On 13th May 2020, in the case of Ayine v. Attorney-General, Ghana’s Supreme Court, by a 5-2 majority decision upheld the constitutionality of the appointment of 66-year old Martin Alamisi Burns Kaiser Amidu as the Special Prosecutor (the “SP”) under section 13 of the Office of the Special Prosecutor Act, 2017 (Act 959) (the “OSP” Act).
The Court used the so-called purposive approach to interpretation to hold that despite the express intentions of Parliament to create the OSP as a public service under article 190 of the 1992 Constitution, the 60-year retirement age for all public officers (except where the Constitution provides otherwise) does not apply to the SP and his deputy.
I disagree with the majority decision because it clearly flies in the face of sound constitutional jurisprudence. My view is that the Court’s decision was undergirded by the suspicion that a declaration that the appointment of the SP and his deputy was unconstitutional and a further order striking down the impugned sections of the OSP Act would, as was held in Ransford France (No. 3) v. Electoral Commission & Attorney-General, lead to a nuclear melt-down of government.
This paper is structured into six parts: with this introduction as the first. Part II will examine the purposive approach to the interpretation of the Constitution in resolving the issues in Ayine. Part III discusses the residual power of Parliament. Part IV focuses on the Supreme Court’s reliance on provisions of some Acts of Parliament to justify its decision. In part V, I will discuss the Supreme Court’s decisions in Appiah-Ofori v Attorney-General and Yovuyibor v. Attorney-General. Here, I assert that the Court misread its decision in Appiah-Ofori. The discussion will conclude on the note that the Supreme Court did itself and the people of Ghana a great disservice when it failed to use this golden opportunity to exorcise the spirit of Ransford France.
II.The Purposive Approach to Interpretation
It is not in doubt that the Supreme Court used the so-called purposive approach to interpretation to arrive at its decision in the Ayine case. It is therefore proper to start this discussion with an examination of the purposive approach to interpretation as it applies to the facts that were before the Court.
As was observed by the Court, the case of Tuffuor v. Attorney-General is generally regarded as the locus classicus of constitutional interpretation in Ghana. In Tuffuor, upon the coming into force of the 1979 Constitution, the then Court of Appeal sitting as the Supreme Court was invited to interpret the phrase “shall be deemed” in article 127(8) of the 1979 Constitution as it related to the status of Justice Fred Kwasi Apaloo who was the Chief Justice before the coming into force of the 1979 Constitution.
Delivering the Court’s unanimous decision, His Lordship Justice Sowah observed that a written Constitution has both a letter and a spirit, and for that matter, it ought to be interpreted as a “living organism capable of growth and development”. Sowah JSC further observed that there was the need to take note of the “principle of constitutional construction which gives effect to the intent of the framers of [the Constitution]”. According to Justice Sowah, every word in the Constitution has an effect and every part must be given effect.
Over the years, this dictum of Sowah JSC in Tuffuor has been cited to support almost every decision of the Supreme Court while exercising its interpretation and enforcement jurisdiction.
Quite unfortunately, Tuffuor has been used as a carte-blanche for the Court to arrive at any decision that the Court desires despite the express wording of a particular provision read together with other provisions of the Constitution. In effect, the Court mostly fails to consider the fact that the off-cited dictum of Sowah JSC also had an injunction that every word and part of the Constitution had to be given effect to. Indeed, any proper interpretation of the Constitution must “ensure that all the provisions [of the Constitution] work together as parts of a functioning whole”.
It seems that the Supreme Court has been operating under the erroneous impression that purposively interpreting provisions of the Constitution means that even where the framers of the Constitution have for just cause used some specific words, the Supreme Court has the power to replace the words of the framers of the Constitution under the ruse of interpretation.
Such an approach to interpreting the Constitution has been roundly rejected by the Supreme Court in Republic v. Fast Track High Court, Accra; ex parte Daniel where the Court warned against rewriting the Constitution under the cloak of interpretation. The Court, speaking through Prof Kludze JSC observed incisively as follows:
We cannot, under the cloak of constitutional interpretation, re-write the Constitution of Ghana. Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the lawgiver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution.
One very resourceful canon of interpretation is expressum facit cessare tacitum; which means that “when a thing is expressly stated, it ends speculation as to whether something inconsistent may be implied”. The Supreme Court applied this canon of interpretation in the case of Asare v. Attorney-General to interpret the phrase “unable to perform the functions of his office” in article 60(8) of the 1992 Constitution. Prof Kludze explained that this canon of interpretation meant that “express enactment shuts the door to further implication and speculation.”
