Constitutional Law II

JUDICIAL REMEDIES

JUDICIAL review in its most comprehensive sense includes the power of the judiciary to invalidate legislation as
unconstitutional and to control the legality of administrative action.

The power of the Ghanaian judiciary to strike down legislation as unconstitutional was introduced into Ghana by the
Independence Constitution and was re-affirmed by the two Republican Constitutions of 1960 and 1969.

Power of the judiciary to review administrative action is derived from the premise that there are legal (mainly statutory)
limits on the powers of the administration, and that the courts, as the principal set of institutions concerned with legality, not
only have authority, but indeed are under a duty, to enforce those limits.

The law of remedies is first and foremost judge-made law. The number of cases in the field of the law of remedies is limited
and to a large extent concerned with chieftaincy disputes. According to Dankwa & Flinterman, there are relatively low
numbers of cases of judicial review of administrative action in Ghana because of the persisting high degree of ignorance;
citizens are not aware of their rights so that in cases in which they are victims of illegal administrative action they simply do
not think about bringing their case to a court of law. It might also be that people feel that starting an action against a
government body might tempt such a body whose act is challenged to “penalise” the citizen who dared to bring the action.
Also the sheer expense of a legal action might deter the citizen from claiming his legal right; the tremendous complexity of
the law of remedies functions as a large stumbling block which prevents an aggrieved citizen from applying for and
receiving redress.

Problems with the Prerogative Order

• If one chooses the wrong remedy, the case will be dismissed.

• If the aggrieved citizen wishes to apply for a prerogative order, he first has to apply for leave which the High Court in
its discretion may either grant or refuse
• there is a relatively short time-limit within which an application for one of the prerogative orders must be brought (6
months according to Order 55 of C.I. 47); the equitable remedies of injunction and declaration however are subject to
the ordinary statutory limitations
• being discretionary remedies, they are completely within the court's discretion to refuse or to grant
• certiorari and prohibition will lie only against so-called judicial or quasi-judicial acts and not private acts – Rep v High
Court Ex P IFDC [action against HC iro a ruling which allowed a non-shareholder of a defaulting company to be
appointed the sole signatory to the accounts of the defaulting company, Ghana Emulsion Co. Ltd, by an oral
application without notice to the shareholders. Shareholders claim breach of rules of natural justice and since the
person granted the power was not a shareholder, the order a nullity. Application for certiorari to quash decision of
HC]
• all available remedies should have been exhausted in order for a prerogative order to be granted but in Rep v Chief
Inspector of Mines Ex P Kesse it was held that if a remedy within the administration theoretically exists but the court
thinks that the body from whom that remedy is sought has such an interest in the case as to make it difficult for it to
give the matter impartial consideration, there will not be insistence on the applicant exhausting that remedy.

When a prerogative order will be issued

• when a party acts ultra vires, typically against procedure which has been laid down by statute
• when the objection is taken timeously

Certiorari & Prohibition

Certiorari Prohibition
It’s a prerogative order which lies to restrain an inferior tribunal or It’s a prerogative order which lies to restrain an inferior tribunal or
statutory body in the exercise of its powers. statutory body in the exercise of its powers

It lies to quash a decision made by a governmental body or quasi- It lies to restrain statutory bodies and tribunals and authorities
judicial body or tribunal, and thus looks to the past i.e. it reverses the exercising judicial or quasi-judicial functions from acting illegally in
legal effects of acts that have been done already. the future

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Ex P Barimah – where a member of a committee enquiring into a
destoolment matter was alleged to have been disqualified by bias,
certiorari would have been granted if the evidence had shown a "real
likelihood of bias." The evidence, however, although giving ground
for a reasonable suspicion of bias, did not meet the real likelihood
test
Rep v Ada Traditional Council Ex P Nene Okunno - prohibition to
prevent the respondents from hearing the destoolment charges,
arguing that the Chieftaincy (Destoolment Proceedings)
Regulations, 1963 (L.I. 309) had not been observed. The court, in
granting the application, pointed to the fact that the requirement that
the list of elders to enquire into the existence of a prima facie case
for destoolment be sent to the Minister had not been complied with.
It was therefore impossible to say whether the body which was
alleged to have made preliminary investigations had a quorum.
Besides, it was doubtful that the body of elders had made a
preliminary investigation. The respondent council therefore had no
jurisdiction to proceed with the case

Per the HL in Anisminic, the order will be given in the following

cases
- where the body against which it is issued has acted without
jurisdiction – Ahenkora v Ofe [the committee of enquiry acted
within jurisdiction, finding that previous stool occupant should
be re-enstooled is within jurisdiction, order for certiorari
refused]
- where the body acted in excess of jurisdiction
- where the it acted within jurisdiction but based on an error of
law on the face of the ruling
-
It lies only against judicial or quasi-judicial acts and not against It lies only against judicial or quasi-judicial acts and not against
purely administrative acts where discretion is required. purely administrative acts.
Re: Ridge v Baldwin
In Ridge v. Baldwin it was however held that wherever there is legal
authority to determine questions affecting the rights of individuals, in Per Dankwa and Flinterman, the artificial distinction between
other words wherever there is a power to make a decision or order, judicial and purely administrative acts continues to be made in court
there is also a duty to act judicially. decisions, so that the state of the law is unclear and the citizen is not
certain whether the government action which he is challenging will
be held to be judicial so that the prerogative orders will lie, or
administrative in which case the orders will not lie.

The application must be brought within 6 months of the making of There is no time limit within which to bring an application
the decision which the plaintiff is seeking to quash
- Ex P Nii Amar [order refused because of delay of over 15
years was unreasonable, inexcusable and not bona fide]

Leave to initiate proceedings is required – Ex P Kusada [Kumasi Leave to initiate proceedings is required
zongo stool dispute. Applicant didn’t seek leave to get an extension
of time as he was out of time]

Application for leave must be made ex parte, accompanied by a Application for leave must be made ex parte, accompanied by a
statement setting out the name and description of the applicant, the statement setting out the name and description of the applicant, the
relief sought, the grounds on which it is sought, and by affidavits relief sought, the grounds on which it is sought, and by affidavits
verifying the facts relied on verifying the facts relied on

The applicant should have sufficient personal interest in the subject- The applicant should have sufficient personal interest in the subject-
matter in order to bring an application matter in order to bring an application

Certiorari has been granted on various grounds

- to quash a decision of a lower court on the basis of an error of law on face of the record – Ex P CHRAJ (Kwame
Addo) [where the HC has made a non-jurisdictional error of law which was not patent on the face of the record,
the avenue for redress open to an aggrieved party was an appeal, not judicial review. Therefore certiorari will not
lie to quash errors of law which were not patent on the face of the record and which had been made by a superior
court judge who was properly seised of the matter before him/her. Consequently, an error of law made by the HC
or CA would not be regarded as taking the judge outside the court’s jurisdiction, unless the court had acted ultra
vires the constitution or an express statutory restriction validly imposed on it
]

