Introduction

On 24 September 2025, the Ghana Law Society, together with the Chief Whip of the Majority Caucus in Parliament, Nelson Dafeamekpor, filed a lawsuit before the Supreme Court of Ghana. The plaintiffs seek an interpretation of the 1992 Constitution to the effect that references to the Ghana Bar Association (GBA) should not be understood as referring exclusively to the GBA as a voluntary private association, but rather as references to the professional bodies of lawyers generally. In other words, they contend that the constitutional text must be read functionally, anchored in the role of professional representation of the legal community, rather than literally tied to the existence of the GBA as such.

There is no easy way to say this. But there is no denying that the suit invites not only a departure from the ordinary reality of the constitutional text, but also unsettles what practice has, over time, conventionalised. The perfect mix of circumstances to pit – to put it loosely – conservatives against progressives.

The Controversy

As expected, the suit has generated both outrage from the luddites, and intrigue, if not excitement, from the constitutional adventurers. Those outraged, warn that this amounts to asking the Court to rewrite the Constitution under the guise of interpretation, something they argue should be the preserve of constitutional amendment under Chapter 25. Others frame it as a dangerous inflection point for the “modern purposive” approach (MOPA) to interpretation.

Francis Ontoyin states the case of the critics bluntly: “the case before the Supreme Court is simply absurd. Yes, many of us are uneasy about the monopoly the GBA currently enjoys. However, any change should come through Constitutional amendment. There’s nothing ambiguous here to interpret. In other jurisdictions, a lawyer filing such a frivolous suit could risk losing their license.” [1] Ontoyin’s intervention captures the exasperation of many who see the litigation as not merely adventurous but frivolous to the point of professional sanction.

For Ali Dawud, the concern runs deeper, touching the very grammar of constitutional order. He warns: “The Constitution must be interpreted with discipline and restraint. The Ghana Bar Association, as referenced in the Constitution, means precisely that. Any attempt to expand its meaning through purposive interpretation is a departure from constitutional orthodoxy. The judiciary must remain faithful to the text, lest it become an agent of constitutional disorder.” [2] Dawud’s language reflects an anxiety not just about outcome but about institutional fidelity, where the Court itself is at risk of unmooring the balance of powers.

The same anxiety surfaces in Noah Adamtey’s contribution, which draws a clear line in the sand: “relying on interpretation could empower the Courts to effectively amend the Constitution, which is not something we should promote.” [3] Adamtey reinforces the consensus among textualists that judicial discretion must stop short of rewriting the document itself.

In tow, Selikem T. Donkor offers a sharper admonition. He cautions that “No judge can, through a veil of interpretation, amend our constitution to meet the changing views and values of current generations. That is judicial legislation and anarchy. It is alien to our written constitution. It makes the judiciary more powerful than even the people, citizens, who made the constitution.”[4] Donkor’s phrasing transforms what might seem like an esoteric quarrel into a warning about democratic legitimacy, where unchecked judicial creativity eclipses the sovereign will of the people.

For their part, the adventurists span a wide spectrum, from those carrying long-standing grievances against the GBA, to those eager to underwrite a more activist court, to others whose record has been one of ideological inconsistency. Yet what emerges here is more than a mere ragtag band of the unmoored. It is a convergence of discontents and opportunists, bound less by ideological purity or principle than by the urgency of the moment.

This school is led by Professor Stephen Asare, who has strangely been all but the lawsuits biggest cheerleader. Strange because Professor Asare – Kwaku Azar – has often been a cautious advocate against constitutional adventurism.  On this issue, Kwaku is convinced that there is a genuine novelty here that discounts easy dismissal. He has articulated, with characteristic precision, what he calls the “Public Character Doctrine”: the idea that once a voluntary association is elevated into the text of the Constitution and entrusted with constitutional functions, it undergoes a transformation. It ceases to be a private club of dues-paying members and becomes a public actor bound by constitutional norms.

