Study Notes on Constitutional Development in Ghana

Introduction to the 1992 Constitution of Ghana

Brief Historical Introduction

  • The constitution of Ghana must be understood within its historical and political contexts.

    • Understanding the current constitutional order requires a grasp of the events leading to its formation.

    • Ghana has experienced a turbulent journey towards establishing an effective government system since gaining independence from colonial rule.

Ghana's Constitutional Journey Since Independence

  • A timeline of significant constitutional milestones:

    • 1957: Independence Constitution - Ghana became an independent nation.

    • 1960: First Republican Constitution - Ghana attained Republican status.

    • 1966: February 24th - The government was overthrown by the Ghana Armed Forces and Police.

    • 1969: Second Republican Constitution - Returned to civilian rule.

    • 1972: Government was toppled by a military coup; Constitution suspended; Supreme Military Council established.

    • 1979: Third Republican Constitution - A democratic regime was restored.

    • 1981: Military takeover - A government that was short-lived.

    • 1992: Fourth Republican Constitution - A new democratic government was instituted (current).

    • Note: Each constitutional change marked significant political transitions from colonial independence to military coups and finally to the restoration of democracy.

Nature & Underlying Concepts of the 1992 Constitution (1/2)

  1. Supremacy of the Constitution (Articles 1 and 2)

    • The Constitution is the supreme law of Ghana.

    • All other laws must conform to it.

  2. Separation of Powers

    • Reference: Article 78 of the 1992 Constitution.

    • Ghana operates a hybrid system combining aspects of the Executive and Legislature; however, the Judiciary remains independent.

  3. Doctrine of Non-Justiciable Political Questions

    • Certain political questions are not subject to judicial review.

    • Key Cases:

      • New Patriotic Party v Attorney-General (31st December Case) [2001-2002] SCGLR 86

      • Ghana Bar Association v Attorney-General (Abban Case) [1995-96] 1 GLR 598, SC

      • J H Mensah v Attorney-General [1996-97] SCGLR 32

  4. Doctrine of Mootness

    • Courts may decline to decide cases that are no longer live controversies.

    • Key Cases:

      • J H Mensah v Attorney-General [1996-97] SCGLR 320

      • Amidu v. President Kufuor [2001-2002] SCGLR 86, S.C.

Nature & Underlying Concepts of the 1992 Constitution (2/2)

  1. Directive Principles of State Policy

    • These principles are non-justiciable and serve as guidelines for state policy and governance.

    • They set aspirational goals for the state but are not enforceable in courts.

    • Key Cases:

      • New Patriotic Party v. Attorney-General [1993-94] 2 GLR 35, S.C.

      • Ghana Lotto Operators Association v National Lottery Authority [2007-2008] 2 SCGLR 1088

  2. Defence of Constitution: Citizen's Right and Duty

    • It is the right and duty of the citizens of Ghana to defend the constitution.

    • This principle empowers citizens to challenge unconstitutional acts and to protect constitutional governance.

    • Key Cases:

      • Ekwam v. Pianim (No. 2) and Others [1996-97] SCGLR 120, S.C.

      • New Patriotic Party v. Attorney-General [1993-94] 2 GLR 35; [1994-95] GBR 1, S.C.

      • New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354, S.C.

    • Important Note: The six concepts form the constitutional framework and philosophical foundation of Ghana's current democratic governance under the 1992 Constitution.

Learning Objectives

  • By the end of this session, students should be able to:

    • Acquire a comprehensive knowledge of the history and evolution of constitutional development in Ghana.

    • Appreciate the nature, characteristics, and structure of previous constitutions of Ghana since independence.

    • Identify and distinguish the legal and philosophical underpinnings of Ghana's constitutions.

    • Recognize any challenges associated with these constitutions and propose suggestions for improvement.

Two Phases of Constitutional Development

  • Pre-Independence Phase (Colonial Period)

  • Post-Independence Phase

Historical Context

  • Ghana was previously comprised of various entities or tribes, unified under the colonial entity known as Gold Coast, which included:

    • The Colony

    • Ashanti

    • Northern Protectorate

    • Trans Volta Togoland

Formation of Gold Coast - Early Colonial Period

The Gold Coast Colony

  • The Bond of 1844:

    • Agreement between Governor Hull and the Fanti Confederacy on March 6, 1844.

