PROFESSOR STEPHEN KWAKU ASARE

vs.

THE ATTORNEY-GENERAL DEFENDANT

[SUPREME COURT]

WRIT NO. 3/2002

DATE:28TH JANUARY, 2004.

COUNSEL : DR PHILIP BONDZI-SIMPSON FOR THE PLAINTIFF.

HON AMBROSE DERY, DEPUTY ATTORNEY-GENERAL, FOR THE

DEFENDANT.

CORAM: ACQUAH C.J. (PRESIDING), BADDOO, J.S.C., DR TWUM, J.S.C., PROF

KLUDZE , J.S.C., DR DATE-BAH, J.S.C.

JUDGMENT

DR DATE-BAH J.S.C.: [was invited by his Lordship the Chief Justice to deliver his
opinion first]. This is an action brought to invoke the original jurisdiction of the Supreme
Court. It is expressed by the plaintiff to be pursuant to articles 2(1)(b) and 60 of the 1992
Constitution and rule 45 of the Supreme Court Rules, 1996 (CI 16).

The facts

The facts of the case may briefly be stated as follows: On 21 February 2002, the President
of the Republic wrote to the Speaker of Parliament, informing the Speaker that the
President would be travelling to Australia to attend the Commonwealth Heads of
Government Meeting, scheduled to take place from 2 to 5 March 2002 and that he would
be away from Ghana from 24 February until 10 March. He further informed the Speaker
that during that period, because the Vice-President would also be absent from the country
from the 24 to 27 February, the Speaker was, pursuant to article 60(11) of the Constitution,
to act as President for those four days. Accordingly, on 24 February, the Speaker swore
the Presidential oath and acted for the President from the 24 to 27 February.

On 28 February, the plaintiff, in his capacity as “a concerned, private Ghanaian citizen,

who is interested in upholding the respect for, and compliance with, the Constitution and
the rule of law”, as he declares in his writ, filed a writ at the Supreme Court, invoking the
original jurisdiction of the court and seeking the following reliefs:

“(1) A declaration that upon a true and proper interpretation of article 60(11) of the 1992
Constitution, the purported swearing-in of the Speaker of Parliament, the
Right Honourable Mr Peter Ala Adjetey, as President of Ghana, on or about
Monday 24 February 2002, is inconsistent with, or is in contravention of the said provision
of the Constitution and is therefore unconstitutional, void and of no effect.

(2) A perpetual injunction to restrain the Speaker of Parliament, the Right Honourable
Peter Ala Adjetey, and any other person succeeding to the Office of Speaker of Parliament,
from performing the functions of President of the Republic of Ghana except in the event of
the President and the Vice-President being unable to perform the functions of the
President.

(3) Such other ancillary or consequential orders or directives as the court may deem fit to
give.”

Article 60(11) of the 1992 Constitution is in the following terms:

“(11) Where the President and the Vice-President are both unable to perform the functions
of the President, the Speaker of Parliament shall perform those functions until the President
or the Vice-President is able to perform those functions or a new President assumes office,
as the case may be.”

Other relevant clauses of article 60, namely, sub-articles (6), (8)-(9) and (12) respectively
state as follows:

“(6) Whenever the President dies, resigns or is removed from office, the Vice-President
shall assume office as President for the unexpired term of office of the President with effect
from the date of the death, resignation or removal of the President."
 "(8) Whenever the President is absent from Ghana or is for any other reason unable to
perform the functions of his office, the Vice-President shall perform the functions of the
President until the President returns or is able to perform his functions."

"(9) The Vice-President shall, before commencing to perform the functions of the
President under clause (6) of this article, take and subscribe the oath set out in the Second
Schedule to this Constitution in relation to the office of the President."

"(12) The Speaker shall, before commencing to perform the functions of the President
under clause (11) of this article, take and subscribe the oath set out in relation to the office
of President.”

Another article which is relevant to the facts of this case is article 59 which provides as
follows:

“The President shall not leave Ghana without prior notification in writing, signed by him
and addressed to the Speaker of Parliament.”

Although this case, at first sight, appears to require the interpretation of only a specific
clause in the Constitution, it in fact requires an examination of aspects of the underlying
scheme of the Constitution. Separation of powers is at the heart of the 1992 Constitution
and is a doctrine which, the plaintiff contends, has to be taken into account in interpreting
the relevant provision of the Constitution.

In interpreting the relevant text, we need to remind ourselves that contextual analysis is
crucial to the interpretation of legal instruments. An important part of this contextual
analysis is the determination of the purpose of the provision under construction. Modern
judicial technique in the English courts, for instance, has tended away from simple
literalism towards a purposive approach to interpretation. As Lord Diplock said in
Carter v Bradbeer [1975] 3 All ER 158 at 161:

“If one looks back to the actual decisions of this House … over the last thirty years one
cannot fail to be struck by the evidence of a trend away from the purely literal towards the
purposive construction of statutory provisions.”

Though there are some Ghanaian cases which appear to lend support to the literalist
approach to the interpretation of legal instruments, there are other cases, on the other
hand, which lend support to the purposive approach. Illustrations of the latter approach
include the following cases.

In Tuffuor v Attorney-General [1980] GLR 637 at 659-660, Sowah JSC (as he then was),
lent support to contextual analysis, saying:

“We start by reminding ourselves of the major aids to interpretation bearing in mind the
goals that the Constitution intends to achieve. Our first duty is to take the words as they
stand and to give them their true construction having regard to the language of the
provisions of the Constitution, always preferring the natural meaning of the words
involved, but nonetheless giving the words their appropriate construction according to the
context…”

Another illustration of a purposive approach to interpretation was the judgment of

Acquah JSC (as he then was), in Yeboah v J H Mensah [1998-99] SCGLR 492. In
considering whether the proper forum for the plaintiff’s action was the High Court or the
Supreme Court, Acquah JSC said at 545:

“Finally, it must be noted that, unlike an election petition which can only be initiated by
specific person within a specific time limit, an action for the enforcement of the provisions
of the Constitution may be initiated by any person at any time. Neither is it restricted to
specified persons. Thus if the Supreme Court’s enforcement jurisdiction is held to be
appropriate in challenging the validity of a person’s election to Parliament, this will imply
that a person from one corner of the country can resort to enforcement jurisdiction to
challenge the validity of a person’s election in another remote corner of the country. And
he can do this even years after the said election. No one desires such an absurd
situation. Challenges to the validity of a person’s election must be initiated in time. Hence
the wisdom involved in the provisions of article 99(1)(a) of the 1992 Constitution and Part
IV of PNDCL 284.”

In other words, my learned and respected brother and current Chief Justice took account
of the purpose of the provision under consideration in order to determine what meaning
to put on it.

The final illustration which I wish to cite is provided in Benneh v The Republic [1974] 2
GLR 47. In this case, Apaloo JA (as he then was), in delivering the judgment of the full
bench of the Court of Appeal, applied a purposive approach to the construction of the
constitutional and statutory provisions in issue in the case. The plaintiff, who had been
found by a commission of inquiry to have illegally acquired certain assets, brought an
action in the High Court to restrain the defendants from carrying out the provisions of
the National Liberation Council (Investigation and Forfeiture of Assets) (Further
Implementation of Commissions, Findings (No 3) Decree, 1969 (NLCD 400). He
submitted that the Decree was repugnant to certain provisions in the 1969 Constitution
and therefore void. The High Court declined jurisdiction and an appeal from this
decision to the Court of Appeal was dismissed. In May 1971, the plaintiff appealed to the
Supreme Court. On 13 September 1972, however, the Supreme Court was abolished and
the full bench of the Court of Appeal given jurisdiction to hear and determine appeals
that had been duly filed with the former Supreme Court. When the full bench invited
arguments from the parties on whether NLCD 400 was valid, the defendants challenged
the jurisdiction of the court. In construing the relevant constitutional and statutory
provisions, whose details need not be specified here, Apaloo JA endeavoured to identify
their legislative purpose and then proceeded to construe the provisions in the light of this
legislative purpose. He said at 80-81:

“While we acknowledge that Dr. Asante’s construction is a possible one, we think it is

technical and narrow and does not reflect the true policy reasons underlying the
conferment of the appellate jurisdiction of the erstwhile Supreme Court in this court. In
its policy declaration abolishing the Supreme Court, the government in a statement issued
on its behalf by the Information Services Department on 12 September 1972 said:

“The National Redemption Council proposes to put into force the necessary legislation to
protect the interest of those whose appeals are pending before the Supreme Court, and to
transfer the jurisdiction of the Supreme Court in chieftaincy matters to the Court of Appeal
which will now be the final appellate court in the country.”

