Our Supreme Court has done it again! It seems to have behaved like the proverbial ‘veritable octopus,’ stretching its tentacles to assume jurisdiction over a matter which is clearly out of its original exclusive jurisdiction. As if that was not enough, the Court has given a judgement that has successfully entrenched the common-held view that the honourable Court is in a dire need of consistency and judicial humility.
This note seeks to show that the Supreme Court did not have jurisdiction over the Asare v General Legal Counsel & Ors in the first place.
Judicial Review Generally
Article 2 of the 1992 Constitution codifies the doctrine of judicial review as established by the landmark case of Marbury v. Madison (1803). In that case, Justice Marshall stated that:
“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
The essence of this statement is that the Constitution is the sole standard for exercising a supreme court’s power of judicial review. It is exactly this doctrine that is codified in Article 2 of our Constitution.
Judicial Review in Ghana
So, Article 2(1) says that:
“A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”
From this provision one may glean out the following elements, which must be satisfied in order to successfully invoke the Supreme Court’s Article 2 jurisdiction. In other words, for a plaintiff to invoke the Article 2 jurisdiction of the Supreme Court, she must show the following:
- That there is an allegation of violation;
- That that allegation of violation is in the form of:
- A contravention, or
- An inconsistency;
- That the alleged violation stems from at least 1 of 2 principal sources, namely:
- From an enactment; or
- From a person.
- That where the alleged violation stems from an enactment, it is either:
- From the content of the enactment (without more); or
- From a conduct done under or pursuant to the authority of an enactment.
- That where the alleged violation stems from a person, it is either through:
- A person’s action; or
- A person’s inaction.
- That whatever nature the alleged violation may take from 1 to 5, it should be a violation of the Constitution and nothing else.
In fact, that is the reason why Article 2 claims must always allege an unconstitutionality – meaning the constitution (and nothing else) is the sole standard of evaluation.
It is true that any illegal act or omission may also be a violation of one of the many principles in the Constitution, but it would be an abuse of language and, of course, the concept of judicial review to suggest that a person who steals my iPhone has committed an unconstitutionality, having violated my right to property under Article 20 of the Constitution.
It is exactly the prevention of this possible abuse (of every legal wrong coming to the Supreme Court for judicial review) that the Supreme Court itself insists strongly in a long line of cases that where the Supreme Court has concurrent jurisdiction with another court over a matter, the Supreme Court would relinquish jurisdiction to that other court. In fact, it is for this reason that the Supreme Court’s Article 2 jurisdiction called “exclusive original jurisdiction.”
Asare v GLC Jurisdiction
Now, the question is this: what is the dominant feature of the violation which the Plaintiff in Asare v GLC & Ors. alleged? To all intents and purposes, the allegation is primarily one which says that the defendants have acted, are still acting and, unless restrained, would continue to act outside their enabling Act, Act 32, or its subsidiary legislation, L.I. 1296. And, even though such violations may derivatively result in an inconsistency or even a contravention of a principle in the Constitution, it is an abuse of the term ‘judicial review’ to suggest that that act or omission is unconstitutional.
In other words, the Supreme Court, as a matter law and in accordance with its own established jurisprudence, did not have and should not have assumed an exclusive original jurisdiction over the plaint. The plaint should have been referred to the High Court which has original jurisdiction to determine such administrative (rather than constitutional) matters.
Until and unless the Honourable Supreme Court begins to take some of these jurisdictional issues more seriously, it would continue to exude an air of inconsistency and judicial tyranny, while at the same time weakening not just itself, but also all the Courts and other administrative bodies below it.