    • Acknowledged that the primary objectives of law are the protection of individuals and property.

    • Established that certain brutal customs were criminal.

    • Serious crimes would be tried by British judicial officials alongside chiefs, integrating British legal principles into local governance.

  • 1850 British Constitution for Forts and Settlement:

    • Established its own Governor and a Legislative and Executive Council for the Gold Coast Colony.

  • Key Point: The Bond of 1844 and the 1850 Constitution laid the groundwork for British colonial governance in Ghana, embedding British legal principles and formal governmental structures.

Defeat of the Ashanti & Territorial Expansion

The Sagrenti War (1874) and Treaty of Fomena

  • The Ashanti were defeated in the Sagrenti War, leading to the Treaty of Fomena.

    • Ashanti renounced claims to Elmina and coastal territories.

  • Subsequent British-Ashanti Relations:

    • 1890: British offered a treaty for Ashanti to become protectorates, but rejected.

    • 1896: British defeated Ashanti and exiled Prempeh, with most Ashanti chiefs acquiescing.

    • 1901: Following the Yaa Asantewaa War, British annexed Ashanti and several southern territories; each was administered separately.

    • Supreme Court Ordinance of 1876:

    • Established the Supreme Court, laying the foundational framework for Gold Coast's legal system; referenced in ANGU v ATTA.

Pre-Independence Constitutions Overview

Evolution of Constitutional Rule

  • Five Pre-Independence Constitutions highlighted:

    • The 1916 Constitution (Clifford Constitution)

    • The 1925 Constitution (Guggisberg Constitution)

    • The 1946 Constitution (Burns Constitution)

    • The 1951 Constitution

    • The 1954 Constitution

    • Note: Each constitution represented steps toward self-governance and expanded African participation in governance.

Timeline of Key Developments

  • These constitutions, spanning from 1916 to 1954, marked the critical transition towards self-rule and increased political engagement.

Clifford Constitution 1916 & Guggisberg Constitution 1925

Clifford Constitution 1916

  • The introduction of the first major constitution in 1916.

    • Notable as it included three paramount chiefs in the Legislative Assembly.

  • Key Innovation: The first inclusion of African traditional leaders in governance.

Guggisberg Constitution 1925

  • Introduced elected representatives for the first time, marking a significant democratic advancement.

  • Unification of Administration: In 1934, the administration of the Gold Coast was unified, allowing the Legislative Council to legislate for various regions.

Burns Constitution 1946 & Road to Independence

Burns Constitution 1946

  • Majority of elected representatives introduced.

  • Despite majority presence, nationalists were dissatisfied, leading to agitation for more independence.

  • Political Developments Leading to Independence:

    • 1947: Formation of the United Gold Coast Convention (UGCC), demanding independence.

    • 1948: Riot occurred.

    • 1949: Convention People's Party (CPP) founded, calling for immediate independence.

    • Establishment of the Watson and Coussey Commissions.

    • The Coussey Commission's recommendations paved way for the 1951 Constitution.

1951 Constitution & 1954 Constitution

1951 Constitution

  • For the first time, the Legislative Assembly became predominantly African.

    • Nkrumah described it as both 'bogus and fraudulent' and 'worth trying'.

    • The CPP won 34 out of 38 seats, indicating strong support for independence.

1954 Constitution

  • Retained many characteristics of the 1951 Constitution.

  • Introduced detailed provisions for the Judiciary and Public Finance.

    • Key Innovations:

      • Establishing judicial independence and fiscal accountability.

      • Ensured a fully elected Legislative Assembly, moving toward complete democratization.

  • This constitution laid the stage for the 1957 Independence Constitution.

Post-Independence Constitutions Overview

Post-Independence Constitutional Journey

  • Key post-independence constitutions include:

    • The 1957 Constitution (Independence Constitution)

    • The 1960 Constitution (First Republican Constitution)

    • The 1969 Constitution (Second Republican Constitution)

    • The 1979 Constitution (Third Republican Constitution)

    • The 1992 Constitution (Fourth Republican Constitution - Current)

Pattern of Constitutional Development

  • Ghana's post-independence history reflects a series of attempts at democratic governance interrupted by military coups.