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- where it appeared that a commission of enquiry had violated the rules of natural justice – Ex P CHRAJ (Kwame
Addo) [CHRAJ conducted investigations into allegations on radio about interested party and made findings which
claimed that the interested party was guilty of misconduct without giving him a hearing. HC found that CHRAJ
had acted ultra vires and against the rules of natural justice and had a case to answer. CHRAJ applied to SC for
prohibition to prevent the court from delivering its judgment on grounds of want or excess of jurisdiction on the
part of the HC. Application dismissed]; Ridge v Baldwin [P appointed chief constable of a borough police force.
He was dismissed by his Watch Committee without being given an opportunity to be heard. Held; dismissal was
illegal, ultra vires and thus void. Order granted to quash decision of the committee]

- to quash decisions which were held to be in excess of the powers granted to the government body concerned –
Anisminic v Foreign Compensation Office; Ex Parte Bannerman [iro of suspension of marketing manager of SFC
where the commission’s mandate was to enquire into the management and other activities of the SFC, held; the
commission had acted ultra vires their jurisdiction. application for certiorari and prohibition granted]

When the High Court quashes a decision of an inferior tribunal on certiorari, it may be doing either of two things;

- If the decision of the inferior tribunal was given without jurisdiction or in excess of jurisdiction, the quashing is
merely a formal recording of what is already the position, namely, that the decision is a nullity
- Where a decision is quashed for error of law within jurisdiction it remains a good decision until it is quashed

When the HC is acting within its jurisdiction, its erroneous decision is normally corrected on appeal whether the error is one
of fact or law.

Prohibition has been used to restrain a government body from breaching the rules of natural justice by not granting a hearing
to the plaintiff; to restrain a government body from exceeding its powers

A person may apply for both certiorari and prohibition – Rep v Chairman, Commission of Enquiry (SFC); Ex P Bannerman
[both orders to quash decision to dismiss him and to restrain commission from interfering in any manner with the
performance of his duties due to want of jurisdiction. order granted]

Mandamus

- It lies from the High Court to compel negligent or recalcitrant public officers or inferior courts to perform duties
imposed upon them by law
- It is a public law remedy
- the party who applies for mandamus must show that he has sufficient interest to be protected and that there is no
other equally convenient remedy; once this is shown the remedy of mandamus is available
- for mandamus to lie;
o the duty to be compelled must be of a public nature
o it does not lie to compel a public official to exercise discretionary powers one way or another
o it will only lie if the applicant has demanded that the public duty should be exercised and the authority
concerned has refused to comply
o there must be no alternative remedies available to plaintiff which are equally beneficial
- Mandamus cannot be granted against the Republic [s13 State Proceedings Act, 1998 (Act 555)]and neither will it
lie if the order will prove to be ineffective
- although mandamus is not issuable against the state it can issue against officials of the state who have defaulted in
the performance of their public duties – Rep v Chieftaincy Secretariat Ex P Adansi Traditional Council
[application for an order of mandamus directed to the Chieftaincy Secretariat and the Commissioner responsible
for Chieftaincy Affairs to recognise or withdraw recognition of the two chiefs destooled by the TC]; Mould v de
Vine [order for mandamus to compel the waterworks company to supply water to a private house. Supply had been
cut off pending arrears of water bill racked up by previous occupant. P contended that arrears were a debt due
from the previous occupier, which the department could recover through a civil suit, and that she was entitled to
have the house reconnected. Held waterworks has a duty to supply water and can’t use the fact of de Vine’s
indebtedness as an excuse to refuse to connect for the applicant. Order granted]
- it is a discretionary remedy and might therefore be refused by a judge on any other ground, such as the conduct of
the plaintiff

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Quo Warranto

- it lies to challenge the authority of somebody to hold a public office – Ghann v Tamakloe [application for an injunction
the nature of quo warranto to restrain the appointed Chairman of the Ashanti Interim Regional Assembly from acting in
that office because he was not an MP as required by law. Application granted]
- for the writ of quo warranto to be issued;
o The office challenged must be of a public nature Ex P Adu Gyamfi [held that office of chief is of a public
nature thus application granted but since appointment of a chief is customary and not statutory, appears
Hayfron-B made a mistake]; Ghann v Tamakloe [supra]
o it must be a substantive office, i.e. an office not held at the pleasure of others; and
o the duties belonging to that office must be of a public nature

Declaration

- A declaratory judgment declares and defines the legal relationship between parties or pronounces on the state of the law
without more
- It is a “non-biting” order in the sense that it is not enforceable. An application for declaration is, therefore, most often
joined with an application for injunction so as to give force to a declaratory judgment [in Sallah v AG, the declaration
that Sallah’s dismissal was in violation of the constitution was not followed by his re-instatement]
- it lies to test the legality of all kinds of actions both of a regulatory and administrative character
- Proceedings for a declaration as well as for an injunction may be begun either by writ or originating summons – Awuni
v WAEC.
- No leave is required
- Subject to ordinary time limitations

Injunction

- Rooted in private law

- It’s an order requiring some person to refrain from breaking the law
- The order can be either of a negative (prohibitory) or positive (mandatory) character
- The order can be either interim or permanent
- Interim injunction:
o An interim injunction will be granted to arrest the execution or the consequences of an act or omission which
is the subject-matter of litigation not yet completed
o an interim injunction will not issue where there was “no proof of imminent threat of invasion of the legal
rights or proof of an intention to violate legal rights
o The purpose of an interim injunction is the preservation of the status quo ante.
o The application for an interim injunction will also be refused if the granting of the application would cause
greater hardship than the refusal of it
- Permanent injunction
o granted after a judicial decision has established that an act or omission is unlawful and that the complainant is
entitled in law to be free from the consequences of such act or omission
o If there is an equally good remedy available, the court in its discretion will strike out the application
- The remedy of injunction does not lie against the Republic or against servants of the Republic if the effect would be to
restrain the State in a way which would otherwise not be open to the applicant - Akuffo-Addo v Quarshie-Idun [an
injunction can’t be issued against the CJ, a ‘servant of the republic’ in the exercise of his duty to ensure lawyers don’t
breach the law in respect of tax clearance before they can appear in court] ; PPP v AG [s13 of Act 51 prevents the
court from granting an injunction against the police but the court instead granted a declaration]
- Subject to ordinary time limitations in NRCD 54

OUSTER CLAUSES

There are two types of ouster clauses:

