the means for expanding the preceding list should be by an Act of Parliament, if it meant the conjunctive ‘and’ to be followed by ‘provisions of this Constitution’. The 1992 Constitution is a strident and assertive tablet of edicts. When it intends to subject any further provision to its internally and already stated edicts, it qualifies the permission to with the words ‘subject to the provisions of this Constitution’. It is this language that compels a harmoniously knit thread ball of provisions that cross reference to give strong directions for the current democratic dispensation within the Constitution.

16. In this wise, an objective review of this language of article 8(2) (f) and (g) will allow the appreciation of the dynamic evolution of society, and within that anticipation, an intention not to subject the process of allowing inclusions of new exceptions to the more strictured function of amendments of the Constitution, rather than an Act of Parliament, which is the language that article 8 (2) (g) clearly uses.

 

Indeed, as extensively discussed in the lead judgment, this is not the first time that sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591 have been attacked. In Asare v Attorney General [2012] 1 SCGLR 460, the Plaintiff therein sought inter alia, declaratory reliefs that section 16 (2) of Act 591 is null and void on account of contravening the letter and spirit of article 15 (1), article 17, and violating the principle of equal citizenship.

17. This court, by majority decision also, found no reason to accede to the invitation to strike down section 16 (2) of Act 591 or any part of it, except section 16 (2) (m), which delegated the power conferred on Parliament under article 8 (g) to specify offices from which dual nationals were excluded, to the Minister; holding it to be a violation of the sound policy not to delegate delegated authority embodied in the maxim delegatus non potest delgare. The Court pointed out that the spirit of the Constitution necessarily places legislative discretion on Parliament, along with the power under article 8 (2) (g) to specify any office from which dual citizens would be disqualified from holding. I absolutely align with this evaluation that did not consider the operationalization of article 8 (2) (g) as requiring an amendment of the Constitution through adherence with article 289, 290 and 291, but through the enactment of an Act of Parliament.

 

18. The caution in Ghana Lotto Operators Association and 6 Others v National Lottery Authority {2007-2008} 2 SCGLR 1088 that a ‘more modern approach would be to see the document (constitution) as a living organism’, should help to guide acceptance of the clear words of articles 8(2) (f) and (g), as was done in Asare v Attorney General.

 

This objective approach to interpreting the clear words of article 8 (2) (g), spurns an unnecessary reach for an inferred subjective intent behind the words ‘Act of Parliament’ in article 8 (2) (g), to mean ‘Act of Parliament to amend this Provision’. It allows this court to take the constitutional text as it is, and interpret it to allow for Parliament providing for the changing needs of a growing parliamentary democracy on the strength of the Constitutional direction given in article 8 (2) (g).

Should the fossilized approach that demands an amendment of the Constitution even when the Constitution itself provides for inclusions through an Act of Parliament carry the day in the particular matter under consideration, I think that this court would lose the guiding light from Tuffuor v Attorney –General [1980] GLR 637, that has served our constitutional journey well.

19. The 1992 Constitution has its spirit, and with the growth and development of democracy, it has found its way clear to removing the strictures on dual citizenship. This removal cannot be ordained as blanket and stuck in Act 527 when the Constitution itself makes room for Parliament to take account of the principles behind this step and bring considerations to bear in determining which other offices may be subject to the exclusions directed in article 8 (2).

20. Thus, I would hold that to the extent that the Citizenship Act, 2000, Act 591 was not a statute intended to amend the Constitution, and the framers of the Constitution had, in Act 527, provided for extension of the offices in article 8(2)(f) and (g) through an Act of Parliament, Parliament did not contravene article 289, and article 290 when it included sections 16 (2) (a), (h), (i), (j), (k), (l), of Citizenship Act, 2000, Act 591 in Act 591.

