The 1992 Constitution of Ghana, especially its sections concerning the separation of powers among the executive, judiciary, and legislature, has faced significant challenges in the current era.
Repeatedly, these three branches of government – the executive, the judiciary, and the legislature – have clashed over governance matters, each asserting its authority as prescribed by the constitution.
Of particular interest is the tension between the judiciary and the legislature, often leaving Parliament in a precarious position.
Speaker of Parliament, Alban Bagbin, has frequently voiced frustrations over Supreme Court rulings that nullify certain parliamentary decisions.
Here are the four instances where the Supreme Court invalidated parliamentary decisions:
Exclusion of 1st and 2nd Ladies from Article 71 Benefits:
In a recent ruling, the Supreme Court declared that the spouses of the President and Vice President, known as the 1st and 2nd Ladies, are not entitled to benefits reserved for Article 71 officeholders, including ex-gratia payments.
This decision challenged Parliament-approved recommendations for these benefits, leading to legal action by various parties, including MPs and private citizens.
Striking Out Sections of the Companies Act 2019:
The Supreme Court, responding to a constitutional matter, invalidated specific sections of the Companies Act 2019, citing inconsistencies with the 1992 Constitution. The court’s decision came following a legal challenge by lawyer Derick Adu-Gyamfi, who argued that these sections violated constitutional principles such as fair hearing.
Invalidation of Parts of Parliament’s Standing Orders:
In March 2022, the Supreme Court struck down portions of Parliament’s Standing Orders, particularly Order 109(3), which addressed the voting rights of a deputy speaker or presiding member. This action stemmed from a legal challenge questioning the constitutionality of the passage of the 2022 budget statement, where the 1st Deputy Speaker counted himself as part of the quorum while presiding over the session.
Nullification of Sections of the Narcotic Control Commission Act 2020:
The Supreme Court, in a split decision, invalidated Section 43 of the Narcotic Control Commission Act 2020, which permitted the licensing of cannabis cultivation for industrial and medicinal purposes.
The court ruled that this section violated Article 106 of the 1992 Constitution, which outlines the legislative process. The lack of proper debate and transparency in introducing this section further underscored the unconstitutionality of the provision.
“The mode of introduction of Section 43 of Act 1019 violates the letter and spirit of the Constitution. Accordingly, Section 43 is hereby struck out as unconstitutional.
“The lack of debate on Section 43 of Act 1019 amounts to not only a direct violation of the letter of Article 106 of the Constitution, but also a violation of the spirit of the law.
“There was conspicuously, no debate over such a critical shift in policy by Parliament. Needless to say, this conduct and mode of law-making defeats the transparency and accountability enjoined by the Constitution,” graphic.com quoted the court as having said.