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1. Ouster clauses which only confer exclusive jurisdiction on an inferior tribunal or body of persons [partial ouster
clause per Kom] e.g. Chieftaincy Act, 1971 (Act 370) on the judicial committee of a regional house of chiefs and a
traditional council in chieftaincy matters
• certiorari will lie on the grounds of:
i. excess of jurisdiction
ii. want or lack of jurisdiction
iii. breach of rules of natural justice
iv. error of law on the face of the record

2. Ouster clauses which confer exclusive jurisdiction and in addition prohibit the High Court from exercising its
supervisory jurisdiction and taking away the right of appeal. [Complete ouster clause per Kom]
• Certiorari lies to quash a judgment, order or ruling where there is non-jurisdictional error of law on the
face of the record

The decision of the HL in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 shows that, when words
in a statute oust the power of the High Court to review decisions of an inferior tribunal by certiorari, they must be construed
strictly ‘and that they will not have the effect of ousting that power if the inferior tribunal has acted without jurisdiction or if
it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity': per
Lord Reid at p. 171. But if the inferior tribunal has merely made an error of law which does not affect its jurisdiction, and if
its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective

Where the supervisory jurisdiction of the superior courts has been expressly taken away by statute, courts in other
jurisdictions have relied on a few techniques and propositions to render such privative clauses almost meaningless or at least
considerably reduced in effect.

Kumado is of the view that there are certain circumstance when an ouster clause may be held inoperative to bar the
prerogative orders such as in the Subversion (Amendment) (No. 2) Decree, 1973 (N.R.C.D 191where the courts were
excluded from the review of the decisions of a military tribunal established under section 4 of the Subversion Decree, 1972
(N.R.C.D. 90).

• Resort to restrictive rules of interpretation for the purposive interpretation of the privative clauses to the end that
the whole legal order may remain coherent; so determined have the courts been in the use of this technique that
where a privative clause is capable of two meanings, the courts have relied on the meaning that allows review. It’s
been proposed that the legislature could not have intended a tribunal of limited jurisdiction to be permitted to
exceed its authority without the possibility of direct correction by a superior court. Consequently, certiorari,
prohibition and the other remedies have been held to lie where the inferior tribunal was improperly constituted,
lacked, exceeded or declined jurisdiction
• Kumado recommends that our courts should hold ouster clauses to be inoperative in every kind of case where the
error can be said to go to jurisdiction as done by the English courts.
• Where an inferior tribunal refuses to hear evidence or permit it being elicited by cross-examination it amounts to
declining jurisdiction and privative clauses are held not to bar review in such cases
• Privitive clauses could be disregarded when there is a breach of the rules of natural justice as this will deprive the
tribunal jurisdiction to proceed.
• A decision tainted by fraud is reviewable. Kumado humbly submitted that our superior courts must hold
themselves as having jurisdiction to review the decisions of the military tribunals established under the Subversion
Decree, 1972 (N.R.C.D. 90), if proved that such a decision is tainted by fraud and the Subversion (Amendment)
(No. 2) Decree, 1973 (N.R.C.D. 191), must be considered as inoperative with respect to decisions which though
within jurisdiction have been obtained by fraud or through collusion.

Statute Provision

Art 2 The SC for the purposes of a declaration shall 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

Art 23 Administrative bodies and officials are required to act fairly and comply with requirements
imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall

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have the right to seek redress before a court or other tribunal

Art 33(1) Where a person alleges that his fundamental human rights and freedoms have been, are being or
are likely to be violated, he may apply to the HC for redress

Art 33(2) The HC may issue such orders including those in the nature of habeas corpus, certiorari,
mandamus, prohibition and quo warranto as it may consider appropriate for the purpose of
enforcing provisions on fundamental human rights of the interested party

Art 132 The SC has supervisory jurisdiction over all courts and over any adjudicating authority and may
issue orders and directions for the purpose of enforcing its supervisory power

Art 133 The SC has power to review its own decisions and when doing this shall be constituted by not
less than 7 JJSC

Art 140(1) HC has original jurisdiction in all civil and criminal matters and such original, appellate and
other jurisdiction as may be conferred by the SC

Art 140(2) The HC has original jurisdiction to enforce fundamental human rights issues guaranteed under
the constitution

Art 141 HC has supervisory jurisdiction over all lower courts and any lower adjudicating authority and
may issue orders and directions for the purpose of enforcing or securing the enforcement of its
supervisory powers

S13, State Proceedings In any civil proceedings by or against the State, the court shall, subject to this Act, have power
Act, 1998 (Act 555) to make such orders as it has power to make in proceedings between private persons and may
give such relief as the case may require
Order 55, CI 47 Provides for procedure on how to apply for mandamus, certiorari, prohibition, quo warranto and
injunction

Order 56, CI 47 Provides for procedure iro of habeas corpus

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CITIZENSHIP

Every person who on the coming into force of the constitution 1992 was a citizen of Ghana by Art 6(1)
law shall continue to be a citizen S1, Citizenship Act, 2000 (Act 591)

Citizenship by Birth
S3, Act 591
6th March ‘57
• A person born before 6th March ’57 is a citizen by birth if
o He was born in Ghana and one parent or grandparent was born in Ghana
o He was born outside Ghana and one of his parents was born in Ghana
6th March ’57 – 22nd Aug ‘69 S4(1), Act 591
• A person born on or after 6th March ’57 but before 22nd August 69 is a citizen by birth if
o He was born in or outside Ghana and either of his parents + one grandparent/
great grandparent was born in Ghana
o He was born in Ghana and neither of his parents were born in Ghana but one
grandparent was born in Ghana S4(2), Act 591
• A person isn’t a citizen in this case if at the time of birth the parent or grandparent
through whom s/he’s claiming citizenship had lost his Ghanaian citizenship S4(3), Act 591
• A person born on or after 6th March ’57 but before 22nd August ’69 is a citizen by birth if
o He was born in Ghana and one parent was Ghanaian by registration or
naturalisation
o He was born outside Ghana and both parents were Ghanaian by registration or
naturalisation
22nd Aug ’69 – 24th Sep ‘79 S5, Act 591
• Born in or outside Ghana on or after 22nd Aug ’69 but before 24th Sept ’79 and at the date
of his birth either of his parents was a citizen
24th Sep ’79 – Jan 7, ‘93 S6, Act 591
• A person born on or after 24th Sept ’79 but before 7th Jan ’93 is a citizen by birth if
o He was born in Ghana and at the time of his birth one parent or grandparent
was or is a citizen
o Born outside Ghana and at time of birth one parent was a citizen
On or after Jan 7, ‘93 S7, Act 591
• Born in or outside Ghana on or after 7th Jan ’93 and one parent or grandparent was or is a Art 6(2)
citizen of Ghana
• A foundling of no more than 7 years found in Ghana and whose parents not known will Art 6(3)
be presumed to be a Ghanaian by birth S8, Act 571

