Administrative Law Review: Ghana

Understanding the Administrative State

  • Ghana as an Administrative State
    • Ghana is considered an administrative state to a very large extent.
    • Reasons:
      • The state provides essential services to citizens through institutions and officials.
      • This provision of services necessitates administrative law for regulation.
      • Governance and the delivery of public goods in Ghana rely on administrative bodies, institutions, and discretionary powers, all operating within the framework of law.
  • Functions of an Administrative State
    • Maintains law and order.
    • Promotes and protects the welfare of citizens.
    • Provides social amenities (e.g., water, education, electricity).
    • Protects its citizens from internal and external aggression.
    • Promotes and protects the rights of its citizens.
  • Institutions
    • Structured organizations that exercise authority and perform state functions.
    • Defined as "bodies established by the Constitution or statutes to perform public functions and duties."
  • Independent Executive Bodies in Ghana
    • Established by Article 70 of the 1992 Constitution to assist in governance.
    • Examples:
      • Electoral Commission (EC)
      • Commission on Human Rights and Administrative Justice (CHRAJ)
      • National Commission for Civic Education (NCCE)
      • National Media Commission (NMC)
      • Public Services Commission (PSC)
  • Importance of Administrative Agencies in Ghana
    • Implement laws and policies.
    • Provide specialized services (e.g., EC for elections).
    • Protect rights (e.g., CHRAJ).
    • Ensure accountability.
    • Regulate various sectors of society.

Foundational Concepts of Law and Governance

  • Definitions of Law
    • Aristotle's Classical Definition: "Law is reason unaffected by desires."
    • Practical Definition: Law is an instrument for the generation and distribution of resources, and for resolving disputes arising from this process.
      • These resources include physical, human, and intangible resources.
  • Sovereignty
    • Political Sovereignty: Refers to the supreme power of the people in whom sovereignty resides, as enshrined in the 1992 Constitution, Article 1(1).
    • Legal Sovereignty: Refers to the supreme authority of the Constitution and law-making bodies, recognized by law as final (Article 1(2)).
    • Popular Sovereignty (in the context of Social Contract Theory): Means the ultimate power of the state rests with the people.
      • The 1992 Constitution affirms this: "The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised…" (Article 1(1)).
  • The Constitution
    • Narrow Definition: Sees it as the written fundamental legal document (e.g., the 1992 Constitution of Ghana, Article 1(2)) that regulates government powers.
    • Broader Definition: Includes not only the written constitution but also customs, conventions, judicial decisions, and subsidiary laws that influence governance.
  • Constitutionalism
    • The idea that government must operate within the limits of the Constitution and the rule of law.
    • Requirements:
      • Supremacy of the Constitution (Article 1(2)).
      • Separation of powers.
      • Judicial review.
      • Protection of citizens’ rights.
      • Aims to prevent the abuse of power.
  • Distinction: Constitutional Law vs. Administrative Law
    • Constitutional Law: The supreme body of law that defines the structure, powers, and limits of government (1992 Constitution, Article 1(2)).
    • Administrative Law: The branch of public law that controls how administrative/executive power is exercised and ensures fairness.

Introduction to Administrative Law

  • Definitions of Administrative Law
    • Broader Definition: Beyond controlling government power, it is the body of rules, principles, and practices regulating how public authorities exercise their powers, organize, and perform functions, while also ensuring good governance and protecting citizens’ rights.
    • Wade's Definition: Defines administrative law as "the law relating to the control of governmental power" and also as "the body of general principles which govern the exercise of powers and duties by public authorities."
    • De Smith's Explanation (Essence): Administrative law relates to the organization, composition, functions and procedures of public authorities, the limits of their powers, the methods by which they are controlled, and the legal liabilities to which they are subject.
  • Concerns of Administrative Law (Wade):
    • "The law relating to the control of governmental power."
    • The protection of citizens against abuse of power.
    • The improvement of governance.
  • Three Aspects of Administrative Law's Operation:
    • Between Public Institutions.
    • Between Public Institutions and Individuals.
    • Between Individuals.
  • "The monstrosity of Law is best purged through Administrative Law."
    • This statement implies that law can become oppressive or overly rigid if left unchecked.
    • Administrative law "purges" this potential "monstrosity" by ensuring:
      • Fairness.
      • Accountability.
      • Protection against abuse of power.
    • This aligns with Wade's view of administrative law controlling governmental power and Smith's focus on defining the limits and control mechanisms of public authority.

