1. Introduction

On 19^th May, 2016 the Supreme Court of Ghana by a 4:1 majority decision in Ex Parte Dr. Zanetor Rawlings[1] granted an order of certiorari and an order for stay of proceedings against the High Court, Accra, presided over by His Lordship Ackaah-Boafo J. The Supreme Court held that the High Court had committed an error law by assuming jurisdiction to hear a dispute that implicates article 94(1)(a) of the 1992 Constitution. The Supreme Court further suo motu raised the following interpretive question for determination: “When can it be properly said that a Ghanaian citizen is by reason of non registration as a voter ‘not qualified to be a member of Parliament’ within article 94(1)(a) of the 1992 Constitution?”

This paper critiques the decision of the Supreme Court in granting an order of certiorari and a consequential order for stay of proceedings against the High Court, Accra, in Ex Parte Dr. Zanetor Rawlings. It provides a scholarly analysis of the exercise of supervisory jurisdiction by the Supreme Court over other superior courts in Ghana. It surmises that the decision of the Supreme Court in Ex Parte Dr. Zanetor Rawlings exposes the High Court of Ghana to excessive interference by the apex court in the administration of justice. This prognosis, it is argued, threatens to undermine the High Court as the primary protector/enforcer of fundamental human rights; the decision also threatens to undermine the High Court as the Court with the primary jurisdiction to hear disputes over parliamentary elections/primaries.[2] For the avoidance of doubt, this exposition is without prejudice to any plausible interpretive-coloration that may be placed on Article 94(1)(a) of the 1992 Constitution by the Supreme Court of Ghana.

Before elaborating further on the lapses in the judgment of the Supreme Court in Ex Parte Dr. Zanetor Rawlings, section 2 sets out the facts that gave rise to the case, both at the High Court and at the Supreme Court. Section 3 deals with the ratio of the decision of the Supreme Court in Ex Parte Dr Zanetor Rawlings. It also highlights some of the commons grounds in both the majority and minority decisions in Ex Parte Dr. Zanetor Rawlings. Section 4 sets out in detail the established contours of the exercise of supervisory jurisdiction by the Supreme Court over other superior courts in Ghana. This section draws on the discussion in the preceding section and analyses the decisions of the Supreme Court in the light of established positions of the law on the exercise of supervisory jurisdiction over the High Court. We conclude by submitting that the decision of the Supreme Court in Ex Parte Dr. Zanetor Rawlings sets a wrong precedent in the exercise of supervisory powers over the High Court in Ghana. Section 5 concludes the discussion.

2. Ex Parte Dr. Zanetor Rawlings

The High Court Case

The facts which formed the basis of the substantive case in the High Court were as follows: Dr. Zanetor Agyeman Rawlings filed her nominations to contest the parliamentary primaries of the National Democratic Congress (NDC), a political party, for the Klottey Korle constituency. As usual, she went through the formalities required by the NDC and was cleared to contest. On 21^st November 2015, the NDC conducted nation-wide parliamentary primaries in Ghana (including Klottey Korle Constituency). Dr. Zanetor Rawlings polled 2739 votes. The incumbent MP Hon. Nii Ashietey polled 1747 and one Nii John Alfonso Coleman polled 152 votes.

 

Subsequently, the Plaintiffs (Hon. Nii Ashietey & Nii John Alfonso Coleman) commenced an action in the High Court against the NDC and Dr. Zanetor Rawlings for a number of reliefs, including: (a) A declaration that the decision by the 1^st Defendant (NDC) to allow the 2^nd Defendant (Dr. Zanetor Rawlings) to contest parliamentary primaries in Klottey-Korle constituency when she was not a registered voter within the meaning of article 94(1)(a) of the 1992 Constitution at the time of the said contest violates the Constitution and Internal Regulations governing the conduct of parliamentary primaries of the 1^st Defendant and same is illegal and of no effect.” The Plaintiff sought other consequential reliefs which are not relevant for our present purposes.

The 2^nd Plaintiff, Nii John Alfonso Coleman, bowed out of the case perhaps as a result of political pressure. The Electoral Commission was also taken out after the Commission respond

ed positively to the interrogatories of the lawyers for the Plaintiff as to whether Dr. Zanetor Rawlings was a registered voter at the time of the said contest. The confirmation of the Electoral Commission in a letter dated 26^th February 2016 was that Dr. Zanetor Agyeman Rawlings was then not a registered voter. The legal tussle in the High Court then continued between the Plaintiff, Hon. Nii Armah Ashietey on the one hand and the NDC & Dr. Zanetor Rawlings (as Defendants) on the other hand. While the case was pending, Dr. Zanetor Rawlings took advantage of the limited registration exercise of the Electoral Commission and registered on 28^th April 2016, however.