Citizenship otherwise than by birth

• Adopted child of no more than 16, neither parent Ghanaian, adopted by a citizen shall by Art 6(4)
virtue of the adoption be a citizen S9, Act 571
Registration
• A citizen of age and capacity of any approved country may upon an application, and with S10(1), Act 571
the approval of the President, be registered as a citizen of Ghana if he satisfies the
Minister that—
(a) he is of good character;
(b) he is ordinarily resident in Ghana;
(c) he has been so resident throughout the period of five years or such shorter period as
the Minister may in the special circumstances of any particular case accept, immediately
before the application; and
(d) he can speak and understand an indigenous language of Ghana. Art 9(2)
• A woman married to a citizen or vice versa may upon application be registered as a Art 7(1)
citizen Section 10(2), Act 571
• A spouse may apply to register as a citizen even when the spouse they are relying on for Art 7(2)
their application is dead S10(3), Act 571
• Annulment of the marriage of a person who registered as a citizen by virtue of the Art 7(3)
marriage will not remove the citizenship unless the person renounces the citizenship s10(4), Act 571
• Child of a woman registered as a citizen through her husband will continue to be a Art 7(4)
citizen unless he renounces it S10(5), Act 571
• Where the authorities suspect that a man has married in order to obtain citizenship Art 7(5)
through registration, the authorities may request applicant to satisfy them that the S10(6), Act 571
marriage was entered into in good faith
• The application of a man seeking registration through marriage to a Ghanaian woman Art 7(5)
will only be granted if he permanently resides in Ghana S10(6), Act 571

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• A person shall not be registered as a citizen unless he has taken the oath of allegiance S10(7), Act 571
• The minister may register the child of any citizen by registration or naturalisation upon S11, Act 571
application of the parent or guardian of the child
• A person registered under section 10 or 11 is a citizen by registration from the date stated S12, Act 571
on the certificate of registration
• The date stated on the certificate of registration shall be the date of the taking of the oath
of allegiance
Naturalisation
• A certificate of naturalisation may be granted to a person of age and capacity who S13, Act 571
qualifies under s14 by the minister with approval by the president
• A person who is granted a certificate of naturalisation shall take the oath of allegiance
and become a citizen by naturalisation from the date on which the oath of allegiance is
taken
Qualification for naturalisation…the person must show that… S14(1), Act 571
(a) he has resided in Ghana throughout the period of twelve months immediately
preceding the date of the application;
(b) during the seven years immediately preceding the period of twelve months, he has
resided in Ghana for periods amounting in the aggregate to not less than five years;
(c) he is of good character as attested to in writing by two Ghanaians being notaries
public, lawyers, or senior public officers;
(d) he has not been sentenced to any period of imprisonment in Ghana or anywhere for
an offence recognised by law in Ghana;
(e) he is able to speak and understand an indigenous Ghanaian language;
(f) he is a person who has made or who is capable of making a substantial contribution to
the progress or advancement in any area of national activity;
(g) he is a person who has been assimilated into the Ghanaian way of life or who can
easily be so assimilated;
(h) he intends to reside permanently in Ghana in the event of a certificate being granted
to him; and
(i) he possessed a valid residence permit on the date of his application.
• The minister may waive or vary any of the qualifications except the one about speaking a S14(3), Act 571
local language
Dual Citizenship
• A citizen of Ghana may hold the citizenship of any other country in addition to his S16(1), Act 571
citizenship of Ghana
• A dual citizen does not qualify to hold any of these offices – CJ, JSC, Ambassador, S16(2)
secretary to the cabinet, chief of defence staff or any service chief, IGP, Commissioner
of CEPS, director of Immigration, Commissioner VAT, DG Prisons Services, Chief Fire
Officer, Chief Director of a ministry, rank of colonel, any other office as may be
prescribed by L.I.
• A citizen who S16(3)
(a) loses his Ghanaian citizenship as a result of the acquisition or possession of the
citizenship of another country shall on the renunciation of his citizenship of that country
become a citizen of Ghana;
(b) acquires the citizenship of another country in addition to his Ghanaian citizenship
shall notify in writing the acquisition of the additional citizenship to the Minister in such
form and such manner as may be prescribed.
• A citizen who lost his citizenship as a result of the law in Ghana which prohibited the S16(5)
holding of dual citizenship may on an application to the Minister be issued with a
certificate of citizenship which shall be effective from the date of issue
Renunciation of Ghanaian citizenship
• If any citizen of Ghana of age and capacity who is also a citizen of another country
makes a declaration of renunciation of citizenship of Ghana, the Minister shall cause the
declaration to be registered; and upon the registration, that person shall cease to be a
citizen of Ghana.
• Where the law of another country requires a person who marries its citizen to renounce Art 8(4)
the citizenship of his own country, s/he will become a citizen of Ghana upon the S17(2), Act 571
dissolution of the marriage if he loses his citizenship
• The HC, on application by the AG, can deprive a person who is a citizen of Ghana by Art 9(3)
any other means than birth if his activities are inimical or prejudicial to public morality
or the public interest; or that the citizenship was acquired by fraud, misrepresentation or S18, Act 571
any other improper practice
• The citizenship of the parent of a child born after the death of the parent is the citizenship Art 10(1)
of the parent at the time of the parent’s death S19, Act 571

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COMPOSITION OF GHANA

• By Letters Patent 1821, the Gold Coast Colony was annexed to and made a dependency of the Colony of Sierra Leone
(Governor was Sir Charles McCarthy)

• By a Royal Charter dated 24th January 1850, the GC ceased to be annexed to the government of Sierra Leone. It was
given its own governor (Gov. Hill) and both a legislative council and an executive council. Consequently, the Royal
Charter revoked the Letters Patent 1821 which annexed GC to SL.

• By Letters Patent in 1866, the Colony of Sierra Leone was reunited with the Gold Coast, Gambia and Lagos under one
Governor-in-Chief and one government. The GC’s legislative council was preserved but the executive council ceased to
exist

• By a British Charter in 1874, the British settlements of Lagos and Gold Coast were constituted into a separate colony
called the Gold Coast colony. The Charter provided for a governor, legislative council and executive council

• On 19th March 1877, the seat of government was moved from Cape Coast to Accra. This was due to its more central
position in the British protectorate, the need to subdue the tribes in the Accra region and the superiority of Accra over
Cape Coast from a sanitary point of view.

