US-based Ghanaian legal practitioner Professor Stephen Kwaku Asare, commonly known as Kwaku Azar, has weighed in on the New Patriotic Party’s (NPP) suit at the Supreme Court seeking an interpretation of the presidential term limit.
Kwaku Azar questioned whether the NPP suit at the Supreme Court seeking an interpretation presents a justiciable constitutional dispute or amounts to a request for an advisory opinion.
He argued that the case appears to differ from previous constitutional actions pursued by the NPP, in which the party challenged specific government decisions or existing laws it considered inconsistent with the Constitution.
According to him, earlier cases brought by the party required the Supreme Court to determine the constitutionality of identifiable actions rather than resolve a general debate about the meaning of constitutional provisions.
“Notice something important about these cases. The NPP of yore challenged identifiable governmental actions and existing laws that allegedly violated the Constitution. The Court was not being invited merely to settle an interesting public debate,” he wrote.
He questioned the specific action or legal provision the party was challenging, as well as the alleged constitutional violation that would require the court’s intervention.
“What enactment is being challenged? What unconstitutional act or omission is alleged? Nobody has filed to contest a third presidential election. No electoral authority has determined that a person who has already been elected President twice is eligible for a third election,” he stated.
He maintained that, based on the information available about the case, the issue appeared to be a public debate over the limits imposed by the Constitution rather than an existing legal dispute requiring judicial determination.
“At best, on the facts reported, there is a public debate over what the Constitution permits.”
He suggested that if the writ failed to disclose a justiciable cause of action, the Court should dismiss it at the earliest procedurally appropriate stage.
Kwaku Azar urged the Supreme Court to exercise restraint in determining which constitutional questions require judicial intervention.
He argued that scarce judicial resources should be directed towards resolving genuine disputes rather than providing what he described as constitutional consultations.
“The Supreme Court is a court of law, not a constitutional advice centre. And the Court itself must remain disciplined, resisting the temptation to wade into every constitutional controversy merely because the question is politically important, intellectually interesting, or generating considerable public attention,” he stated.
Read his full post below:
“GOGO has read media reports that the NPP is seeking declarations on the interpretation of Articles 58(2) and 66(1), (2) and (3)(a) of the 1992 Constitution.
Among other reliefs, the party wants the Supreme Court to declare that the presidential term limit means a maximum of two terms, whether consecutive or nonconsecutive. It also wants the Court to affirm that a person cannot be elected President more than twice or hold office for more than two four-year terms, amounting to eight years in total.
The NPP of yore was instrumental in bringing several landmark constitutional cases before the Supreme Court.
In NPP v. Attorney-General (the 31st December Case), the party challenged the government’s decision to celebrate the overthrow of the Third Republic on December 31, 1981, and to finance the celebration with public funds.
The Supreme Court held, by majority, that the public celebration and expenditure of public funds to commemorate the overthrow of a constitutional government were inconsistent with the letter and spirit of the 1992 Constitution.
In NPP v. Inspector-General of Police, the party challenged provisions of NRCD 68 requiring prior police permission for public demonstrations and processions.
The Supreme Court unanimously held that the challenged permit requirements were unconstitutional because they infringed the freedom of assembly guaranteed under Article 21(1)(d).
Notice something important about these cases. The NPP of yore challenged identifiable governmental actions and existing laws that allegedly violated the Constitution. The Court was not being invited merely to settle an interesting public debate.
This brings us to the current writ. Can the Supreme Court be asked to interpret the Constitution merely to settle a public debate?
The answer is NO! Here is why.
First, Article 2(1) of the 1992 Constitution allows a person to invoke the Supreme Court’s jurisdiction where it is alleged that an enactment, an act, or an omission is inconsistent with or in contravention of the Constitution.
Thus, the Supreme Court’s jurisdiction is not a general invitation to seek clarification of constitutional provisions whenever questions arise in public discourse.
Here, what enactment is being challenged? What unconstitutional act or omission is alleged?
Nobody has filed to contest a third presidential election. No electoral authority has determined that a person who has already been elected President twice is eligible for a third election.
At best, on the facts reported, there is a public debate over what the Constitution permits.
