PDF generated: 04 Oct , This complete This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with. (1) Subject to subsection (3) of this section, the terms and conditions of service including retiring ages of a Justice of the Court of Appeal shall apply to the. OF GHANA ENTITLED THE POLITICAL PARTIES ACT, AN ACT to 3- A political party may, subject to the constitution and this Act participates in shaping.
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The Constitution of Ghana can be classified as traditionally unitary, in the Ghana as sovereign, with the Constitution as the supreme law of the land. 2. Below is the Constitution of the Republic of Ghana, arranged by Chapters. Click on any and read the contents. CHAPTERS. 1. THE CONSTITUTION. 2. The Constitution of Ghana is the supreme law of the Republic of Ghana. It was approved on 28 ISBN ^ Europa Publications Staff (). Africa South of the Sahara Routledge. ISBN ^ "The Constitution of Ghana" (PDF).
It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of law. Equally, the Constitution has its spirit Its language A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation.
Constitution of Ghana
A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. It is for the courts as the guardians of legality, to ensure that all agencies of the state, bodies and persons relating with the state, etc. An interpretation based solely on a particular provision without reference to the other provisions, is likely to lead to a wrong appreciation of the true meaning and import of that provision.
Thus in Bennion, Constitutional Law of Ghana at p it is explained that it is important to construe an enactment as a whole, since it is easy, by taking a particular provision of an Act in isolation, to obtain a wrong impression of its true effect.
The dangers of taking passages out of their context are well known in other fields, and apply just as much to legislation. Even where an Act is properly drawn it still must be read as a whole.
Indeed a well-drawn Act consists of an interlocking structure each provision of which has its part to play. Warnings will often be there to guide the reader; as for example, that an apparently categorical statement in one is subject to exceptions laid down elsewhere in the Act, but such warnings cannot always be provided. Emphasis mine. LTD v. Ltd v. The Attorney General The respondents applied by summons for summary judgment for the reliefs indorsed on the writ of summons.
After hearing counsel for the parties and reading the various affidavits and the exhibits annexed to them, the High Court entered final judgment against the appellant.
The appellants, being dissatisfied with this judgment appealed to the Court of Appeal. Those requirements clearly include the laying of the relevant agreement before Parliament. The agreement is not to come into operation unless it is approved by a resolution of Parliament.
The purpose of the framers of the original provision was to ensure transparency, openness and Parliamentary consent in relation to debt obligations contracted by the State. This, to my mind, means that an international business transaction or international economic transaction to which the Government is a party must be submitted to Parliament for approval, even though the nature of the obligation embodied in such transaction is not one of debt.
Thus it overturned the decision of the Court of Appeal which awarded damages to the respondent for breach of contract by the appellants as well as loss of profit and interest on the amounts claimed until the final date of judgment.
The above decision emphasized that article 5 was distinct from the preceding sections of article relating to loan agreement. It was clear that article 5 specifically deals with international business or economic transactions rather than loans and taking into account its language, the overall effect is that as with loans, international business or economic transactions to which the Government is a party also require parliamentary authorization.
Where the Constitution stipulates that parliamentary authorization shall be required for certain transactions, then any transaction to which the provisions are applicable that is concluded without the authorization of Parliament cannot take effect.
This conclusion is in line with the intent of the framers of the various constitutions of Ghana as is apparent through a historical constitutional excursion.
The origin of the current article is article of the Constitution. Date-Bah JSC. It was in the Constitution that this long-standing provision on the giving and raising of loans was modified to include another category of contracts, namely "an international business or economic transaction to which the Government is a party". Philip David Elders. Phillip David Elders, a businessman resident in Texas, USA, identified a business opportunity in Ghana and persuaded the owner, the second defendant, to invest in it.
The nature of the business was that the Government of Ghana wanted to generate electricity urgently from a power barge located in its Western Region. For the statutory licensing requirements involved in such projects, the 1st defendant was incorporated in Ghana and made a party to the agreement.
Subsequently, a dispute arose between the parties to this PPA. The Government of Ghana claimed that the second and third defendants had misrepresented to it that they could make the power barge operational within 90 working days and that it was on the basis of this representation that it had entered into the MOU and the PPA.