In a series of interventions, Kwaku has pointed out that the GBA, once named in the Constitution, cannot hide behind the cloak of voluntariness. It acquires obligations of fairness, inclusiveness, and accountability. Its role on various constitutional bodies such as the Judicial Council, the General Legal Council, the Police Council, the Prisons Council,  cannot be justified merely as the incidental privileges of a private association. These are functions of constitutional governance, and the GBA in discharging them must be treated as a state actor. For him, the analogy is clear: to accept that the GBA is only a private club is to make the Constitution hostage to the shifting fortunes of voluntary groups. A boycott, a dissolution, or internal exclusionary politics would then paralyze constitutional design.[5]

Kwaku’s reasoning also draws upon constitutional history. He recalls that when the Consultative Assembly convened to draft the 1992 Constitution, the GBA boycotted. Yet the Assembly adapted, relying on individual lawyers. For him, this history confirms that what the Constitution sought was not the parochial will of a private club but the professional perspective of the legal community. The framers, he argues, cannot have intended that a boycott by the GBA would have left the Republic bereft of lawyerly input. That episode underscores why the GBA must be construed not as one voluntary body but as embodying the profession more generally.

At its core, then, Kwaku Azar’s intervention is not a cheer for the plaintiffs’ ingenuity but a warning against judicial and statutory complacency. He insists that Parliament must legislate to regulate this transformed role; and if Parliament defaults, the judiciary cannot allow constitutional provisions to die of neglect. In his view, courts must be willing to construe the GBA in its public character, ensuring inclusivity and subjecting its actions to judicial review. Otherwise, the constitutional order risks being undermined by the private politics of a club.

To be fair, Noah’s position is not uninformed by the risk of default that haunts the 1992 Constitution. He acknowledges the possibility that tying constitutional functions to private associations can produce paralysis if those groups boycott, dissolve, or otherwise falter. So in effect, we can say that, there is at least “unity or convergeance in diagnosis” across the camps. Both camps see the danger in allowing the Constitution to be held hostage by the fluctuating fortunes of voluntary bodies.

But their divergence is in the cure. While for Kwaku, the Court has a duty to step in when Parliament defaults; constitutional functionality cannot be allowed to collapse. For Noah, however, the Court must resist the temptation to improvise. His worry is that under the guise of interpretation the Court will slip into amendment, arrogating to itself a power that belongs only to the people acting through constitutional change. He reminds us that the framers deliberately named specific organizations rather than not generic classes, and that their drafting style was deliberate, not inadvertent. Where they wanted flexibility, as in Article 209 with respect to religious representation, they wrote it in. Where they wanted specificity, they named the body. To Noah, that style, though flawed, fixes the meaning of the text. Any attempt by the judiciary to broaden “Ghana Bar Association” into “all lawyer associations” would be a constitutional coup.

A Constitution Haunted by the Risk of Failure

But these critiques, while important, skirt around the deeper constitutional question. The problem is not the judicial philosophy of interpretation. It is the 1992 Constitution itself; one of the most poorly drafted national charters anywhere in the world. The document is replete with explicit references to private voluntary associations, such as the GBA, that are neither statutory nor agencies of state. This design flaw haunts the Constitution with the perpetual risk of breakdown. Failure here does not mean collapse of the political order but the risk of constitutional paralysis.

Take Article 166, for instance. In providing for the composition of the National Media Commission, the Constitution entrenches seats for a dizzying range of private associations – the Ghana Bar Association, the Ghana Journalists Association, the National Catholic Secretariat, the Christian Council, the Federation of Muslim Councils, the Ahmadiyya Mission, the Ghana Medical Association, the Ghana Association of Writers, and even the Ghana Advertising Association. None of these is a creature of statute; all are voluntary organisations, capable of schism, dissolution, or capture by narrow internal politics.

Yet their continued existence is hardwired into the constitutional text. In doing so, the framers effectively outsourced key components of constitutional functionality to private clubs, placing the durability of constitutional governance at the mercy of their fortunes. This is at once awkward drafting as it is institutional time bomb that creates the very conditions for the kind of constitutional failure the present litigation brings into view.

