The Abandoned Jurisdiction of The Supreme Court

1.Introduction

Perhaps, it may surprise you to know that a conviction by a lower court, not appealed against by the convicted person or his lawyer can find its way to the Supreme Court to be determined on appeal for the first time. Maybe, it might further surprise you to know that the President can ‘cede’ his power of prerogative of mercy to the Supreme Court.

Better still, you may marvel to hear that the President can ‘file’ an appeal on behalf of a convicted person who petitioned him for pardon. I know you are more than eager to ask me how all these can be possible, but just wait a moment longer. Will you believe it if I tell you that it is not all ‘decisions’ of the Supreme Court that are binding or enforceable?

In this article, we will look at the exercise of the President’s prerogative of mercy vis-a-vis the special jurisdiction conferred on the Supreme Court in relation to it, the necessity for further procedural regulations and possibly, the need for a constitutional interpretation of the law by the Supreme Court.

2.Jurisdiction of the Supreme Court

The Superior Courts of Judicature are established by the 1992 Constitution and the jurisdiction of the Supreme Court is clearly spelt out.^[i] His Lordship Samuel Marful-Sau summed up these powers at pages 6 & 7 of his Civil Procedure book as follow:

1. It is the highest court of the land and it doubles as the Constitutional Court in Ghana.
2. It has supervisory jurisdiction over all courts in Ghana.
3. It has exclusive jurisdiction to determine whether or not an official document should be produced in court.
4. It has original and exclusive jurisdiction in matters of interpretation and enforcement of the Constitution.
5. It has original jurisdiction in determining whether an enactment was made in excess of the powers of parliament or any other authority or body. It has the power to declare such acts or enactments null and void so long as such acts or enactments are inconsistent with the Constitution.
6. It has exclusive jurisdiction to hear appeals from persons convicted of treason or high treason.
7. It has exclusive and final appellate jurisdiction (from the Judicial Committee of the National House of Chiefs) in causes or matters affecting chieftaincy.^[ii]

3.The power of the Sovereign to grant prerogative of mercy

The prerogative of mercy has its origin from the common law. With it, the monarch was able to exempt offenders from various punishments meted to them. The inflexibility of the common law system at its infant stage made pardon the only instrument of Justice for those who did not deserve to be punished in the eyes of the monarch.[iii] Over time, its abuse compelled Parliament to enact several laws to check such powers. One such limits on the power was contained in the Habeas Corpus Act of 1679^[iv] which prohibited clemency in cases where a person caused the King’s subjects to be imprisoned beyond the realm.^[v] The sovereign’s power to grant pardon to offenders has become a popular phenomenon in many countries around the world.

4.The Power of Prerogative of Mercy vested in the President under the 1992 Constitution

The 1992 Constitution vests in the President the power to free, pardon, substitute or reduce punishment imposed on convicted persons. It is provided under Article 72 thus:

  “(1) The President may, acting in consultation with the Council of State-

(a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or

(b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or

(c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or

(d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account on any offence…”

5. The special functions conferred on the Supreme Court in relation to the exercise of pardon by the President

Apart from the jurisdiction vested in the Supreme Court by the Constitution, the framers of the Constitution further empowered Parliament to confer other powers on the Court as it deemed fit. Article 129 (1) reads:

“ The Supreme Court shall be the final court of appeal and shall have such appellate and other jurisdiction as may be conferred on it by this Constitution or by any other law.” (My Emphasis).

Consequently, Parliament reduced the jurisdiction of the Supreme Court as contained in the Constitution and amplified it in the Courts Act.^[vi] The Legislature conferred two special functions on the Supreme Court in connection with the exercise of the prerogative of mercy by the President:

 A.  Appellate Function: Where a person is convicted by a court of an offence other than a sentence of death and the person petitions the President for pardon, the President may refer the whole matter to the Supreme Court which shall determine it as an appeal.

B. Advisory Opinion:  The President may seek the opinion of the Supreme Court on any point in the exercise of his power of pardon. 

I reproduce here the said provision of the Courts Act for its full effect:

“Section 9 – Certain Functions of Supreme Court Relating to the Prerogative of Mercy.

Where a person has been convicted or sentenced for an offence by a court established under this Act and a petition is presented to the President for the grant of the prerogative of mercy in respect of the conviction or sentence, the President may, except in the case of sentence of death—

(a) refer the whole case to the Supreme Court and the case  shall then be heard and determined by that Court as in the  case of an appeal by a person convicted; or

(b) if the President desires the assistance of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to that Court for its opinion and the Supreme Court shall consider the point referred and furnish the President with its opinion.”