During the pendency of the suit in the High Court, Dr. Zanetor Rawlings, through her lawyers, brought two different applications to dismiss the substantive suit. The contention in the first application was that the Plaintiff lacked the requisite capacity to institute the action because his ‘personal rights’ have not been violated, that the Plaintiff was estopped from complaining after having taken part in the primaries and further that the Plaintiff had not exhausted the internal dispute resolution mechanisms of the NDC.

On 22^nd February 2016, the High Court, presided over by Ackaah-Boafo J. dismissed the application on grounds that the Plaintiff, being a contestant in the primaries and a member of the NDC, had sufficient interest in the subject matter of the suit. The High Court further held that when a national constitution is said to have been breached, a political party’s internal mechanisms and remedies cannot be the panacea; neither could an estoppel be a viable defence. Dissatisfied with this Ruling, lawyers for Dr. Zanetor Rawlings filed an appeal and same is pending at the Court of Appeal, Accra.

The second application in the High Court contended that the Plaintiff’s action was premature because the cause of action had not accrued as required by articles 94 and 99 of the 1992 Constitution. It further contended that the jurisdiction of the High Court was wrongfully invoked by the Plaintiff to enforce article 94(1)(a) of the 1992 Constitution and that Article 94(1)(a) only becomes operational when the NDC takes steps to register a candidate after the Electoral Commission has opened nominations for

registration. The High Court heard arguments and on 22^nd March 2016 the Court dismissed the application on grounds that the application was unmeritorious, vexatious and a clear abuse of the court process. Dissatisfied with this second Ruling, Dr. Zanetor Rawlings invoked the jurisdiction of the Supreme Court pursuant to article 132 of the 1992 Constitution and Rule 61 of the Supreme Court Rules, 1996 (C.I. 16) for an order of certiorari to bring up the ruling of His Lordship Ackaah-Boafo J. dated 22^nd March 2016 for the purposes of being quashed.

The Supreme Court Case

The casus belli of Dr. Zanetor’s application in the Supreme Court was that the High Court presided over by His Lordship Ackaah-Boafo J. has acted in excess of its jurisdiction. This ground is captured in the application as follows: “(1) The Learne

d Judge erred in law when he wrongly assumed jurisdiction to interpret Article 94(1)(a) of the Constitution [by] holding that once the Applicant had put herself out as a contestant in the parliamentary primaries of the National Democratic Congress she was caught by article 94(1)(a) which required that she was a registered voter at the time of her participation in the primaries. (2) The Learned Judge erred in law when he wrongly assumed jurisdiction when the entire action was premature because the cause of action has not accrued.” For the Applicant, the High Court wrongly assumed jurisdiction to interpret and define the scope of application of article 94(1)(a) of the 1992 Constitution when it dismissed her second application. These contentions were supported by the NDC, the 2^nd Interested Party, at the Supreme Court.

The response of the 1^st Interested Party (Hon. Nii Armah Ashietey) at the Supreme Court was that the application failed to meet the conditions needed for the grant of certiorari. He contended that the substantive case in the High Court bordered on the enforcement of the qualification rules governing the internal parliamentary primaries and the Constitution of the NDC. He further contended that since the High Court had not made any jurisdictional error, the avenue for redress opened to the aggrieved party was an appeal and not judicial review in the Supreme Court. Indeed, the 1^st Interested Party emphasized that the Applicant (Dr. Zanetor Rawlings) had in fact exercised her right of appeal against the Ruling of the High Court by filing notice of appeal against the first interlocutory ruling.

3. The Decision of the Supreme Court

The Supreme Court delivered a 4:1 majority decision in favour of the Applicant – Dr. Zanetor Rawlings. The four justices who formed the majority were: Justice W.A. Atuguba, Justice A.A. Benin, Justice Yaw Apau, and Justice G. Pwamang; the dissenting judge was Justice Anin Yeboah. In plain language, the majority decision of the Supreme Court was to th

e effect that the High Court had wrongfully arrogated to itself the powers to interpret Article 94(1)(a) of the 1992 Constitution, a task which the Supreme Court said was reserved solely for it. The Supreme Court further held that the suit between Hon. Ashietey and the NDC/Dr. Zanetor Rawlings concerned the interpretation of Article 94(1)(a) of the 1992 Constitution. Atuguba JSC, delivering the majority decision, opined:

“…in his Ruling the trial judge did not consider the relevance of the contentions based on article 94(1)(a) namely that as far as the applicant and the 2^nd Interested party were concerned article 94(1)(a) of the constitution could not be breached until the Electoral Commission opened nominations for parliamentary candidature but that as far as the 1^st Interested Party was concerned the only relevant time in this matter was at the time of the contest of the National Democratic Congress primaries. Which of these contentions can be readily said to be right or wrong on the face of article 94(1)(a) of the Constitution? Clearly an issue of interpretation of article 94(1)(a) had in the circumstances arisen which the trial judge did not appreciate in his Ruling…the trial judge had clearly ruled that that article 94(1)(a) is clear and unambiguous and therefore the court was merely called upon to apply it. It is clearly an error of law to regard article 94(1)(a) in the manner the trial judge did. Clearly an issue of interpretation had arisen concerning article 94(1)(a)and the trial judge should have stayed proceedings and referred that issue to this court under article 130(2) of the Constitution by way of interpretation.”[3]

Consequently, the Court granted an order of certiorari to quash the two Rulings of the High Court dated 22^nd February 2016 and 22^nd March 2016. For purposes of emphasis, the Ruling of the High Court on 22^nd February 2016 was to the effect that the Court had jurisdiction to hear the Klottey-Korle case, that the Plaintiff (Hon. Ashietey) had

sufficient interest in the matter and that the internal dispute resolution mechanisms of the NDC cannot oust the jurisdiction of the Court. The Ruling of the High Court on 22^nd March 2016 was to the effect that the High Court was not being called upon to interpret article 94(1)(a) of the 1992 Constitution. Rather the High Court was being invited to apply the Regulation and Constitution of the NDC as well as article 94(1)(a) of the 1992 Constitution.

Even though Dr. Zanetor Rawlings’ application was in respect of the 22^nd March 2016 Ruling, the Supreme Court held that “both aforementioned Rulings ought to be quashed for error of law on the face of the record.”[4] It further ordered the High Court to stay proceedings in the matter until the Supreme Court had interpreted the meaning and scope of application of Article 94(1)(a) of the 1992 Constitution. Whether or not the High Court can have a second meaningful bite at the Klottey Korle cherry of the NDC would depend on the outcome of the Supreme Court’s interpretation of Article 94(1)(a) of the 1992 Constitution, which provides “…a person shall not be qualified to be a member of Parliament unless he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter.” (emphasis added)

A single Justice took what he called a ‘solitary path’ by delivering a dissenting opinion. As we will elaborate, the dissenting opinion and other reported decisions expose the apparent inconsistency that is creeping into judicial decision making at the apex Court of the land in matters of the exercise of supervisory jurisidction. Anin Yeboah JSC held that “article 94(1)(a) is devoid of any ambiguity in anyway whatsoever.” In affirming earlier Supreme Court

decisions in Republic v. Maikankan & Others[5] and Aduamoa II & Others v. Adu Twum II,[6] Anin Yeboah JSC held that the original jurisdiction vested in the Supreme Court to interpret the provisions of the 1992 Constitution was a special jurisdiction meant to be invoked in suits raising genuine and real issues of constitutional interpretation. He noted that upon a closer reading of the reliefs sought by the Plaintiff at the High Court, it becomes abundantly clear that the High Court was never called upon to interpret article 94(1)(a) of the Constitution. Accordingly, “a mere reference to a provision of the Constitution for a court lower than the Supreme Court to consider would not amount to interpretation as envisaged under articles 2(1) and 130(1) of the 1992 Constitution.”[7]

Anin Yeboah JSC further highlighted the need for a restatement of the law by clearly distinguishing between the interpretation of a constitutional provision and the application of a constitutional provision in cases which are filed before the Supreme Court. In the opinion of the dissenting Justice, “the High Court Judge was merely applying the provisions of article 94(1)(a) of the Constitution and no more.”[8] Elsewhere, in the United States of America, the exercise of sieving cases which end up at the Supreme Court is undertaken by a Single Justice. This saves the full panel of the US Supreme Court f

rom hearing a lot of unmeritorious claims.