However, importantly, what both camps fail to fully reckon with is that the problem before us is not without precedent. The disappearance of a constitutionally named body has already occurred in our constitutional history. A striking example is the National Council on Women and Development (NCWD), which was explicitly listed in Article 166 as part of the National Media Commission’s composition. The NCWD, established by NRC Decree 322 in 1975, eventually lost its legal personality when it was dissolved. It was first transformed into the Department of Women under the newly created Ministry of Women and Children’s Affairs, and later reconstituted in 2013 as the Department of Gender by Executive Instrument.

The fact that a body once expressly named in the Constitution has vanished from legal existence illustrates that mere textual mention does not inoculate an institution against disappearance. This prior episode complicates both the textualist insistence that naming was intended to fix a body in perpetuity, and the functionalist assumption that constitutional entrustment necessarily guarantees institutional continuity.

What does this teach us? Is it true in light of past practice to say that if the GBA were ever to dissolve, entire constitutional processes could grind to a halt? Would the Judicial Council, constitutionally mandated to include the GBA as a member, be unable to nominate judges; even though the National Media Commission continues to exist despite the disappearance of the National Council on Women and Development?

The “Real” Issue Before the Court

To my mind,the real constitutional question lurking in the Ghana Law Society’s case then, even if not explicitly pleaded: is what happens to our constitutional order when private voluntary associations named in the Constitution fail, dissolve, or lose legitimacy?

This is a question that executive practice should not be allowed to fix alone, such as what happened with the NCWD example. Clearer direction is needed.

The plaintiffs frame their argument around freedom of association, that it is inconsistent for a voluntary body like the GBA to be made compulsory in constitutional architecture. That is compelling, but the deeper point is institutional. What to make of a constitution that makes itself hostage to private voluntary associations.

It is also worth recalling the Supreme Court’s caution in Johnson v The Republic,[6] where the Court emphatically rejected the proposition that a constitutional provision could itself be unconstitutional by reference to another part of the Constitution. In that case, the Court insisted that constitutional supremacy requires us to treat the Constitution as a coherent, self-sustaining text. In other words, one cannot deploy rights-based arguments to invalidate provisions of the Constitution itself, for that would imply the Constitution could stand in contradiction to itself. Applied here, the suggestion that references to the GBA are unconstitutional because they trench on freedom of association misunderstands the hierarchy of norms: the Constitution cannot be unconstitutional.

The true issue, therefore, is not whether the framers acted unconstitutionally in naming the GBA, but rather what follows when such a named body ceases to exist or loses its representative legitimacy. That is where the doctrine of the presumption against constitutional failure becomes vital by providing a principled means of ensuring continuity without accusing the constitution of incoherence.

The Doctrine of the Presumption Against Constitutional Failure  

In effect, it is important to be clear about the task before the Court. The Court cannot pretend that the words “Ghana Bar Association” mean anything other than what they plainly say. To do so would not be interpretation but invention, something outside its remit. That much I agree with.

However, what the Court can and should do is to acknowledge the text as it is, recognising the GBA’s express place in the Constitution, while at the same time laying down a jurisprudential pathway for the inevitable moment when the association may no longer exist. The NCWD example shows that the text does not inoculate institutions against disappearance. When such disappearance occurs, the question is not whether the text has failed, but whether the constitutional order itself has the tools to manage the failure.

In this sense, what is being asked of the Court is not some unnatural sleight of hand, but the sober development of a constitutional presumption that anticipates institutional failure and prepares for it. A presumption against constitutional failure would affirm the GBA’s textual role while making clear that, should the body dissolve, its constitutional functions are not extinguished. Instead, they would devolve, by necessary implication, upon the wider legal profession or such alternative structures as Parliament or the courts may designate.

This approach does not rewrite the text. It is the jurisprudential equivalent of a constitutional “get out of jail card”: an interpretative principle designed not to change the words, but to safeguard the Constitution from paralysis.

By articulating this doctrine, the Court would acknowledge the hard lesson of our history, that institutions named in the Constitution can and do disappear, and provide a continuity principle to ensure that governance does not grind to a halt when they do.

