3.1  Period of outright emasculation of the judiciary by the executive

The first Republican period was one of total emasculation of the judiciary. The 1960 constitution vested the power to appoint judges of the Superior Courts in the president by instrument under the public seal.¹ The president could remove a judge in pursuance of a resolution of the National Assembly supported by the votes of not less than two-thirds of the members of parliament.² The strong control that the president had over parliament meant that he could effectively do as he wished. The executive indeed exercised overwhelming control over the judiciary particularly subsequent to the 1964 amendment of the 1960 constitution.

The immediate post-independence period was one of a rush to modernize and to elevate the country into the class of industrialized nations. President Nkrumah’s government declared a preference for the socialist principles of development that came with the consequence of emphasis on economic rather than on civil and political rights.That period was remarkable in the attitude adopted by the judiciary in matters relating to conflicts between the state and individuals in that there appeared to have developed a judicial attitude of deference to the state authority. The courts seemed to have formed the opinion that the system of democratic governance bequeathed at independence in the Ghana (Constitution) Order-in-Council, 1957 was one based on the principle that parliament had unlimited power to make laws. This attitude was clearly informed by the British historic principle of the supremacy of parliament according to which no court could declare an Act of Parliament unconstitutional.

It was in respect of the cases involving the Preventive Detention Act of 1957 (PDA) that this attitude was most apparent. The Act made it possible for the executive to arrest and detain any individual for up to five years without trial. In the case of Re Page Id: 227ReferencesConstitution of the Republic of Ghana (Ghana [gh])Pt.VI Law and Justice, Art.44(3)Pt.VI Law and Justice, Art.45(3)Constitution of the Republic of Ghana: April 28, 1992 (as Amended to December 16, 1996) (Ghana [gh]) OCW(p. 228) Dumoga³ for example, counsel for the detainees urged the Court not to apply the decision in the English case of Liversidge v Anderson⁴ since it dealt with a special situation relating to war-time regulations for the arrest and detention of persons suspected of being sympathizers with the enemy. Adumua-Bossman J took the contrary view, explaining that:

We are not at war; it is true but a fully sovereign parliament composed of representatives of the people duly elected by universal adult suffrage, of which learned counsel for the applicants in his political activities was one of the staunchest sponsors, had after due deliberation decided that conditions exist as to make it necessary for this rather drastic power to be conferred on the chief executive officer of the state to be by him exercised in his discretion and has accordingly made provision for it.

In these circumstances there can surely be little or no point in resorting to the court; and surely the course open to men of realistic outlook is to adopt and pursue a policy of constant approach and appeal to influential humanitarian parliamentarians to use their influence and good offices to procure possibly a reduction in the period of detention in some cases, or perhaps reconsideration from time to time of the question of the termination of the operation of the enabling Act.⁵

The Court did not see itself as a formidable bastion for the protection of the liberties of individuals; it was prepared instead to rely on the goodwill and humanitarian instincts of politicians to use their influence and good offices.