However, this had not happened. This led to arbitration proceedings against the Government of Ghana under the auspices of the Permanent Court of Arbitration at The Hague, in Netherlands. The Attorney-General in June , issued a writ of summons in the Commercial Division of the High Court, Accra, claiming a declaration that the PPA is an international business transaction that needed parliamentary approval and was unenforceable because it did not have such approval.
The plaintiff also claimed that the arbitration agreement contained in clause We are viewing the transaction in the round, without resorting technically to the piercing of the corporate veil doctrine.
We will now set out the circumstances which support this impression and whether a transaction of this nature comes within the ambit of article 5 …The PPA between the Government and the first defendant was the result of negotiations between a foreign investor the third defendant acting on behalf of owner of the second defendant and the Government. This is a significant foreign element in the transaction.
Secondly, the first defendant, though a Ghanaian company is wholly- owned by a foreign entity, incorporated in the United Kingdom. Thirdly, the managing director of the first defendant is a foreigner, the third defendant, and control of the management of the first defendant is in foreign hands. Fourthly, the 10 P a g e PPA contains a clause providing for international commercial arbitration. Lastly, there were other clauses in the PPA which are usually associated with foreign investment transactions, such as the waiver of sovereign immunity clause….
All these circumstances cumulatively lead us to the conclusion that the answer to the first question referred to this Court is that the Power download Agreement dated 27th July between the Government of Ghana and Balkan Energy Ghana Limited constitutes an international business transaction within the meaning of Article 5 of the Constitution….
It thus set in motion a procurement process for the award of appropriate contracts in accordance with the Public Procurement Act, Act It later assigned all its rights to Waterville referred to as the 2nd defendants. This was protested against. It entered into negotiation with Government regarding the purported abrogation which resulted in an MOU between them.
Subsequently, however, the Government terminated the agreements with the second defendant by a letter written by the Attorney-General.
It then entered into negotiations with the sub-contractors of the 2nd defendant, Micheletti and Co Ltd and Consar Ltd, to continue with the rehabilitation and refurbishment of the Ohene Djan, Baba Yara and El Wak stadia. The agreement reached with them was that Government would pay the sub-contractors the value of the work already executed by the 2nd defendant before the date of takeover by the sub—contractors of the work.
The sub-contractors would then pay the 2nd defendant the value of the work it had undertaken.
Whilst negotiating with representatives of the Republic, the 3rd defendant obtained judgment in default of defence against the 1st defendant on this writ. Negotiations continued between the 1st defendant and the 3rd defendant which resulted in Terms of Settlement which were filed with the High Court on 4th June These terms of settlement were signed by both parties to the action in the presence of their counsel.
The 1st defendant subsequently on 28th July , issued a writ seeking to set aside the consent judgment on the ground, inter alia, that it was procured by a mistake due to fraudulent misrepresentation by the 3rd defendant. Against the backdrop of the facts set out above, the plaintiff, a former Attorney General sued the defendants in this action invoking the original jurisdiction of the Court seeking inter alia that monies paid under the transactions which were not laid before Parliament made the contract void and thus the monies ought to be refunded.
The Supreme Court in upholding the interpretation in the previous case held that;29 29 Per Dr. A contract which breaches article 5 of the Constitution is null and void and therefore creates no rights.
Although one accepts the cogency of the argument that there is need to avoid unjust enrichment to the State through its receipt of benefits it has not paid for, there is the higher order countervailing argument that the enforcement of the Constitution should not be undermined by allowing the State and its partners an avenue or opportunity for doing indirectly what it is constitutionally prohibited from doing directly.
The supremacy of the Constitution in the hierarchy of legal norms in the legal system has to be preserved and jealously guarded. The requirement that international business contracts to which the Government is a party should be approved by Parliament has a purpose and it should be made clear to Government and its partners that non-compliance with the requirement, directly or indirectly, will have consequences. We are accordingly inclined to the view that, where article 5 has been breached, a restitutionary remedy would be in conflict with the Constitution and therefore not available.
In our view, it was fundamentally erroneous in ignoring the effect of article 5 of the Constitution on the transaction. From the analysis earlier made of the penumbra effect of article 5 , we would reaffirm that there is no liability of the State to the 2 nd defendant. The 2nd defendant is thus obliged to return all monies paid to it pursuant to the transaction. The settlement, pursuant to which the monies were paid, was founded on an unconstitutional act and should be treated as null and void.