21. From this premise, I am satisfied that the Plaintiff’s submission, that the introductions of new offices excluded from dual citizenship holders, could only have been done by amendment of article 8 itself through the processes outlined in article 289 (2) is misconceived. I find it evident on the face of the Citizenship Act, 2000, Act 591, that unlike the Constitution of the Republic (Amendment) Act 1996 Act 527, Act 591 was passed to provide for matters relating to citizenship, and the power of Parliament through an Act of Parliament, to make provision for inclusion to the offices that dual citizens cannot hold, was conferred on Parliament by article 8 (g) of the Constitution.

22. Inconsistency with and contravention of the Constitution.

 

But this is as far as I go in disagreement with the majority. I note the submission of Plaintiff specifically, that section 16 (2) (a) includes the Chief Justice and Justices of Supreme Court in the offices that dual citizens are excluded from when article 128 (4) provides for the qualification required to hold these offices in these words:

4) A person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity and is of not less than

fifteen years’ standing as a law

 

 

23. It is the submission of the Plaintiff that the inclusion of these offices within section 16 (2) of Act 591 compels an additional qualification in order to hold these offices – that the person appointed to the office must also not hold dual citizenship. Further, by adding this additional qualification, article 16 (2) (a) has necessarily amended article 128 (4). This is true and results from simple inference.

24. It is also clear that unlike article 8 (2), the Constitution makes no room for addition to the qualifications for these offices in article 128 (4) beyond the provision that creates the qualification – that is – article 128 (4).

Further, article 128 (4) is not an entrenched provision, and could therefore be amended by an Act of Parliament in the same manner that article 8 was in Act 527. But this has not been the case. In the absence of an objective expression within the Constitution to allow an expansion of the qualification criteria of these offices by a means other than a constitutional amendment, and while it remains in its original and virgin form, any change to the said qualifications undeniably constitutes an amendment of the Constitutional provisions in article 128 (4) and would need to comply with article 289, article 291, and article 292.

25. The mandatory edict that creates the Parliament of Ghana in Article 93, is an entrenched provision, and Parliament is well guided to constantly bear in mind the provision in article 93 (2) that

2) Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution

 

26. Conclusion

 

For these reasons, I see that the issue of whether section 16 (2) constituted an amendment of the Constitution should be dealt with in two layers. First, on a consideration of whether, all of section 16 (2) constitutes a constitutional amendment on account of it adding the list of officers set out in article 8 (2), the answer ought to be no. However, on the issue whether section 16 (2) (a) constitutes a constitutional invalidity on account of being an amendment of article 128 (4) without the audit of the necessary constitutionally mandated process, the answer is yes. And this entitles the plaintiff to his relief (a), and an order striking down section 16 (2) (a).

Again, to the extent that the facts of this case reveal no support of a meticulous attention to any constitutional measures applicable to the Commissioner Value Added Tax Service, Director-General Prisons Service, Chief Fire Officer, Chief director of a Ministry, or the rank of a Colonel in the Army or its equivalent in the other security services who are the subject offices included in sections 16 (h) – (l) of Act 2000, I find no merit in disagreeing with the conclusions of the majority.

 

 

 

 

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

 

 

 

 

DISSENTING OPINION

 

PWAMANG JSC:

My Lords, the fourth republican Constitution of Ghana that came into force on 7th January, 1993 provided under article 8 thereof, sub-titled “Dual Citizenship”, as follows;

(1)  Subject to this article, a citizen of Ghana shall cease forthwith to be a citizen of Ghana if, on attaining the age of twenty-one years, he, by a voluntary act, other than marriage, acquires or retains the citizenship of a country other than Ghana.

By this provision it was generally prohibited for a Ghanaian to maintain dual citizenship. However, on 31st December, 1996, this provision of the Constitution was amended by the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527). It repealed the original article 8 and inserted a new article 8. The new article 8 is as follows;

(1) A citizen of Ghana may hold the citizenship of any other country in addition to his citizenship of Ghana.

(2) Without prejudice to article 94(2)(a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this clause if he holds the citizenship of any other country in addition to his citizenship of Ghana-….

