Professor Stephen Kwaku Asare, (Azar) has said that the Supreme Court’s original jurisdiction is one of constitutional adjudication, not constitutional consultancy.
He said this in connection with the two writs that have now been filed asking the Supreme Court to pronounce on Article 66(2) of the Constitution and whether a third presidential term may be served.
The first writ, Alhassan v Attorney-General, seeks a declaration that a person who has served two separate and distinct, non-consecutive terms as President remains eligible to contest again.
The second, filed by Ken Kuranchie, goes even further. It asks the Court to declare that President Mahama is eligible to contest for a third presidential term on the basis that Article 66(2) prohibits only a third consecutive term, not a third term in total.
Professor said that what is on the table currently are invitations for the Court to pronounce on what Article 66(2) would mean if certain events were ever to occur.
He said those are subjects for classroom debates, television panels and social media banter. They are not, without more, constitutional controversies.
“Lawyers have a professional duty not only to advise clients on the strength of their legal arguments, but also on whether the Court’s jurisdiction has been properly invoked.
“Filing proceedings that invite the Court to render what is, in substance, an advisory opinion does neither the client nor the Court a service. The Supreme Court should not hesitate to award costs in such matters.
“Costs are not merely compensatory. They protect scarce judicial resources, discourage premature constitutional litigation, and remind litigants that the Supreme Court is a court of law, not a walk-in constitutional advice centre,” he wrote on Facebook.
Below is the full post…
Two writs have now been filed asking the Supreme Court to pronounce on Article 66(2) of the Constitution and whether a third presidential term may be served.
The first writ, Alhassan v Attorney-General, seeks a declaration that a person who has served two separate and distinct, non-consecutive terms as President remains eligible to contest again.
The second, filed by Ken Kuranchie, goes even further. It asks the Court to declare that President Mahama is eligible to contest for a third presidential term on the basis that Article 66(2) prohibits only a third consecutive term, not a third term in total.
This is, remarkably, the third time Mr. Kuranchie has invited the Supreme Court to answer essentially the same constitutional question.
Do these writs properly invoke the Supreme Court’s original jurisdiction?
The Constitution gives every person, natural or artificial, the right to invoke the Supreme Court’s constitutional enforcement jurisdiction. But that right is not without limits.
Under Article 2(1), a person must allege that an enactment, or an act or omission of a person, is inconsistent with or contravenes the Constitution. There must be something concrete for the Court to examine.
Likewise, under Article 130, the Court’s exclusive original jurisdiction extends to matters involving the enforcement or interpretation of the Constitution.
But as the Court explained in Ex parte Akosah, interpretation jurisdiction is not triggered simply because someone wants to know what the Constitution means.
It arises where constitutional language is genuinely ambiguous, where rival interpretations are before the Court, where constitutional provisions conflict, or where the operation of constitutional institutions creates a real interpretive problem. If the constitutional language is clear and no genuine controversy exists, there is no interpretation case.
Put together, these constitutional provisions and judicial doctrines point in the same direction: the Supreme Court decides constitutional disputes; it does not give legal advice on hypothetical facts.
So what constitutional controversy presently exists?
➡️The Electoral Commission has not refused anyone’s nomination.
➡️No nomination has been accepted and challenged.
➡️No constitutional office-holder has acted inconsistently with Article 66(2).
➡️Indeed, President Mahama has publicly stated that he has no intention of seeking a third term.
What we have instead are invitations for the Court to pronounce on what Article 66(2) would mean if certain events were ever to occur.
Those are subjects for classroom debates, television panels and social media banter. They are not, without more, constitutional controversies. Our Politics & Social media can indulge in & thrive on Konkosacracy. The Supreme Court cannot.
That is precisely why Bilson v Attorney-General is important. The Supreme Court has consistently cautioned that its original jurisdiction is not a constitutional advice bureau. It exists to resolve live constitutional disputes, not to issue advisory opinions or answer speculative questions.
Whether President Mahama is eligible or ineligible is therefore beside the point.
Before reaching the merits, the Court would first satisfy itself that these writs disclose a justiciable constitutional controversy.
The Supreme Court’s original jurisdiction is one of constitutional adjudication, not constitutional consultancy.
Lawyers have a professional duty not only to advise clients on the strength of their legal arguments, but also on whether the Court’s jurisdiction has been properly invoked.
Filing proceedings that invite the Court to render what is, in substance, an advisory opinion does neither the client nor the Court a service.
The Supreme Court should not hesitate to award costs in such matters.
Costs are not merely compensatory. They protect scarce judicial resources, discourage premature constitutional litigation, and remind litigants that the Supreme Court is a court of law, not a walk-in constitutional advice centre.
