Constitutional Law Revision Guide
and any other law found to be inconsistent with any
1. NATURE, SCOPE & SOURCES OF
CONSTITUTIONAL LAW
General definitions of a constitution
According to Wheare, the word constitution is
commonly used in at least senses
o it is used to describe the whole system of
government of a country, the collection of
rules which establish and regulate or govern
the government these include legal rules as
well as extra-legal rules such as usages,
understandings, customs, or conventions (this
is the broad definition and focuses on the
nature of the constitution)
o The selection of legal rules which govern the
government of a country and which has been
embodied in a document e.g. Constitution of
the USA (narrow definition focusing on
form)
According to Wade & Ewing, the word constitution
has two main meanings:
o In the narrow sense its a document having a
special legal status which sets out the
framework and principal functions of the
organs of government within the state and
declares the principles or rules by which
those governments will operate
o In the wider sense, it refers to Wheares
definition
In the broad sense, it refers to the body of rules and
arrangements relating to the government of the
country (Munro)
According to Munro, all formal constitutions have the
following two features:
o They are founded on a single document or
group of associated documents, restricted in
number
o It consists of rules in fixed verbal form, akin
to legislation, even if its not ordinary
legislation
Typically, constitutions may be characterised by their
designation (i.e. the document claims to be a
constitution), usage (i.e. it is regarded as a
constitution); specialty of enactment; it is conferred a
higher law status (hierarchically superior to other laws
and not alterable in the ordinary way e.g. article 1(2) -
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The Constitution shall be the supreme law of Ghana
provision of this Constitution shall, to the extent of the
inconsistency, be void); its the source of authority of
the principal organs of govt and so is fundamental
law; that it contains rules on certain specified matters;
and finally that it contains the most important rules
about govt.
Characteristics: its made by the people; it establishes
a state, its divisions and system of government; it is
both law and the source of legal power; it contains
rules, conventions and practices.
Content of a Constitution
Constitutions typically reflect the history and
experiences of the people for whom its enacted.
Hence, the contents of constitutions are not the same
from country to country.
It embodies the ideals and values of the society
[usually found in the preamble and directive
principles]
Provisions on the structure and organisation of the
government
Provisions on the distribution of powers and functions
of state institutions e.g. CHRAJ, Lands Commission
Provisions about rights and duties of citizens
Rules for changing or amending the constitution
Problems with definition
The term constitution is inexact although its meaning
is usually assumed to be straightforward
Not all constitutions have the characteristic of being
specially enacted, serve as fundamental law or source
of authority, originate in exceptional process, may be
amended by ordinary legislation e.g. Greek
Constitution of 1975 was enacted by ordinary
legislation
Difficult to regard a constitution as being the source of
authority for the organs of government, because the
organs of government typically predate the
constitution
Some constitutions are very short and may not set out
the rules governing the composition of powers and
methods of operation of the government
Classification of constitutions
Presidential/parliamentary
Unitary/federal
Monarchical/republican
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 Unicameral/bicameral
Flexible/regid
Single party/multiparty
Diarchical
Written/unwritten
Sources of the Constitutional Law of Ghana
Constitutive instruments
Organic legislation from parliament i.e. laws dealing
with centres of political power
Judicial decisions which have constitutional
implications e.g. Sallah v A-G, Tuffuor v A-G,
Marbury v Madison, NPP v A-G
Conventions which may be enacted into law
Customary constitutional law
Books e.g. Wheare, Kelsen
Cases
31st December Case suggests that in addition to the
written document (the letter), the constitution also has a
spirit which could be contravened
In JHM v A-G, the words in the constitution can be
ambiguous (prior approval) and it will be up to the courts
to give them meaning
Marbury v Madison, the constitution is supreme when
two laws conflict. Where the scope of state power has been
set out in the constitution, such limits must not be
exceeded. Hence SC unable to rule on the case because it
can only exercise appellate functions with respect to writs
of mandamus
2. INTERNATIONAL LAW & MUNICIPAL LAW