Clause (2) lists a number of public offices that a Ghanaian dual citizen is prevented from holding and then adds a general provision in the following words; “(g) any office specified by an Act of Parliament.”

Following the amendment, the legislature passed a general law on Ghanaian citizenship, the Citizenship Act, 2000 (Act 591) and it included provisions on dual citizenship. Under section 16(2) of Act 591 the legislature lists a number of public offices that a Ghanaian with dual citizenship is prohibited from occupying. However, this new list of offices a dual citizen is disqualified from occupying differs from the list in clause (2) of article 8, in that it has added to the prohibited offices the offices of Chief Justice and Justices of the Supreme Court; Commissioner, Value Added Tax Service; Director-General, Prisons Service; Chief Fire Officer; Chief Director of a Ministry and the office of the of a Colonel in the Army or its equivalent in the other security services. These offices were not mentioned in article 8 as amended. Nonetheless, apart from the office of Chief Justice and Justice of the Supreme Court, the other offices added by section 16(2) appear to be substantially similar to offices prohibited under article 8.

Although section 16(2) of Act 591 has been on the statute books for more than twenty years, the plaintiff, a lawyer, has now decided to challenge the constitutionality of the part of the section that added to the list of prohibited offices. It must be noted that the grievance of the plaintiff is not in respect of the policy justification for these additional restrictions on Ghanaian dual citizens. His concern is about the validity of the legal processes by which the new limitations have been added. He filed a writ in the Supreme Court on 10th July, 2023 and claimed for the following reliefs;

1. A declaration that Section 16(2)(a) of the Citizenship Act, 2000 (Act 591), is null and void on account of having been passed in a manner that is inconsistent with and in contravention of Article 289(2) of the 1992 Constitution.

2. A declaration that Sections 16(2)(h) - (l) of the Citizenship Act, 2000 (Act 591), are null and void on account of having been passed in a manner that is inconsistent with and in contravention of Article 289(2) of the 1992 Constitution.

3. An order striking down Sections 16(2) (a) and (h)-(l) of the Citizenship Act, 2000 (Act 591) as being unconstitutional.

4. Any further orders and/or directions as the Court may deem fit.

 

On 12th July ,2023 the plaintiff filed a statement of case in which he argued his case but he did not accompany it with an affidavit verifying the facts stated in his statement of case as required by Rule 46(2) of the Rules of the Supreme Court, 1996 (C.I.16). I intend to waive this non-compliance which the defendant did not raise, but as will soon be explained in this opinion, the plaintiff has committed other fundamental breaches that go to the jurisdiction of the court and these I shall take up.

The gravamen of the case of the plaintiff is captured in the following passage in his statement of case;

“Although neither described as a constitutional amendment nor (as with section 1 of Act 527) as repealing and replacing Article 8 of the Constitution, section 16(2) of Act 591 clearly “amended” or “altered” the list of offices that dual citizens cannot hold. Specifically, it adds these offices: Chief Justice and Justices of the Supreme Court; Commissioner, Value Added Tax Service; Director-General, Prisons Service; Chief Fire Officer; Chief Director of a Ministry; the office of the of a Colonel in the Army or its equivalent in the other security services.”

The defendant filed a statement of case in answer on 26th July, 2023 with an accompanying verifying affidavit. The defendant in his statement of case did not object to the plaintiff’s non-compliance with Rule 46(2) of C.I.16 and even supported the case of the plaintiff that section 16(2) of Act 591 was passed in a manner inconsistent with article 289(2) of the Constitution. In the opening sentence of the plaintiff’s statement of case he asserted that he brings this action pursuant to article 2(1)(a) of the Constitution, 1992 and in reaction to that the defendant affirms that claim by the plaintiff of properly invoking the original jurisdiction of the court under article 2(1)(a).