A History of an Opposite Presumption

It is important to stress that what I am proposing, a doctrine of the presumption against constitutional failure, has not historically been part of Ghana’s constitutional jurisprudence. In fact, quite the opposite has pertained. Our early constitutional case law reveals a tendency to treat institutional gaps or dysfunctions as fatal, with little effort made to salvage constitutional provisions through doctrines of continuity or preservation.

A striking illustration is the case of Ware v Ofori-Atta[7] Under section 35 of the Ghana (Constitution) Order-in-Council, 1957, any Bill affecting the traditional functions or privileges of a Chief was to be referred to the relevant House of Chiefs before it could proceed to a second reading in the Legislative Assembly. At the time, however, the regional Houses of Chiefs envisaged by section 67 of the same Order-in-Council had not yet been established. This presented a classic moment of constitutional failure: the Constitution had imposed a procedural safeguard that was impossible to fulfil.

Instead of adopting a doctrine that would preserve the integrity of the Constitution while preventing paralysis, the courts in Ware declared the entire legislative process a nullity. The statute enacted by Parliament – the Statute Law (Amendment) (No. 2) Act, 1957 – was struck down as invalid because the referral to the non-existent Houses of Chiefs could not be made, and the subsequent Order made under the Act was also held void. The Court thus adhered rigidly to the letter of the constitutional procedure, even though compliance was structurally impossible.

The result in Ware underscores how, in Ghana’s constitutional past, institutional failure has been treated as constitutional collapse. Rather than fashioning doctrines to bridge gaps and ensure continuity, our courts historically presumed invalidity. This history makes clear that the Presumption Against Constitutional Failure I am advancing would mark a real shift in judicial posture: away from regarding institutional breakdowns as the death knell of constitutional provisions, and towards preserving the broader constitutional order against the accidents of institutional design and disappearance.

Distinguishing Continuity from Modern Purposive Interpretation

It is important to make clear that the Doctrine of the Presumption Against Constitutional Failure I propose is not merely another face of the Modern Purposive Approach (MOPA). In essence, the presumption against constitutional failure is not to be confused with the interpretative excesses that have, in recent years, unsettled Ghanaian constitutional jurisprudence. In fact, Ghanaian constitutional law already has examples where MOPA has been pushed to controversial extremes, provoking widespread unease.

Take Ransford France v. Electoral Commission.[8] There, the Supreme Court was faced with the question whether Article 296(c) required the Electoral Commission, and by implication, the entire Executive, to publish regulations before exercising discretionary power. A strict reading would have invalidated decades of governance acts. To avoid what it vividly described as a “nuclear melt-down” of the Republic, the Court adopted a purposive construction that effectively read down the requirement . The effect was to shield executive non-compliance by departing from the plain constitutional text.

A similar dynamic appeared in Agyei Twum v. Attorney-General.[9] Article 146(6) provided that when a petition is brought for the removal of the Chief Justice, the President must appoint a committee. Unlike other provisions on the removal of judges, it contained no prior requirement for a prima facie determination. On its face, this opened the door to vexatious petitions and opportunistic suspensions of the Chief Justice. Rather than accept this result, the Court again invoked MOPA to fill the perceived gap, reading into the Constitution an implied requirement for prima facie assessment .

Both decisions illustrate the risks of MOPA when deployed without restraint: judges adding or subtracting from the constitutional text in order to avert consequences they deem absurd. While such interventions may preserve institutional stability in the short run, they do so at the cost of fidelity to the constitutional text and, ultimately, the democratic legitimacy of interpretation.

The Doctrine of the Presumption Against Constitutional Failure is different in both posture and effect. It does not activate whenever a literal reading produces difficulty or inconvenience. It is not a standing licence for courts to “fix” constitutional drafting. Rather, it is a doctrine of last resort, one that only comes into play where constitutional paralysis is otherwise inevitable, when, for example, a constitutionally named body ceases to exist and compliance with the text becomes structurally impossible. In such narrow circumstances, the Court would not be rewriting the Constitution but ensuring its continuity, preserving state functionality until Parliament or the people act through formal amendment.

