Passing Law Without Touching the State’s Pocket: An Interpretive Answer To Article 108(a)ii & iii
Abstract
The powers of government to legislate, adjudicate, or implement laws are shared among the arms of government—Parliament, the Judiciary, and the Executive. These powers are either exclusively exercised by one arm of government or jointly with the others.
Since 2019, the Parliament of Ghana has set out an internal procedure for members of parliament to introduce bills (members’ bills) for legislation exclusive of the executive. The practice, though lauded for affirming the primary role of parliament as the legislative body, has been met with some practical issues as to its constitutionality. In more specific terms, Article 108(a)ii & iii of the 1992 Constitution imposes restrictions on Parliament not to deal with a bill brought before it if it imposes a charge on the consolidated fund or any other public fund. The restriction under Article 108(a) ii & iii, on its face, affects the power of Parliament to legislate through a members’ bill.
This article seeks to offer a sound constitutional interpretation of Article 108(a) ii & iii, using originalism as its interpretative style, and to show the scope of Article 108(a) ii & iii that can co-exist the power of parliament to legislate using members’ bill.
Part 1: Background History
In the year 2023, Xavier Sosu, a member of Parliament for Madina Constituency, famous for his human rights advocacy, caused two bills to be introduced in Parliament seeking to abolish the death penalty by amending the Criminal Offences Act 1960 (Act 29) and the Armed Forces Act, 1962 (Act 105). The bills, the Criminal Offences (Amendment) (No. 2) Bill, 2023, and the Armed Forces (Amendment) Bill, 2023, went through the necessary legislative procedures set out under Article 106 and, as of August 2023, were due for the President’s assent.
Though the President of Ghana, Nana Addo Dankwa Akufo-Addo, expressed his support for abolishing the death penalty, he refused to assent to the bills according to Article 106(7). In a memorandum sent to the Speaker of Parliament according to Article 106(8), the President indicated that his basis for refusing to assent to the bills was on the grounds of some alleged issues of the bills’ constitutionality. As his reason, the President stated that the bill has financial implications on the consolidated fund and other public funds and, to that extent, offended Article 108(a)ii & iii.
On 19 December 2023, the Speaker of Parliament, in reply to the memorandum sent to Parliament by the President, expressed his disagreement with the President’s opinion about the unconstitutionality of the bills.
This thread of factual situations raises an interpretative question about the proper meaning of Article 108(a)ii & iii, which is dealt with in the next part.
Part 2: An analysis of Article 108 as an interpretive issue
2.1 Province of Supreme Court as an interpretive court
In a republic like ours with a written constitution, whether a thing is legally permissible or not becomes a question of what the Constitution says since the Constitution is the apex legal norm, and this begets the incidental question of who has the authority to declare what the Constitution says.
Since the case of Tuffour v. Attorney General[1], there has never been any doubt that the Supreme Court of Ghana has the final authority to decide what the Constitution means. This position is further fortified by Articles 2 and 130 of the 1992 Constitution, interpreted in the case of Major Agleze & 2 others v. Attorney General & Electoral Commission[2]. In that case, the Court indicated by a unanimous decision that the Supreme Court of Ghana has the sole and exclusive jurisdiction to interpret the 1992 Constitution on any interpretive question that comes before the courts of Ghana.
Without a doubt, regarding the authority of the Supreme Court to interpret the Constitution, the next consideration is how judges interpret the Constitution.
Judges adopt many interpretive styles or approaches to interpret a constitution. For Constitutional interpretation, the popular styles are the purposive approach, intentionalism, and originalism. These approaches differ not only in nominal tags but also because each presents a divergent theoretical basis for the judge’s role, value, and authority in the law-making process.
Though it is outside the contemplation of this essay to evaluate the aforementioned styles of adjudication, the author’s preference for originalism and its adoption for the interpretation of Article 108(a)ii & iii presents the need to proffer reasons for the non-preference of the others.
2.2 Modern Purposivism as a flawed approach to interpretation
Generally, in legal literature, the purpose-looking style of adjudication comes in two forms: living constitutionalism and modern purposivism. In Ghana, the two are merged at the mouth, even though each maintains a different stomach of names. This impression can be formed from the many cases before our Supreme Court where the court emphasized preferring purposivism and went ahead to endorse the living constitutionalist informed style of adjudication of Sowah JSC in the case of Tuffuor v. Attorney General.
In Ghana, the Supreme Court has indicated time without number that it prefers the modern purposive approach[3] to adjudication, which is an amalgamation of Barakian purposivism[4] and living constitutionalism. This position can be inferred from the below-cited statement of Date JSC in Ghana Lotto Operators Association & others v. National Lottery Authority & Attorney General,[5]
“The enforceability of these ESC rights is a legitimate purpose for this court to seek to achieve through appropriate purposive interpretation. We, therefore, think that the interpretation that we give to Article 34 should take into account the purpose of achieving an expansion of the range of enforceable human rights in Ghana. The doctrine of a living Constitution implies, as already pointed out above, that there is not a slavish adherence to the original subjective intent of the framers but rather that the interpreter takes the constitutional text as is and interprets it in the light of the changing needs of the time.”