The defendant goes further to add article 130(1) of the Constitution as additional jurisdictional foundation for this suit. He argued as follows in his statement of case;

“Respectfully, the Constitution of Ghana confers on the Supreme Court exclusive original jurisdiction in relation to the Constitution, which includes enforcement jurisdiction, interpretative jurisdiction, and the jurisdiction to declare an enactment as void on grounds of unconstitutionality. Of relevance to the instant suit is the interpretative and enforcement jurisdiction of the Supreme Court. Regarding interpretation and/or enforcement, under Article 2(1) of the Constitution, a person who alleges that an enactment or anything done by a person under the authority of an enactment is unconstitutional may bring an action in the Supreme Court for a declaration to that effect. Further, Article 130(1) generally provides for the exclusive original jurisdiction of this Court in all matters relating to enforcement and interpretation….. In the instant case, it is humbly submitted that the Supreme Court’s jurisdiction has been properly invoked to determine these two important questions:

i. whether section 16(2)(a), (h), (i), (j) (k) and (l) of Act 591 effected a proper constitutional amendment of the list of offices in respect of which dual citizens are prohibited by Article 8 of the Constitution from holding.

ii. whether the process of enacting section 16(2) (a), (h),(i),(j), (k) and (l) of Act 591 complied with the constitutionally prescribed processes specified in Articles 289, 290 and 291 of the Constitution to amend.”

My Lords, notwithstanding the symbiotic posturing of the parties in this case, there arises on the face of the plaintiff’s writ and his statement of case a substantial doubt as to whether this action raises a real constitutional controversy for adjudication and whether the original jurisdiction of the court has been properly invoked. The issue whether the original jurisdiction of the Supreme Court is properly invoked in any suit is a preliminary question that if none of the parties brings up must be taken by the court sua sponte. In the case of Bimpong-Buta v General Legal Council [2003- 2004] SCGLR 1200, the defendant initially filed an objection to the plaintiff’s action arguing that the original jurisdiction of the Supreme Court had not been properly invoked. The defendant later withdrew his objection but when the court came to consider its judgment, it suo moto took up the question of jurisdiction. At p.1215 of the report, Sophia Akuffo, JSC (as she then was) explained as follows;

“Since by his suit the plaintiff has sought to invoke the original jurisdiction of the court, we must, of necessity, ascertain whether or not our jurisdiction under articles 2(1) and 130(1)(a) has been properly invoked, even though the fourth defendant (at that time in the person of Hon Papa Ovusu Ankumah per his counsel, Hon Mr Ambrose Dery, the Deputy Attomey-General) withdrew at the hearing of the action on 20 January 2004 (with the approval of the court), a notice of preliminary objection to our jurisdiction, which he had earlier filed. In other words, does the plaintiff’s writ properly raise any real issues of interpretation or enforcement of the Constitution that can only be resolved by this court exercising its original jurisdiction? Jurisdiction is always a fundamental issue in every matter that comes before any court and, even if it is not questioned by any of the parties, it is crucial for a court to advert its mind to it to assure a valid outcome. This is even more so in respect of the Supreme Court's original jurisdiction, which has been described as special.”

Articles 1(2), 2(1) &(2), and 130(1) of the Constitution, 1992 which are respectively sub-titled “Supremacy of the Constitution”, “Enforcement of the Constitution” and “Original Jurisdiction of the Supreme Court” provide the cause of action and jurisdictional foundation for suits challenging the constitutional validity of enactments. They provide respectively as follows;

Supremacy of the Constitution

Article 1(2);

The 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.

Enforcement of the Constitution Article 2(1).

A person who alleges that -

(a) 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.

(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.

Original Jurisdiction of the Supreme Court.