This attitude of deferring to parliamentary and executive superiority was manifested in a series of other cases that came before the courts; these include Balogun v Edusei,⁶ InRe Okine,⁷ Amponsah v Minister of Defence,⁸ Tsiboe v Kumasi Municipal Council,⁹ and subsequently Re Akoto.¹⁰ Amua-Sekyi JSC reflected the prevailing attitude of the judges, saying, ‘During this period of our history, the courts said that they were prevented by British constitutional conventions from making a stand for the observance of human rights norms’.¹¹ Obviously during that period the courts relinquished their inherent authority which was to provide protection to the individual against invasion by the state.The events that subsequently followed this judicial attitude of subservience came to serve as an example for a judiciary that kowtows unduly to the whim of the executive. In the case of State v Otchere¹² the High Court (Special Criminal Division) acquitted a number of individuals charged with an attempted assassination of the then President Kwame Nkrumah. Infuriated by the decision, President Nkrumah, by executive order—Special Criminal Division Instrument, 1963 (EI 161)—declared the decision null and void. A new bench was constituted which re-tried the accused persons, found them guilty, and condemned them to death. The sentences were however not carried out. Chief Justice Korsah, one of the judges who sat on the first hearing, was removed from office and with the amendment of the constitution in 1964, Page Id: 228ReferencesAmponsah v Minister of Defence, [1960] GLR 140, 6th June 1960, Ghana; Court of AppealBalogun v Edusei, (1957) 3 WALR 574, GhanaDumoga and 12 Others, Re, [1961] 1 GLR 44, GhanaGhana v Otchere, [1963] 2 GLR 463, Ghana; Supreme CourtLiversidge v Anderson, [1941] UKHL 1, [1942] AC 206, [1941] 3 All ER 338, 3rd November 1941, United Kingdom; House of Lords [UKHL]New Patriotic Party v Attorney General, [1993-1994] 2 GLR 35, Ghana; Supreme CourtOkine and 36 Others, Re, [1959] GLR 1, GhanaTsiboe v Kumasi Municipal Council, [1959] GLR 253, 6th June 1959, Ghana; High Court of Justice(p. 229) the other justices whose loyalty to the government was not seen to be absolute were also removed from office.

Without a doubt, the Supreme Court itself contributed to the evolution of the Nkrumah regime into a dictatorship. In the case of Re Akoto¹³ the judiciary failed to assert its authority to deepen the democratic attitude and the respect for the rule of law when it held that a number of basic human rights referred to in the 1960 constitution were non-justiciable and therefore not binding on the executive. With this decision the stage was set for the Nkrumah government to further annihilate the judiciary. The PDA facilitated a systematic persecution of opposition party members; anybody could be arrested and detained without trial at the whim of the executive. It became very dangerous to belong to an opposition party; the ruling CCP became the de facto political party. The 1960 constitution was amended in 1964 to inter alia transform the country into a one-party state with the CCP as the only legitimate political party for the country and also to confer powers on the president to appoint and remove judges at his pleasure.

More evidence of palpable executive disregard for the judiciary occurred in the case of Balogun v Edusei,¹⁴ where the applicants and three others were placed under detention pending their deportation. Their motion ex parte for habeas corpus was heard in court on the 20 October, the same date on which it was filed. The court ordered service of the motion on the Minister of the Interior and on the Acting Commissioner of Police and the date of hearing was fixed for 30 October. The first respondent, with full knowledge of the proceedings, but before the Court order could be drawn up and served upon him, removed the four applicants by plane to Nigeria on 21 October. The consequence was that when the writ of habeas corpus came before the Court on 30 October, the judge had no alternative but to simply dismiss the application. The respondents were therefore cited for contempt in respect of which Smith J said:

In the case before me, it is not a question of disobedience to a Court order, but it seems to me clear that with the knowledge which the first respondent possessed—that a Court order had been made, and was virtually on the way—there was an interference with the administration of the law, and interference with (or prejudice to) the parties litigant, who else could have given evidence during the litigation. I am of opinion that, for these reasons, the application in respect of the contempt must succeed.¹⁵

The case was subsequently adjourned in the hope that the respondents would purge the contempt. However, early in the morning of the next day when the hearing was due to take place, an Indemnity Act was quickly passed which sought to indemnify the two respondents from all penalties for contempt of court and exonerated them from all other liabilities in respect of any action taken by them in carrying out the deportation orders. Smith J, obviously not enthused with the turn of events castigated the executive as follows:

By the passing of this Act I take it that the Court’s finding that the respondents are in contempt is not challenged by Parliament, but that the intention is to neutralize any Page Id: 229ReferencesAkoto, Re, [1961] GLR (Pt II) 523, 28th August 1961, Ghana; Supreme CourtBalogun v Edusei, (1957) 3 WALR 574, Ghana(p. 230) consequential order that I might make. It is plain that Parliament prefers that the respondents should not apologise, and it has passed this Act in other to nullify any order which I might make in the absence of the apology. The courts of justice exist to fulfill, not to destroy the law, and it would not make sense for me to record an order which is incapable of being carried out.¹⁶

Smith J subsequently resigned his appointment and took up another appointment in East Africa.