The Modern Purposive approach to interpretation (MOPA) suggests that the letter of a constitution contains a supervening yet transcendental element called the spirit or purpose, and the constitution’s text is to be interpreted to favor this spirit or purpose.
The point is made further that a constitution has two purposes: subjective and objective. This position can be inferred from the statement of Date Bah JSC, a leading advocate of MOPA, in the case of Asare v. Attorney General and approved and cited again in Ghana Lotto Operators Association & others v. National Lottery Authority & Attorney General[6] .
“The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the framers of the constitution or the legislature, respectively, had at the time of the making of the constitution or the statute.The objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history, and values, etc., of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realization, through the given legal text, of the fundamental or core values of the legal system.”
It is worth noting that the learned Prof. Date Bah often cites Aharon Barak as the academic authority that justifies his Modern Purposive approach to interpretation. However, there is a vast difference between the style favored by Barak and that which Date-Bah has principally put forth in several cases. Whereas Barak’s approach has a third element of ultimate purpose, Date Bah’s MOPA does not utilize the ultimate purpose. Thus, Date Bah’s theory is a chaff of the sediment of Barak’s theory, which lacks the necessary nutrients for a proper and functional style of adjudication. Date Bah’s MOPA is the chaff of the chaff.
The test of a proper theory of adjudication is one, that is, whether the theory of adjudication is in tandem with the court’s authority and the place of the judiciary in the law-making process. This test, Date Bah’s MOPA, fails woefully.
According to MOPA, the subjective purpose of a constitution is the intendment of the framers of the Constitution. Per this, the search for the subjective purpose of a constitution is the search for the various intentions of the framers. At this point, there is the need to ask who the framers of the Constitution are to determine their intent.
Well, to Date-Bah JSC, as he has consistently applied in his judicial opinions, the framers are the persons who constituted the committee of experts who made the report as a proposal for the draft of the 1992 Constitution. Thus, the intent of these framers is inferable from the Committee of Experts’ report, a 337-page report submitted as a draft of the 1992 Constitution(draft).
One of the difficulties with this approach is the issue of indeterminacy of intent. If the text of a constitution is ambiguous and needs interpretation, how much more is the report of the committee of experts? Before determining the intent, we need to interpret the report. What approach to interpretation should be adopted in interpreting the report? Should we search for subjective purpose (authorial intent) in search for the subjective purpose(authorial intent)?
Let us disregard the indeterminacy of intent and assume that the intent is decipherable. Now the problem is, since the committee’s report in its entirety is not the document that was promulgated as the 1992 Constitution as the consultative assembly affirmed, rejected, and redesigned the draft from the committee of experts, is the subjective purpose that of the members of the committee of experts or it is that of the members of the consultative assembly?
Suppose we resolve in favor of the Committee of Experts. In that case, aspects of the 1992 Constitution may lack a subjective purpose since the consultative assembly introduced some entirely new provisions in the 1992 Constitution or modified elements of the draft.
Inversely, suppose we resolve in favor of the Consultative Assembly; what document do we rely on in determining the intent of the numerous members? Does the record of the debate of members of the Consultative Assembly sufficiently indicate the intent of all members or many members of the Assembly?
Do votes in favor of or against a recommendation during the Assembly’s discussions sufficiently disclose the intent for which the members voted for or against where there may be manifold motives and reasons for voting for or against a recommendation?
At this point, it suffices to conclude that the subjective purpose lands us in irresolvable inconsistencies that make MOPA impractical.
What about the objective purpose?
According to MOPA, objective purpose is the intent that a reasonable objective mind would infer, considering the text of the Constitution together with the core values of the legal system at the time of the interpretation. This is the living constitutionalism leg of MOPA.
It gives judges the power to create law by assuming some values are core to a legal system and that these values provide a new meaning to the text of the law through time. By awarding judges the creative power in the law-making process, MOPA fundamentally sins against democracy as the power to create law is reserved entirely to Parliament.
One other issue with MOPA is that it undermines the nature of written constitutions. Written constitutions are made to set out the content of rules that constitute the social pact of a society. These rules are contained in the apex law because they are fundamentally guaranteed to apply unless altered in the manner provided for by law. The challenge with the objective purpose is that it allows judges to amend the constitution under the narrative of changing the core values of the legal system. This undermines and contradicts the 1992 Constitution, which creates the sole criteria for amending the Constitution under chapter 25 of the 1992 Constitution.