6. Why these functions of the Supreme Court are considered abandoned.

• Text writers in Ghana who have extensively written on the powers of the Supreme Court in their various books like His Lordship Samuel Kofi Date-Bah JSC (Retired),^[vii] His Lordship Justice Allan Brobbey JSC (Retired)^[viii], His Lordship Justice Marful Sau JSC,^[ix] His Lordship Justice Sir Dennis Adjei JA^[x] and Mr. Kwami Tetteh^[xi] made no mention of them.

• The Supreme Court in considering its powers in the case of A.G. v. Sweater & Socks Factory Ltd also made no reference to these additional functions contained in the Courts Act. His Lordship Dotse JSC held: 
  
  “It should be clearly noted that, this court’s jurisdiction has been categorized under various sub sets and clearly marked out in the 1992 Constitution and the Supreme Court’s Rules, 1996 (C.I. 16). Out of abundance of caution, these jurisdictions are: civil and criminal appellate jurisdictions, original jurisdiction, just like the instant case, review jurisdiction, supervisory jurisdiction, reference to the court by lower courts to the supreme Court, challenge of election petitions of President, chieftaincy appeals from the National House of Chiefs and single judge’s jurisdiction.”^[xii]   

• The Rules of Courts Committee also appeared not to have adverted their minds to it, hence no specific provision was made in the Supreme Court Rules (C.I. 16) to regulate the Apex Court in the exercise of these special functions.

• Online information about the Judiciary of Ghana captures in detail the jurisdiction of the Supreme Court, but unfortunately, these special functions vested in the Supreme Court are not stated.

7. Referral of the whole case to the Supreme Court

Where there is a petition to the President and the whole case is referred to the Supreme Court, it appears that the case will be treated as an appeal filed by the person convicted and the decision of the Apex Court will be final.

8. How may this appeal differ from other appeals?

• This kind of appeal may leapfrog the intermediate appellate courts i.e. the High Court and the Court of Appeal.
  
• All criminal appeals to the Supreme Court are supposed to be signed by the appellant or his lawyer before the Court can entertain it,^[xiii] but with this kind of appeal, no such signature of the appellant or the lawyer may be required.
  
• All criminal appeals to the Apex Court are to be filed within one month of the decision unless an order for extension of time is granted, but with this ‘special appeal’ time may not count.^[xiv]

Consequently, a convicted person who could not appeal within time or whose application for leave for extension of time to appeal was unsuccessful may, upon a petition to the President, find his or her appeal being considered by the Supreme Court. All criminal appeals to the Supreme Court are to be filed in the court below^[xv], but the one emanating from the President may not be filed in that manner.

9. Referral of a point to the Supreme Court

It appears from the above-cited provisions of the Courts Act^[xvi] that where a point on any matter is referred to the Apex Court by the President, the Supreme Court cannot give a decision. It can only proffer an opinion. This distinctive role is unique in the sense that the courts^[xvii] have consistently avoided invitations extended to them for their advice.

Adade JSC^[xviii]  speaking in the case of Bilson v. Attorney General held thus “Ours is to interpret the Constitution, 1992 in the context of disputes, broadly interpreted. Ours is not to tender advice to prospective litigants; that is the role of solicitors in private practice”.^[xix]

Atuguba JSC^[xx] reiterated the point in the case of Ghana Bar Association and Others v. Attorney General and Others^[xxi]  that such advisory opinion is the work of lawyers and not the courts. The attitude of the English courts is no different from that of Ghana. Lord Clarke-Thompson captured it thus: “Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigations to decide only live, practical questions, and that they have no concern for hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau”.^[xxii]  (My Emphasis).

The courts’ drive to give decisions that are enforceable and not mere opinions tends to have connection with the discharge of their obligation under the Constitution. Article 126 clause 4 provides: “In the exercise of the judicial power conferred on the Judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction, issue such orders and directions as may be necessary to ensure the enforcement of any judgement, decree or order of those courts”.

Notwithstanding the Constitutional provision and the courts’ unwillingness to be called upon to render advice, statute has specifically mandated the Supreme Court to tender opinions to the President in the exercise of his prerogative of mercy when he so requests. One distinctive difference between a case referred under section 9 (b) and all other cases determined by the Supreme Court is the right of the parties or the public to have copies of the decision.

