A REJOINDER TO THE SUPREME COURT AND PARLIAMENT OF GHANA INSTITUTIONAL DEBACLE
[ DECLARATORY Vs. ENFORCEABLE JUDGEMENT ] 4th November 2024 Controversial Case Law #[Reposted Article]
We must take into cognizant that the adopted practice of certain legislatures, cum lawyers, dragging the entire Institution of Parliament, as the second arm of Government to the orbit of Judicial Institution, as the third arm of Government, thou, claiming or demanding an enforceable Judgement upon her, is a misguided practice, and misleading Constitutional doctrine. The highest decree of the Supreme Court, against an entire Parliamentary Chamber functions, under the Constitution, should be a ‘Declaratory Judgement’, never ‘Enforceable Judgement’.
Acknowledging the fact that, the adopted Constitutional framework in practice across Africa, is an Anglo-American rendition.
For such reason, it is essential to remind ourselves as legal scholars, that in the tradition of constitutional practice, all branch of government are assigned a role of being a final arbiter of disputes. Which grant each branch to be authoritative interpreter for some constitutional provisions, as argued by Prof. Edwin Meese [1980], who was serving as the Attorney General of the United States in that period, which I quote him as follows,
“Each of the three coordinate branches of government are created and empowered by the Constitution- the Executive, and the Legislative, no less than the Judicial-has a duty to interpret the Constitution, in the performance of their official functions.”
Therein, proceed further with a famous articulation from the third President of the United State, Thomas Jefferson, who equally was a renowned Lawyer, and in his writing to the former first lady of the United States, Abigail Adams, known to be the wife, and the closest advisor of the second President of the United States, which I quote;
“Nothing in the Constitution has given the Judges, a right to decide for the Executive, more than the Executive to decide for them. The Judges, believing the law as constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. The Executive, believing the law to be unconstitutional was bound to remit the execution of it, because that power has been confided to ‘them’ by the Constitution. That is what the Instrument of the Constitution meant, when it state, the coordinate branches should be checks on each other. Thereby, to hold an opinion that, the Judges have the right to decide what laws are constitutional, and what is not, not only for themselves in their own sphere of action, but for the Legislature, and Executive in their spheres, would make the Judiciary a despotic branch.”
For the purpose, and Interest of the case law development within West Africa legal system, it is of necessity to examine whether, the submitted case to the Supreme Court of Ghana, met the threshold of Judiciability, per the debacle between the Chief Justice, and the Speaker of Parliament.
The concept of Judiciability doctrine, as a constitutional theory, was birth in the most developed legal system in the world, because of the associated challenges within government, due to the separation of Powers, which was perfectly espoused in the words of Chief Justice Early Warren in the case of Flast v. Cohen [1968], and I quote,
“ Cases and Controversies of the Law, define the role assigned to the Judiciary, in a tripartite allocation of power, to assure that the Courts will not intrude into areas committed to other branches of government. With the Courts reminding itself, it has limited political capital, because it depends on other branches, to voluntarily comply with Judicial orders, and such acquiescence depends on the Judiciary’s credibility.”
Therefore, to reason through the debacle, thus, submit the following rhetorical questions;
i. Whether or not, the controversy within the Parliamentary Chamber, met the threshold requirement of Judiciability doctrine, for the Supreme Court to intervene and adjudicate.
ii. Whether or not, the controversy best suited for Judicial resolution.
iii. Whether or not, the controversy had a non-constitutional grounds, for a decision and resolution.
iv. Whether or not, the controversy in the Parliament chamber, had a precedence and procedures, to resolve in the wisdom of legislative rules and instrument.
v. Whether or not, the controversy had a ‘genuine’ adversary issue between the established parties, to be resolved by the Court.
I herein submit, when a pursued interest clothed in agenda, and characterized in political doctrine of the Constitution, is masqueraded as ‘Adversary issue’ before a Court, and admitted as such, only create a tension of constitutional crisis, of an imaginary purpose, but non-existence in reality.
REFERENCE
Edwin Meese III, The law of the Constitution, 61 Tul. L. Rev. 979 (1987).
Flast v. Cohen, 392 U.S 83, 95 (1968).
The writings of Thomas Jefferson 310 (Ford ed. 1897), letter to Abigail Adams, September 11, 1804.
† Emmanuel Tweneboah Senzu, DBA, PhD. SJD.
Professor of Constitutional Law and Economic Criminology, J. Reuben Clark Law School, Brigham Young University, Utah, USA. Cross-Departmental fellow, University of Ghana and Central University Faculty of Law. Executive Director, Blackstone Africa-Asia Jurists Center.
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