 

Article 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 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

In accordance with the above provisions, where a plaintiff challenges the constitutional validity of an enactment in the Supreme Court, the settled practice is for her to invoke articles 2(1)(a) and 130(1) of the Constitution, 1992 and to allege that the impugned enactment is inconsistent with or is in contravention of a stated provision of the Constitution and to pray the Supreme Court for a declaration to that effect. When the case is presented that way, the approach of the court is to match the impugned enactment against the constitutional provision relied on and to answer the question whether there is inconsistency or contravention. Thus, it is a strict requirement for invoking the original jurisdiction of the Supreme Court in these types of cases for the plaintiff to indicate in his writ and statement of case the specific provision of the Constitution that has been contravened by the enactment under challenge. In Asare- Baah III v Attorney-General & Electoral Commission [2010] SCGLR 463 this court dismissed a writ that sought to invoke the original jurisdiction of the court to challenge the constitutional validity of an enactment and the court at p 470 per Georgina Wood CJ explained as follows;

“A court’s duty is to determine the real matters in controversy between parties effectively. It is therefore imperative in actions of this kind, as indeed, in other civil causes or matters, that all alleged acts of statutory and constitutional invalidity, breaches or violations, inconsistencies or non-compliance be identified with sufficient particularity, with nothing being left to chance or conjecture.”

In Danso v. Daaduam II & Anor. [2013-2014] SCGLR 1570, at p. 1575, the Supreme Court, per Anin Yeboah JSC (as he then was), upheld a preliminary objection challenging the invocation of the jurisdiction of the Court and stated as follows:-

“The Plaintiff has invoked our original jurisdiction for the reliefs stated above. It is therefore the duty of the Plaintiff to demonstrate to this court that our jurisdiction has been properly invoked. This he can do by showing as per his writ and reliefs sought that his case presented to this court raises a real or genuine issue for interpretation or enforcement.”

From the reliefs the plaintiff endorsed on his writ as set out supra, the provision of the Constitution that the plaintiff alleges has been transgressed by section 16(2) of Act 591 is article 289(2) of the Constitution. That provision is as follows;

289(2) This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless-

(a) The sole purpose of the Act is to amend this Constitution; and

(b) The Act has been passed in accordance with this Chapter.

 

To buttress the nature of the case brought by the plaintiff and supported by the defendant, the following issues were jointly agreed by the parties for determination by the court;

1. Whether or not Chapter 25 of the 1992 Constitution provides the exclusive procedures for amending directly or indirectly the 1992 Constitution.

2. Whether or not section 16(2)(a) of the Citizen Act, 2000 (Act 591) was passed in a manner that is inconsistent with and in contravention of Article 289(2) of the 1992 Constitution.

3. Whether or not section 16(2)(h)-(i) of the Citizenship Act, 2000 (Act 591) was passed in a manner that is inconsistent with and in contravention of Article 289(2) of the 1992 Constitution.

But, the foremost question that begs for an answer from these issues is, whether by the impugned provisions of Act 591, the legislature sought to amend or alter, directly or indirectly, the 1992 Constitution? The basic assumption on which this case is built is that Act 591 needed to be passed in conformity with article 289(2) but that would have been the case if the Act was for the amendment of the Constitution. If Act 591 was not meant to amend the Constitution then it was not required to be passed in accordance with article 289(2) of the Constitution. In the passage from the statement of case of the plaintiff I quoted above, he said that Act 591 on its face was not stated to be an amendment of the Constitution. He nevertheless alleges that the Act “clearly ‘amended’ or ‘altered’ the list of offices a dual citizen cannot hold.” How can Act 591 validly amend or alter the Constitution when the Act was not stated to be an amendment and, secondly, when it was not passed in accordance with article 289(2)? The plaintiff himself puts the words amended or altered in quoted marks meaning he is aware that the Act did not and could not have amended the Constitution. The purpose of Parliament for enacting Act 591 is stated in its long title as follows;

“AN ACT to consolidate with amendments the law relating to the citizenship of Ghana, to state in respect of citizenship by birth the legal conditions applicable at the given points in time, to bring the law in conformity with the Constitution and to provide for related matters,”