That legislation was promulgated and became law the very next day. One of the persons
whose interest that legislation seeks to protect, is the plaintiff... We think we ought to
construe section 3(2)(d) of NLCD 101 liberally and benevolently to carry out the declared
intention of the law-giver. The construction put on that section by the Solicitor-General
cannot but frustrate the true intention of the legislature and we could not accept it.”

Of course, these illustrative cases are not to be regarded as binding precedents on the
subject of interpretative approach. “Rules” of interpretation are not to be understood as
binding courts in the same way as the ratio decidendi of a case is binding on subsequent
courts. The so-called “rules” of interpretation are merely guides or aids to judges in
deciphering the meaning of words they are required to interpret. As Lord Reid said in
Maunsell v Olins [1975]1 All ER 16 at 18, HL:

“They are not rules in the ordinary sense of having some binding force. They are our
servants, not our masters. They are aids to construction: presumptions or pointers. Not
infrequently one “rule” points in one direction, another in a different direction. In each
case we must look at all relevant circumstances and decide as a matter of judgment what
weight to be attached to any particular 'rule'.”

This is a helpful dictum reminding us that the task of interpretation is always complex,
usually involving the balancing of competing interests, and the “rules” of interpretation,
whether the “literal rule”, “the golden rule”, “the mischief rule” or the “purposive
approach”, are to be applied in the context of particular enactment in order to achieve
justice.

What I have stated above has been merely to emphasise that I consider the purposive
approach to be more likely to achieve the ends of justice in most cases. It is a flexible
approach which enables the judge to determine the meaning of a provision, taking into
account the actual text of the provision and the broader legislative policy underpinnings
and purpose of the text. Judicial interpretation should never be mechanical. As
Donaldson J (as he then was), said in Corocraft Ltd v Pan American Inc [1969] 1 QB 622
at 638:

“The duty of the courts is to ascertain and give effect to the will of Parliament as expressed
in its enactment. In the performance of this duty the judges do not act as computers into
which are fed the statutes and the rules for the construction of statutes and from whom
issue forth the mathematically correct answer. The interpretation of statutes is a craft as
much as a science and the judges, as craftsmen, select and apply the appropriate rules as
the tools of their trade. They are not legislators, but finishers, refiners and polishers of
legislation which comes to them in a state requiring varying degrees of further processing.”

As Justice Aharon Barak, President of the Supreme Court of Israel, has said,
extrajudicially:

“…the aim of interpretation in law is to realize the purpose of the law; the aim in
interpreting a legal text (such as a constitution or a statute) is to realize the purpose for
which the text was designed. Law is thus a tool designed to realize a social goal.”
 (See Barak, “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002)
116 Harv. L R 19 at p 66). His remarks point to his support for a purposive approach to
the interpretation of legal texts, on which he proceeds to elaborate. He points out that in
carrying out a purposive interpretation of a constitution or a statute, it is necessary to
distinguish between its subjective and objective purposes.

The subjective purpose of a constitution or statute is the actual intent that the authors of
it, namely, the framers of the constitution or the legislature, respectively, had at the time
of the making of the constitution or the statute. On the other hand, the objective purpose
is not what the author actually intended but rather what a hypothetical reasonable author
would have intended, given the context of the underlying legal system, history and
values, etc of the society for which he is making law. This objective purpose will thus
usually be interpreted to include the realisation, through the given legal text, of the
fundamental or core values of the legal system.

A poignant illustration of objective purpose is to be found in the Australian case of

Theophenous v Herald Weekly Time Ltd (1994) 182 CLR 104. In this case, the High Court
of Australia was faced with the issue of whether the court could construe an implied Bill
of Rights into the Australian Constitution, the Constitution being silent on a Bill of
Rights. Was the intention of the original framers of the Australian Constitution to be
conclusive on the determination of this issue? Justice Deane observed in this case at p
106 that:

“The present legitimacy of the Constitution as the compact and highest law of our nation
lies exclusively in the original adoption (by referenda) and subsequent maintenance (by
acquiescence) of its provisions by the people. While they remain unaltered, it is the duty
of the courts to observe and apply those provisions, including the implications which are
legitimately to be drawn from their express terms or from the fundamental doctrines which
they incorporate and implement. There is absolutely nothing in the provisions of the
Constitution which suggests an intention on the part of the people either that the ordinary
rules of construction should be ignored or that the failure to include a detailed list of their
constitutional “rights” should be treated as somehow precluding or impeding the
implication of rights, privileges and immunity from either the Constitution’s express terms
or the fundamental doctrines upon which it was structured and which it incorporated as
part of its very fabric. That being so, even if it could be established that it was the
unexpressed intention of the framers of the Constitution that the failure to follow the
United States model should preclude or impede the implication of constitutional rights,
their intention in that regard would be simply irrelevant to the construction of provisions
 whose legitimacy lay in their acceptance by the people. Moreover, to construe the
Constitution on the basis that the dead hands of those who framed it reached from their
graves to negate or constrict the natural implications of its express provisions or
fundamental doctrines would deprive what was intended to be a living instrument of its
vitality and adaptability to serve succeeding generations.”

In the context of the Ghanaian Legal System, the core values from which could be
distilled the objective purpose of constitutional provisions would include the provisions
of chapters five and six of the Constitution and core doctrines such as the doctrine of the
separation of powers. In this connection, I would like to refer to the dictum of Sowah JSC
(as he then was) in Tuffuor v Attorney-General [1980] GLR 637, which is frequently
referred to and is in this case relied on by both the plaintiff and the defendant. He said
at 647:

“The Constitution has its letter of the law. Equally, the Constitution has its spirit... Its
language, therefore, must be considered as if it were a living organism capable of growth
and development. Indeed, it is a living organism capable of growth and development. A
broad and liberal spirit is required for its interpretation. It does not admit of a narrow
interpretation. A doctrinaire approach to interpretation would not do. We must take
account of its principles and bring that consideration to bear, in bringing it into conformity
with the needs of the time.”

The “spirit” to which Sowah JSC refers is another way of describing the unspoken core
underlying values and principles of the Constitution. Justice Sowah enjoins us to have
recourse to this “spirit” or underlying values in sustaining the Constitution as a living
organism.

The distinction between subjective and objective purposes of a legal text can be
significant. An emphasis on the objective purpose may be important in order to respond
to social and other change. At the same time, authorial intent (subjective purpose) cannot
be ignored. The interplay between subjective and objective purposes, therefore, has an
important influence on a judge’s approach to constitutional and statutory interpretation.

The leading English textbook on statutory interpretation, Bennion, Statutory

Interpretation (4th ed 2002) at page 810, regards purposive interpretation as a modern
version of what used to be called the mischief rule. The author expresses the nature of
purposive construction thus (ibid):
 “A purposive construction of an enactment is one which gives effect to the legislative
purpose by-

(a) following the literal meaning of the enactment where that meaning is in accordance
with the legislative purpose (in this Code called purposive-and-literal construction), or

(b) applying a strained meaning where the literal meaning is not in accordance with the
legislative purpose (in this Code called a purposive-and-strained construction).”

Thus, in applying the purposive approach, a court may give an ordinary or artificial
meaning to words in a statute or constitution, depending upon its perception of the
legislative purpose of the provision.

To discover the subjective purpose of the provisions to be construed in this case, the
primary source of information is probably the Report of the Committee of Experts
(Constitution) on Proposals for a Draft Constitution of Ghana (presented to the PNDC on
31 July 1991). By analogy to section 19 of the Interpretation Act, 1960 (CA 4), which deals
with the use of publications in the construction of enactment, this Report, which was laid
before the Consultative Assembly and which drew up the 1992 Constitution, may be
regarded as serving a purpose similar to papers laid before Parliament in relation to a Bill
for enactment. Section 19 (1) of CA 4 is in the following terms:

“19. (1) For the purpose of ascertaining the mischief and defect which an enactment was
made to cure and as an aid to the construction of the enactment a court may have regard
to any text-book or other work of reference, to the report of any commission of inquiry into
the state of the law, to any memorandum published by authority in reference to the
enactment or to the Bill for the enactment and to any papers laid before the National
Assembly in reference to it, but not to the debates in the Assembly.”

Thus, section 19 of the Interpretation Act, 1960 excludes debates in Parliament from being
used as an aid to construction and, by analogy, I consider that the actual debates in the
Consultative Assembly should be excluded. This exclusion of “debates in the Assembly”
means that Ghanaian law retains the traditional exclusionary rule of English law, in
contradistinction to the view adopted by the House of Lords in the English case of`Pepper
v Hart [1993] 1 All E R 42, which allowed recourse to parliamentary material within
certain defined limits.
The Report of the Committee of Experts does not throw much light directly on the
provisions under consideration. However, the following statement of its approach is
significant to the search for the meaning of the provisions under consideration in this
case. Paragraph 3 of the Report states that:

“The Committee operated on the cardinal principle that we should not re-invent the
wheel. Accordingly wherever we found previous constitutional arrangements appropriate,
we built on them. In this connection, with appropriate modifications, we relied
substantially on some of the provisions of the 1969 and 1979 Constitutions of Ghana to the
extent that they are relevant to the general constitutional structure proposed in this
report.”