Government Structure and Powers in Ghana

  • Types of Executives
    • Parliamentary Executive:
      • The executive is drawn from the legislature.
      • There is a close link between the two branches (e.g., the UK system).
    • Presidential Executive:
      • The executive is separate from the legislature.
      • Powers are separated between branches (e.g., Ghana and the USA).
  • Functions of the Legislature (Parliament)
    • Makes laws; the power of Parliament to make laws is exercised by bills passed by Parliament and assented to by the President (Article 106).
    • Representing the people.
    • Controlling public finances.
    • Approving appointments.
    • Exercising oversight of the executive.
  • Duties of the Vice President
    • Assists the President in the performance of his functions (Article 60(1)).
    • Acts as President when the President is absent, resigns, incapacitated, or dies (Article 60(6)).
  • Discretionary Power
    • The legal authority given to an individual or institution to decide whether to act or not, and how to act, within the limits of the law.
    • As Wade notes, "all legal power is discretionary in nature."
  • Composition of the Superior Courts
    • According to Article 126 of the 1992 Constitution, the Superior Courts of Judicature consist of:
      • Supreme Court.
      • Court of Appeal.
      • High Court.
      • Regional Tribunals.

Checks and Balances: Protecting Citizens and Ensuring Fairness

  • Principles of Natural Justice
    • Nemo judex in causa sua (no one should be a judge in his own cause).
      • Purpose: Prevents bias in decision-making.
    • Audi alteram partem (hear the other side).
      • Purpose: Ensures fairness by giving all parties an opportunity to be heard.
  • Procedural Review (in the context of the citizenry)
    • Definition: Checks whether a public authority followed the correct legal process in making decisions.
    • Outcome: A decision may be quashed if the procedure adopted was contrary to law or breached the rules of natural justice.
  • Prerogative Writs (Judicial Remedies)
    • Certiorari:
      • Action: Quashes unlawful decisions (protects against ultra vires actions, meaning actions beyond one's legal power or authority).
      • Implication: Ensures that decisions made beyond jurisdiction, unreasonably, or in violation of natural justice are declared void. It protects citizens from unlawful administrative actions.
    • Mandamus:
      • Action: Compels performance of a public duty (prevents neglect).
      • Implication: Prevents public officials from neglecting legal duties. For example, if an official refuses to issue a license despite the applicant fulfilling all requirements, mandamus can compel action.
    • Quo Warranto:
      • Action: Challenges unlawful occupation of public office (ensures legitimacy).
      • Implication: Prevents unlawful occupation of public office, ensuring only those with legitimate authority exercise power.
    • Injunction:
      • Action: Stops or compels an act (prevents harm or abuse).
      • Implication: Prevents abuse of power or irreparable harm. For example, stopping an unlawful demolition by a public body.
    • Habeas Corpus:
      • Action: Ensures a detained person is brought before court (protects liberty).
      • Implication: Protects the fundamental right to personal liberty. It prevents unlawful or arbitrary detention by state authorities.
  • Contempt of Court
    • Any act that disrespects or obstructs the authority, dignity, or proceedings of a court.
    • Defined as "conduct that tends to bring the authority and administration of law into disrespect or disregard, or to interfere with the due course of justice."

Challenges and Solutions in Ghana's Governance

  • Challenges Facing Ghana’s Fourth Republican Parliament (hindering administrative state effectiveness)
    • Executive dominance over Parliament.
    • Lack of adequate resources for parliamentary work.
    • Politicization of legislative duties.
    • Weak oversight functions.
    • Partisan politics weakening objectivity.
    • Insufficient logistical and human resources.
    • Inadequate oversight of the executive.
  • Challenges Facing Administrative Agencies
    • Political interference.
    • Lack of adequate resources.
    • Corruption.
    • Overlapping functions.
    • Limited accountability.
  • Solutions to Overcome Administrative Agency Challenges
    • Strengthening institutional independence.
    • Adequate funding.
    • Enforcing transparency.
    • Ensuring judicial/parliamentary oversight.