Article 2 gives broad standing to challenge constitutional violations. But broad standing does not eliminate the need for a justiciable cause of action.
Article 130 gives the Supreme Court exclusive original jurisdiction in matters relating to the interpretation or enforcement of the Constitution.
But that jurisdiction is not unlimited. There must be a genuine constitutional question requiring judicial determination. The Court has repeatedly made clear that it does not exercise an advisory jurisdiction.
Second, the case law is settled. In Bilson v. Attorney-General [1993–94] 1 GLR 104, the plaintiff sought declarations concerning section 34 of the Transitional Provisions of the 1992 Constitution, which indemnified certain acts and omissions associated with previous military regimes.
The Supreme Court dismissed the action. Why?
Because the plaintiff was essentially asking the Court to interpret the indemnity provision without identifying an actual dispute in which someone had invoked that provision as a defence.
The Court held that it had jurisdiction to interpret constitutional provisions in the context of disputes, but no jurisdiction to tender advice to prospective litigants.
The plaintiff could properly raise the interpretation question if, for example, he sued someone for a particular act and that person relied on section 34 as a defence.
Without such a controversy, the Court was being asked to make declarations in a vacuum. That was impermissible.
Indeed, the Court questioned the usefulness of asking it merely to declare what the Constitution already expressly provides.
Bilson is important because it distinguishes a genuine constitutional dispute from a request for judicial reassurance about the meaning of the Constitution.
Third, what about Ex parte Akosah? In Republic v. Special Tribunal; Ex parte Akosah [1980] GLR 592, the Court identified circumstances in which a genuine question of constitutional interpretation may arise.
These include ambiguity or imprecision in constitutional language, rival interpretations, conflicts between constitutional provisions, and difficulties involving the constitutional powers of institutions.
But an important qualification is often overlooked. Ex parte Akosah arose in the context of determining when a lower court should refer a constitutional interpretation question to the Supreme Court.
It was not an invitation to citizens to manufacture competing interpretations and demand that the Supreme Court resolve them.
Even if we continue the tradition of invoking Akosah outside its original referral context, merely asserting a different interpretation on Facebook, radio, television, or between two legal luminaries does not automatically create a justiciable constitutional controversy.
Fourth, disagreement is not necessarily a constitutional controversy. Citizens, lawyers, academics, and political parties are free to express different views about the meaning of constitutional provisions.
That is healthy constitutional discourse.
But merely because someone advances a different interpretation does not mean the Supreme Court must be invited to settle the disagreement.
Otherwise, every constitutional debate on radio, television, or social media could become a Supreme Court case.
That is not the purpose of the Court’s original jurisdiction.
Now consider Article 66(2). It provides that “A person shall not be elected to hold office as President of Ghana for more than two terms.”
The NPP reportedly wants the Supreme Court to declare that two terms means two terms, whether consecutive or nonconsecutive.
But the preliminary question is not whether that interpretation is correct.
The preliminary question is whether the writ presents a genuine constitutional controversy requiring judicial determination or merely seeks an advisory opinion about a hypothetical future event.
That is the jurisdictional question the Court must confront before considering the merits.
Of course, the precise pleadings matter. If the NPP can establish a genuine constitutional controversy, that must be considered. But public disagreement, without more, does not automatically establish one.
The Supreme Court is a court of law, not a constitutional advice centre.
And the Court itself must remain disciplined, resisting the temptation to wade into every constitutional controversy merely because the question is politically important, intellectually interesting, or generating considerable public attention.
Judicial resources are scarce. They must be devoted to resolving genuine disputes, not providing free constitutional consultations.
Where a writ plainly fails to disclose a justiciable cause of action, the Court should dispose of it at the earliest procedurally appropriate opportunity rather than expend scarce judicial resources on unnecessary substantive proceedings.
A short ruling may suffice:
“This action is dismissed for want of jurisdiction, without prejudice to a properly constituted action arising from a justiciable controversy. See Bilson v. Attorney-General.”
We may debate the Constitution. We may disagree about its meaning. But disagreement alone is not a passport to the Supreme Court.
PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.
Da Yie!”
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