Accordingly, it is relevant to compare the relevant provisions in the 1969 and 1979
Constitutions with the provisions in the 1992 Constitution to see whether they assist in
the interpretation of the current provisions.

Under the 1969 Constitution, there was no Vice-President and therefore the relevant
provision on the performance of the President’s functions during his absence from Ghana
resorts to the Speaker. Article 38(2) and (3) provides as follows:

“38(2) The President shall not leave Ghana without the consent of the Cabinet.

(3) Whenever the President dies, resigns, is removed from office or is absent from Ghana
or is by reason of illness unable to perform the functions of his office, the Speaker of the
National Assembly shall perform those functions until the assumption of office of the
President or the President is able to perform those functions.”

It is thus quite clear from the language in this provision, ie article 38(2) and (3) of the 1969
Constitution, that when the President is absent from Ghana, the Speaker is to perform the
functions of his office. It is to be noted, however, that under the 1969 Constitution the
President was bound to act in accordance with the advice of the Cabinet and therefore
real executive power was wielded by the Cabinet and not by the President. Nevertheless,
the provision may be regarded as possibly the origin of the practice or convention, if there
is such, whereby the Speaker may be expected to act for the President when absent from
Ghana.
The comparable provisions in the 1979 Constitution are in articles 46 and 47(6)-(8) and
(10)-(11) and are in the following terms:

“46. The President shall not leave Ghana without prior notification issued under his hand
and addressed to the Speaker of Parliament.

47(6) Whenever the President dies, resigns or is removed from office, the Vice-President
shall assume office as President for the unexpired term of office of the President with
effect from the date of the death, resignation or removal of the President.

(7) Whenever the President is absent from Ghana or is for any other reason unable to
perform the functions of his office the Vice-President shall perform the functions of the
President until the President is able to perform his functions.

(8) The Vice-President shall, before commencing to perform the functions of the President
under the provisions of clause (6) of this article, take and subscribe the oath in relation
thereto set out in the Second Schedule to this Constitution.

(10) Where the President and the Vice-President are both unable to perform the functions
of the President the Speaker of Parliament shall perform those functions until the President
or Vice-President is able to perform those functions or a new President assumes office, as
the case may be.

(11) The Speaker shall, before commencing to perform the functions of the President under
the provisions of clause (10) of this article, take and subscribe the oath of office in relation
thereto.”

It is obvious that articles 59 and 60 of the 1992 Constitution are based on these provisions
of the 1979 Constitution with which they are largely in pari materia .

What assistance to the construction of the current provisions is to be gained from these
earlier provisions? Article 47(7) of the 1979 Constitution provides stronger evidence,
than the current provision, that absence from Ghana is regarded by the drafters of the
Constitution as constituting inability to perform the functions of the President. For,
whereas the current article 60(8) speaks in terms of the Vice-President performing the
functions of the President, “whenever the President is absent from Ghana or is for any
other reason unable to perform the functions of his office” “until the President returns
(my emphasis) or is able to perform his functions”, the 1979 provision lumps the two
situations into one, providing that the Vice-President is to perform the functions “until
the President is able to perform his functions.” The 1979 provision is thus a stronger
statement that absence from Ghana is a subset of inability to exercise the functions of the
President. Is the change in language in the 1992 Constitution to be regarded as a
clarification or a change in policy? Given the declaration by the Committee of Experts
referred to above, it is more likely to have been a clarification than a change in policy. In
other words, it would seem that the drafters of the Constitutions of Ghana since 1969
have taken the view that the absence of a President from Ghana renders him unable to
perform the functions of his office. Accordingly, the Vice-President, or in his absence, the
Speaker, is to exercise his functions whilst he is thus disabled. The plaintiff’s challenge
would appear to be to the wisdom of this position. The plaintiff asserts in paragraph (5)
of his arguments of law that:

“Accordingly, it cannot be said that when the President has merely travelled abroad,
particularly when he is on official duties as Head of State and Head of Government, he is
“unable” to act as President. Indeed, the President travelled to Singapore to meet his
counterpart, the Head of State and Head of Government of Singapore; and he proceeded
further to Australia to attend a summit conference of Commonwealth Heads of States and
Governments. In this light, when the President travelled abroad, he was not unable to
perform his duties as President. He was indeed performing his duties as President.”

In effect, the plaintiff is raising issues as to the objective purpose of the provisions under
consideration. Quite apart from what the framers of the Constitution actually intended
(subjective purpose), what should a prudent or reasonable framer of the Constitution
have provided for on this issue? The answer to this question has to be formulated by
reference to the fundamental or core values and the underlying scheme of the 1992
Constitution. In effect, the plaintiff is arguing that a hypothetical reasonable drafter of
the Constitution would not have intended to include absence of the President from the
jurisdiction as one of the situations authorising the Speaker to act for him since to do so
would have adverse repercussions on the underlying scheme of the
Constitution. Accordingly, article 60(11) should be construed so as to conform with this
objective purpose. Is this argument sustainable?

There is a school of constitutional thought which denies that subjective purpose has
controlling precedence. In other words, the fact that the actual intention of the framers
of the Constitution can be determined does not automatically resolve issues as to
interpretation since it may be that an interpretation based on the objective purpose or the
core values embedded in the legal system in question may be a more appropriate or just
result. The extrajudicial recommendation of Justice Aharon Barak in his Harvard Law
Review article referred to above is:

“…one should take both the subjective and objective elements into account when
determining the purpose of the constitution. The original intent of the framers at the time
of drafting is important. One cannot understand the present without understanding the
past. The framers’ intent lends historical depth to understanding the text in a way that
honours the past. The intent of the constitutional authors, however, exists alongside the
fundamental views and values of modern society at the time of interpretation. The
constitution is intended to solve the problems of the contemporary person, to protect his
or her freedom. It must contend with his or her needs. Therefore, in determining the
constitution’s purpose through interpretation, one must also take into account the values
and principles that prevail at the time of interpretation, seeking synthesis and harmony
between past intention and present principle.”

(See Barak, “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002)
116 Harv L R 19 at p 69). I agree with this recommendation to balance the subjective and
objective purposes of constitutional provisions in order to arrive at an appropriate
interpretation. This implies that the arguments of the plaintiff, which question the
correctness of the interpretation I have spelt out above, which I consider probably flows
from the actual intent of the framers of the Constitution, deserve careful consideration.

The plaintiff, in effect, argues that the doctrine of separation of powers is a core concept
in the current constitutional arrangement in Ghana and therefore in determining the
objective purpose of article 60(11) this fact should be taken into account and care taken
not to undermine the doctrine. In paragraph (28) of the plaintiff’s arguments of law, he
states:

“The doctrine of separation or (sic) powers is fundamental in constitutional law. It is

conceded that the three organs of government – Judiciary, Legislature and Executive – do
not exist in water-tight compartments and that there is some contact between them and
some checks and balances. Nevertheless, it is submitted that an interpretation ought to be
placed on article 60(11) so that it does not occur so readily and so easily for one organic
head (in this case the Speaker of Parliament) to assume, succeed to and perform the whole
functions of another organic head (in this case the Executive President) merely on the
temporary, official travel of the President and the Vice-President. It is submitted that to
do otherwise will undermine the doctrine of separation of powers.
 Montesquieu, The Spirit of Laws (1748)

Appadorai, AA, The Substance of Politics (Oxford: OUP, 1975) pp 516-522

Harvey and Barther, The British Constitution (London: Macmillan, 1977) pp 391-39."

The argument, then, is that given the need to sustain the core concept of separation of
powers, a narrow interpretation should be placed on the words “unable to perform the
functions” of the President in article 60(11), restricting it to situations of real inability to
perform the functions such as “grave or terminal illness affecting physical or mental
capacity, kidnapping, absconding, missing – but under no circumstance, in any event,
can the phrase “unable to perform the duties of the President” be interpreted to include
the temporary travel of the President to meet with other Heads of State and
Government.” (See paragraph (22) of the plaintiff’s arguments of law).