International law refers to the set of rules and norms which
govern the relationships between States and other actors on
the international plane. Municipal law on the other hand
governs the domestic aspect of government and deals with
issues between individuals and between individuals and the
government.
According to positivists such as Triepel and Strupp,
international law and municipal law exist separately and
cannot purport to have an effect on or overrule the other.
For international law to become part of local law therefore,
it has to be integrated into national laws. This is known as
dualism.
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Monists such as Lauterpacht and Kelsen however disagree
with the dualists and adopt a unitary view of law as a
whole. To monists, international law once concluded
becomes part of municipal law. There is as such no need to
integrate it through an elaborate process. In the event of a
conflict, international law will supersede municipal law.
According to article 75 of the 1992 Constitution, the
President may execute or cause to be executed treaties,
agreements and conventions in the name of Ghana. A
treaty, agreement or convention executed by or under the
authority of the President shall be subject to ratification by
an Act of Parliament or by a resolution of Parliament
supported by more than one-half of all the members of
Parliament. From this constitutional provision, Ghana may
be described as a dualist state.
However, in the case of NPP v. A-G, where the issues in
contention were, inter alia, whether or not the UN
Declaration of Human Rights and the African Charter on
Human and Peoples Rights were binding on state
signatories including Ghana and whether or not Ghanaian
law can overrule the provisions of the said international
instruments. Bamford-Addo JSC discarded the A-Gs
argument that article 37(3) of the Constitution 1992 which
states that the State shall be guided by international human
rights instruments which recognise and apply particular
categories of human rights to development processes, was
only applicable when the relevant international instruments
have been ratified by the State. According to the learned
judge, the dictates of a constitution cannot be superseded
by any municipal law and therefore whether or not the said
instruments had been ratified by Ghana under article 75,
the provisions of article 37(3) must be applied by the
courts in their interpretative duties. Her ruling therefore
presupposes that Ghana does not need to ratify all
international treaties, agreements and conventions before
they becomes binding so long as Ghana is a state-signatory
to those instruments, especially if they are self-executing.
Consequences of dualism include domestic law cannot be
used to explain why a country which has ratified but not
transformed international law into municipal law if it does
not fulfil its international obligations (Art. 27 VCLT);
international law cannot be used to explain a position in a
municipal court; if the provisions in an international treaty
are self-executing, they become immediately binding,
transformation or no transformation, and thus
circumventing the process.
Armon v Katz It was held that Article 37 of Vienna
Convention on Diplomatic Relations grants immunity from
jurisdiction to members of families of diplomatic agents
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(article 31 grants immunity to the diplomatic agent
himself). No one can waive such immunity except the
sending state per article 32(1). Thus, since Ghana is a party
to the convention, the court did not have jurisdiction to
hear the matter. Writs set aside
The Rep v Director of Prisons ex Parte Allotey
extradition proceedings instituted against a Ghanaian and
his Afro-American wife who had sought asylum in Ghana
for charges of fraud by false pretences. The crime should
be punishable by both asylum state and requesting state.
Courts of Ghana have no power to invoke criminal
sanctions against Ghanaians who commit same offence
abroad except with respect to property in which the state
has an interest.
Blackburn v A-G declaration that by signing the Treaty
of Rome, the Crown would be surrendering part of the
sovereignty of parliament and since it is an irreversible
action, it will be in breach of the law that previous
parliaments cannot bind their successors; regulations of
ECC will become automatically binding, courts will have
to follow the decisions of the European Court. No treaty
has been signed but even if it has, the courts cannot take
notice of it until its been embodied in laws enacted by
parliament. Treaty making power rests in the crown and
not the courts; hence the court cant challenge it. Legal
theory does not always march alongside political reality.
Although in theory no parliament can bind another, and
that any parliament can reverse what another has done, the
courts have to wait for such a day to come before making a