Common Grounds

There were a number of common grounds in the majority and minority decisions in Ex Parte Dr. Zanetor Rawlings. All the Justices of the Supreme Court agreed that the High Court has jurisdiction to hear disputes involving internal parliamentary primaries of political parties. The majority opined that “the contention that the trial court should be prohibited from hearing the matter on jurisdictional grounds is misconceived. The parliamentary primaries in the Klottey-Korle constituency in this case were conducted vastly in accordance with the National Democratic Congress party’s constitution and guidelines. Such rules of a club or voluntary association are enforceable by the High Court; see Pennie v. Egala (1980) GLR 234. The involvement of article 94(1)(a) in the matter did not deprive the High Court of its jurisdiction”[9]

The above position of the majority is supported by the dissenting opinion. According to Anin Yeboah JSC, “if one carefully considers the reliefs sought by the 1^st Interested Party at the High Court, it becomes abundantly clear that the High Court was never called upon to interpret article 94(1)(a) of the Constitution.”[10] Rather “the High Court Judge was merely applying the constitutional provisions of article 94(1)(a) of the Constitution and no more…the applicant has not successfully satisfied this court that the High Court Judge committed any jurisdictional error to warrant our intervention.”[11] Since the basis of the application for certiorari by Dr. Zanetor Rawlings was that the High Court lacked jurisdiction, the application ought to have failed stricto sensu (i.e, in a narrow or strict sense). Such an approach is consistent with the adversarial system of adjudication in Ghana.

Another common lesson from the decision of the Supreme Court in Ex Parte Dr, Zanetor Rawlings is the distinction between interpretation and application of the Constitution. Whereas lower courts can apply the provisions of the 1992 Constitution in resolving disputes before them, matters of interpretation of the provisions of the 1992 Constitution is reserved solely for the Supreme Court. As Atuguba adumbrates, “the involvement of article 94(1)(a) in the matter did not depr

ive the High Court of its jurisdiction”[12] In the opinion of Anin Yeboah, “…it would serve a purpose for our profession to state that a clear distinction should be drawn between the interpretation of a constitutional provision and application of a constitutional provision in cases which are filed before [the Supreme Court] for adjudication.”[13]

The decision also emphasized that the inclusion of a constitutional provision in a matter before the High Court does not ipso facto (i.e, by the fact itself) make it a constitutional matter for which reason the High Court can be deprived of its jurisdiction. In the opinion of Anin Yeboah, “a mere reference to a provision of the Constitution for a court lower than the Supreme Court to consider would not amount to interpretation as envisaged under articles 2(1) and 130(1) of the 1992 Constitution.”[14] For Atuguba, “the parliamentary primaries in the Klottey Korle constituency in this case were conducted vastly in accordance with the National Democratic Congress party’s constitution and guidelines. Such rules of a club or voluntary association are enforceable by the High Court; see Pennie v. Egala (1980) GLR 234. The involvement of article 94(1)(a) in the matter did not deprive the High Court of its jurisdiction”[15]

That notwithstanding, the Supreme Court relied on its residual powers and granted the certiorari application on the basis of an error of law on the face of the record. The nature of the error on the face of the record, the majority opinion failed to elucidate. The question whether a mere mention of a constitutional provisions in the claims before the High Court triggers the jurisdiction of the Supreme Court was not competently answered by the majority decision in Ex Parte Dr. Zanetor Rawlings.

However, the prayer of the Applicant “for any such further or other orders as this court may deem fit” was considered sufficient by the majority to raise an interpretative questions for determination as to: “when can it be properly said that a Ghanaian citizen is by reason of non registration as a voter ‘not qualified to be a member of Parliament’ within article 94(1)(a) of the 1992 Constitution?” It follows that a closer reading of the judgment

discloses that the Supreme Court rather relied on its ‘residual other bases’ in granting certiorari and stay of proceedings in Ex Parte Dr. Zanetor Rawlings. Those other bases and the dangers associated with them will be elaborated upon in the ensuing paragraphs.

4. The Province of Supervising the High Court

The Supreme Court is a supervisor of other superior courts in Ghana. This province of supervising the High Court has never been fixed. But the apparent lack of fixedness in supervising the High Court is no invitation for the Supreme Court to adopt an interventionist approach in supervising the High Court. The exercise of supervisory jurisdiction by the Supreme Court involves the exercise of discretionary powers; this exercise of discretion must not be arbitrary, capricious or biased, and same shall be in accordance with due process of law.[16]

The exercise of supervisory jurisdiction allows the Supreme Court to issue prerogative writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto.[17] The exercise of this special judicial review powers by the Supreme Court over other superior courts is narrower; it is thus different from the relatively more expansive exercise of supervisory jurisdiction by the High Court over inferior courts and administrative agencies/tribunals.[18] In the exercise of supervisory jurisdictions, whereas the High Court adopts a tighter oversight role over inferior tribunals, administrative agencies and officials; the Supreme Court of Ghana is required to take into account the status of the High Court as a court of unlimited jurisdiction.