In theory, there is much persuasive force in the plaintiff’s contention that merely because
the President is away from Ghana does not necessarily mean that he is unable to perform
the functions of his office, particularly, in the light of modern technological developments
in the area of telecommunications and also because of his authority to delegate power to
appropriate subordinates. In practice, however, this argument, raises the empirical
question whether, given the circumstances of contemporary Ghana and the means of
secure communication available to the President when abroad, it is realistic to expect the
President to exercise his executive authority from abroad. Neither party provided any
evidence on this issue. The court, therefore, has not received any assistance on this
score. The express provision of the 1969 Constitution which, in my view, is the ultimate
origin of the current article 60(11) of the 1992 Constitution, carries with it the implication,
to my mind, that given the means of communication available to a Ghanaian President
when travelling abroad, it is impractical to expect the President to remain fully in charge
of the executive branch of government. The issue arising therefore is whether this
judgment of the framers of the recent constitutions of Ghana remains valid. No evidence
was made available to this court to rebut this judgment of the framers.

Some thorny issues arise from holding that the Speaker may carry out the functions of
the President whilst he is abroad. If the Speaker is exercising the functions of the
President pursuant to article 60(11), does this imply that the President no longer has
executive authority whilst travelling abroad? Can he not execute agreements and other
documents on behalf of the Republic? Would he need authorisation from the Speaker to
act on behalf of the Republic? If the answer to these questions were that the President
no longer had authority to act on behalf of the Republic, would this not fly in the face of
the expectation of ordinary Ghanaians? If, on the other hand, the President whilst abroad
retains the authority to carry out at least some of his functions, how are the respective
roles of the President and the Acting President to be co-ordinated and
reconciled? These are all questions which were raised by the express provision in the
1969 Constitution which has been referred to above (article 38) and yet it provided no
answers to them. Given the absence of express provision in article 60(11), should it be so
construed as to obviate the need to address these questions, in spite of the previous
constitutional history on the matter?

Are the various issues raised above of sufficient weight to counterbalance my reading of
the framers’ intent and to require this court to interpret article 60(11) in the way that the
plaintiff would like us to? Does the systemic coherence of the 1992 Constitution and the
need to shore up its underlying principle of separation of powers require that the Speaker
is able to act for the President only when the latter is incapacitated from performing his
functions, as opposed to being merely absent from the jurisdiction? Would there be such
mischief in following the framers’ apparent intent that the narrow interpretation insisted
on by the plaintiff would be justified in the larger interest of the integrity of the
constitutional order established by the Constitution?

My assessment is that the alleged mischief is not so great as to require departing from my
interpretation of the framers’ intent. The period during which the Speaker will ordinarily
be required to act for the President will be short. In this present case, it was for only four
days. Accordingly, such short periods of the executive power being exercised by the
presiding officer of the legislature are unlikely to impair the long-term underlying
balance of the Constitution. Moreover, in spite of the headship of the executive and the
legislature devolving on one person, the legislature, as an institution, and the
executive, as an institution, will each maintain their distinct and separate zones of
authority. In this regard, it would be desirable for a convention or practice to be observed
whereby when the Speaker is performing the functions of President, he does not at the
same time exercise the powers of the Speaker and he devolves his presiding and other
roles to a deputy.

The open questions posed above relating to whether the President continues to share the
executive power while the Speaker is acting for him, and if so the extent of the sharing of
the power, do not need to be answered in this case. They should be reserved for future
cases whose decision requires the determination of those questions. In the meantime,
Parliament, suo motu, or at the instigation of the Executive, would do well to address
these questions and enact appropriate gap-filling legislation.

I should mention that although I have expressed the conflicting interpretations of the
plaintiff and the defendant as representing a tension between the subjective and objective
purposes of article 60(11), this is not necessarily how the plaintiff himself sees it. Rather,
this represents my interpretation of the plaintiff’s case. Indeed, the plaintiff himself, in
one part of his argument, purports to frame his contention on the basis of a “literalist”
interpretation of the provision under construction. He says in paragraphs (3)-(4) of his
arguments of law:

“(3) The cardinal rule of interpretation of constitutions, statutes and deeds is that words
must be given their ordinary, clear, unambiguous, unequivocal and everyday meaning,
without any glosses, additions or interpolations: Attorney-General v Tagoe [1984-6]
GLRD 88, SC; Tuffour v Attorney-General [1981] GLR 944, SC and Sallah v Attorney-
General [1970] CC 55,CA sitting as SC.

(4) The dictionary meaning of “unable” is “not able to,” “incapable of ,” “not in a position
to” And “able” means the power, privilege or opportunity to do something: Black’s Law
Dictionary Oxford Advanced Learner’s Dictionary of Current English.”

From what I have said above regarding purposive interpretation, it is clear that I do not
find this kind of linguistic argumentation persuasive. What interpretation is to be given
the words should depend upon the court’s perception of the purpose of the provision
and the context of the words, rather than on their dictionary meaning. The “plain
meaning” approach to judicial interpretation is not necessarily the most apposite. In my
view, words hardly ever have a meaning in vacuo. Words take on meaning in association
with the other words in whose context they are used. Therefore the interpretation of
words almost invariably means doing more than finding their mere dictionary (or
“literal” or “plain”) meaning.

My conclusion is that the purposive interpretation to be given to article 60(11) is that

where both the President and the Vice-President are absent from Ghana, they are to be
regarded as "unable to perform the functions of the President" and thus the Speaker is
obliged to perform those functions. On the facts of this case, it is unnecessary to decide
whether the Speaker, when acting for the President, is vested with all the President’s
functions or only those which cannot be effectively performed whilst the President is
absent from Ghana. In my view, the purpose of the framers of the Constitution was to
ensure that whoever exercises the functions of the President is physically present in
Ghana. This has to do with the framers’ assessment of the empirical conditions in Ghana
and the efficacy with which executive power may be exercised in Ghana from
abroad. There are insufficient counterbalancing considerations from the core values and
underlying scheme of the Constitution to justify interpreting the words of article 60(11)
in a way which overrides this framers’ purpose. The framers’ assumption that the
President or, in his absence the Vice-President, needs to be present in Ghana in order to
perform the functions of the President effectively has not been rebutted.

Accordingly, I would dismiss this action.

DR. S. K. DATE-BAH

JUSTICE OF THE SUPREME COURT

ACQUAH C.J. I agree and I have nothing to add.

G. K. ACQUAH

CHIEF JUSTICE

BADDOO J.S.C. I also agree.

S. G. BADDOO

JUSTICE OF THE SUPREME COURT

DR. TWUM J.S.C. I also agree.

DR. S. TWUM

JUSTICE OF THE SUPREME COURT

PROF KLUDZE JS.C. My Lords, the plaintiff is asking us to make an order that, upon a
true and proper construction of article 60 of the 1992 Constitution, when the President is
absent from Ghana, the Vice-President or the Speaker of Parliament may not be sworn in
as acting President. The first relief of the writ is confined to seeking to restrain the Speaker
of Parliament from performing the functions of the President when the latter is absent
from Ghana. However, the arguments presented on behalf of the plaintiff indicate that
the restraint is intended to extend also to the Vice-President. A gravamen of the plaintiff's
contention is that the President, notwithstanding the language of article 60(11), is not
unable to perform his functions merely by reason of his absence from Ghana. If we accede
to this contention and agree with the plaintiff that the President is not unable to perform
the functions of his high office when absent from Ghana, it would be as unconstitutional
for the Vice-President also to perform those functions during the absence of
the President, as it would be for the Speaker of Parliament to perform them.

The plaintiff's argument is a two-pronged attack on the procedure which had hitherto
been followed. The first argument is that, when the President is out of Ghana, he is not
by reason of that fact alone unable to perform the functions of his office. Indeed, he
contends that when the President travels out of the country on official duties, he is very
much an active President discharging his duties. If that is the case, the absence of the
President from Ghana is not a sufficient reason to trigger the provisions of article 60 of
the Constitution for swearing in an acting President.

The second argument of the plaintiff is that we create a situation of possible conflict and
confusion when we have a President performing his functions out of Ghana while there
is an acting President discharging some of those functions within Ghana. This position of
dual presidency, he argues, is not what the framers of the Constitution envisaged in
article 60(11) of the Constitution.

The initial impression, upon reading the plaintiff's petition, is that he raises an
interpretational issue as to the true meaning of the phrase "unable to perform the
functions of his office" within the intendment of article 60(8) and (11) of the 1992
Constitution. That is the aspect which my learned brother Dr Date-Bah JSC, has very
effectively analysed and explained. I agree with all that Dr Date-Bah JSC has said
and have very little to add to his brilliant exposition. I agree that we must adopt a
purposive construction of the constitutional provisions. That means that we do not
construe words in the abstract but within the context in which they are used. Language
is a tool for expressing the wishes of the speaker, author or writer. Therefore, regardless
of the theoretical classification of the methodology of construction, the fundamental rule
is for the court to construe every enactment with the purpose of effectuating the true
intent of the lawmaker, in this case the intent of the framers of the 1992 Constitution. All
other canons of construction have the ultimate purpose of achieving this goal. I do not
think that mere recourse to dictionaries of the English language will resolve the issues
which confront us or render any easier the task we are called upon to perform. Our task
here is not to try to explain what "unable to perform the functions of his office" means.
We understand the word "unable" and a reference to an English dictionary for that
purpose is hardly useful. What we are called upon to say is whether, when the President
is absent from Ghana on official duties, he can for that reason alone be said to be "unable
to perform the functions of his office." The Constitution spares us that ugly task.
Otherwise, every time that the President travels out of Ghana, a ruling would be
necessary from us as to whether the circumstances of his absence are such that the
President is "unable to perform the functions of his office," so that either the Vice-
President or the Speaker of Parliament may temporarily perform his functions. It is not
our proper function to determine whether the President or Vice-President is "unable" to
perform the functions of the President when the President is out of Ghana. That has been
clearly stated in the Constitution itself and, in my opinion, it does not lend itself to a
serious debate.