pronouncement
3. CONSTITUTIONAL EFFECT OF A COUP
DETAT/REVOLUTION
Discontinuity Theory
It asserts that every illegal change in the constitution of a
state is a revolution and that revolution overturns the entire
legal order, replacing it with a new system (Hans Kelsen).
Proponents however know that in almost all cases, the
content of the post-revolution legal system is similar, if not
identical, to the pre-revolution system. Both the general
rules of law (especially private law) and the particular
rights (contractual, real, remedial) acquired under those
rules are likely to survive i.e. the same rules and rights
will be enforced after as before the revolution.
Continuity Theory
There are categories of unconstitutional acts which involve
modification of the law in force without bringing birth to a
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new legal system (mere coup detat). In Edwardian
England, usurpations (coup detats) were dealt with same as
the death of the King as demise of the crown hence the
law, even constitutional law, of the kingdom is affected
neither in content nor in identity by coup detats. In order
for the constitution to be discontinued, all three of the
following rules prescribed in the constitution must be
affected;
- Rules of succession to office
- Rules of competence (governing distribution of
powers as btn offices and states)
- Rules of succession of rules (rules governing the
amendment, suspension or replacement of rules of
each of the three categories
In article 3(4)(1&2) of the 1992 Constitution, citizens are
charged to defend the constitution and to do all in their
power to restore it when its been suspended, overthrown
or abrogated. It suggests therefore that the framers of the
constitution did not support the Kelsens discontinuity
theory but rather were supporters of the continuity theory
where the effect of the coup detat on the constitution is
partial. The judges in Sallah v A-G also treated the A-Gs
arguments based on Kelsens discontinuity theory with a
pinch of salt.
According to Kelsen, the jurist can proceed back, via a
succession of rules of succession of rules, to a historically
first constitution the grundnorm which emerged
without legal authority and can be regarded as the ultimate
and highest posited source of validity of the existing
constitution and hence the whole legal system. A rule of
succession to office cannot be violated without violating
some rules of succession of rules.
Doctrine of Necessity
It describes the basis on which extra-legal actions by state
actors, which are designed to restore order, are found to be
constitutional. Hence the SC of Nigeria found that the 66
military takeover of government was out of necessity and
not a revolution.
Authorities
Sallah v A-G the effect of the 66 coup was only partial
on the constitution. All laws did not derive their validity
from the proclamation as argued by the A-G. Hence, since
the GNTC was set up by an EI in 61, and where Sallahs
position existed before the NLC proclamation, his position
did not derive its validity from that proclamation.
Therefore the presidential commission was wrong in
dismissing him. Anin JA dissented.
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Lakanmi the military takeover in 66 was not a coup
detat/revolution but a temporary transfer of power an
interim govt for the purposes of maintaining law and
order. Hence only parts of the constitution were set aside
based on the doctrine of necessity. The 63 Constitution
therefore was still valid and all rules obtained their validity
from it. Since the constitution was still valid, any laws
which contravened it were unconstitutional and thus void
as it was the supreme law of the land.
Uganda v Commissioner of Prisons Ex P Matovu In
April 66, the Ugandan Parliament passed a resolution
repealing the 62 Constitution and replacing it with
another. Although this was not the prescribed mode of
changing the constitution, the HC ruled that the 66
constitution was valid. Per Udo Udoma CJ, the act of
abolishing the 62 constitution and replacing it with the 66
constitution was a revolution because it occurred contrary
to the principles of legitimacy. The PM did not follow the
procedure prescribed in the 62 constitution for the
removal of the president and his vice. The 66 constitution
therefore became the legally valid and supreme law of
Uganda and the 62 constitution, having been victoriously
abolished, ceased to exist and no longer formed part of
Ugandan law. The detention order issued under the 66
constitution was therefore valid and the court had no
authority to inquire into its validity or otherwise as it was
an act of the legislature.
Finnis might not have considered this a revolution because
only the rules of succession to office were changed
unconstitutionally. Kelsen would however have considered
it a revolution because of the mere unprescribed nature of
the change.