In Republic v. High Court, Accra; Ex Parte CHRAJ (Addo Interested Party), the Supreme Court unanimously stated that:

“Where the High Court (or for that matter the Court of Appeal) makes a non-jurisdictional error of law which is not patent on the face of the record, the avenue for redress open to an aggrieved party is an appeal, not judicial review. In this regard, an error of law made by the High Court or the Court of Appeal is not to be regarded as taking the judge outside the court’s jurisdiction, unless the court has acted ultra vires the Constitution or an express statutory restriction validly imposed on it.[19]

The constituent elements of the restatement of the law governing the exercise of supervisory jurisdiction over other superior courts confirm the inherent restraint on the Supreme Court. In contrast the High Court exercises wider supervisory jurisdiction over administrative agencies/officials/tribunals. The restraint on the Supreme Court in the exercise of its supervisory jurisdiction over other superior courts is in recognition of the stature of the High Court and the need not to treat them like inferior courts.[20]

The technical grounds upon which the Supreme Court exercises its supervisory jurisdiction over other superior courts include: (i) fundamental error on the face of the record; (ii) excess or want of jurisdiction; and (iii) breach of rules of natural justice (i.e., the twin principles of nemo judex causa sua and audi alteram partem).[21] The fact that the above technical grounds are established does not necessarily follow that the Supreme Court will pro tanto (i.e., for such much) grant a remedy.[22]

The Supreme Court has however been quick to add that the above three technical grounds are not exhaustive. The non-exhaustive nature of the technical grounds for supervising the High Court has emboldened the Supreme Court to draw on ‘other bases’ for the exercise of supervisory jurisdiction over the High Court. Those other bases allow the Supreme Court to exercise its supervisory jurisdiction in ways which do not fall within the zone of the prerogative writs.

In British Airways & Anor. v. Attorney General,[23] Bamford-Addo JSC proclaimed the ‘other supervisory powers’ of the Supreme Court thus: “…the Supreme Court may issue prerogative orders, as well as appropriate orders, and directions, to lower courts to ensure the proper, lawful, and fair administration of justice in any matter which comes before it.”[24] The other bases for supervising the High Court, among others, are intended to prevent apparent illegalities and injustices in matters before such lowers courts.

In Ex Parte Dr. Zanetor Rawlings, the High Court was adjudged not to have wrongly assumed jurisdiction in the matter. When all seemed lost, the Supreme Court exercised its supervisory powers on the basis that an issue of interpretation of article 94(1)(a) of the 1992 Constitution has arisen in the proceedings before the High Court. For the majority, it is in the interest of justice to resort to some other expeditious remedy rather than the traditional common law remedies of certiorari, prohibition, etc. Respectfully, this “other bases” that the Supreme Court relied upon in the exercise it its supervisory jurisdiction over the High Court in Ex Parte Dr. Zanetor Rawlings is fraught with landmines and susceptible to abuse in high profile/political cases.

Accordingly, clear guidelines need to be devised to check the exercise of unbridle discretion in the supervision of the High Court by the Supreme Court. This can come in a form of a restatement of the law on the scope of the referencing jurisdiction under article 130(2) of the 1992 Constitution. This re-statement should be done by at least a nine-member panel of the Supreme Court and it must be unanimous.

Thus far, the approach adopted by the Supreme Court in Ex Parte Dr. Zanetor Rawlings would encourage ‘me too’ referrals or referral of petty questions of law to the Supreme Court. The decision will also embolden lawyers to present almost every significant action as an interpretation or enforcement action or both in order to stultify proceedings in the trial courts. In order not to encourage such practices, the administration of justice in the superior courts should not be unduly interfered with by the Supreme Court.

Unsettling Established Legal Principles

The decision of the Supreme Court in Ex Parte Dr. Zanetor Rawlings has the tendency to unsettle very well established principles of constitutional law and jurisprudence. One such long established principle of constitutional law which the decision unsettles is the interpretation of article 130(2) of the 1992 Constitution. This Article provides that “where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.” Similar constitutional provisions were contained in article 106(2) of the 1969 Constitution and Article 118(2) of the 1979 Constitution.