• On 13th January 1886, by Letters Patent, the govt of the British settlements of Lagos and Gold Coast were separated

• In 1900, the British governor, Sir Frederic Hodgson, demanded the Golden Stool while visiting Kumasi. This led to the
7th Ashanti war and immediately following it, on 26th September 1901 by three orders in council, the Ashanti Order in
Council 1901, were made by which the Crown annexed Ashanti and the territories to the south which had not been
previously brought into the GC Colony. The boundaries of Ashanti were defined. Ashanti was given the status of a
Crown Colony

• By the Northern Territories Order in Council 1901, a protectorate was declared over the Northern Territories. Power
and authority was exercised by the governor of the GC colony, on behalf of the queen, in the administration of the
Northern Territories. The territories were also defined and delimited

• By the British Mandate for Togoland in 1922, Britain was given a mandate by the principal allies and associated
powers to administer that part of Togoland lying to the west of the frontier dividing Togoland

• Following a UN plebiscite in May 1956, in which a majority of the Ewe voted for union with Ghana, British Togoland
became part of the Gold Coast

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CONSTITUTIONAL EVOLUTION

• In 1828, the British government handed over admin of the colony to a committee of merchants selected by the British
government

• The powers of the merchants were theoretically restricted to the British forts but they were used on a de facto basis by
the neighbouring areas largely due to the administrative and judicial activities of Capt. George McClean who was made
president of the committee in 1930

Constitution 1850

• By a Royal Charter dated 24th January 1850, the GC ceased to be annexed to the government of Sierra Leone. It was
given its own governor (Gov. Hill) and both a legislative council and an executive council. Consequently, the Royal
Charter revoked the Letter Patent 1821 which annexed GC to SL.

o The Legislative Council was made up of the governor and at least two other people designated by the Crown.
Their function was to make all such laws, ordinances and institutions as may from time to time be necessary
for the peace, order and good government of subjects within the GC.
o Other members included the judicial assessor, two merchants and the collector of customs
o The governor was to preside and the quorum was to 3
o No law was to passed or question debated except proposed by the governor
o The governor was required to withhold assent to any ordinance which was repugnant to any British law or
which interfered with Christian worship
o An Executive Council was to be constituted by the governor to assist him in the administration of the
government. It was to be made up of the governor, the judicial assessor and the collector of customs
o The Royal Charter was limited to the forts and settlements
o The Supreme Court Ordinance of 1853 established an SC of civil and criminal jurisdiction within British
forts and settlements on the GC.

Constitution 1866
• By Letters Patent in 1866, the Colony of Sierra Leone was reunited with the Gold Coast, Gambia and Lagos under one
Governor-in-Chief and one government. The GC’s legislative council was preserved but the executive council ceased to
exist
• By a British Charter in 1874, the British settlements of Lagos and Gold Coast were constituted into a separate colony
called the Gold Coast colony. The Charter provided for a governor, legislative council and executive council
o The colonial legislature had full power to alter the constitution of the legislature and to establish, reconstitute
and abolish courts of justice.
• The SC of the GC was re-established by the SC Ordinance 1876 which constituted the Supreme Court of Judicature for
the GC Colony. It had the same jurisdiction as the HC in England and consisted a CJ and puisne judges not exceeding 4
in number at any time. A full court was to consist the CJ and one or two puisne judges was to be a CA sitting in Lagos
and Accra
• On 13th January 1886, by Letters Patent, the govt of the British settlements of Lagos and GC were separated
• In 1888, the first African member of the legislative council, John Sarbah, was appointed

Constitution 1916 (Clifford)

• Clifford requested for an enlargement of the legislative council which then consisted of 5 official members (the
governor, colonial secretary, A-G, treasurer and principal medical officer) and 4 unofficial members (two Europeans
representing the mining industry and the merchants and 2 Africans, representing the chiefs and the educated classes
respectively).
• Consequently, the membership of the legislative council was increased from 9 to 22 comprising 12 official members
and 10 unofficial members

Constitution 1925 (Guggisberg)

• By the Gold Coast (Legislative Council) Order in Council 1925, Royal Instruction 1925 and Letters Patent 1925,
provincial councils which provided for an enlarged partly-elected legislative council were created.
• It gave the colony elected representatives for the first time
• It consisted of the governor, 15 official and 14 unofficial members

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• The 15 official members had an obligation to vote according to the instructions of the governor
• The governor had the power to veto and to reserve legislation
• Qualification to the legislative council was based on ownership of property
• There was also an English language requirement
• There were agitations for the legislative council to be representative and accountable

Constitution 1946 (Burns)

• The Constitution came into force on 29th March 1946

• The elected members of the Legislative Council were increased from 11 to 18 and the unofficial members reduced from
13 to 6. Nominated members were also increased from 2 to 6 making a total of 30 members.
o The term of office for the elected and nominated members was 4 years
o Of the 6 nominated members, 3 were Africans thus making a total of 21 African members out of 30
o The governor however still had reserved powers which enabled him to declare effective any bill or legislation
which failed to pass the legislative council if he considered it expedient to do so in the interests of public
order, public faith or good government
o The sanction of the governor was required with respect to any matter which would dispose of public funds or
impose or alter tax
• The executive council was transformed into a cabinet consisting of ministers who were members of parliament with the
appointment of 3 African members of the legislative council (Nana Tsibu Darko, C. W. Tachie-Menson, Dr. I. B.
Asafu-Adjaye)

Post 1948 Disturbance

• The Watson Committee found a number of political, social and economic causes for the disturbances. They included
o Frustration among the educated Africans who saw no prospect of experiencing political power and considered
the Burns Constitution as mere window dressing designed to cover but not advance their natural aspiration
o A failure of govt to realise that with the spread of liberal ideas, increased literacy and closer contact with
political developments in other parts of the world, rule through the chiefs had become obsolete
o The Burns Constitution was out of date before it was even promulgated because it was conceived in the light
of pre-war conditions
o The legislative council, although predominantly African was merely a debating chamber, no bite
o Provincial councils (or chiefs) were still electing most of the members of the LC who naturally selected
members of their own caste
o It was recommended that substantial constitutional reform was necessary to meet the aspirations of the
indigenous people

• The Coussey Committee, made up of 40 prominent GC Africans, was constituted to consider the recommendations of
the Watson Committee. Their proposals provided for the following
o Establishment on a fully representative basis of all bodies responsible for government of GC from the
smallest local council to the central bodies. Nearly all members would be elected by popular vote
o The executive council would be reconstituted and would become responsible for the formulation of policy
o The governor can only use his reserve powers with the approval of the executive council or the secretary of
state