Madzimbamuto v Lardner-Burke P was detained by
an order made by the Minister of Justice in Southern
Rhodesia under the Emergency Powers Regulation 65.
The EPR was made by an officer appointed under the
constitution enacted by the parliament of South Rhodesia
after the unilateral declaration of independence from
British rule by Smiths govt. The UK tried to regain
control by declaring the 65 constitution and all action
taken under it void. Per Lord Reid, since the UK is taking
steps to regain control, the usurper cannot be deemed to be
a lawful govt. The EPR therefore has no legal validity.
4. CONSTITUTIONALISM
It may also be referred to as constitutional rule, limited
govt, constitutional dispensation and constitutional govt.
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Its not finite, but an on-going process which requires the
govt to acknowledge that it derives its authority from the
people and to submit to institutionalised mechanisms of
power control for the protection of the interests and
liberties of the citizenry.
It is possible for a country to have a constitution or to be a
democracy without being a constitutional govt.
It may be described as a governance system in which there
are predetermined rules which places limits on the exercise
of govtal power. It implies the limitation of the division of
governmental powers (Munro). There are 3 forms of limits:
- Procedural limit: involves the sharing of power btn
govt institutions. E.g. ministers are appointed by the
executive with prior approval of parliament (JHM v
AG)
- Institutional limit: it provides a framework by which
laws are made and encourages debate.
- Substantive limit: it indicates the boundaries that law
makers must not go beyond.
A written constitution defines and therefore more expressly
limits government powers.
The constitution is given supremacy over all laws
including the ones made by the legislature.
Power is also shared between the branches of govt, none
of which has supremacy over the other.
Constitutionalism provides certainty with respect to what
the govt can and cannot do because the rules are
predetermined and the restraints are effective. This leads to
stability and accessibility.
In order to be effective however, an independent judiciary
is needed to resolve situations where an actor exceeds its
powers. Judges need security of tenure, good remuneration,
etc to ensure their independence.
Respect for human rights must also be guaranteed and
efficient remedies should be available in the event of any
violations.
In addition, law enforcement agents must be subordinated
to civilian authority.
Authorities
Shalabi v A-G: Ps were Lebanese born in the Gold Coast
and hence Brit subjects. They obtained Ghanaian passports
in 67 by virtue of the Ghana Nationality Decree, 1967
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(NLCD 191) when they renounced their Brit nationality
and applied for and obtained Gh passports in 68. In 1970,
an act was passed which sought to restrict the participation
of foreigners in certain sectors of the economy thus they
sought to confirm that they were Ghanaian in the light of
NRCD 333 which amended NLCD 191 and free to carry
on business in the transport sector. They were informed
that they were neither Ghanaian nor British but Lebos.
They consequently sought a declaration that they were
Ghanaian and could carry on with their business. AG
argued that the NLC had power to create any laws they
wanted. Per Hayfron-B JA, I am of the view that the
doctrine of legislative omnipotence is a logical abstraction
and ought not be applied to practical issues. I hold that the
National Liberation Council was an interim government
for the re-establishment of the rule of law and other
principles necessary for the proper functioning of
democracy. It could therefore not purport to deprive
citizens of their right of citizenry. The backdating of
N.L.C.D. 333 to take effect on the same day as N.L.C.D.
191 did not have the effect of depriving those who had
acquired citizenship under N.L.C.D. 191 of that
citizenship. Rights of citizenship are not to be deprived by
ambiguity or inference. NLCD 333 shd as such have been
explicit because citizenship once conferred, can only be
lost by processes specifically stated.
Awoonor-Williams v Gbedemah: P and D both contested
as candidates for the Keta Constituency in the 69
elections. D polled more votes than P and was duly elected
to the national assembly.
Ex P Bannerman
State v G.O.C., The Ghana Army; Ex P Braimah
Rep v Dir. Of Prisons; Ex P Salifa
Marbury v Madison
Re Akoto
5. SEPARATION OF POWERS
Locke argued that it will be too great a temptation to
human frailty to grasp at power for the same persons who
have the power of making laws to also have in their hands
the power to execute them because they would exempt
themselves from obeying the laws and suit the law to their
own private advantage.
Separation of powers does not have the same meaning