In Republic v. Maikankan[25], the then Supreme Court gave a perceptive analysis of the ‘reference requirements’ of the above constitutional provisions. Bannerman CJ in interpreting Article 106 of the 1969 Constitution, which is on all fours with article 130 of the 1992 Constitution, stated

“We wish to comment that a lower court is not bound to refer to the Supreme Court every submission alleging as an issue the determination of a question of interpretation of the Constitution or of any other matter contained in Article 106(1)(a)(b) of the [1969] Constitution. If in the opinion of the lower court the answer to a submission is clear and unambiguous on the face of the provisions of the Constitution or laws of Ghana, no reference need be made since no question of interpretation arises and a person who disagrees with or is aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he so chooses. To interpret the provisions of Article 106(2) of the Constitution in any other way may entail and encourage references to the Supreme Court of frivolous submissions, some of which may be intended to stultify proceedings or the due process of law may lead to delays such as may in fact amount to denial of justice.”[26]

This position of the law has been restated and affirmed in a plethora of cases to the effect that there must be a real or genuine issue of interpretation or enforcement of the provision of the Constitution in order to trigger the reference jurisdiction under article 130(2) of the 1992 Constitution.[27] The worth of the above statement of law is underscored by all. For law students, lecturers, legal practitioners and judges, the principle of the law in the Maikankan case is akin to ius cogens, a compelling principle of law from which no derogation is permitted. The Maikankan decision has survived all the ravages of the constitutional and military regimes of Ghana since 1971. Indeed, thousands of cases have relied on the ratio in the Maikankan case as sound precedent and the decision remains the most authoritative statement on the triggers of the reference jurisdiction under article 130(2) of the 1992 Constitution.

However, on 19^th May 2016 the majority decision of the Supreme Court in Exparte Dr. Zanetor Rawlings sought to undermine this long-established decision. Atuguba JSC remarked in Ex Parte Dr. Zanetor Rawlings thus: “It has to be realized that the initial stance of the Supreme Court exemplified by cases such as Republic v. Maikankan (1971) 2 GLR 473, SC; Republic v. Special Tribunal; Ex Parte Akosah (1980) GLR 592 C.A.; Adumoa II v. Adu Twum (2000) SCGLR 165 which laid emphasis on the plain meaning of a statute preceded the new era of constitutional interpretation based on the now dominant principle of purposive construction of statutes, particularly the constitution.”

With respect, the above remarks by Atuguba JSC on the changing face of the law on referrals to the Supreme Court pursuant to article 130(2) of the 1992 Constitution is a dangerous proposition of law. The decision by the majority in Ex Parte Dr. Zanetor Rawlings that the new era of purposive interpretation admits of a reversal of pre-1993 precedents dealing with referral of questions of law to the Supreme Court is untenable. It is rather a ruse and subtle mask to unsettle established principles of constitutional law and such legal transmogrifications ought not to be tolerated.

The basic rules of interpretation including the purposive approach and its myriad nomenclature have gotten nothing to do with the constitutional mandate to refer matters of constitutional interpretation to the Supreme Court. Indeed, our basic understanding of the rules of interpretation is that they are servants and not masters in the application of the law.[28] It goes without saying that under no circumstance should reliance on the so-called purposive approach to interpretation create a situation the supports the unbridled resort to the reference jurisdiction under article 130(2) of the 1992 Constitution.

Respectfully, the statement of the law in the Maikankan case still remains the correct position of the law today. Attempts to unsettle this trite position of the law will overburden the Supreme Court with ‘me too’ or petty certiorari and prohibition applications; Unsettling the position of the law in the Maikankan case would run counter to the letter and spirit of 1992 Constitution.

The real intent of article 130 of the 1992 Constitution is perspicaciously stated in Aduamoah II v. Adu Twum II:[29] “the original jurisdiction vested in the Supreme Court…was a special jurisdiction meant to be invoked in suits raising genuine and real issues of interpretation of a provision of the Constitution; or the enforcement of a provisions of the Constitution or a question whether an enactment was made ultra vires Parliament, or any other authority or person by law or under the Constitution. This special jurisdiction is not meant to usurp or to be resorted in place of the jurisdiction or a lower court; so that where the said jurisdiction had been invoked in an action which properly fell within a particular cause of action at a lower court, the Supreme Court would refuse to assume jurisdiction in that action, notwithstanding the fact that it had been presented as interpretation or enforcement actions or both.”[30]

The Supreme Court, having held that the High Court had jurisdiction in the case of Hon. Nii Ashietey v. NDC & Dr. Zanetor Agyemang Rawlings, the Court ought not to have exercised its supervisory jurisdiction over the High Court in the manner that it did. Indeed matters of parliamentary electoral disputes are within the jurisdiction of the High Court. For instance, it is common knowledge that presidential election petition supposed to be filed in the Supreme Court;[31] parliamentary election petitions are supposed to be filed in the High Court.[32]