This approach steers a principled middle path. It avoids the rigid fatalism exemplified by Ware v. Ofori-Atta, where institutional non-existence led to nullity, but also resists the overreach of MOPA as seen in Ransford France and Agyei Twum. It is modest, defensive, and deployed only when constitutional failure is inevitable, not when it is merely inconvenient.

In conclusion, the doctrine I advance is not an attempt to smuggle in judicial amendment under the cloak of purposivism. It does not seek to invent new meanings but to preserve constitutional purposes from decay. Where MOPA justifies bending the text to avert inconvenience, the presumption against constitutional failure rests in the recognition that the framers did not design a Constitution destined to collapse on account of institutional disappearance. In this sense, the doctrine is restorative rather than inventive: it saves what would otherwise rot away, keeping alive the function even when the form falters. It gives comfort to the textualist, who can rest in the assurance that the words mean what they say, while ensuring that the republic is not undone by the accidents of institutional mortality.

Between Amendment and the Presumption Against Constitutional Failure

Some will argue, as Noah does, that the proper solution is constitutional amendment, and indeed the ongoing constitutional review process is the best path for addressing the broader defects of the 1992 document. But here, too, we must be realistic. If history teaches us anything, it is that attempts to amend the Constitution are more likely to fail than succeed. That is no accident. The framers of the 1992 Constitution designed it precisely to frustrate modification, embedding rigidity as a feature of its structure.

We should not, therefore, repose blind faith in the H Kwasi Prepeh committee process or any other review exercise. Again learn from history. We have been here before with the Fiadjoe Committee. So while amendment may be the ideal, it remains a distant ideal, often thwarted by partisanship, civic inertia or lack of consensus.

In the meantime, the judiciary must shoulder the burden of ensuring the Constitution does not collapse under the weight of its own poor drafting.This is where the notion of a “doctrine of constitutional failure” becomes relevant.

Such a doctrine would recognise that when private voluntary associations referenced in the Constitution fail, the constitutional order itself is at risk. The role of the Court in that moment is to supply continuity, to hold that the functions assigned to such bodies must persist, even if the particular body named ceases to exist. This is not gratuitious rewriting but preserving the life of the Constitution against the inevitability of institutional fragility.

Conclusion

The Court, therefore, stands at a crossroads. It can retreat into narrow textualism and risk entrenching the fragility of a badly drafted constitution. Or it can seize the moment to set a jurisprudential standard that is both pragmatic and visionary, showing that constitutional courts are not just guardians of text but guarantors of continuity.

This is the real test before the Supreme Court; not whether it will overreach, but whether it will rise to the occasion of salvaging a flawed constitutional draft with a jurisprudence worthy of reference across the world.

Whichever way the Supreme Court ultimately decides, we should see this moment as a kind of requiem for the Ghana Bar Association. The case, more than anything else, exposes how far the GBA has fallen from the singular institutional authority it once claimed, and how tenuous its hold is on constitutional relevance. Whether upheld or set aside, the litigation memorialises an era in which the GBA’s centrality could no longer be taken for granted.

The Author is Senior Partner and Head of Constitutional Litigation Practice Group at Merton & Everett LLP. He is also an Adjunct Lecturer of Constitutional Law at the University of Ghana School of Law.

[1] https://www.facebook.com/share/p/1CUfjKTPQ9/

[2] https://web.facebook.com/share/p/167SznAepX/

[3] https://www.facebook.com/share/p/1GbnQyoaVT/

[4] https://x.com/DonkorST/status/1972275856744624332

[5] https://www.facebook.com/share/p/1AEiXMwaVq/

[6] Johnson Vrs Republic [2011] GHASC 12 (16 March 2011)

[7] [1959] GLR 181-187

[8] France Vrs Electoral Commision and Another [2012] GHASC 50 (19 October 2012)

[9] [2005-2006] SCGLR 732