One of the canons of construction is expressum facit cessare tacitum. It means that "when
a thing is expressly stated, it ends speculation as to whether something inconsistent may
be implied." It also means that express enactment shuts the door to further implication
and speculation: see Whiteman v Sadler [1910] AC 514 at 517. Therefore, even if we adopt
the so-called literal interpretation, or the purposive construction which is otherwise
known as the "mischief rule", the result is the same. A literal reading of article 60 enjoins
us to say, by virtue of its clause (8), that the President is "unable to perform the functions
of his office" when he is for any reason whatsoever absent from Ghana. This includes
absence from Ghana on official duties. A purposive approach also confirms the same
result, because it is patently the intent of the framers of the Constitution that the functions
of the President be not thrown into abeyance while he is absent from Ghana for whatever
reason. The executive arm of government must continue to function even when the
President has travelled outside Ghana, even on official duties.

My Lords, the Constitution offers its own meaning for the phrase "unable to perform the
functions of his office." In article 60(8) of the Constitution, the words are that:

"Whenever the President is absent from Ghana or is for any other reason unable to perform
the functions of his office, the Vice-President shall perform the functions of the
President until the President returns or is able to perform his functions."

(The emphasis is mine.)

It is obvious to me that the Constitution in so many words declares that the absence of
the President from Ghana is one of the possible circumstances in which he becomes
"unable" to discharge the functions of his high office. The words of the Constitution show
that there may be other reasons, apart from absence from Ghana, when the President may
be unable to perform his functions. That does not directly concern us here. It is not clear
whether the President is unable to perform the functions of his office when he has a bad
cold; or when he suffers a heart attack; or when he has diarrhoea. Whether the President
has to be in a coma or an intensive care unit of a hospital, or under the care of a native
herbalist, before we can say that he is unable to perform the functions of his office, is a
question we are not to address this time. We only know from the words of article 60(8)
that absence from Ghana is one of the stipulated circumstances which the Constitution
presumes to mean that the President is unable to perform the functions of his office. The
other reasons are not articulated, nor instances given of them. However, the choice of
phraseology in article 60(8) by the framers of the Constitution means that "Whenever the
President is absent from Ghana" must be construed ejusdem generis with "for any other
reason unable to perform the functions of his office." The framers of the Constitution
could have written words like: "Whenever the President is absent from Ghana or is unable
to perform the functions of his office..." In that case, "absent from Ghana" could be
construed disjunctively as an alternative to inability to perform his functions. That is not
the language employed by the writers of the Constitution. The words of the Constitution
make it clear that "unable to perform the functions of his office" is a genus of which
"absent from Ghana" is one of the species or sub-sets. Where the Constitution makes the
position so explicitly, we do not have to speculate as to the meaning of "absent from
Ghana" in the context of the President's inability to perform his functions. We can argue
about how ill the President may be before it can be said that he is unable to perform the
functions of his office. But we cannot seriously argue about whether he is unable to
perform the functions of his office when he is "absent from Ghana", because the
Constitution says so plainly in clause (8) of article 60.

An enactment, including a Constitution, may itself be the best source for the
interpretation of otherwise obscure words and expressions. Where the enactment gives a
meaning to a word or phrase in another section, we may refer to that section to construe
the word or phrase when it occurs again in the same context elsewhere in the enactment.
In the present case, the expression "unable to perform the functions of his office" occurs
in the same article, that is article 60 of the Constitution dealing with the temporary
devolution of the President's functions. In my opinion, the phrase "absent from Ghana",
used ejusdem generis with "for any other reason unable to perform the functions of his
office" in clause (8) of article 60, must be understood to mean the same thing in clause
(11) of the same article. The expression "absent from Ghana" is used in the same context
and in the same article of the Constitution. It must bear the same meaning as one of the
reasons why the President may be considered unable to perform the functions of his
office, so as to mandate the devolution of his functions under clauses (8) and (11) of
article 60.

Using the meaning of the phrase in the same article to interpret it in another part makes
for internal consistency and coherence of different but related provisions of the
Constitution. In this particular case, article 60(8) indisputably says that the Vice-President
shall perform the functions of the President "Whenever the President is absent from
Ghana or is for any other reason unable to perform the functions of his office." In article
60(11) which relates to the Speaker of Parliament, the provision is for the Speaker to act
for the President "Where the President and the Vice-President are both unable to perform
the functions of the President..." Unless we interpret "unable to perform the functions of
the President" in article 60(11) by accepting absence from Ghana as one of the reasons for
the inability, as in article 60(8), we may be faced with an absurdity. It will mean that while
under article 60(8) the Vice-President may act for the President if the President is absent
from Ghana and thus constitutionally presumed to be unable to discharge presidential
functions, there will be no person in Ghana to perform the functions of the President if
both he and the Vice-President are absent from Ghana. This will produce internal
inconsistency and absurdity, quite apart from the predictable constitutional crisis that
such a construction may portend. I cannot believe that the framers of the
Constitution intended this consequence. Instead, I am of the firm opinion that the
framers of the Constitution intended that the factors which render the President unable
to perform the functions of his office, as articulated in clause (8) of article 60, are intended
to apply also to both the President and the Vice-President under clause (11) of the same
article. These factors are in clause (8) and include absence from Ghana and "any other
reason." The other reasons are not stated; but absence from Ghana is expressly stated as
one of the reasons why the President is unable to perform the functions of his office. This
does not properly belong to the realm of speculation or disputation. A political scientist
may question the wisdom of the constitutional arrangement; but that form of criticism
falls outside our interpretative function when the constitutional provision
is devoid of ambiguity.

In Tuffuor v Attorney-General [1980] GLR 637, the constructional issue faced by the Court
of Appeal, sitting as the Supreme Court, was not very different from the present case. In
that case, the plaintiff averred that the Honourable Mr Justice F K Apaloo, who had been
Chief Justice immediately before the coming into force of the 1979 Constitution,
was "deemed to have been appointed" under that Constitution within the intendment of
article 127(8); and that he was, therefore, exempt from appearing before Parliament for
the process of giving parliamentary approval to his appointment. The plaintiff,
therefore, contended that the Honourable Mr Justice Apaloo should not have appeared
before Parliament to have his appointment as Justice of the Supreme Court subjected to
parliamentary approval under article 127(1)(b) of the 1979 Constitution. The issue for
determination was the meaning of the phrase "shall be deemed." The court referred to
other parts of the 1979 Constitution where the phrase had been used. For instance, the
President who was, in fact, elected pursuant to the 1979 Constitution but before that
Constitution actually came into force a few weeks later, was said by section 1(1) of the
transitional provisions to be "deemed" to have been elected under that Constitution.
Similarly, the members of Parliament elected in the same manner as the President, were
under section 2(1) of the transitional provisions "deemed" to have been elected under the
said 1979 Constitution. In the circumstances, since the fact that the President and
Members of Parliament were "deemed" to have been elected under the 1979 Constitution
did not lend itself to debate, the court concluded that the phrase must have the same
meaning when it is used in article 127(8). In other words, the court relied on the
Constitution itself to interpret the Constitution.

My Lords, in the present case the phrase "unable to perform the functions of his office"
appears in the same article, to wit, article 60. Since the reasons for being "unable" are
stated in clause (8) of article 60 to include absence from Ghana, it must bear the same
meaning when used in clause (11) of the same article. I do not, therefore, have any
difficulty in holding that absence from Ghana is also one of the reasons why the President
and Vice-President may in terms of article 60(11) be "unable to perform the functions of
the President", thus triggering the devolution of the said functions on the Speaker of
Parliament. I am, on the contrary, fortified in this view because absence from Ghana is
the only circumstance specifically cited in article 60 to be a reason for being "unable to
perform the functions of the President." The other reasons are not specified and must be
identified on a case by case basis as the occasion arises. Ironically, the circumstance which
is being questioned, that is, absence from Ghana, is the only one expressly stated as
constituting or resulting in inability to perform the functions of the office of the President.