During this period of outright emasculation, the judiciary operated under the shadows of the executive. That period ended with overthrow of President Nkrumah in a coup d’état on 24 February 1966.

3.2  Period of suspicion and minimal trust

The military government that replaced Nkrumah handed over power to a civilian administration under the 1969 constitution. This new constitution was formulated to prevent a recurrence of the dictatorship experienced under the Nkrumah regime. One of the main features of the 1969 constitution was the institutionalization of an independent judiciary that should be able to stand its ground in the face of executive intimidation.

The Constitutional Commission which drafted the 1969 constitution saw much wisdom in the words of Lord Hewart which it quoted in extenso that:

Every student of history knows that many of the most significant victories for freedom and justice have been won in the English Law Courts, and that the liberties of Englishmen are closely bound up with the complete independence of Judges. When for any reason or combination of reasons, it has happened that there has been lack of courage on the judicial bench, the enemies of equality before the law have succeeded, and the administration of the law has been brought into disrepute. In particular there have been, in the long course of English history, periods and occasions when the executive has endeavoured not entirely without success to control and prevent the course of judicial decisions.¹⁷

The Commission therefore reached the conclusion that:

[T]he law courts of Ghana shall be the custodian and bastion of the liberty and dignity of Ghanaians, the guardian of the Constitution; in short, the citadel of justice. The independence of the judges is an essential prerequisite to the attainment of this objective and it can be achieved only under certain accepted conditions.¹⁸

The accepted conditions identified include the elimination of executive interference in matters relating to the actual adjudication of disputes before the courts and also the Page Id: 230ReferencesConstitution of the Republic of Ghana (Ghana [gh])(p. 231) avoidance of situations that place the executive in a position as would make it or ‘offer’ it the temptation to exert any pressures, however subtly, on the judiciary.¹⁹

The Commission accepted the general proposition that separation of powers as between executive and legislative arms of government cannot be rigid; however it rejected any such assertion in respect of the relationship between the executive and the legislature on one hand and the judiciary on the other hand. The Commission was of the opinion that by the nature of its functions, the judiciary is more ‘amenable to a separate existence’.²⁰ It was therefore the considered opinion of the Commission that the appointment and removal of judges and their conditions of appointment and removal shall be such as to guarantee their security of tenure. It shall also be such as to ensure that ‘the executive and its agencies including the Civil Service shall have no vestige of control over the administrative process of the judiciary’.²¹

The subsequent 1969 constitution therefore firmly guaranteed the separation of the executive from the judiciary but with some connection in terms of appointment without necessarily compromising the functional independence of the judges. Article 102 of the 1969 constitution provided, for example, that:

The judicial power of Ghana shall be vested in the Judiciary of which the Chief Justice shall be the Head; and accordingly no organ or agency of the executive shall be given any final judicial power.

For the first time, the power of judicial review was expressly entrenched in the constitution together with elaborate provisions on the independence of the judiciary.²² It was on the basis of this background that the Court of Appeal, in the case of Sallah v Attorney-General²³ declared unlawful the action of the executive to terminate the appointment of a number of civil servants. The then prime minister was not very happy with the decision but unfortunately for the government there was no option of an appeal because the Court of Appeal was at the time sitting as the Supreme Court and therefore its decision was final. Out of frustration the prime minister went on radio to rant that ‘no court can enforce any decision that seeks to compel the government to employ or re-employ anyone. That would be a futile exercise. I wish to make that perfectly clear.’²⁴

This approach was in sharp contrast to the position under Nkrumah where any dissatisfaction with the judiciary could have led to outright dismissal of the judges as was the case in State v Otchere.²⁵ The protection afforded the judiciary by the 1969 constitution could not have permitted the executive to behave as former President Nkrumah did. This nevertheless generated an atmosphere of suspicion between the executive and the judiciary, and for the prime minister who had sworn to protect the constitution to come out openly to denounce and refuse to be bound by the decision of the Court was worrying.