Being an ordinary Act of Parliament, Act 591 was legally required to be passed in accordance with article 106 of the Constitution which provides for the mode of exercising the legislative power. So if the manner of passage of Act 591 is to be questioned, then the issue ought to be whether it was passed in accordance with article 106. It is Acts of Parliament intended to amend or alter the Constitution that would need to conform with article 289(2) and not an ordinary Acts of Parliament which both parties say Act 591 is. In the locus classicus of what constitutes a genuine question for constitutional enforcement and interpretation in Ghanaian Law, Republic V Special Tribunal, Ex parte Akosah [1980] GLR 592, Anin JA, in the Court of Appeal sitting as the Supreme Court, identified the types of circumstances that call for the Supreme Court to exercise its exclusive jurisdiction of interpretation of the Constitution. He said as follows at p. 604 of the Report;

“From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118 (1) (a) arises in any of the following eventualities:

(a) where the words of the provision 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 litigants on the words of any provision 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 provision 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.”. (Emphasis supplied).

In this case, it has not been argued that any party or authority has contended that Act 591 was passed in accordance with article 289(2) and that it was intended to amend or alter the Constitution. Therefore, there is no basis for the plaintiff to argue with himself that Act 591 was not passed in accordance with article 289(2) of the Constitution when no one contended otherwise. The defendant agrees with the position that Act 591 was not enacted in accordance with article 289(2) of the Constitution, and that was to be expected because, as earlier pointed out, Parliament never said they were amending the Constitution. In fact, they said they were passing the Act to bring the citizenship laws of Ghana in line with the Constitution. In Bilson v Attorney-General [1993-94] 1 GLR 104, the Supreme Court unanimously dismissed the case of the plaintiff for failure to raise a controversy for adjudication. Adade, JSC said as follows at 107;

“I read the plaintiff's writ and statement of case, and I ask myself a simple question: has any occasion arisen to necessitate the call for interpretation? Does the writ, or the writ and statement of case together, disclose any occasion? Take, for instance, the declaration sought under paragraph (b) of the writ. The plaintiff wants the court to declare that: "(i) all persons in Ghana are equal before the law" and he himself says that that statement is in article 17(1) of the Constitution, 1992. I agree that article 17(1 ) of the Constitution, 1992 says so. But does the court have to declare that the article says so? In any case, where will such a declaration take the plaintiff or anyone else?”

At 110-111 Hayfron-Benjamin, JSC added as follows;

 

“The plaintiff invites this court to give him judgment upon proof of axioms. The answers to his plaints are obvious, self-evident and unambiguously stated in the various articles of the Constitution, 1992 to which the plaintiff himself has referred. This court cannot accede to sterile claims in which the defendant is bound to agree with the plaintiff. I will also dismiss the writ.”

For instance, by issue 1 set out in the Memorandum of Issues reproduced supra, the parties want the court to declare that Chapter 25 of the Constitution provides the exclusive procedure for amending the Constitution. That is plain on a reading of article 289 of the Constitution and it does not require a declaration by the Supreme Court for it to be so. The other issues whether section 16(2) of Act 591 was passed in a manner inconsistent with article 289(2) are non-issues because no one has contended otherwise. Therefore, all the substantive declarations being sought by the plaintiff in this suit are sterile and do not raise genuine controversies so as to excite the original jurisdiction of the Supreme Court. As these declaratory reliefs prayed for are incapable of invoking the original jurisdiction of the court, the ancillary relief stated as relief (3) will have no foundation to rest on. Relief (3) which prays for an order striking down section 16(2) of Act 591 for contravening article 289(2) may only be considered under article 2(2) of the Constitution but the jurisdiction of the Supreme Court under article 2(2) does not accrue unless a declaration is first made by the court under article

2(1). Article 2(2) is as follows;

 

(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.