It was for this reason that the Supreme Court dismissed an action invoking the court’s jurisdiction for a declaration that JH Mensah was not qualified to be a Member of Parliament pursuant to article 94(1)(b) of the 1992 Constitution. This article provides that “…a person shall not be qualified to be a member of parliament unless – he is a resident in the constituency…or has resided there for a total of period of not less than five years out of ten years immediately preceding the election…or he hails from that constituency.” The Plaintiff’s claim was that JH Mensah did not satisfy the residential requirement imposed by article 94(1)(b) of the 1992 Constitution before he got himself elected as a Member of Parliament for Sunyani East Constituency.

The Supreme Court held that the High Court, and not the Supreme Court, was the proper forum for determining the Plaintiff’s action, which was in substance an election petition to challenge the validity of the defendant’s election to Parliament. Since parliamentary primaries are a step towards contesting in the national parliamentary elections, disputes arising therefrom fall within the jurisdiction of the High Court. The Supreme Court therefore ought not to have adopted an interventionist approach in supervising the High Court, as it did in Ex Parte Dr. Zanetor Rawlings.

Furthermore, it is our contention that reference to article 94(1)(a) in the reliefs sought by the Plaintiff in the High Court was ancillary to the determination of the claims as to whether Dr. Zanetor Rawlings was qualified to contest as a parliamentary candidate in the primaries of the NDC in Klottey Korle constituency in the light of the Regulations for the primaries and the Constitution of the NDC. The claims in the High Court bordered on whether Dr. Zanetor Rawlings, based on the rules of the NDC, was qualified to contest in the primaries as of 21^st November 2015. Such claims did not raise any genuine or real interpretive constitutional-question for the intervention of the Supreme Court of Ghana.

What error of law?:

The Supreme Court held in Ex Parte Dr. Zanetor Rawlings that the High Court had committed an error of law on the face of the record. Of course a fundamental error of law apparent on the face of the record is a basis for the grant of certiorari against the High Court. The Supreme Court however failed to provide reasons why it so held. Is the Supreme Court saying that the High Court’s decision that it was not being called upon to interpret the Constitution but rather merely being called upon to apply the law the error of law it was talking about? That cannot be. Further, is the Supreme Court saying that the mere mention of a constitutional provisions as part of the claims in the Court sufficient to invoke its interpretive jurisdiction? Encouraging such a viewpoint will be a recipe for disaster.

Moreover, the position of the law is that it is not every error that is amenable to certiorari. For a certiorari to issue, the error of law must be fundamental, substantial, material, grave or so serious as to go to the root of the matter. Further, the error of law complained about should be the one on which the decision depends. In Republic v. Court of Appeal; Ex Parte Tsatsu Tsikata,[33] the Supreme Court observed that the intervention powers of the Supreme Court are to be used to prevent plain illegality or injustice. Wood JSC (as she then was) noted:

The clear thinking of this court is that our supervisory jurisdiction under article 132 of the 1992 Constitution should be exercised only in those manifestly plain and obvious cases, where there patent errors of law on the face of the record, which errors either go to the jurisdiction or are so plain as to make the impugned decision a complete nullity. It stands to reason then that error(s) of law alleged must be fundamental, substantial, material, grave or so serious as to go to the root of the matter. The error of law must be one on which the decision depends. A minor, trifling, inconsequential or unimportant error, or for that matter an error which does not go to the core or root of the decision complained of; or stated differently, on which the decision does not turn, would not attract the Court’s supervisory jurisdiction.[34]

By merely stating the there was an error on the face of the record (when in fact no interpretation had been done by the High Court) for which reason certiorari should issue against the High Court, the Supreme Court has unsettled its own precedent in Ex Parte Tsatsu Tsikata. Indeed a mere error on the face of the record is not enough to invoke the supervisory jurisdiction of the Supreme Court; the error has to be fundamental, substantial, material, grave or so serious as to go to the root of the matter. Wherein lay the fundamental error in the Rulings of the High Court to necessitate the exercise of supervisory powers by the Supreme Court?

Of course article 129(3) permits the Supreme Court to depart from its previous decisions, but such a departure must be based on convincing and well reasoned justifications. The provisions of the 1992 Constitution also allows for significant clarification and restatement of the law by the Supreme Court when necessary. Such an approach was adopted in Ex Parte CHRAJ decision and same is needed in regards to the scope of article 130(2) of the 1992 Constitution.