The plaintiff makes a further and broader point. He argues that the provision for
swearing in an acting President entails constitutional flaws and implicates political
problems. In other words, he questions the wisdom of the framers of our Constitution as
well as the wisdom of the people of Ghana in ordaining unto themselves such a
constitutional provision on the presidency. One of the two major attacks on the wisdom
of the people is that, to swear in an acting President when the serving President is absent
from Ghana, creates an undesirable situation of a dual presidency. The strictures here are
applicable to any situation in which either the Vice-President or the Speaker of Parliament
assumes the functions of the President during the absence of the President from Ghana.
The second criticism is that to allow the Speaker of Parliament, who is the Head of the
legislative branch of government, to assume the presidency for any length of time violates
the doctrine of separation of powers which underpins our constitutional structure.

We may first deal with the criticism that there is a situation of a dual presidency where
the President is absent from Ghana, performing his official duties, but another person is
inducted to perform his functions in Ghana during his absence from Ghana. As the
plaintiff puts it, when the President is absent from Ghana on official duties, he is in fact
actively performing his functions abroad as President, and it is wrong to appoint another
person to act for him. I will quote paragraph (5) of the plaintiff's arguments of law where
he avers:

"[I]t cannot be said that when the President has merely travelled abroad, particularly
when he is on official duties as Head of State and Head of Government, he is "unable" to
act as President. Indeed, the President travelled to Singapore to meet his counterpart, the
Head of State and Head of Government of Singapore; and he proceeded further
to Australia to attend a summit conference of Commonwealth Heads of States
and Governments. In this light, when the President travelled abroad, he was not unable to
perform his duties as President. He was indeed performing his duties as President."

(The emphasis is mine.)

As I understand it, this criticism applies with equal force, whether it is the Vice-President
or it is the Speaker of Parliament who assumes the functions of the President during the
absence of the incumbent. This is an ingenious argument but without merit. In any case,
even if I were to agree with the plaintiff that it was unwise or desirable to swear in an
acting President when the incumbent was absent from Ghana, I would not substitute my
wisdom for the wisdom of the people of Ghana who voted to adopt the Constitution with
those provisions contained therein. The words of the Constitution are clear and
unambiguous. The provision in article 60(8) is that: "Whenever the President is absent
from Ghana... the Vice-President shall perform the functions of the President until the
President returns..." It contemplates a temporary assumption of the functions of the
President: "Whenever the President is absent from Ghana" and "until [he] returns." There
arises under those words no problem of interpretation or construction. The words are
clear. Where the words of an enactment are clear, it is not permissible for the court or a
judge to speculate as to what would be a better or more sensible provision, under the
guise of construction. In particular, when we are enforcing the provision in a Constitution
which is the supreme law of the land and which was approved by the people, we must
unreservedly reject any invitation to alter the effect of the clear stipulation. We have no
such mandate as judges. In my judgment, the Constitution clearly ordains that:
"Whenever the President is absent from Ghana" the Vice-President or the Speaker of
Parliament must perform his functions until he returns. It does not matter whether I
consider this to be a wise constitutional arrangement.

I am totally not persuaded by the argument that we have to take into account the current
technological advances which make it possible for the President, even when far away
from Ghana, to be able to communicate with responsible officials in Ghana. I agree that
we now live in the virtual global village, and the facilities for contact both within and
without the borders of one's country of residence are tremendous and fascinating.
However, that realisation does not entitle us to ignore the plain language of the
constitutional provision that we are now being asked to consider. Our Constitution was
adopted and came into force barely a decade ago. The framers must be deemed to be
cognisant of the technological advances to which we are being referred, as well as the
promise of future technological achievements. The voting public also knew of them when
they approved of the Constitution as it was written. We cannot, therefore, circumvent a
clear constitutional provision because technological facilities may enable the President
now or in future to communicate with us from distant countries. In my view, the framers
of the Constitution intend that at all times, regardless of the means of national and
international communication, there should be present in Ghana an official who has duly
sworn the Presidential Oath to perform the duties of President if the need should arise
while the President is absent from Ghana or is incapacitated.

Indeed, technology is an unreliable ally in modern constitutionalism. The same

technology that provides for long distance communication may also be utilised to
frustrate contact in an emergency. During the first Gulf War of 1991, the whole
communications system of the Iraqi Army was neutralised by the type of technology that
established it in the first place. As a result, the field commanders were unable to send or
receive instructions. Furthermore, most of the electric power lines throughout Iraq were
knocked out of commission by magnetic flares and other devices, thereby causing power
failures and a total breakdown of communication and other electric and electronic
systems. I cannot fathom the wisdom of the framers of the Constitution. I think, however,
that they would not like us to be abandoned to the vicissitudes and vagaries of
technological advances in an emergency. If Ghana were under attack by a foreign power,
communication with the President in a distant country may not provide a prompt,
adequate or effective response. Advice to the absent President may be impracticable and
unreliable. We may need a real person who has constitutionally assumed the reins of
office, albeit temporarily, to lead the nation as Commander-in-Chief of our Armed Forces
until the return of the President. This may be an extreme example, but it can be replicated
in cases of local crises like the recent Dagbon crisis.

The plaintiff does not directly make an issue of who should perform the functions of the
President when the President, the Vice-President and the Speaker of Parliament are all
"unable to perform the functions of the President" as stated in article 60(11). However,
because of the interpretation he invites us to place on article 60(11), and his appeal to
the doctrine of the separation of powers, he must also be taken to imply that it would also
be unconstitutional for the Chief Justice to perform the functions of the President
temporarily when all the other three are unable to perform them. If that is the implication
of the arguments before us, I would like to categorically reject such a proposition. Rather
than rely on the doctrine of the separation of powers in the construction of our
Constitution, I would draw upon a philosophical and principled theme that appears to
me to animate the constitutional structure that we have adopted. That basic assumption
is that the executive power of the presidency should never be in abeyance. To have a
situation when there is no person in Ghana to exercise the executive power of the
presidency would be a prescription for chaos and anarchy, and could expose this nation
to both internal and external instability. If the doctrine of the separation of powers must
be violated to ensure that the office of the President is never to be unperformed and never
in abeyance, I would readily violate it to spare the nation anarchy and chaos. Nowhere
in the Constitution are we enjoined to observe or apply such a doctrine. It is a goal that
may be attained if desirable. However, if the need arises, the doctrine must yield to
pragmatism and political reality. Therefore, relying on other parts of the Constitution
and its principled structure, it is clear that the Constitution envisages that, if need be, the
Chief Justice, the Head of the Judicial Branch, may perform the functions of the President
on a temporary basis. Such a need may arise if, God forbid, the President, the Vice-
President and Speaker of Parliament are all, because of a national emergency or national
disaster, unable to perform the functions of the President. In their wisdom, the framers
of the Constitution did not want Ghana to be rudderless in such an emergency,
rare though it may be. Therefore, the Constitution provides clearly for an order of
precedence which must be observed. It is not for nothing that such an elaborate scheme
was laid out in the Constitution. It is to avoid a breach in the chain of command when an
emergency does not allow for the cool deliberation to vest a locum tenens with the
temporary executive power of the President. For this purpose, in article 57(2) of the
Constitution, the official and constitutional order of precedence is clearly
stipulated. Article 57(2) says:

"The President shall take precedence over all other persons in Ghana; and in a descending
order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take
precedence over all other persons in Ghana."

There is and must be a meaning to an order of precedence. It establishes the descending

order in which power may devolve, particularly in an emergency. This is often referred
to as the chain of command. I am of the view, therefore, that not only may the Speaker of
Parliament perform the functions of the President when both the President and Vice-
President are absent from Ghana or are for any other reason unable to perform those
function, but that the Chief Justice must perform those functions whenever the President,
the Vice-President and the Speaker of Parliament are all absent from Ghana or are
otherwise unable to perform those functions.

It must be noted that article 57(2) on the order of precedence occurs within chapter eight
of the 1992 Constitution which is devoted to the executive branch. And it is not
insignificant that the said article 57(2) is under that portion of chapter eight which is sub-
headed "The President." In other words, the order of precedence is set out in the context
of "executive" power, and specifically within the exercise of executive power by "The
President." If there were a rigid separation of powers as now urged upon us, the Chief
Justice would not be mentioned in the context of the devolution of executive power or
the order of precedence under chapter eight, "The Executive" or the portion of the
Constitution devoted to "The President." The chapter on the judiciary is chapter eleven.
Looking at chapter eight and other provisions of the Constitution, I am convinced that it
is the intention of the framers of our Constitution that, should the need arise, the Chief
Justice must assume the functions of President on a temporary basis as would the Vice-
President and the Speaker of Parliament in that descending order of precedence.