The 1st defendant alleged that the action by the Office of the President amounted to re-awarding the contracts that the 2nddefendant considered it had concluded. The 2nd defendant, accordingly, gave a power of attorney to the 3rd defendant to sue the Government of Ghana to enforce its contract rights.
The 3rd defendant therefore commenced two actions on behalf of the 2nd defendant, against the Republic of Ghana claiming damages for breach of contract. The 2nd defendant obtained judgments in default of appearance.
The default judgments were subsequently set aside to enable the matter to be settled out of court. The 2nd and 3rd defendants later initiated garnishee proceedings on the basis of these consent judgments and obtained garnishee orders nisi. Part payment was already made when the plaintiff brought this action seeking inter alia that the 2nd defendant entered into two international business agreements with the Republic of Ghana, which were not laid before Parliament for the approval of Parliament and accordingly, not having been laid before Parliament and approved by Parliament, they are void.
In other 14 P a g e words, the purposive approach insisted upon by the 2nd Defendant, when reasonably applied, should lead to the conclusion that an international business or economic transaction to which the Government of Ghana is a party should not cease to be treated as such, under article 5 , simply because activities under it are to be financed under a loan agreement that has already been approved by Parliament.
This conclusion connotes that the two impugned agreements entered into by the 2nd Defendant are null and void, because they were not approved by Parliament. There was thus no liability of the Republic of Ghana to the 2nd Defendant. The unconstitutional contracts, concluded in breach of article 5 , cannot lawfully found the consent judgments relied on by the 2nd Defendant. The said consent judgments are vitiated by the unconstitutionality of the contracts on which they are based and, apart from declaring those judgments to be in breach of article 5 of the Constitution, this Court has jurisdiction under article 2 2 of the Constitution to order that the said judgments be set aside.
The 1st defendant, the Attorney-General, is responsible for defending suits against the Republic. Fundamental and other human rights and freedoms.
Equality and freedom from discrimination. Protection of right to life. Protection of personal liberty. No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. Protection from slavery, servitude and forced labour. Protection from deprivation of property. Right to privacy of person, home and other property.
Right to a fair hearing. Protection of freedom of conscience, expression, movement, religion, assembly and association.
Constitution of Ghana
Right to education. All persons have a right to education. Rights of the family. Affirmative action in favour of marginalised groups.
Rights of women. Rights of children. Rights of persons with disabilities.
Protection of rights of minorities. Minorities have a right to participate in decision-making processes, and their views and interests shall be taken into account in the making of national plans and programmes.
Right to culture and similar rights.
Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others. Civic rights and activities. Right to a clean and healthy environment. Every Ugandan has a right to a clean and healthy environment. Economic rights. Right of access to information. Right to just and fair treatment in administrative decisions.
Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her. General limitation on fundamental and other human rights and freedoms. Prohibition of derogation from particular human rights and freedoms.
Human rights and freedoms additional to other rights. The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.
Human rights and freedoms during a state of emergency. Effect of laws enacted for a state of emergency.
Detention under emergency laws. Review by the Uganda Human Rights Commission. Enforcement of rights and freedoms by courts. Uganda Human Rights Commission. Functions of the Human Rights Commission. Powers of the commission. Independence of the commission. Subject to this Constitution, the commission shall be independent and shall not, in the performance of its duties, be subject to the direction or control of any person or authority.
Expenses of the commission. Removal of commissioners. The provisions of this Constitution relating to the removal of a judge of the High Court from office shall, with the necessary modifications, apply to the removal from office of a member of the commission.
Staff of the commission. The appointment of the officers and other employees of the commission shall be made by the commission in consultation with the Public Service Commission. Parliament to make laws regarding functions of the commission.Evidently, it has shown that the Constitution is the supreme law of the land and as the supreme law of the land; the Constitution is applicable at all times.
The colonial subsidiary legislation was usually published as part of, or as special supplement to, the annual or consolidated compilations of laws after they had appeared in the official gazettes.
Appeals from decisions of the commission. The above situation was recently the case in the country, with the power download agreement between the Government of Ghana and Karpowership in respect of power barges downloadd as an emergency measure to solve the worsening power crisis in the country.
Chapter Five Representation of The People. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written…. Sign In. However, this had not happened. Part payment was already made when the plaintiff brought this action seeking inter alia that the 2nd defendant entered into two international business agreements with the Republic of Ghana, which were not laid before Parliament for the approval of Parliament and accordingly, not having been laid before Parliament and approved by Parliament, they are void.
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