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BLAW103 1st I.A 10282673

INDEX NUMBER: 10282673
1) Montesquieu presented separation of powers as three organs of government; the
legislature, executive and the judiciary as three independent bodies with separate functions and
each is required to perform the function assigned to it without any interference from the other arms.
He did not promote absolute separation of powers with the fear of having an absolute power in the
hands of one single arm. In that context, separation of powers does not render one organ as greater
than the others as the Constitution is the supreme law.1 The 1992 Constitution of Ghana provides
for the three various arms of government with their functions and to be headed by the various
authorities.2 Separation of Powers and Checks and Balances are known to be two sides of the same
coin, thus, the principle of checks and balances is employed in order to curb/avoid corruption,
tyranny and abuse of power by the various arms of government by enforcing the structures of
accountability3, transparency,4 responsiveness, rule of law1, stability, equity and inclusiveness,
empowerment, and broad-based participation and monitoring and evaluation.5
2) The Grundnorm represents the basic norm, order, or rule that forms a fundamental root for
a legal system. According to Kelsen, for there to be a legal order, the laws of a society must trace
its existence to a common source called the basic law or the ‘grundnorm’. The theory suggest that
a chain of authorization must exist before laws could be made. This is the basic norm from which
all other laws derive their validity. Kelson’s theory advocates a total discontinuity of the existing
Grundnorm in the events of a revolution. The theory states that there cannot be more than one
basic law in a legal order thus, implies a constitution to be both written and unwritten. The
application of this theory can be found in the case of SALLAH V. ATTORNEY GENERAL [1970]
2 G&G 493, supra.6 The Grundnorm is found in the Constitution.
the “Rule of Law” is emphasized in the supremacy of the 1992 Constitution as contained in Article 1(2)
Articles 58, 93 and 125 of the Constitution respectively
Articles 218, 162 of the Constitution. See Office of the Special Prosecutor Act, 2017
Right To Information Act 2019, Act 989
Articles 42, 162(5), 218 and 233 of the Constitution respectively
The legal effect of coup d’état was discussed and held that grundnorm is changed by a successful coup d’état.
3) Constitutionalism, according to John Locke, is a social contract between the governor and
the governed where, the governed are the absolute repository of power and they confer part of the
power to the governor to govern and place limitations on the governor to prevent absolutism.7 The
features of constitutionalism are rule of law, separation of powers and checks and balances.
4) Finnis argued that in the course of a revolution or other events, the Grundnorm is not totally
destroyed. Finnis categorized articles in a constitution into three groups of rules namely; rules of
succession to office,8 rules of competence, i.e., responsibilities of office holders, and rules of
succession to rules.9 According to Finnis, there is discontinuity only when the groups of rules have
been affected.
5) Constitutional Supremacy in Ghana denotes that the Constitution (1992) is the highest
authority over all other laws, organs of government,10 whereas Parliamentary Sovereignty as
practiced in the United Kingdom implies that the legislative body has absolute sovereignty and is
supreme over all other government institutions, including executive or judicial bodies.
6) Judicial Review is how the judiciary measures the mandates given to the executives and
legislators by the Constitution and strikes down their ultra vires acts and omissions as
unconstitutional.11 This principle was first established in the United States of America in the case
of Marbury v Maddison, supra. In Ghana, this principle and power is found in the 1992
7) In the case of Marbury v Madison, 1 Cranch 137 (1803), the solitary principle of judicial
review was established. Lord Marshall discussed judicial power of the courts to strike down
congressional decisions which were made in excess of the powers conferred on it by the
constitution. This thus, means that the courts have the power to strike down statuses made by the
legislative and executive arms of government in excess of its powers under the Constitution.
Forde, s. John Locke and the Natural Law and Natural Rights Traditions. University of Texas. n/nrac.org.
Articles 63(2) and 69(1) of the 1992 Constitution
Article 289 of the 1992 Constitution
Article 1(1) of the 19992 Constitution
See Dennis Dominic Adjei’s Constitutional Law of Ghana
See Article 130 of the 1992 Constitution of Ghana
8) Just like living organisms, the Constitution permits the progressive growth and
development of its own conventions and thus the Constitution has the potential to grow. The
principles of the Constitution should be considered when amending the Constitution so it conforms
with the needs of time. This arose in response to the Constitution’s ‘outdated’ laid down
procedures for appointing the Chief Justice of the Supreme Court and the interpretation the
Attorney General gave to the procedure.
9) There cannot be Constitutionalism without a Constitution. This is so because in order to
effect constitutionalism there must be pre-determined rules which limits the powers of organs of
government. For easy access and identification of such pre-determined rules, they must be
compiled into one entity, thus the Constitution.
10) In the United States of America, judicial review applies to the powers of the courts over
the executive and legislature to ensure that they operate within the powers conferred on them by
the American Constitution. Judicial Review of primary statute is prohibited in the United Kingdom
as Parliament is supreme and the courts are subordinate to it. Judicial review in Ghana covers
executive and legislative bodies, administrative bodies and all courts below the Supreme Court.13
11) It was held that the Court could not enquire into the truth of the fact because the detention
is at the discretion of the president in accordance to the PDA supported by the Habeas Corpus Act,
1816 which exempted an equiry which involves detention relating to the security of the State.
12) Political Question Doctrine (Non-justiciability) is in relation to whether a court can, with
constitutional propriety, adjudicate on the matter before it or whether such an adjudication would
be an infringement by the court of the role which the Constitution has conferred on it. This doctrine
enforces the concept of separation of powers such that, though the courts have the responsibility
of judicial review, it limits them to issues that they can get involved in in accordance to the
Constitution. However, this doctrine is inapplicable in our constitutional law because of the power
Articles 132 & 141 of the 1992 Constitution of Ghana, and Order 55 of the High Court (Civil Procedure) Rules, C.I
to granted to any person in article 2 of our constitution to challenge any action or omission of an
individual or institution.
13) The Supreme Courts has exclusive original jurisdiction in the enforcement or
interpretation of the Constitution, and to determine whether an enactment was made in excess of
the powers conferred on Parliament or any other authority or person by law or under the
constitution.14 This means that the Supreme Court has the sole mandate to determine cases
pertaining to the entrenched provisions in the Constitution.
14) The Reference Jurisdiction – where matters of interpretation or enforcement of the
constitution and the determination of enactments that exceed the powers conferred on the
Parliament or any other authority or persons by law or under the law is presented to courts lower
than the Supreme Court, the court shall stay the proceeding and refer the question, of law involved
to the Supreme Court for determination and the court in which the question arose shall dispose off
the case in accordance with the decision of the Supreme Court. Thus, a reference jurisdiction gives
the Supreme Court the sole mandate to determine the cases, though falls under its original
jurisdiction, arises in the proceedings of other courts.
15) The Court took the position that the counsel for the appellants placed a narrow
interpretation on the purpose of the PDA. The offences listed under Part IV, chapter 1 of the
Criminal Code, 1960 or under title 23 of the Criminal Code, Cap 9, now repealed, provides that
“offences against the safety of the State” include a large number of offences which have nothing
to do with the defence of Ghana or with foreign countries but the Governor General may make an
order under the PDA if he is satisfied that the order is necessary. The object of the Act is to prevent
people from committing crimes which may endanger public order and the security of the State. If
the Governor General would be justified to activate the powers under the PDA to prevent persons
whom he is satisfied there are attempts to cause disruption in the governance of the State.
Therefore, the counsel for the appellant interpretation that security of the state means defence of
Ghana against foreign powers is a narrow one.
Article 130(1) of the 1992 Constitution