It is publicly known that, on the 29th day of April, 2025, the Ghana Bar Association (GBA) passed a resolution at its 2025 mid-year conference held at Labadi Beach Hotel which amongst other things touched on the public interest of the subject-matter above.
The Bar by reference demanded of the President of Ghana to immediately revoke the suspension of the Chief Justice (CJ) as the Bar considered the suspension as unconstitutional, considering the fact that, the President is not a Judge or a Judicial officer to exercise such discretion under Article 146 (10) of the 1992 Constitution in the absence of a published Constitutional Instrument, Statutory Instrument or Regulation (s) governing the exercise of the discretion per Article 296 of the 1992 Constitution.
Article 296 of the 1992 Constitution of Ghana deals with the exercise of discretionary power and this discretionary power is vested in any person or authority such that the discretionary power shall be deemed to imply a duty to be fair and candid.
The provision further indicates that, the discretionary power as exercised by an individual or authority shall not be arbitrary, capricious, or bias either by resentment, prejudice or personal dislike and shall be in accordance with due process of Law.
Article 296 (c) is the subject of interest and the basis of the resolution of the Ghana Bar Association.
“Article 296 (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.
It must be stated that, the exercise of a discretionary power by a person who is not a Judge in the absence of a Constitutional Instrument, does not necessarily invalidate the exercise of that power when it comes to issues of procedural compliance as far as Article 296 is concerned.
The common law of Ghana as well as the jurisprudence does not support the position of the Ghana Bar Association primarily to say. The Ghana Courts by way of established legal principles have indicated that, non-compliance with the procedural prerequisite of Article 296 (c) regarding the making of Instruments does not automatically invalidate the action taken, provided the action serves the public interest and the functioning of government.
This principle was espoused in the Supreme Court case of RANSFORD FRANCE VRS. THE ELECTORAL COMMISSION AND THE ATTORNEY-GENERAL, SUPREME COURT, CIVIL APPEAL NUMBER J1/19/ 2012 presided over by Atuguba, AG .C.J with the lead judgment delivered by Dr. Date-Bah, J.S.C. This is a case where the Plaintiff, a citizen of Ghana, filed a Writ at the Supreme Court in 2012 challenging discretionary power of the Electoral Commission in creating new constituencies and the requirement to make regulations consistent with Article 296 (c) of the 1992 Constitution. The Plaintiff had other reliefs but those are not the subject-matter of the author’s interest now than that which deals with Article 296 (c).
The Court discussed the implications of a literal interpretation of Article 296(c) of the 1992 constitution and emphasized the need for purposive approach for constitutional interpretation with direct reference to this provision under-reference. The learned Justice, Dr. Date Bah opined that, the Constitution should be adaptable to changing circumstances and that the obligation to make regulations or Constitutional Instruments under Article 296 (c) should be limited to situations where adjudication is involved.
Indeed it can be said that, by the matter under-reference, there is no adjudication herein, hence the call by the Ghana Bar Association is premised on literalist than purposive interpretation of the Constitution and to that extent that legal proposition of the Ghana Bar Association fails. The Court in the Ransford France case argued that the Electoral Commission’s discretion was not quasi-judicial and therefore the obligations of Article 296 (c) should not apply to it.
Article 296 (c) traces its route in an identical provision to Article 173 (c) of the 1969 Constitution of Ghana. The Constitutional Commission maintained that, where Article 173 (c) of the 1969 Constitution, is interpreted literally, it would seem to require that before any discretion is exercised by any public official or agency, the public official or agency may first publish regulations or Constitutional Instruments governing the exercise of that discretion and this will make governance chaotic and impractical.
To this, Dr. Date Bah, in the under-reference case per the judgment indicated that, such an expansive literal interpretation will lead to grave mischief. He further indicated that such literal interpretation will lead to a “nuclear melt-down”. The learned jurist indicated that, it will be thoroughly impractical for public official (s) and agencies in general to publish regulations or Constitutional Instruments governing their discretions before they could exercise them, on pain of the invalidity of those discretionary decision.
The Lord Justice of the Supreme Court further opined that, thousands of decisions already taken by public official or agencies since 1969 will be rendered invalid and this cannot be so.
It must be said that, the conjunctive provisions of Article 296 (a) and (b) ensured that the standard of due process is followed, as well as fairness and impartiality in administrative processes are upheld. The Supreme Court on the publication of regulations and Constitutional Instruments before the exercise of discretionary power by a public person or official stated that, it does in no way significantly impair due process in administrative matters in Ghana and that the standard embodied in Article 296 (c) may well offer a desirable benchmark for good practice but the non-compliance with Article 296 (c) should not be treated as resulting in invalidity. Therefore, the President of Ghana who is a public officer and not part of an adjudication upon his exercise of discretionary power without publication of regulation or Constitutional Instrument is supported by law.
It can be concluded from the above that, the Ghana Bar Association’s resolution call on the President, has no legal justification and same ought to fail as the resolution can at best be treated as an appeal to the conscience of the President of the Republic of Ghana and a legal call.
Author – Christian Lebrecht Malm-Hesse Esq.
Senior Associate.
ECAM LAW CONSULT.