Page Id: 231ReferencesConstitution of the Republic of Ghana (Ghana [gh])Art.102Ghana v Otchere, [1963] 2 GLR 463, Ghana; Supreme CourtSallah v Attorney General of Ghana, (1970) 2 G & G (2d) 1319, Ghana; Supreme Court(p. 232) It was therefore precisely for the purpose of protecting the integrity of the judiciary from threats such as that of Prime Minister Busia that the 1992 constitution now contains article 2 granting to any person who alleges that an enactment or anything done thereunder or an omission of any person is inconsistent with or in contravention of the provisions of the constitution, the right to bring an action in the Supreme Court for a declaration to that effect.²⁶ Article 2 further declares that failure to obey or carry out the terms of an order or direction made by the Supreme Court pursuant to the said action will constitute a high crime which, in the case of the president or vice-president, constitutes a ground for removal from office.²⁷ This provides a bulwark against executive lawlessness which may result in disrespect for the authority of the judiciary.

3.3  Mutual toleration

Ghana experienced a number of military regimes since the first coup d’état of 1966. Almost invariably the military governments suspended the existing constitution and governed according to decrees that they enacted from time to time and which they changed at will. Under military administrations whatever protection that the previous constitutions conferred were brushed aside with the abrogation of the particular constitution. Judges could be dismissed at will as happened under the rule of the Provisional National Defence Council (PNDC).

Rather interestingly however, the courts developed a protectionist attitude in favour of the citizenry even under the military regimes, perhaps out of their appreciation of the fact of the dearth of democratic institutions and being the only permitted institution existing after the military take over. The courts consistently showed their tenacity to deliver judgments that often questioned the assumed absolute authority of the military administrations.The cases of Ex parte Bannerman, Ex parte Salifa, and Shallabi and another v Attorney-General and others²⁸ provide ample examples of the ability of the courts to challenge the authority of the military.

In Ex parte Bannerman²⁹ for example, the High Court by certiorari quashed the purported dismissal of Mr Bannerman for the reason that the NLC (a military government) failed to take the proper steps to comply with the procedure specified in its own decree.

Again in Ex parte Salifa³⁰ the High Court refused to recognize a purported decree of the NLC for its failure to satisfy the specified conditions for the promulgation of a decree as prescribed by the NLC’s own proclamation. The High Court therefore refused to uphold the detention of Mr Salifa. In the subsequent case of Ex parte Salifa (2)³¹ the Court upheld the detention after the state followed the proper procedure to promulgate the decree justifying his detention.

In the Shallabi case, the NLC (the military government which replaced the Nkrumah regime) promulgated a decree, NLCD 191 in 1967, according to which citizenship was conferred on the plaintiffs. In 1969 the same NLC by NLCD 333 amended Decree No 191 to divest the plaintiffs of the citizenship already conferred by NLCD 191. The Page Id: 232ReferencesConstitution of the Republic of Ghana: April 28, 1992 (as Amended to December 16, 1996) (Ghana [gh])Main Text, Chapter 1 The Constitution, Art.2 Enforcement of the constitution, (1) OCWMain Text, Chapter 1 The Constitution, Art.2 Enforcement of the constitution, (4) OCWEx parte Salifa (No 2), Ghana v Director of Special Branch, ex parte Salifa, (1968) 2 G & G 378, GhanaGhana v Chairman, Commission of Enquiry, State Fishing Corporation, ex parte Bannerman, (1967) 2 G & G 293, (1967) CC 124, GhanaGhana v Director of Prisons, ex parte Salifa, (1968) 2 G & G 374, Ghana(p. 233) NLCD 333 was deemed to have come into force on 25 July 1967 which was the same date as the coming into force of NLCD 191. NLCD 333 was actually made on 15 February 1969 and gazetted on 21 February 1969. Justice Hayfron-Benjamin, while acknowledging the superior authority of the NLC military government to legislate to cover any circumstance, was however clear in his holding that:

It is naturally impossible for the National Liberation Council to have amended NLCD 191 by NLCD 333 unless NLCD 191 was in existence before NLCD 333. No one, however mighty and omnipotent, can substitute one thing for a thing that has never existed. It is clear therefore that whatever interpretation is placed on these decrees, the inescapable result is that NLCD 191 was in existence and came into force before NLCD 333 and that the plaintiff acquired citizenship rights under NLCD 191. The latter decree not having specifically diverted those who acquired citizenship of their rights, it is clear that they continue to enjoy these rights, unless the same has been specifically removed by subsequent legislation.³²

The Court therefore upheld the right to citizenship of the plaintiffs.

In these and other such cases there was a clear determination on the part of the judiciary to hold the executive to its own terms and thereby provided some protection to the individual even under military regimes that were noted for their arbitrariness.

3.4  Self-assertion of the judiciary

The 1992 constitution protects the judiciary from executive and legislative interference. The constitution creates the judiciary as ‘independent and subject only to this Constitution’.³³ More particularly the judicial power of Ghana vests in the judiciary and ‘neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power’.³⁴ The experiences of the judiciary under the PNDC military administration created a sense of self-assertion when the political climate changed under the 1992 constitution with the same crop of PNDC operatives now wearing the garb of democratic leaders. The judiciary was now able to take umbrage under the constitutional provisions that guaranteed its independence. Under the 1992 constitution the judiciary, like a bird out of a cage, was ready to fly to assert its freedom. This was manifested in two politically charged decisions, namely New Patriotic Party v Attorney-General³⁵ and National Patriotic Party v Inspector General of Police.³⁶

In the case of New Patriotic Party v Attorney-General³⁷ (31 December case) the Supreme Court was presented with the opportunity to establish its relationship with the executive. The facts of the case were that on 31 December 1981 Flight Lieutenant Jerry John Rawlings led a military revolt that overthrew the constitutionally elected government of Dr Hilla Limann. The Limann administration was replaced by a military government headed by Rawlings. In 1989 the Public Holidays Law, 1989 Page Id: 233ReferencesConstitution of the Republic of Ghana: April 28, 1992 (as Amended to December 16, 1996) (Ghana [gh])Main Text, Chapter 11 The Judiciary, General, Art.125 The judicial power of Ghana, (1) OCWMain Text, Chapter 11 The Judiciary, General, Art.125 The judicial power of Ghana, (3) OCWNew Patriotic Party v Inspector General of Police, 2 G & G 2097, Ghana(p. 234) (PNDCL 220) was promulgated making the events of 31 December 1981 an annual anniversary. The Rawlings military administration remained in power until 1993 when an election conducted under the new 1992 constitution was won by Rawlings who then became president under that constitution. During the course of the year and pursuant to the Holidays Law, 1989 (PNDCL 220) the government notified the public of its programme to celebrate the anniversary of the 31 December 1981 revolution. The plaintiff, a registered political party issued a writ invoking the original jurisdiction of the Supreme Court seeking the following redress:

(1) A declaration that the public celebration of the overthrow of the legally constituted Government of Ghana on 31 December 1981, and the financing of such celebration from public funds is inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 and more particularly articles 3(3), (4), (5), (6) and (7) and 35(1) and 41(b) thereof.