Constitution 1951

• Application for the first time of uniform constitutional provisions to all the territories now included in Ghana
• There was an executive council which was the principal instrument of policy and the governor was required to act in
accordance with its advice except where expressly empowered to act in his own discretion
o The executive council was required to elect one of their number to be the leader of government business in
the legislative assembly – Art 15
o Acting in his discretion, the governor could charge any minister with the responsibility of any department or
subject and he was then styled a minister for that portfolio – Arts 22, 23
• There was also a legislative assembly consisting of the speaker, 3 ex officio ministers, 3 reps of chambers of commerce,
3 reps of the chamber of mines and 75 elected members (37 representing GC; 19 rep Ashanti and 19 rep Northern
Territories) – Art 33
o Reserve powers of the governor could only be exercised with the consent of the executive council except in
the case of emergencies
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o The legislative assembly was charged with power to make laws for the peace, order and good government of
the GC – Art 50
• The administration of the public service was placed under the control of the governor acting in his discretion – Part VI
[Art 66 – 71]
• The Local Government Ordinance, 1951 enabled the government to set up district, urban and local councils with a
chief as president. The councils were required to maintain order and good government within their areas
• The office of PM was created in 1952 in substitution for the position of leader of government business. The PM had to
be a member of the legislative assembly. By virtue of his appointment, he was a representative member of the executive
council (changed to cabinet)

Constitution 1954

• It repeated many features of the previous constitution

• For the first time detailed provisions with respect to the judiciary and public finance were included
• Executive
o The cabinet was made up of 8 members of the assembly appointed on the advice of the PM
o Functions in relation to defence and external affairs were precluded from the cabinet and reserved for the
governor
• Legislative Assembly
o It was made up of the speaker and 104 members all elected by universal suffrage
o There were restrictions on bills relating to defence and external affairs. However restrictions on bills affecting
chieftaincy were removed
o The life of the assembly was limited to 4 years
• Judiciary
o A Judicial Service Commission was set up consisting of the CJ and two other judges, the A-G and the
chairman of the Public Service Commission
o Apart from the CJ who was appointed on the advice of the PM, all other judges were appointed on the advice
of the JSC.
o The JSC had disciplinary control over judicial officers
o A judge of the SC could not be removed except on an address of the assembly carried by 2/3s of the members
praying for his removal on the ground of misbehaviour, or infirmity of body or mind.
• Finance
o The minister of finance was charged to prepare annual estimates of revenue and expenditure which, on the
approval of cabinet, would be laid before the assembly to vote; the assembly could reject any head of
estimates but could not reduce or increase expenditure or alter its destination – ss 65 & 66
o The office of the auditor-general was established and given the same security of tenure as judges –s 67

Problems

• Voting according to the orders of the governor/executive

• Power to veto and reserve legislation
• Legislative Assembly still had provincial council representatives (chiefs)
• Parliament was a debating chamber, could not introduce bills with a financial element
• How to make the government (all the structures) [truly] representative. As a corollary of the above, problems of
ethnicity
• How to make the government accountable to the people [whether appointment of some office holders should require
prior approval of parliament?]
• Domination of the government machinery by the executive
• The nature/structure of the constitution How to depoliticise [executive] decision-making
• The fear of our parliament being dominated by one party
• The fear of how to prevent our democracy from degenerating into simply majority rule
• How to promote human rights and establishment of rule of law
• Subordination of the military to civilian rule
• The role of chieftaincy
• What system of local government to adopt [democratisation, district expansion]
• How to ensure that development and its perks inure to the benefit of nationals
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INNOVATIONS OF CONSTITUTION 1992

Approval of DCEs by the DAs and for ministers of state by parliament – J.H. Mensah v AG. The DCEs do not go through a
vetting process like the ministers of state. Art. 242 provide for the composition of the DA’s – elected members and
government appointees. Introduction of the district assembly common fund is another innovation.

The constitution also makes provision for buffer institutions also referred to as constitutional institutions introduced in ’79
including the Council of State, CHRAJ, Public Services Commission, NCCE, Auditor-General, A-G, Lands Commission,
NMC, and councils for the Police, Prisons, Armed Forces [Act 526].

The constitution makes provisions for human rights in chapters 5 and 6 as well as other parts of the constitution. Some of the
human rights provisions have been codified in the constitution – NPP v IGP; Public Order Act (Act 491), NPP v GBC, 31st
December Case.

One of the unique elements in the current constitutional arrangement is the protection given to the media in chapter 12. Key
elements in that protection include freedom and independence of the media establishment; no state censorship; insulation of
state-owned media from government control. The constitution also establishes an NMC to oversee the work of the media and
to regulate relationships among the people, the media and the government. The constitution also grants a right of rejoinder to
anyone aggrieved by a publication. In addition, the government is given a special role to hold government accountable to the
people.

RIGHTS & DUTIES UNDER THE CONSTITUTION

• Human rights are universal

• They are indivisible
• They are interrelated
• They are interdependent

Generations of Rights

• First generation rights tend to be a reference to civil and political rights

• 2nd generation rights are economic, social and cultural rights
• 3rd generation refer to solidarity rights

Conditions for Human rights to flourish

1. Respect for one another – flowing from the realisation that the human being is at the centre or should be at the centre of
all endeavours on this earth thus voluntary observance of rights of others
2. Belief and faith in constitutional democracy
3. Individual and national commitment
4. Acceptance that human rights are universal

• Constitution provides for group rights as well as individual rights. Group rights in provisions which say ‘every citizen’.
Those provisions which say ‘every person’ are the individual rights.
• Both rights relate to civil and political rights (Art. 20), economic social and political rights.

Chapter 5

• The constitution in Art. 12 guarantees our rights and does not grant it; it’s not only government which can be a
source of threat to our rights but also citizens and corporate entities.
• Rights are fluid and dynamic not absolute and static
• Whether right is characterised as a directive principle or not, it’s enforceable

Categories of Rights

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• Rights through which we seek to assure for ourselves our physical integrity – it requires a hands-off policy from
the state and other persons
• Assurance of our basic needs – a hands-off policy will be suicidal. A violation will involve lack of support.
• Rights through which we seek space in which to participate in the management of our public affairs – here, what
we need is inclusiveness. Includes right to vote, worship, join a political party, etc. Censorship will thus result in a
violation of the right.

No right is absolute. Art. 12 of the Constitution 1992 provides at least 2 limitations. The constitution also generates other
grounds on which rights may be limited including public safety, public order, public morality, etc. Before any limitation can
be put on rights, it must fulfil the following requirements;

1. Limitation must be prescribed by law

2. It must be shown to be reasonable
3. It must be shown to be necessary in a free and democratic society

The above limitations will ensure there’s no arbitrariness. Thus the limitation must not be disproportionate to the reason why
it’s being imposed.

Art. 17 “In trying to make all persons equal before the law, the law perpetuates inequalities”.

Art. 21(1d) gives freedom of assembly including to take part in processions and demonstrations. No permission is therefore
needed. However, according to the Public Order Act, the police should be notified when people are embarking on public
processions.