everywhere.
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In the US, each primary function of the state is vested in a
distinct organ in order to ensure a balance of power.
Legislative power is vested in Congress (senate and hse. of
Reps), executive power in the president and judicial power
in the SC and other federal courts that may be established
by congress. Neither the president nor members of cabinet
sit or vote in congress. The president cant initiate a bill
through congress or securing its passage. He however has
power to veto legislation but that veto can be overridden by
2/3s majority of the senate. He may nominate to key
offices but he needs the senate to confirm the
appointments. The president is also not answerable to
congress and is under normal circumstances irremovable
but he can be removed from office by a process of
impeachment by the senate for treason, bribery, or other
high crimes and misdemeanors. Once appointed judges
are independent of the legislature and executive although
they may be removed by impeachment. The SC, in
Marbury v Madison, also assumed the power to declare
acts of the legislature and executive to be unconstitutional
should they conflict with the constitution. Even in the US,
there is not a complete separation of powers if it means
each power can be exercised in isolation from the others. It
however provides a basis for checks and balances among
the various arms of government.
In France, the ordinary courts have no jurisdiction to
review the legality of acts of the legislature or executive in
furtherance of the doctrine of separation of powers. The
Conseil dEtat exercises jurisdiction over administrative
agencies and officials. The Conseil Constitutionnel, a
recent creation, reviews the constitutionality of new laws.
Complete separation is neither possible in theory or
practice. The concept may mean at least three different
things;
1. That the same person should not form part of
more than one of the three branches of the state
e.g. a minister should not be a parliamentarian
2. That one branch of the state should not control or
intervene in the work of another e.g. the executive
should not interfere in judicial decisions
3. That one branch should not exercise function of
another e.g. ministers shouldnt have judicial
power
Blackburn v A-G treaty making power of England rests
in the Crown the courts have no power to question it.
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6. JUDUCIAL REVIEW
A direct review takes the form of the challenge of
constitutionality of something.
Indirect review takes place in the form of interpretation of
provisions in the constitution. It is a regular, on-going
matter which takes place all the time in the legal system.
A constitutional review is a power and a process either
given expressly to the judiciary in the constitution or
asserted by the judiciary based on the nature of the
constitution to determine questions of constitutional
validity of action based on laws of policies and any other
question where the consistency or inconsistency,
conformity or inconformity of a law or a policy with the
supreme law is at issue [Marbury v. Madison]. Its
measuring a given act against the values of the
constitution.
1. Some legal systems vest the power of constitutional
review in all the courts in the legal system e.g. US
2. Some give the power only to the highest court of the
land e.g. Ghana with the exception of issues relating to
human rights
3. Some systems create a special constitutional court
outside the regular court system and its only this court
that can deal with the issues of constitutional review
e.g. Germany
4. Some systems create a special body which sits outside
the court system to determine issues of constitutional
validity. Typically the composition makes it a political
body e.g. France and all its colonies
Functions
1. It is an important instrument for social ordering. It
addresses controversial issues, especially in
constitutional systems where there are elections. If
everything is subjected to the vote, some social issues
may not be addressed. The issues are therefore moved
to the arena of the judges who do not depend on votes
to pronounce on social, political, economic matters
which are too hot for the politicians to handle.
2. Constitutions provide for change which may take the
form of total replacement or replacement of some parts
(amendment). Constitutional review allows a
constitutional system to grow without formal
amendment.
3. The process gives teeth to the arrangements, the
values, checks and balances, provided in the
constitution i.e. policing of the constitution.
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Problems of judicial review
1. If the constitutional system gives the role of policing
to the judges, who will police the judges? What is it in
the judicial character that makes us feel everyone else
needs policing but the judiciary? According to Bickel