 Rule 74 (3) of C.I. 16 provides that decisions of the Apex Court are to be made available to the parties and the general public on demand. But where the President requested an opinion from the Apex Court, it appears that the opinion of the Justices may be forwarded to the President and not to the parties or the general public, since it may not be the final decision, but an opinion that may be overridden.

10. Issues for Consideration

• Owing to its origin as a personal power of the sovereign, the Royal Prerogative of Mercy is a highly discretionary power, existing at common law and not codified by statute. In the often cited aphorism, ‘mercy is not subject of legal rights. It begins where legal rights end”. Indeed, the raison d’etre of prerogative of mercy is to enable the executive ‘dispense justice’ when law has reached its zenith. Therefore, the reference of the matter by the President to the Supreme Court to determine the case on appeal in accordance with law appears to defeat the whole concept of granting clemency.

• It is unclear from the law whether the President after referring the whole matter to the Supreme Court to try on appeal can subsequently exercise the power again if he/she is not comfortable with the decision of the Apex Court.

• If he can, then what is the whole essence of referring the matter to the Supreme Court to be tried and determined as an appeal?

• If he cannot, will the President not be surrendering the power of mercy vested in him to the Judiciary?

• Since Article 72 of the 1992 Constitution confers the power of mercy on the President, section 9 (a) of the Courts Act which purports to give that power to the Supreme Court to have the final say in the exercise of the mercy powers as an appeal may have constitutional issues. Will the Supreme Court under section 9 (a) of Act 459 not be usurping the Powers of the President and therefore, inconsistent with the express provision of Article 72 of the 1992 Constitution?

• Under the Constitution, the President may exercise the power of pardon in consultation with the Council of State who are distinguished and experienced statesmen from varied background. Therefore, an argument may be made that, further seeking the opinion of the Supreme Court on an issue as regards section 9 (b) of Act 459 is superfluous and needless. 
  
• A strong argument can however be made in support of section 9 (a) where the Council of State is deemed to be overly partisan or impotent to advise the President and there arises the need for experienced legal minds to reconsider the whole case.

• The argument may be pressed further that if it is about obtaining legal advice on an issue, the President can conveniently solicit same from the Attorney General and Minister of Justice who is the principal legal adviser to the Government?^[xxiii]
  
  But we need not lose sight of the fact that since the Attorney General is in charge of all prosecutions and conduct of criminal cases in the Country^[xxiv], his or her advice to the President on a case their Department prosecuted and obtained a conviction may be biased and one-sided. In such a situation, resort to the Supreme Court Judges who may look at the issues dispassionately becomes a welcome relief, especially where the conviction was fundamentally wrong and the person is clearly innocent but time to appeal elapsed or the Attorney General successfully opposed the application for extension of time to appeal.

• There appears to be practical difficulties in the handling of a case referred to the Supreme Court under section 9 by the President because there seems to be no proper procedure laid down to guide the Court. In the normal scheme of things, the grounds of appeal are raised by the appellant or his lawyer, but in this case who raises the issues for determination? – Is it the President; is it the Supreme Court suo motu; is it the Attorney General or the convict who may not even have a lawyer? 
  
  Will the accused be present during the hearing? What will be expected from him or her by the Court? Will the Attorney General be entitled to oppose the matter again? These lacunae in procedure appeared to have existed for about twenty-seven (27) years since we out doored the Fourth Republican Constitution and passed our Courts Act in 1993.

• Section 9 of Act 459 appears discriminatory against persons sentenced or convicted by the Superior Courts. The provision seems to cater for persons ‘convicted or sentenced for an offence by a court established under this Act…” (The Emphasis is mine). 
  
  A careful reading of the long title and preamble of the Courts Act shows that the Courts Act was enacted to incorporate into the law, relating to the courts, the provisions of chapter eleven of the Constitution and to establish lower courts and tribunals by providing for their composition and jurisdiction.
  
  In other words, the Superior Courts had already been created by the Constitution and all the Courts Act sought to do was to incorporate them into the Act. On the contrary, Parliament was tasked to establish lower courts pursuant to Article 126 (1) (b) so it sought to achieve that objective by creating the lower courts. These courts established in the Act are found under section 39 headed ‘Establishment of Lower Courts’.
  