Innovations

• Art. 26(2) – prohibition of dehumanising or injurious customary practices

• Art. 27 – rights of women especially pregnant and nursing mothers

• Art 28(4) – rights of child

• Art. 29(6) – rights of disabled persons

• Art. 30 – rights of the sick

• Family law rules

• Art 22(1) – interference in the testation process

High Court; CHRAJ; NCCE; NMC

Art. 41 encapsulates the duties of citizens in Ghana

Challenges

• SS34, 35, 37 of the transitional provisions seem to perpetuate impunity

• If law allows rights to be suspended during emergencies [Art. 31 and 32] at the time people need them most,
what’s the point of having them?

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JUDICIAL REVIEW

Since our system is based on common law, Judges in Ghana typically consulted English cases in determining issues of
constitutional litigation and met with canons of construction of the Bill of Rights of 1688 which estopped English courts
from determining matters of constitutionality.

Principle of restraint – judges try not to impeach other aspects of the separation of powers.

Judicial precedent – where judges have dealt with something in a particular area, they would follow it unless convinced
otherwise.

The judges try to remind themselves of the nature of the instruments they are being asked to deal with and approach it
differently from how they would interpret any normal statute. E.g per Sowah JSC in Tufuor v AG, the platform on which
litigation is based is the constitution and requires him to make a statement about that platform. “…the constitution embodies
the will of the people and mirrors their history…it has its letter as well as its spirit…it’s a living organism capable of growth
and development”.

Art 17(4) and 21(4) requires that in dealing with some human rights issues we should be guided by the ‘spirit’ of the
constitution.

In Sallah v AG, how judges are to approach questions of a constitutional nature is mentioned by Sowah JA (as he then was)
– “…my learning of the law, my oath of office and myconscience will guide me”.

Determining constitutional cases therefore go beyond the rules of interpretation we are used to.

Historically, judicial review has been part of our modern constitution since its early days. Before independence, for
legislation to be constitutional’

- its power should be founded on the hierarchy of legal norms within the colonial system where English law was
supreme;
- it should not contravene natural justice, equity and good constitution

After independence, the independence constitution gave the court power to determine questions of validity – substantive
review, procedural review and institutional clashes – Lardan, Ware v Ofori-Atta.

Art 42(2) of Republican Constitution gave judges power to determine whether parliament has acted in excess of its power.

Since the ’69 constitution to the present, the framers of our constitution have been at pains to ensure that judges will not be
constrained to deliver judgments such as in the RE Akoto case. Thus comparing 31(5) of Independence Constitution and
42(2) of the Republican Constitution with Art 101 of 1969 Constitution, the powers of the court had been expanded vastly.

Per the ’69 constitution, whenever there were any doubts about validity of a provision, the courts were to suspend the
proceeding and forward it to the SC. Door opened for all parties to claim in almost any dispute that there was a constitutional
question since the ‘69 constitution. SC inundated with review requests and parties used it to delay litigation. Some of the
claims were clearly vexatious – there was no merit to them. In the Maikankan case the SC attempted to provide some
guidance i.e. it’s not in every case where a party alleges that there’s a question of constitutionality that proceedings should
be suspended and sent to the SC. The court itself can hear the issue in a preliminary hearing and ignore it if no merit was
found in it. Where the party is unsatisfied, it can appeal. What the decision does to the judicial review system is to import
some of the elements of the German constitutional practice into Ghana. The only thing that the lower courts can’t do is to
invalidate a constitutional provision. Where the provisions are clear and unambiguous however, the lower courts can say so.

The basic features on the arrangements for constitutional review since ‘69

- judicial review power given exclusively to the court of last resort [for that period being the SC] except the dispute
involves human rights in which case the HC shares part of the jurisdiction
- most of cases until the’92 constitution, judges tended to rely on dictionaries, the ordinary rules of statutory
interpretation and the English cases. The only exception being the Benneh case where court took judicial notice of
fact that enquiries into people’s assets was to introduce some morality and integrity into the fxns of public officers,
whatever the legal arguments may be.

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It’s also been said that all citizens of Ghana have capacity to raise questions of constitutional validity. Citizens mean both
natural and artificial persons – Siba case.

Normally a person is required to show a general interest in the outcome of the litigation to have capacity. The decision in
Tuffuor to cloak every citizen with capacity circumvents this locus standi. Thus the litigant need not show that he himself
stands to benefit.

’92 Constitutional arrangement viz judicial review

- It’s not sufficient to show the letter of the constitution but to show that the spirit of the constitution is not offended
by the action under consideration. Relevant provisions are the preamble, Art 1, 2, 130, 135, 33(1).
- The preamble shows the ‘aspirations of the people’ should guide reviews as Apaloo JSC stated.

Universal adult suffrage – there’s a tendency for it to create problems where there is a dominant group among the populae so
that an ambitious politician in a small ethnic group may never win an election.

Distinction between enforcing the constitution and applying the constitution – ex p Adu Gyamfi.

SC will adopt the purposive approach in determining constitutional cases – CHRAJ & AG v Baba Camara [2011] MLR,
Asare v AG [2003-2004] SCGLR 823, Adjei-Twum v AG [2005-2006] SCGLR, Omaboe III v AG & Lands Commission

How the SC deals with constitutional litigation

- using original jurisdiction of SC in Arts 2, 130 and 135

- a reference from a lower court under Art 130(2)
- as an appeal from a decision of a lower court, applying the ratio in the Maikankan case
- appeal of a decision from the HC on a human rights issue

In practice, SC doesn’t have exclusive jurisdiction in constitutional matters cuz in the case of human rights issues originating
in the HC, it has to go through the CA before it reaches the SC. Also, where the matter originates in the circuit court, it
would go through the hierarchy of appeals when the judge refuses to refer the issue to SC.

- How to align the existing law with the constitution Art 11(6) – Ex p Ofosu-Amaah.
- The question of constitutionality can be the sole issue or it can arise as a collateral issue

Ouster Clauses

Provisions which take away the power of judges to decide on certain matters e.g. s34(2) of Transitional Provisions