For now, the spirit and letter of the 1992 Constitution does not permit the Supreme Court to unsettle long established principles of law in the manner as it sought to do in Ex Parte Dr Zanetor Rawlings. The Supreme cannot rely on the so-called purposive approach to interpretation to unsettle well-established principles of law. Respectfully, the purposive approach to interpretation cannot transmogrify itself into an unruly horse in the administration of justice.

5. Conclusions

This paper provides a critical assessment of the decision of the Supreme Court of Ghana in Ex Parte Dr. Zanetor Rawlings. The majority decision in Ex Parte Dr. Zanetor Rawlings unsettles long established principles of law in regards to the grounds for referring matters of constitutional interpretation to the Supreme Court. The decision also adopts an interventionists approach in the supervision of the High Court. In relating the decision to the established positions of the law on how the Supreme Court supervises other superior courts, we urge restraint on the part of the Supreme Court; we also justify the need for the Supreme Court not to treat the High Court like an inferior court. Recognizing this reality provides new vistas for the Supreme Court to restate the law on referring questions of law for determination at the apex court. This way, the Supreme would not be saddled with ‘me too’ or petty referrals from other courts pursuant to article 130(2) of the 1992 Constitution.

[1] Republic v. High Court, General Jurisdiction, Accra; Exparte Dr. Zanetor A. Rawlings (Hon. Nii Armah Ashietey & NDC Interested Parties) [J5/19/2016]. Coram: majority – Atuguba, Benin, Appau and Pwamang JJSC; dissenting: Anin Yeboah JSC. [hereinafter Ex Parte Dr. Zanetor Rawlings ].

[2] See Yeboah v. JH Mensah [1998-99] SCGLR 492.

[3] Ex parte Dr. Zanetor Rawlings at 8.

[4] Ex parte Dr. Zanetor Rawlings at 8.

[5] [1971] 2 GLR 473.

[6] [1999-2000] 2 GLR 409.

[7] Ex parte Dr. Zanetor Rawlings at 22.

[8] Ex parte Dr. Zanetor Rawlings at 23-24.

[9] Ex parte Dr. Zanetor at Rawlings 11.

[10] Ex parte Dr. Zanetor Rawlings at 22.

[11] Ex parte Dr. Zanetor Rawlings at 24.

[12] Ex parte Dr. Zanetor Rawlings at 11.

[13] Ex parte Dr. Zanetor Rawlings at 23.

[14] Ex parte Dr. Zanetor Rawlings at 22.

[15] Ex parte Dr. Zanetor Rawlings at 11.

[16] Article 296 of the 1992 Constitution.

[17] Article 132 & 161 of the 1992 Constitution.

[18]             Samuel Kofi Date-Bah, Reflections on the Supreme Court of Ghana (London: Wildy, Simmonds & Hill Publishing, 2015) 60-61.

[19] [2003-2004] SCGLR 312 at 345-346.

[20] Samuel Kofi Date-Bah, Reflections on the Supreme Court of Ghana (London: Wildy, Simmonds & Hill Publishing, 2015) 60.

[21] Republic v. High Court, Accra; Ex Parte Ghana Medical Association (Arcmann-Ackummey Interested Party) [2012] 2 SCGLR 768 @ 769.

[22] Republic v. High Court, Denu; Ex Parte Agbesi Awusu II (No.2) [2003-2004] SCGLR 907 at 909 –Atuguba JSC.

[23] [1996-97] SCGLR 547, holding 1.

[24] 1996-97] SCGLR 547 @ 553.

[25] [1971] 2 GLR 473.

[26] [1971] 2 GLR 473 at 478.

[27] See Republic v. Special Tribunal; Ex Parte Akosa [1980] GLR 592; Edusei v. AG [1996-97] SCGLR 1; Aduamoa v Adu Twum II [2000] SCGLR 165.

[28] See Maunsell v. Olins [1975] 1 All ER 16 at 18; Asare v. Attorney General [2003-2004] SCGLR 823.

[29] [2000] SCGLR 165

[30] Aduamoa v Adu Twum II [1999-2000] 2GLR 409

[31] See Nana Akufo Addo & Ors v. John Mahama & Ors [2013] SCGLR (special edition).

[32] Yeboah v. JH Mensah; Representation of the People Law, 1992 (PNDCL 284), sections 16 & 20.

[33] [2005-2006] SCGLR 612.

[34] [2005-2006] SCGLR 612 at 619.

 

 

Source: Dr. Poku Adusei

LLB, BL (Ghana); LLM (Alberta); DCL (McGill); Senior Lecturer, Faculty of Law, University of Ghana.