For further commentary on the flawed nature of MOPA, see the publication of Frederick Agaaya Adongo titled, “ACritique of The Modern Purposive Approach to Interpretation and The Supreme Court’s Decision in Dr. DominicAkuritinga Ayine V Attorney General.[7]”
2.3 An originalist interpretation of Article 108(a)ii & iii
Article 108(a) ii and iii provides as follows:
108: Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the President
- Proceed upon a bill, including an amendment to a bill, that, in the opinion of the person presiding, makes provision for any of the following –
- ii. the imposition of a charge on the Consolidated Fund or other public funds or the alteration of any charge
iii. the payment, issue, or withdrawal from the Consolidated Fund or other public funds of Ghana of any money not charged on the consolidated fund or any increase in the amount of that payment, issue, or withdrawal.
As a rule of interpretation, every word in the text of the law is materially essential in reaching the wholistic meaning of the text. This derives from the canon of interpretation that the interpretation of a legal text must begin with the language of the text itself, affirmed by the US court in Consumer Product and Safety Commission v. GTE Sylvania.[8] This principle was similarly applied in the Ghanaian case of Republic v. Yebbi & Avalifo[9] in interpreting Article 143 of the 1992 Constitution.
In applying the above maxim, to decipher the meaning of Article 108(a)ii, the material words “imposition of a charge” must be interpreted.
Per the Black’s Law Dictionary (ninth edition), “charge” means to demand a fee, bill, or impose a lien, and “impose” means to levy a tax.
With this understanding of charge as a fee, bill, lien, or claim, Article 108(a) means that a person presiding over Parliament cannot proceed to consider a bill if that bill levies a fee, bill, lien, or claim on the consolidated fund or any other public fund.
Thus, if it can expressly be found on the text of a bill that there is a levying of a fee or a lien on the consolidated fund or any other public fund, then Article 108(a)ii is violated unless the President sanctions the bill.
2.4 Assessing the facts in line with the meaning developed.
The Criminal Offences (Amendment) Bill, 2023, and the Armed Forces (Amendment) Bill, 2023 seek to abolish the death penalty and replace it with a life sentence.
The President of Ghana, Nana Addo Dankwa Akufo-Addo, and the principal legal advisor of the government, Godfred Yeboah Dame, contend that if the death penalty is abolished and substituted by a life sentence, the State would have to commit resources by providing prison facilities, health care, food, and other resources for prisoners who would otherwise have suffered early death through the death penalty.
It is thus the position of the President that the bills have financial implications for the State as they commit the State to spend on the facilities, health care needs, and resources needed for the sustenance of the prisoners while serving the life sentence.
This position of the President is absurd and does not constitute the proper meaning and scope of Article 108(a)ii. If any obligations are owed to prisoners by the State that warrants a charge to the consolidated fund, that obligation already exists under section 35 of the Prison Service Act, 1972. Section 35 is reproduced below.
Section 35: (1) The Director-General shall ensure that a prisoner
(a) is regularly supplied with wholesome and nourishing food in quantities sufficient to maintain the prisoner in good health;
(b) is at all times kept supplied with clothing, soap, bedding, and any other necessaries in quantities sufficient to maintain decency, cleanliness, and good health.
(c) is at all reasonable times permitted access to washing and toilet facilities sufficient to keep clean and decent.
(d) is permitted to take daily exercise outside the cell during the hours of daylight for a period not less than one hour every day.
(e) is promptly supplied with the medicines, drugs, special diets, or any other things prescribed by a medical officer of health as necessary for the health of that prisoner.
As far as the bills in question are concerned, they do not impose any levy charge or lien on any public fund to the extent of demanding or ordering prisoners to be catered for in terms of health and sustenance.
Part 3: Conclusion
As demonstrated, the position of the president is untenable and thus remains a mere opinion without legal support. But Article 106(8) allows the President to refuse to assent and give reasons for it. Though it has been shown that the President’s position is wrong in law, so far as he offers a reason for his refusal to assent and the reason points to illegalities of the provisions of the bill to the extent that it violates article 108(a)ii, the President’s refusal to assent is lawful.
What can Parliament do?
Parliament can reconsider the bills and pass them by a vote of at least two-thirds of all members of Parliament. That way, the President would be legally mandated under Article 106(10) to assent with no option of refusal.
[1] [1980] GLR 637
[2] NO. J1/28/2018
[3] See Asare v. Attorney General [2003-2004] SCGLR 823, Ayine v Attorney General [2020] GHASC 21, Agyei Twum v Attorney General and Another [2005-2006] SCGLR 732.
[4] Barak, A., & Bashi, S. (2005). Purposive Interpretation in Law. Princeton University Press.
[5] REF. NO. J6/1/2008
[6] REF. NO. J6/1/2008
[7] A long essay presented to University of Ghana, School of Law in 2020.
[8] Int 447 US 102(1980)
[9] [1999-2000] 2 GLR 50