    • Each new constitution addressed inadequacies of its predecessor.

    • The current 1992 Constitution is the most enduring democratic framework in Ghana's history, embodying lessons from past constitutional experiences.

1957 Constitution Overview

Independence Constitution Overview

  • Enacted by the British Parliament:

    • Established three government branches: Executive, Legislature, Judiciary.

  • Executive:

    • Power vested in the Governor General representing the Queen.

    • Prime Minister appointed by the Governor-General, removable by a vote of no confidence.

    • Ministers appointed on Prime Minister's advice.

  • Parliament:

    • Consisted of the Queen and National Assembly with elected representatives.

  • Judiciary:

    • Power vested in the courts.

Key Amendments to the 1957 Constitution

  • Procedures were established for forfeiting seats in National Assembly under specific conditions.

  • Judicial Service Commission abolished; judges appointed on Prime Minister's advice.

  • Traditional members eliminated from Local and Municipal Councils.

1960 Constitution First Republican Constitution (1/2)

Key Features

  • Ghana transitioned to a republic on July 1, 1960.

    • Passed by the Constituent Assembly on June 29, 1960.

    • Created government institutions regarding the authority of the constitution.

  • Executive:

    • Power vested in the President and his ministers.

    • The President became the Commander-in-Chief of Armed Forces.

    • Required the President to act independently of advice.

  • Note: This constitution marked a significant transition, concentrating executive powers with the President.

1960 Constitution First Republican Constitution (2/2)

Article 55 - Special Powers of the First President

  • Allowed for legislative directives affecting non-constitutional enactments.

  • Parliament:

    • Comprised the President and National Assembly, with a Speaker and at least 104 members.

    • Bills passed required President's approval.

  • Judiciary:

    • Judicial powers rested in the courts, Chief Justice appointed and dismissed by the court.

    • The constitution was amended to establish Ghana as a one-party state, concentrating power in the presidency leading to the overthrow of 1966.

1969 Constitution Second Republican Constitution (1/2)

Background

  • The 1966 coup abrogated the previous constitution.

  • The National Liberation Council formed a Constitutional Commission for proposals.

Constitutional Commission Proposals

  • Included universal suffrage, independent Electoral Commission, and effective separation of powers.

  • Aimed at preventing the concentration of power and restoring civilian governance.

1969 Constitution Second Republican (2/2)

Additional Constitutional Commission Proposals

  • Focused on safeguarding human rights, promoting government accountability, and defining sovereignty.

  • Key Philosophy: Reinforced democratic principles and limited authoritarian power.

1979 Constitution - Third Republican Constitution (1/2)

Background

  • Overthrown by military coup of 1972.

Constitutional Commission Proposals

  • Highlighted the need for an Executive President and mandates for public accountability.

  • First constitution to propose Vice Presidency in Ghana.

1979 Constitution - Third Republican (2/2)

Structure

  • Established an Executive President and Cabinet composition.

  • Allowed for elected Parliament members and reinforced judicial authority.

1992 Constitution - Fourth Republican (Current)

Background

  • Resulted from an overthrow of the 1979 constitution.

Structure of Power

  • Fusion of powers between Executive and Legislature; Judiciary independent.

  • Established positions and an administration reflecting popular representation.

Essential Readings & Conclusion

Key Readings

  • Bimpong-Buta S.Y. (2007). The Role of the Supreme Court in the Development of Constitutional Law in Ghana. Chapter 2

  • Bennion, F.A.R. (1962). The Constitutional Law of Ghana. London: Butterworths

  • Opoku-Agyemang, Maxwell (2009). Constitutional Law and History of Ghana. Chapters 1-4

  • Oquaye, M. (2000). Politics in Ghana 1982-1992: Rawlings, Revolution and Populist Democracy

  • All Pre-Independence Constitutions: 1916, 1925, 1946, 1951, 1954

  • All Post-Independence Constitutions: 1957, 1960, 1969, 1979, 1992

Summary

  • Overview of Ghana's constitutional development from colonial rule through independence to the contemporary Fourth Republic.

  • Emphasizes the evolution of constitutional governance and political context affecting each constitutional framework.

  • The 1992 Constitution represents a significant achievement in establishing a stable democratic environment in Ghana.O