(Yale Prof.), the judiciary should police everyone else
because the judges are the least dangerous because
they have no real power because their respect is based
on public opinion. He says the legislature has the
power of the purse and can shut down government at
any time. The executive is equally powerful because it
controls all the coercive forces of the State. The actual
utilisation of the purse is by the executive so if it
decides not to spend it, a country will not have its
benefits. The policing function of the State is therefore
safer in the hands of the judges.
2. Constitutional review and democracy. If elections are
a major pillar of a democracy, why give so much
power to the branch of government which is not
elected?
3. If the constitutional system is to maintain balance,
then isn't it unbalanced when judges are given the
power of judicial review where they get a chance to
impose their views on everyone else? Generally,
lawmakers do not have the power to overturn
decisions of the courts until the courts change their
own minds.
4. There is constant competition between the courts and
the legislature. The legislature often tries to take away
the power of the judiciary by denying them
jurisdiction (ouster clauses)
In order to institute a judicial review, there must be two
aggrieved parties
USA
Basis of constitutional review is Justice Marshalls ruling
in Marbury v Madison. The power of review is predicate
on the supremacy of the constitution, the reduction of a
large part of the constitution into writing, the judicial oath
which charges judges to administer justice without fear or
favour.
Brown v Board of Education
Roe v Wade
NY Times v OSullivan
Principles Governing Judicial Reviews
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Principle of Activism
If the judge considers himself as an active participant in the
constitutional system, he would oppose the other actors in
the constitutional system when constitutional issues arise.
Self-restraint
Contrasting to activism is self-restraint. Judges would defer
to the judgment of the other actors when a constitutional
issue arises.
Principle of Original Intent
Some judges see the occasion for determining
constitutional validity as an opportunity to tease out what
the framers of the constitution intended when they were
drawing up the constitution. This is however problematic.
Why should one generation impose its thoughts and
aspirations on another generation which has different
circumstances from the generations after it?
Textual Interpretation
Judges may consign themselves to the language of the
constitution when interpreting it.
Structure of Constitution
The structure of the constitution suggests that a basic
philosophy is that public power should be subject to
limitation.
Judicial Precedent
A long-standing principle should not be lightly thrown
overboard. If several generations of judges have said that
something is a principle, very rarely will that principle be
overturned. Judges are more likely to reconcile
constitutional provisions (conflicted judge iro judicial oath
in Sallah case).
GERMANY
Germany has a dual court system a regular court and one
which deals with administrative issues. Like the French,
the Germans believe that it is wrong for judges to make
law and the power of constitutional review offers judges
such power. Courts cannot ever pronounce on matters
affecting the executive. Administrative courts are within
the executive and all matters in relation to the executive are
dealt with in the administrative court.
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A special federal constitutional court, outside the court
system, has been set up to deal with only constitutional
validity issues. The participants are however treated as
judges but they neither belong to the regular or the
administrative court. The power of constitutional review is
given to the federal constitutional court. cases may be
brought in one of the following ways;
1. Constitutional complaint
2. Request from the ordinary courts
3. Petition by the federal government, a state government,
a third of the lower house, local government authorities or
associations
Constitutional complaints are generally on human rights. It
may take the form of a letter to the court. A person does
not really need the law. The court registry has enough staff
to translate the letter into a court process. A complaint may
be asking that a state/federal law should be set aside as its
in violation of certain rights.
Every court in the German constitutional system can deal
with constitutional issues. If the court decides that the
legislation being challenged is constitutional, the court may
make the determination. If the court is inclined to uphold a
constitutional challenge or hold that a law is contrary to the
constitution, it is required to stay proceedings and refer it
to the constitutional court since the constitutional court is