There is, in fact, a precedent for this under the present Constitution. During the
Presidency of ex-President J J Rawlings, the Speaker of Parliament was out of the country
while the President was also absent from Ghana on official duties. It then became
necessary for also the Vice-President, who had been acting as President, to travel to
Abuja, Nigeria, for the ECOWAS consultation on 25 September 2000. The Vice-President,
Prof J E A Mills, notified the fact to the Office of the Speaker of Parliament with the
request that “pursuant to article 60(8) and (11) of the Constitution, the Chief Justice shall
act in my absence.” The then Chief Justice, Mr Justice I K Abban, was accordingly sworn
in to perform the functions of the President temporarily.

I also take judicial notice of the fact that in the early years of our Independence, the Chief
Justice, Sir Kobina Arku Korsah, did on several occasions act for the Governor-General
during the absence of the Governor-General from Ghana. I take judicial notice of this
because Sir Arku Korsah, as Acting Governor-General, did sign to give the Royal Assent
to several Bills passed by Parliament. From the date of Independence in March 1957, until
Ghana became a Republic on 1 July 1960, Sir Charles Arden-Clark and Lord Listowel
were the Governor-Generals who signed Bills into law on behalf of Her Majesty the
Queen, who was the constitutional Queen of Ghana. During this time, the Governor-
General was absent from Ghana on different occasions. In 1957, the Chief Justice, Sir Arku
Korsah, was Acting Governor-General and signed the Ghana Cocoa Marketing Board
(Amendment ) Act, 1957 (No 3 of 1957) on 20 June 1957; the Deportation Act, 1957 (No 14
of 1957), on 25 July 1957; and the Immigration Act, 1957 (No 15 of 1957) on 25 July 1957.
He continued signing Bills until the Statute Law (Amendment) Act, 1957 (No 22 of 1957)
on 28 September, 1957. In 1958, the Chief Justice, Sir Arku Korsah, as Acting Governor-
General, also signed the notorious Preventive Detention Act, 1958 (No 17 of 1958) on 18
July 1958, which authorized the Nkrumah Government to imprison citizens without
trial. In the acting capacity, he also signed the Houses of Chiefs Act, 1958 (No 20 of 1958),
on 26 July 1958; the Legal Practitioners Act, 1958 (No 22 of 1958) on 6 August 1958; and
the Regional Assemblies Act, 1958 (No 25 of 1958) on 29 August 1958. In 1960, Chief
Justice Korsah, as Acting Governor-General, did sign the Ghana Legion Act, 1960 (No 6
of 1960) into law on 17 March 1960. There was no concern then about the doctrine of
separation of powers even though the Chief Justice, as Head of the Judicial Branch,
performed the functions of the Governor-General, the Head of the Executive Branch. This
is a more reliable evidence of state practice in Ghana than the superficial citation of the
presumed practice in England. This brief excursus into our post-Independence
constitutional history demonstrates that Ghana has never adopted a Constitution
providing for the erection of an impenetrable wall of separation between the three
branches of government.

In view of the fact that the Chief Justice, as Head of the Judicial Branch, did perform the
functions of the Governor-General as Head of the Executive Branch, it is not a little
surprising that counsel for the plaintiff sought to rely on the so-called British practice to
say that nobody acts for the Queen. The Governor-General was the representative of the
Queen, and when he was away the Chief Justice of Ghana was sworn in to perform his
functions. This establishes a better precedent than the reference to the British Royalty.
England is a hereditary monarchy and the Monarchy is an institution which transcends
the Queen personally. Therefore, even though the Queen may be personally absent, the
Civil List has provisions for continuity, and Her Majesty's Cabinet is in law and in
practice able to exercise most of the powers of the Crown.

The provision in article 60 may not be the most prudent, or even the most practical, for
handling situations when the President is absent from Ghana. It may at times occasion
inconvenient and theoretically incongruous choices. All the same, that is what the
Constitution clearly ordains and it must be observed until there is an amendment. If, as
he is entitled, the plaintiff disagrees with the stipulation in the Constitution, he has
avenues open to him. He can appeal to the political process to initiate the procedure to
amend the part of the Constitution that he disapproves. Our Constitution has established
procedures for securing amendments. This is because the framers anticipate that a
Constitution as a basis for democratic government may need amendments in response to
changing or changed circumstances or in the light of difficulties and flaws in its
application. The Supreme Court is ill-suited as a forum for advocating constitutional
amendments. The plaintiff is urging us to become entangled in political issues which are
properly reserved for Parliament and the people of Ghana in a referendum under articles
289-292 (chapter 25) of the Constitution.

The plaintiff makes a valid point that a person who assumes the functions of the President
during his absence may misuse his temporary powers to the detriment of the country and
for improper political advantage. As the plaintiff puts it, there would be a dual
presidency, with the real president performing his presidential functions abroad while
the acting President in Ghana may be engaged in a scheme to undermine his authority in
Ghana. For instance, once the Vice-President or Speaker of Parliament has sworn the
Presidential Oath, he may proceed to re-shuffle the Cabinet; dismiss the
entire Cabinet in a manner that may equal a constitutional coup d'etat; grant pardons to
undeserving prisoners; or declare a State of Emergency to perpetuate himself in power.
All these and many more may be genuine fears. The framers of the Constitution must,
however, be deemed to be aware of these possible threats to the constitutional order when
they crafted article 60 of the Constitution. They must have formed the judgment that these
fears are outweighed by the advantage of having a real person physically present in
Ghana to deal with pressing matters of state, including external aggression, when the
President is away. In any event, if these fears are well-founded, legislation or
constitutional amendments may define and, if necessary, delimit, the powers and
functions of the person who temporarily performs the functions of the President during
the latter's absence from Ghana. Until that is done, we must enforce the Constitution as
written.

The plaintiff makes a further philosophical attack on the provision for the performance
of his functions when the President is incapable of performing those functions. The
criticism is particularly directed at article 60(11) of the Constitution which provides that
the Speaker of Parliament shall perform the functions of the President when both the
President and Vice-President are unable to perform them. He says that, allowing the
Speaker of Parliament to ever perform the functions of the President is objectionable
because it violates the doctrine of the separation of powers. For this purpose it does not
seem to matter whether the incapacity arises from physical or mental infirmity, or from
the fact of absence from Ghana. The criticism is that, whatever the reason, the Speaker of
Parliament, being Head of the Legislative Branch of Government, should never act for
the President who is Head of the Executive Branch.

The doctrine of the separation of powers is a philosophical and political dissertation

which seeks to compartmentalise the organs of government into three distinct branches
denominated as the executive, the legislative and the judicial branches. The doctrine
proceeds to postulate the theory that for efficient governance, and in particular to avoid
despotism and tyranny, the three branches of government must remain distinct; for, the
concentration of power in the hands of one person or one set of persons has the natural
tendency to breed despotism and tyrannical rule because of the fallibility of man.

The known apostle of the doctrine of separation of powers is Baron Charles de

Montesquieu. In about 1748 Montesquieu published his monumental L'Espirit de Lois. It
has since been regarded as the Bible for proponents of the doctrine of the separation of
powers in government. It is believed that that work greatly influenced the structure of
the Constitution of the United States, which is constructed on the doctrine of the
separation of powers with checks and balances. No wonder the plaintiff, who lives and
works in the United States, placed considerable reliance on Montesquieu's L'Espirit de
Lois to buttress his argument.

As a theoretical proposition, Montesquieu's work is acclaimed as a classic thesis for the

separation of powers in modern government. Therefore, even in the face of the plain
language of article 60(11), which explicitly designates the Speaker of Parliament to
perform the functions of President in specified limited circumstances, the plaintiff says
that we must invoke the doctrine of separation of powers to strike down the stipulation
and thereby enjoin the Speaker of Parliament and his successors in office from ever
performing the functions of the President.

Before discussing the merits of this argument, we may examine the context in which
Montesquieu wrote his L'Espirit de Lois and how this work has been the philosophical
foundation for modern constitutions of the world. The work was not written in a vacuum.
It was written especially as a comparative analysis of the concentration of power and the
structure of governments in Europe of the mid-eighteenth century, as contrasted with the
structure of the British Government. Specifically it was contrasted with the structure in
his native France where royal absolutism had reached its apotheosis under the Bourbons,
such that Louis XIV was able to proclaim that "L'etat cest moi." Montesquieu was in the
circumstances fascinated so much by the British attempts at the separation of powers that
he embraced and then embellished the concept of the separation of powers of
government. His book was, therefore, intended to validate and propagate the doctrine as
a desirable theory in constitutionalism. It was not necessarily an accurate observation of
the British constitutional structure by Montesquieu, even if the theory itself can otherwise
be validated.