An important aspect of the defendant’s argument was that the case was a political one and ought not to be entertained by the Supreme Court. The majority decision however rejected that assertion. In the view of Adade JSC:

It would seem that even in the United States the doctrine of political question does not apply to the United States Supreme Court, the ultimate interpreter of our Constitution, 1992. In any case, by Articles 1 and 2 of the Constitution, 1992, that doctrine cannot have any application to us here in Ghana. With us, issues of constitutional interpretation are justiciable only by the Supreme Court and not by any other court … ³⁸

Taking this position, the Supreme Court could be seen as asserting to the fullest its authority under the constitution and thereby serving the executive the clear notice that its actions would be subjected to the highest degree of scrutiny.

It is instructive to note that the Supreme Court still considered the previous overthrow of the constitution as illegal and this was why the 1992 constitution’s transitional provisions sought to grant indemnities to all those who had participated in the overthrow of previous constitutions. The constitution sought to exorcise the spectre of the military coup d’état from the Ghanaian political landscape and therefore provided in article 3(3), (4) that:

1. (3)  Any person who—

   1. (a)  by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

   2. (b)  aids and abets in any manner any person referred to in paragraph (a) of this clause; commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

2. (4)  All citizens of Ghana shall have the right and duty at all times—

   1. (p. 235) (a)  to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

   2. (b)  to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

This provision was in response to the people’s exasperation with the frequency of military interventions in the administration of the country and their abhorrence of military coups d’état. Having rejected the defence argument which was based on the doctrine of political question, the issue of declaration of a public holiday became a constitutional matter that the Court felt able to examine in terms of the provisions of the 1992 constitution. Chief Justice Archer produced a minority decision in which he took the stance that the declaration of public holidays has always been within the exclusive domain of either the legislature or the executive and therefore that: ‘This court should not behave like an octopus stretching its eight tentacles here and there to grasp such jurisdiction not constitutionally meant for it’.³⁹ In his view, to hold otherwise would run counter to the concept of separation of powers as embedded in the constitution. However, in the view of the majority of the Court the celebration of an event which is in principle prohibited by the constitution would run contrary to the spirit of the constitution. In the words of Adade JSC:

Article 3(4) (a) of the Constitution, 1992 confers a right, and both articles 3(3)(a) and 41(b) of the Constitution, 1992 impose a duty on all Ghanaians to defend the Constitution, 1992. The celebration of 31 December with carnivals, route marches, etc having a tendency to glorify the coup d’état of 31 December will weaken the people’s resolve to enforce this right, or perform this duty, ie their resolve to frown upon, and or reject coups, a result which will have the effect of undermining and subverting the Constitution, 1992. It is an insidious and surreptitious way of undermining the Constitution, 1992. The celebration may not be a violent means of subverting the Constitution, 1992; but surely it is an unlawful means under article 3(3) (a) of the Constitution, 1992, if only because its result is a subversion of the Constitution, 1992.⁴⁰

Francoise JSC put it more poignantly thus:

An event that has earned its architects an indemnity under section 34 of the Transitional Provisions of the Constitution, 1992, must, as observed before, be consigned to the grave with the solemn quietus intoned by the said section. The Constitution, 1992 reminds us that three such events in the past are to be buried with the indemnity of a pardon. Their ghosts should not linger around like phantom wraiths dispensing mischief with reckless abandon.⁴¹

That was an epitome of the degree of boldness with which the judiciary proceeded to deal with the attempt to glorify the incidence of military interventions in the governance of the country.

Page Id: 235ReferencesConstitution of the Republic of Ghana: April 28, 1992 (as Amended to December 16, 1996) (Ghana [gh])Main Text, Chapter 1 The Constitution, Art.3 Defence of the constitution, (3), (a) OCWMain Text, Chapter 1 The Constitution, Art.3 Defence of the constitution, (4), (a) OCWMain Text, Chapter 6 The Directive Principles of State Policy, Art.41 Duties of a citizen, (b) OCW(p. 236) Abban JSC, dissenting, thought that it was within the province of the executive and legislature to declare public holidays of any kind and that it was improper for the judiciary to determine the legality or illegality of such declarations. In his words:

[F]rom the history of public holidays as I have tried to set out supra, it must be clear to any unbiased mind that the choosing or selecting of a day to be designated as a public holiday has always been a political decision for the executive and the legislature. The Sovereignty of Ghana resides in the people as provided in article 1(1) of the Constitution, 1992. So it is for the people of Ghana acting through their elected representatives in Parliament who in conjunction with the executive, ought to decide which days out of the 365 days in a year should be designated public holidays and not for the judiciary to undertake that exercise.⁴²

The significance of this decision was that the judiciary felt able to confront the Rawlings administration. This was an administration that used to hold absolute sway under the PNDC government but which was now constrained by the principles of constitutionalism embedded in the 1992 constitution, according to which the civilian administration headed by President Rawlings was now obliged to operate. The majority of the Bench felt able to assert itself based on the strength of the constitutional provisions of the 1992 constitution and of course, reading between the lines, its own determination and a recognition of its position as the protector of the democratic principles inherent in the constitution.

The government had no choice but to respect that decision, for failure to do so could fall foul of article 3 of the 1992 constitution which created an offence of high treason for the failure of the president or vice-president to respect decisions of the Supreme Court.

In the other classic case of National Patriotic Party v Inspector General of Police⁴³ (NPP v IGP) otherwise known as the Public Order Case the Supreme Court felt bold enough to declare as unconstitutional the Public Order Decree that had served the previous PNDC military government by requiring the permission of the police before any public assembly or procession could be organized. The facts of NPP v IGP were that prior to the change to democratic governance under the 1992 constitution, the Public Order Decree, 1972 (NRCD 68), passed by the PNDC military government, required a permit from the police as a precondition for the organization and conduct of public processions and peaceful demonstrations. Section 8 of the Public Order Decree, 1972 (NRCD 68) provides as follows:

(1) Any person who intends

1. a.  To hold or form any meeting or procession; or

2. b.  To celebrate any traditional custom in any public place shall first apply to a superior police officer for permission to do so.

   (4) Where an officer refuses to grant a permit under this section he shall inform the applicant in writing of the reasons for his refusal.

Page Id: 236ReferencesNew Patriotic Party v Inspector General of Police, 2 G & G 2097, Ghana(p. 237) The NPP, an opposition political party, applied for a permit on two occasions to organize public rallies; in terms of the plaintiffs’ complaint, on each occasion the permit was granted but in the first case, it was withdrawn and the rally prohibited just the day before it was due to take place, while in the second case the police withdrew the permit on the very day that the rally was scheduled to be held. The plaintiffs argued before the Supreme Court that the Public Order Decree 1972 (NRCD 68) was inconsistent with the 1992 constitution which provides in article 21(1)(d) as follows:

21(1) All persons shall have the right to

(d) Freedom of assembly including freedom to take part in processions and demonstrations …

The Supreme Court came to the unanimous conclusion that the requirement of a permit or licence as a prerequisite for the enjoyment of the right to freedom of assembly was unconstitutional and therefore that sections 7, 8, 12(a), and 13 of NRCD 68 were inconsistent with article 21(1)(d) of the 1992 constitution.

In these cases the impact of the judiciary was very much felt and respected. In the 1993 case of National Patriotic Party v Inspector General of Police⁴⁴ Amua-Sekyi JSC set out the new attitude as follows:

It was to rescue us from such an abyss of despair that on three successive occasions, in 1969, 1979 and 1992, elaborate provisions on fundamental human rights have been set out in our constitutions and the courts given clear and unequivocal power to enforce them. The constitution, 1992 is now the supreme law of the land, and any enactment or executive order inconsistent with it is null and void.⁴⁵

This represents the new attitude which can be seen in decisions such as the 31 December case and NPP v IGP. These cases were decided by a judiciary that is confident enough to pronounce on the unconstitutionality of actions of a government whose personnel had operated in a completely unchecked manner only a year previously under the PNDC military administration. Now under the threat of impeachment, the Rawlings administration had no choice but to respect the decision of the Supreme Court.