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

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CHIEFTAINCY
The institution of chieftaincy, together with its traditional councils as
established by customary law and usage is hereby guaranteed
Parliament shall have no power to enact any law which confers on anyone
authority to accord or withdraw recognition to or from a chief or in any way
detracts and derogates from the honour and dignity of the institution of
chieftaincy
A chief is a person who hailing from the appropriate family and lineage has
been validly nominated, elected or selected and enstooled, enskinned or
installed as a chief or a queenmother in accordance with the relevant customary
law and usage
A queenmother is a chief if she satisfies the same tests as would apply to a male
chief. Once a queenmother satisfies these tests, any matter affecting her
becomes a "cause or matter affecting chieftaincy" and is justiciable before the
appropriate chieftaincy tribunal
A person does not qualify as a chief if that person has been convicted of high
treason, treason, high crime or for an offence involving the security of the state,
fraud, dishonesty or moral turpitude
A chief shall not take part in active party politics and a chief wishing to do so or
seeking election to parliament shall abdicate the stool or skin
A chief may however be appointed to any public office for which the chief is
otherwise qualified
A person shall not be considered to be a chief for the performance of a fxn
under Act 759 unless that person has been registered for the performance of that
fxn in the National Register of Chiefs and that person’s name has been
published in the Chieftaincy Bulletin
Is this not in contravention of Art 270(2)????????
The rules and procedures governing chieftaincy make up its constitution. The
traditional constitution is still relevant today and in many respects runs parallel
to the modern constitution
A chieftaincy matter is any matter relating to the following
(a) the nomination, election, selection or installation of a person as a chief or the
claim of a person to be nominated, elected, selected or installed as a chief,
(b) the deposition or abdication of a chief,
(c) the right of a person to take part in the nomination, election, selection or
installation of a person as a chief or in the deposition of a chief,
(d) the recovery or delivery of stool property in connection with the nomination,
election, selection, installation, deposition or abdication of a chief, and
(e) the constitutional relations under customary law between chiefs;
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Art 270(1)
Art 270(2)
Frimpong v Rep [decree that all chiefs elevated to
paramountcy by Nkrumah to revert to status
immediately prior to the elevation. It included F, the
Kukuomhene, who claimed he was not subordinate to
the Asantehene and adduced evidence to back his claim]
Art 277
S57(1), Chieftaincy Act, 2008 (Act 759)
Ex P Adu Gyamfi [Ebusuapanyin and principal
kingmaker instituted action to contest the installation of
the Akwatiahene which was contrary to custom because
he was not nominated by the queenmother or the royal
family. Held; the queenmother has AT LEAST 3 chances
to nominate a suitable candidate for the elders to choose
from. Per Danquah, among the Akans when the
queenmother's candidate is not acceptable to the people,
she must find another candidate and meanwhile the
stool would remain vacant. The people themselves
cannot nominate a person for election]
Dokosi v Dzasimatu, Per Hayfron-Benjamin JSC
Art 275
S57(2), Act 759
Art 276(1)
S57(3), Act 759
Art 276(2)
S57(4)
S57 (5)
S76, Act 759
Osei v Siribuor II [P claimed that he was a royal of the
Juaben Royal Stool thus the Juabenhene should
recognise him as such. His membership of the royal
house was denied so he instituted an action at the
Ashanti RHC. RHC found that although it was a
chieftaincy matter, D was not the person to be sued.
Further appeal to NHC and SC dismissed. Held by SC;
a mere claim to belong to a royal family, divorced
completely from a chieftaincy dispute, would be too
remote a factor to qualify an action as “a cause or
matter affecting chieftaincy]
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Republic v Komenda Traditional Council And Another;

Ex Parte Prah II [application for an order of prohibition
to stop proceedings of the judicial committee of the
Komenda Traditional Council in a dispute relating to
the destoolment of a head of family granted. Held;
destoolment of an abusuapanyin is not a chieftaincy
matter]

Judicial system for dealing with chieftaincy matters

Supreme Court

National House of Chiefs

Regional House of Chiefs

Traditional Council

Traditional Council has exclusive jurisdiction to hear and determine a S29, Act 759
chieftaincy cause or matter which arises within its area, not being one to which
the Asantehene or a paramount chief is a party

Its jurisdiction is exercised by a judicial committee comprising 3 or 5 members

appointed by the council from its members

Appeals from decisions of the TC lie to the Regional House

Regional House of Chiefs

It has original jurisdiction in matters relating to a paramount stool/skin or the S26, Act 759
occupant of a paramount stool/skin including queenmothers to a paramount
stool or skin

Jurisdiction to hear appeals from the TC within the region iro of the nomination, S27, Act 759
election, selection, installation and deposition of a person as a chief

Determine appeals against judgments or orders given or made by a TC on a

cause of matter affecting chieftaincy

Original and appellate jurisdiction to be exercised by a judicial committee of 3 S28, Act 759
members to be assisted by a lawyer of 5 years PQE on the recommendation of
the AG

National House of Chiefs

Original jurisdiction in a chieftaincy matter which lies within the competence of
2 or more RHCs, which isn’t properly within the jurisdiction of an RHC, which
cannot be dealt with by an RHC

Appellate jurisdiction in a chieftaincy matter determined by an RHC

Appeal against a decision of the NHC in the exercise of its original jurisdiction
lies to the SC

Appeal against a decision of the NHC in the exercise of its appellate jurisdiction
lies to the SC with leave of the NHC or the SC

Original jurisdiction (3 members) and appellate jurisdiction (5 members) will be

exercised by a judicial committee assisted by a lawyer of no less than 10 years
PQE on the recommendation of the AG

Supreme Court Art 131(4)

An appeal from a decision of the judicial committee of the NHC shall lie to the
SC with the leave of that judicial committee or the SC

Categories of chiefs S58, Act 759

- Asantehene and paramount chiefs
- Divisional chiefs Eku alias Conduah v Acquaah [a village headman is not
- Sub-divisional chiefs a chief]
- Adikrofo
- Other chiefs recognised by the National House of Chiefs

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Role of the chief today

- They execute policies of the central government in its totality
- They control a lot of resources and have the backing of their people to
use them properly
- They can be important stabilisers since they have more longevity than
the leaders of the modern constitution

Prerequisites of a valid customary destoolment
(i) the chief must have committed a known customary offence;
(ii) this must have been brought to his notice by the elders;
(iii) if it is intended to destool him, the elders must formulate charges against
him; and
(iv) he must be tried on those charges and a finding of guilt made
The mere fact of the existence in a stool family of two or more sections was no
justification for holding that succession to the stool was rotatory. There had to
be a clear custom or practice to that effect. In the absence of such a custom or
practice, the right to nominate a candidate for enstoolment from any of the
sections resided in the ebusuapanyin (the head of family) or the obaapanyin (the
queen mother).
Essilfie v Anafo (per Aikins JSC) [an action for a
declaration that occupation of the Nkanfoa stool rotated
between two sections and for the destoolment of D1 as
chief of Nkanfoa. Held; The power to destool a chief
was a customary right vested wholly in the kingmakers
who alone had the power to make and unmake a chief
customarily. Accordingly, the chieftaincy tribunals of
the traditional, regional and the National House of
Chiefs as established by law had no power to destool a
chief or make an order for his destoolment]
Essilfie v Anafo [no evidence of a custom of rotation]

In the absence of a chieftaincy dispute pending at the material time involving Essilfie v Anafo
the processes for getting an occupant for a stool or to destool the occupant of the
stool, a mere application for a declaration that the nomination, election and
installation of candidates to a stool was rotatory would not qualify as a
chieftaincy dispute within the definition of a cause or matter affecting
chieftaincy

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