Indeed, many serious scholars, including constitutional lawyers and political scientists,
have opined that Montesquieu's description and analysis of the British constitutional
structure was imperfect and imprecise. It has been stated by no less an authority than the
celebrated British constitutional lawyer, A V Dicey, that "Montesquieu misunderstood on
this point the principles and practice of the English Constitution." (See A V Dicey, The
Law of the Constitution, (8th ed), Macmillan & Co, London, 1915, page 220.) There are
many flaws in the admiration of the British Constitution by Montesquieu. For instance,
he glossed over or else did not appreciate that the House of Lords, being the Upper
Chamber of the British bicameral legislature, was also the highest appellate court, the
court of last resort, in England. Scholars today wonder how the doctrine of separation of
powers was reconciled by Montesquieu with the parliamentary executive in the Britis
Constitution. In Britain, all the members of Cabinet, embracing the effective executive
branch of government, must also be members of the British legislature. There is thus no
substantial separation between the legislative and executive arms of government. The
amount of subsidiary legislation in England is so tremendous that it has been said that
the executive branch has usurped many of the legislative functions of Parliament by
legislative instruments, legal notices, etc which have the status of legislation. Similarly,
the volume of administrative decisions is overwhelming, and most of these are essentially
judicial and quasi-judicial except in name. To the extent that he did not consider these
matters, we can say that Montesquieu's observations are flawed. Of course, that does not
derogate from the essential validity and usefulness of his thesis as a model for
constitutional government.

The modern application of Montesquieu's doctrine of separation of powers is exemplified

in the Constitution of the United States of America. Under the American Constitution,
the legislative branch is separate from the executive branch and from the judicial branch.
No member of the executive branch, meaning no secretary of a department (equivalent
to a minister and a member of the Cabinet), may have a seat in the Congress - neither in
the Senate nor in the House of Representatives. Similarly, no judge may at the same time
serve in the Congress or in the executive branch. The underlying philosophy is to prevent
the concentration of power in one branch of government. In America it has worked well
for over two centuries; but we cannot ascribe the credit for the success story to only the
doctrine of separation of powers.

The separation of powers has its inherent disadvantage where one branch refuses to
cooperate or work in harmony with the other branch. It is particularly aggravated by the
so-called checks and balances by which each branch of government seeks to curtail the
excesses of the other. Moreover, in the United States the dividing line between the
executive branch and the legislative branch has been blurred by the huge amount of
delegated legislation that the executive branch promulgates on a regular basis to regulate
almost every facet of public life. The Code of Federal Regulations (CFR) consists of
horrendous volumes of detailed rules and regulations which are overwhelming by their
sheer size. It requires expertise to navigate through the morass of these rules and
regulations which are made by the executive branch through the
various departments and agencies and bureaux. These are in a sense intrusions
by the executive branch into the domain of the legislature, although it is the legislature
itself that enacts the primary laws conferring such legislative powers on the executive
branch. Similarly, administrative law judges perform large and diverse types of judicial
functions. They conduct hearings in the manner not unlike those of judges of the judicial
branch and make appropriate adjudications and determinations, and render rulings,
which profoundly affect the lives and livelihood of most citizens. The Americans have
over the years discovered that rigid separation of powers would frustrate and paralyse
good administration and good government.

Looking at our own Constitution, there is express provision directly negating the doctrine
of the separation of powers. We do not go as far as the British, whom Montesquieu
apparently misunderstood, in insisting on a parliamentary executive. However, articles
76, 77 and 78 of our Constitution stipulate for the executive branch of government to be
represented in the legislature and vice versa. Under article 76, the executive power of the
President is exercisable with a Cabinet consisting of Ministers of State. Then article 78
provides that "...the majority of Ministers of State shall be appointed from among
members of Parliament." Therefore, it is obvious that some members of the legislature
must be also Ministers of State. In fact, the majority of the Ministers of State must be
drawn from the legislative branch, that is from Parliament. The Constitution of Ghana,
therefore, envisages that there shall not be a rigid separation between the executive and
the legislative branches of government. By this arrangement, the executive branch is able
to introduce measures in Parliament and to directly defend its policies and programmes
before the representatives of the people assembled in Parliament. It provides for a
symbiotic co-operation between the legislative and the executive branches, rather than
erecting an impenetrable steel wall between them. This addresses some of the difficulties
in the American system where, because no member of the executive branch sits in either
house of the Congress, the executive must act through party leaders, who are not
executive officers, to introduce legislative and other measures in the House of
Representatives as in the Senate and to explain government policies.

In the light of these observations, we need not appeal to the doctrine of the separation of
powers to resolve constitutional issues which are capable of being decided by the plain
reading of the text of our Constitution. For my part, I cannot read article 60(11) as subject
to the limitations imposed by the doctrine of the separation of powers or any other
political or social philosophy. Separation of powers is a salutary principle, and I would
be disposed to accept its application if it would assist in the construction of ambiguous
words and phrases. The doctrine must not, however, be constituted into a limitation or
derogation from the political sovereignty of the people of Ghana when they adopt their
Constitution. The sovereign people of Ghana can expressly or by implication reject any
aspect or implication of the doctrine of the separation of powers, as they may any other
doctrine, philosophy or principle. Therefore, when the sovereign people of Ghana have
ordained in article 60(11) of our Constitution that the Speaker of Parliament may in
specified circumstances temporarily perform the functions of the President, it is not
permissible for the court to strike down this provision merely because it would violate
the doctrine of the separation of powers. The constitutional provision names "the Speaker
of Parliament" by express designation. I have no doubt that the people of Ghana, when
they approved clause (11) of article 60 to endow or ascribe the temporary powers on him,
knew that the Speaker of Parliament was the head of the legislative branch. In deciding
that the head of the legislative branch should perform the functions of the absent
President who is head of the executive branch, it is patent to me that the people, by this
constitutional arrangement, have pro tanto rejected that aspect of the doctrine of the
separation of powers. Therefore the doctrine of the separation of powers must yield to
the expressly declared stipulations of the Constitution if there is a conflict or
inconsistency with the clear language of the Constitution. The doctrine of the separation
of powers must be a servant of the people in providing a tool or mechanism for the
distribution of powers and allocation of functions to the organs of government. It cannot
and must not enslave the people to a particular constitutional arrangement because of
its application or success elsewhere or its compelling philosophical appeal to political
scientists. In particular, it is clear from our past and present constitutional history that
this country has never considered the doctrine of separation of powers as an inflexible
rule. We must not, under the guise of constitutional interpretation, distort our written
constitution by inserting therein words which the framers in their wisdom did not
employ. We must not convert the salutary principle of the separation of powers into an
impenetrable steel wall which can only hinder and impede the smooth running of our
Constitution and frustrate the inter-relationship of the organs of state power, when the
Constitution does not command us so to do. Even in the Constitution of the United States,
in which the doctrine of separation of powers was the underlying philosophy, there is no
such rigid separation of powers.

Strangely enough, while espousing the doctrine of the separation of powers, counsel for
the plaintiff in the same breath sought to draw an analogy from our Ghanaian traditions
of chieftaincy. Counsel apparently forgot that the chief in most Ghanaian communities is
a chief-in-council, meaning that generally he acts on the advice of his council of elders
who often wield effective power. That explains why, even in the physical absence of the
chief himself, very little changes. The stoolfather, the queenmother and other traditional
dignitaries are able to perform the functions of the chief when the chief is absent from the
realm. It is, therefore, not necessary to appoint an acting chief to take an oath of office. In
any case, it sounds incongruous to be extolling the virtues of the doctrine of the
separation of powers while inviting us to take a cue from traditional chieftaincy. In our
traditional form of government, there is no pretence of the separation of powers. As I had
observed elsewhere:

"In his territorial domain, a chief is at the same time the supreme legislator, the repository
of the executive powers of the polity, the fount of justice, the supreme judge, the fount of
honour, and commander-in-chief of the armed forces."

(See, AKP Kludze, Chieftaincy in Ghana, Austin & Winfield, 2000, page 224). Therefore,
if we were to construct or construe our Constitution, or base our democratic philosophy,
with chieftaincy in Ghana as the essential basis therefor, there could be no room for the
doctrine of the separation of powers. In any event, the people of Ghana have chosen to
be a democratic Republic. We must not negate that choice of the people by offering an
interpretation of the Constitution which will result in modelling our machinery of
government, our political institutions or the distribution of state power to organs of
government, on the practices associated with traditional chieftaincy, unless there are
compelling circumstances which warrant the recourse to some of the gems of our rich
culture and traditional statecraft.

My Lords, it is for these reasons that I also agree that the plaintiff’s claims must be
dismissed.

PROF. A. K. P. KLUDZE

JUSTICE OF THE SUPREME COURT