  Therefore, by section 9 of Act 459 which deals with a person who can petition the President for pardon, the reference to ‘a court established under this Act’ points to the lower courts established under section 39 and not the High Court or Court of Appeal which are Superior Courts and were created and established by the Constitution.
  
  Further, on the court that sentenced or convicted the person who petitioned the President, the legislature used small ‘c’ for court under section 9 and at the Interpretation section (section 117) of the Act, ‘court’ (with small ‘c’) ‘means a court of competent jurisdiction established under this Act and includes a tribunal’.
  
  Consequently, the argument that section 9 does not include persons sentenced or convicted by Superior Courts seems more convincing.

• Whereas section 9 generally makes provision for a person convicted or sentenced to petition the President for pardon, section 9 (a) appears to restrict the case that can be referred by the President to the Supreme Court to try on appeal to only cases of conviction and not sentence.

• Experience appears to suggest that the functions conferred on the Supreme Court by the Courts Act have become stale because various Presidents under the Fourth Republican Constitution have not found it attractive for the past twenty-seven (27) years to gamble with its application.

11. The Way Forward

• It is suggested that since the special functions vested in the Supreme Court discussed in this Article are still part of our laws. Text writers and lecturers of Ghana Legal System in our various Law Faculties/Schools should begin to include them in the discussion of the powers of the Apex Court.

• It is further suggested that Section 9 (a) which tends to surrender the ‘mercy powers’ vested in the President to the Supreme Court appears inconsistent with Article 72 and that calls for a constitutional interpretation by the Supreme Court.

• Significantly and until section 9 (a) of Act 459 is declared unconstitutional, the Rules of Courts Committee must immediately come out with the procedure to regulate the Supreme Court when cases are referred to them by the President in the exercise of his prerogative of mercy under the section. 

• Finally, it is my view that if Parliament finds the law unworkable, they should take appropriate steps to amend it rather than having a law that only adds up to the numbers but is rarely utilized.

Acknowledgment

As usual, I thank the following persons for their useful contributions and inputs:

• His Lordship Justice Victor D. Ofoe 
• His Lordship Justice Eric Kyei Baffour 
• Her Ladyship Justice Janapare Bartel-Kodwo 
• Mr. Mathias Kormivi Dzotsi

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^[i] See Articles 129-135 of the 1992 Constitution

^[ii] Samuel Marful Sau JSC: A Practical Guide to Civil Procedure in Ghana (2017) Pages 6 & 7.

^[iii] Duker, (1977)

^[iv] See section 2

^[v] Samuel Nartey: ‘The power of Exercise of Prerogative of Mercy – A Political Question? (Online publication at https://www.prime newsghana.com -05 September 2016)

^[vi] See the Courts Act of 1993 (Act 459) as amended.

^[vii] Retired

^[viii] S.A. Brobbey: Practice & Procedure in the Trial Courts & Tribunals of Ghana (Second Edition) at pages 18 & 19

^[ix] See endnote 2

^[x] Dennis Dominic Adjei: Criminal Procedure and Practice in Ghana (2018) at pages 24 & 25.

^[xi] S. Kwami Tetteh: Civil Procedure: A Practical Approach at pages 14-16.

^[xii] Attorney-General v. Sweater & Socks Factory Ltd. [2013-2014] 2 SCGLR 946 at p. 972

^[xiii] See Rules 32 (1) of the Supreme Court Rules, (C.I. 16)

^[xiv] See Rule 31 (1) of C.I. 16 supra

^[xv] See Rule 31 (3) of C.I. 16

^[xvi] That is section 9 of Act 459

^[xvii] National courts as opposed to International Courts like the International Court of Justice (I.C.J.) that give advisory opinions. 

^[xviii] Date-Bah: ‘Reflections of the Supreme Court of Ghana’

^[xix] Bilson v. Attorney General [1993-1994] GLR 105 at p. 108

^[xx] (Retired)

^[xxi] Ghana Bar Association & Others v. Attorney General & Others (J1/26/2015) (2016) GHASC 43 (20 July 2016)

^[xxii] See also Macnaughton v. Macnaughton’s Trustees {1953} SC 387 at p. 392 (Lord Justice Clark Thompson).

^[xxiii] See Article 88 Clause 1 of the 1992 Constitution

^[xxiv] Ibid, see clauses 3 & 4 of Article 88