the only institution that can make declarations on invalidity
of laws.
Petitions may be sent by the federal government in respect
of constitutionality of decisions arising from the exercise
of its authority. If a state government feels a federal
government has invaded its area of authority, it may also
send the issue to the constitutional court.
1. It always includes some advice in its decisions. It
doesnt just say that a law is unconstitutional but it
determines what is being sought and suggests ways in
which something can be constitutionally done
2. They make admonition decisions and defer
determination on constitutional validity issues. They
may say that if something is not done within a
particular time frame it might become
unconstitutional.
3. Decisions of the federal constitutional court have the
status of an act of parliament and are published in the
official bulletin in which legislations are published.
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FRENCH
They have a dual court system. They strongly believe in
separation of powers like the Germans. They are therefore
hostile to judicial reviews, even to the German practice,
because the participants in the German federal
constitutional court are judges as well. They have
established a constitutional council (Counseil
Constitutionnel) which may be composed of 9 members; 3
appointed by the president, 3 by the upper house of the
French legislature, 3 by the speaker of the lower house. In
addition, all living ex-presidents of the republic are
members. The members may suspend their membership
and contest elections. If they win the elections they resign,
if they lose, they resume their membership of the
constitutional council.
Questions are presented before the council before they are
even made into law. Its been called a constitutional
preview and not a review.
Functions of the Constitutional Council
1. It supervises elections and referendums
2. Under the 5th French republican constitution, the
president is given power to declare states of
emergency but he must consult the council before he
makes that declaration
3. It is the body under the French constitution which
deals with questions of constitutional validity.
Comparison
In France however constitutional questions are presented to
the council before whatever measure on the table becomes
law. As such its been said that in France what they have is
constitutional preview and not review.
The validity issue is dealt with in Germany and the US by
judges; in France its dealt with by politicians.
In Germany constitutional validity issues are dealt with by
judges of specialised courts. In the US, these issues are
dealt with by judges of regular courts.
7. THE CONCEPT OF RULE OF LAW
Its concerned with the values underpinning the
constitution i.e. the pillars of the constitution in relation to
the use and exercise of public power. It is based on the
recognition that the points occupied by each person in the
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legal system is what will ensure whether we are a society
based on rule of law or otherwise.
In a formal sense, every society is governed by rules of law
but it doesnt mean that every society lives under the rule
of law.
As an ideology, its about those institutions, processes,
roles which allow us to live our lives in peace, security and
dignity.
Conditions of Rule of Law
Agreed at an international conference in 1959
- Right of a people to a representative and responsible
government. All the different facets of the country
should be represented and the representatives should
articulate the needs and concerns of the people they
represent.
- A citizen who is wronged must have a remedy
[Marbury v Madison]
- Right to a fair and public trial
- Respect for the rights and freedoms of others
- Independent and impartial judiciary
- Independent and courageous legal profession; If
society doesnt have lawyers willing to take up
unpopular causes, there will be no rule of law
- Control of the administration by the judiciary
Dicey is credited with the use of the expression in its
ideological terms. He however used it in connection with
the pillars on which the British constitution was based on;
1. No one should be punished without breaching an
established law in a trial before the ordinary court of
the land. He focused on discretionary power which he
considered arbitrary and law based power. There must
be certainty in the law and crimes should be clearly
defined. It might be explained in terms of the policing
function of the state.
2. There is equality before the law i.e. no man is above
the law and every person, no matter his rank, is subject
to the same laws.
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3. Rights should be protected by the regular law
8. HUMAN RIGHTS
African Charter on Human & Peoples Rights (ACHPR)
The term Peoples was essentially to emphasise the
communal system in Africa; a person exists because he