I do not find any legal justification to make a declaration that section 16(2) of Act 591 was passed in a manner inconsistent with article 289(2) when neither Parliament nor any other person contends that it was intended to amend any provision of the Constitution. Since Act 591 did not say it was seeking to amend the Constitution, it was not required to conform to article 289(2) so failure to so conform does not render it void. It is preposterous for anyone to say that section 16(2) of Act 591 has amended article 8(2) of the Constitution while submitting that Act 591 was not passed as a constitutional amendment and also it was not passed in accordance with article 289(2). Article 8(2) contained in the Constitution, 1992 as amended has been the law from 1996 unaffected by section 16(2) of Act 591 and although the two provisions may appear contradictory in some respects, that is not the issue presented to the court by the parties in their pleadings. The reliefs sought by the plaintiff are premised on the mode of passage of Act 591 by Parliament and not on the content of the Act. Therefore, the case as filed by the plaintiff does raise a real constitutional controversy so there is nothing for the court to determine.

The Supreme Court does not take delight in dismissing cases filed on grounds of procedure, but the court has over the years jealously policed the invocation of its exclusive original jurisdiction such that no matter how beneficial a pronouncement by the court on the merits of a case may appear, the court has stood firm in insisting on the proper invocation of its jurisdiction. See; Gbedema v Awoonor Williams (1970) 2 G&G 438; Tait v Ghana Airways Corporation (1970) 2 G&G 527, Edusei v Attorney-General [1996-97] SCGLR 1; and Adumoa II and Others v Adu Twum II [2000] SCGLR 165. In the very recent case of Child Rights International v Attorney-General; Suit No; J1/16/2022, the Supreme Court in the unreported judgement dated 28th February, 2024, dismissed an action in which the plaintiff, a civil society organisation dedicated to the welfare of children, prayed the court to make orders to protect street children who the plaintiff claimed were neglected by the authorities. The court did not consider the merits of the case but unanimously dismissed it. Speaking through Mensa-Bonsu, JSC, the court said as follows;

“The plaintiff has failed to demonstrate that the jurisdiction of the Supreme Court has been properly invoked towards obtaining reliefs that could resolve issues for children who are the beneficiaries of the plaintiff’s concern. The constitutional provisions the plaintiff relies on to make its case are of doubtful utility. So also are the very many foreign cases which the plaintiff has cited. Although these may demonstrate the depth of research undertaken on the law of other jurisdictions, they do little to advance issues pertaining to the provisions raised by the plaintiff under the Constitution of Ghana. The plaintiff’s action is hereby dismissed.”

My Lords, I am of the firm opinion that to determine the plaintiff’s claim of unconstitutionality of section 16(2) of Act 591 on grounds other than those stated by the plaintiff himself would be for the court to construct a case for the parties that is at variance with their pleadings. No matter how popular it may sound for the court to locate a provision of the Constitution other than article 289(2) that may be inconsistent with section 16(2) of Act 591, such an approach would set a dangerous precedent that may come back to hunt the court in the future and I do not wish to be part of it. If we dismissed a case concerning the welfare of street children without delving into the merits, why should I make a case for a lawyer plaintiff who is represented by another lawyer and has sued on a matter that has not been shown to have occasioned any injustice.

In conclusion, I hereby strike out the suit for failing to properly invoke the original jurisdiction of the Supreme Court.

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

 

 

 

COUNSEL

 

BRIGHT OKYERE-ADJEKUM ESQ. FOR THE PLAINTIFF WITH HIM, HENRIETTA KONADU OWUSU DAPAAH.

GODFRED YEBOAH DAME (ATTORNEY GENERAL) FOR THE DEFENDANT WITH HIM, DIANA ASONABA DAPAAH (DEPUTY ATTORNEY GENERAL), CLARENCE KUWORNU (CHIEF STATE ATTORNEY) , PATRICIA DANSO ABBEAM (PRINCIPAL STATE ATTORNEY) & GEORGINA MENSAH BONSU (PRINCIPAL STATE ATTORNEY).