belongs to a community which is made of people.
Features
- In Africa, the community is emphasised.
- It has duties in addition to rights; you cannot claim
rights if you dont contribute to those rights articles
27, 28, 29 of ACHPR.
- Emphasises African traditions
- Claw-back clauses
- It did not start off with the court system because
African nations were not ready for it [most were led by
revolutionaries and dictators], the court system was
not part of the scheme of things in traditional Africa
and also due to issues of resource allocation to support
the institutions set up.
- The enforcement mechanism is the same for all
category of rights
Rights Guaranteed Under the ACHPR
Civil and political rights articles 2 to 13
- Article 9(2) provides that every individual shall have
the right to express his opinion within the law this
contains a claw-back claw
- Article 10 also possesses claw-back clauses i.e. every
individual shall have the right to free association
provided that he abides by the law.
- Article 60 provides that the coalition will take
inspiration from other jurisdictions in the
interpretation of the Charter.
Economic, Social & Cultural rights articles 14 to 18
Ogoni Case [in connection with Shells activities in the
Niger Delta]
Peoples Rights articles 19 to 24
Right to self-determination (Katanga case full
cession from Zaire per article 20[1]), full
sovereignty over natural resources, etc.
Duties articles 27 to 25
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Individual Communications
Per article 55, communication could emanate from
aggrieved individuals or on their behalf. There are however
strict admissibility requirements found in article 56;
1. The communication must not be anonymous [but a
person may request anonymity after the
communication has been submitted]
2. It must be compatible with the Charter of the AU and
the African Charter itself
3. It must not be insulting
4. Not based on information exclusively disseminated
through the mass media
5. Must have exhausted local remedies (however where it
is clear that going through the whole process of
exhausting the local remedy will be useless, this
requirement may be bypassed)
6. Submitted within reasonable time
7. Should not have been dealt with by another body of
equal stature
9. NATURAL JUSTICE
The term can be used in two forms. In a broad sense, it
refers to what is fair, equitable, right, or conscionable.
In the narrower and technical sense, it is a reference to
certain rules and principles which have been developed by
the courts to safeguard the rights and interests of people
and are designed to ensure that public bodies, persons who
make decisions affecting individuals do it in accordance
with certain rules and procedures.
Audi alteram partem right to be heard
- Right to make representations
o Notice of place and time of hearing
o Adequate opportunity to prepare
- Right to legal representation; state to provide legal aid
in capital offence cases
- Notice of charges preferred against affected party and
access to all documentation to enable him facilitate the
case
Ridge v Baldwin police constable was prosecuted and
acquitted on charges of corruption. Police service
dismissed him without a hearing. Held that he had a right
to be heard
Cooper v Wandsworth Board of Works Ps building
was demolished without being given any notice. He should
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have notified the board but didnt and the board was not
bound to inform him per the statute. It was held that
although the constitution didnt expressly say so, he should
have been given a chance to be heard.

Nemo judex in causa sua right to a fair trial, against

bias

Where a decision-maker has a financial, proprietary or

relational interest in the subject matter of the issues before
the decision-maker, the outcome of the decision, or with
the parties to the issue, the decision-maker should not be
involved in the decision making process and he or she
should recuse him or herself. If s/he is not recused, and the
findings go against a party, that decision may be
invalidated on application to a higher decision-making
body.

Financial interest Dimes v Grand Junction Canal, Ex P

McCarthy

Relational interest AG v Sallah, Ex P Agbesi Awusu

Manifestation

- Predetermination of the issue (Ex P Agbesi Awusu,

AG v Sallah)
- Fore knowledge of facts/law (Kwame v Quaynor)

In Ghana, the test is that there must be a real likelihood of

bias against the decision-maker. The courts have held that
mere suspicion is not enough

Exceptions

- Statutory duty (Akuffo-Addo v Quarshie-Idun)

- Acquiescence/not acting timeously (raise the issue of
bias at the earliest opportunity after you become aware
of the facts upon which the allegation is based.)
- Necessity e.g. Justice Marshall in the Marbury v
Madison Case; (Akuffo-Addo v Quarshie-Idun)

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