In Ayine, the main question that was before the Supreme Court was whether when Parliament created the OSP, it sought to make it part of Ghana’s public service. This was a question that the Court had to answer by considering the clear provisions of article 190 and the express intentions of Parliament as was stated in the Hansard of 1st November 2017. After answering this question, the next task of the Court was to consider the history, context and purpose of article 199(1) of the Constitution in arriving at a definitive conclusion.
Such an approach would have definitely been in consonance with the purposive interpretation which the Court is an avowed proponent of. Reading an applicable text vis-à-vis other provisions of the Constitution, and having regard to the history, context and purpose of the text is what the purposive interpretation is about. Any other approach is something else masquerading as purposive interpretation.
And should the Court have fervently followed this; it would have arrived at the conclusion that Parliament indeed sought to create the OSP as part of the public service. And, the compulsory age of 60 years clearly applied to the SP and his deputy.
It is unfortunate that in a bid to arrive at a decision that was desirable to the Court, the Court ignored the express wording and context of the applicable provisions of the Constitution and went as far as to apply the American doctrine of social engineering.
The result of this was that, the Court ended up complicating the issues before it. And, afterwards it sought to resolve the complicated situation by claiming that any conclusion other than the one it reached would lead to “chaos, anarchy and confusion in the society”.
III.Residual Power of Parliament
The Supreme Court further held that in creating the OSP as a public office, Parliament was exercising its residual power under article 298.
The Supreme Court has earlier correctly observed that “[t]he residual power of Parliament under Article 298 of the Constitution is exercisable only where no provision is expressly or impliedly made in the Constitution”.
Parliament’s residual power under the 1992 Constitution has its roots in the 1969 Constitution. And, the framers of the 1969 Constitution express the purpose of the residual power of Parliament as follows:
…We are convinced that not every detail should be written into the Constitution. For that reason we propose that Parliament should have residual power to deal with any matter that arises out of the Constitution where there is no provision, express or by necessary implication, in the Constitution to deal with the matter that arises.
The phraseology, history, and context of the residual power of Parliament under Article 298 clearly show that it is a power that is exercised in very limited circumstances. It is not power that is used as a substitute for any other power Parliament may possess. It is also not power that can be resorted to as a justification for abuse of Parliament’s legislative power. It goes without saying that in the face of a clear expression of Parliament’s intention and clear constitutional provisions, the Supreme was wrong to invoke the residual power of Parliament.
In Ayine, Parliament expressly stated that the OSP was created under article 190 of the 1992 Constitution as a public service. This is a fact that is expressly admitted by the majority. So, it is very strange that after such an unequivocal admission, the majority sought to say that Parliament, in creating the OSP was exercising its residual power under article 298 of the Constitution.
Further, the Court by its decision sought to say that where Parliament had exceeded its power to legislate under a specific provision of the Constitution, Parliament’s residual power under the Constitution could be invoked to make constitutional, the otherwise unconstitutional enactment. Such an approach to interpretation would clearly amount to rewriting of the Constitution and make a mockery of our constitutional architecture.
IV.Reliance on other Acts of Parliament
Rather than roundly denouncing the unconstitutional exercise of Parliament’s power, the Supreme Court was preoccupied with justifying its decision by relying on other Acts of Parliament which may not even pass the constitutionality test.
A reading of the majority decision suggests that the Court’s reasoning and conclusions was influenced by the unfounded suspicion that any interpretation nullifying the impugned sections of the Office of the Special Prosecutor Act, 2017 (Act 959) would like in Ransford France, lead to a nuclear melt-down of government.
Indeed, after referring to various provisions in as many as thirteen Acts of Parliament, the Court expressed this suspicion when it stated expressly that:
We could go on and on citing many more Acts of Parliament reserved by the Constitution for Parliament to enact. If we accede to the prayer of the Plaintiff, we will end up nullifying and declaring virtually all of these Acts of Parliament unconstitutional and wiping them out of our statute books. And the result will be chaos, anarchy and confusion in our society.
It is indeed interesting that the Court referred to as many as thirteen Acts of Parliament in its search for solace for its decision that Parliament has the power to assign any tenure it deemed fit to holders of offices created under article 190(1)(d). This attempt at justification is similar to what Justice Kpegah, alluding to Antonio’s statement in Shakespeare’s Merchant of Vernice, described as “the devil citing the scriptures to suit his purpose”.
The majority’s attempt at justification of its decision led them to rely on the District Assemblies Common Fund Act, 1993 (the “DACF Act”), an enactment which was repealed by the Local Governance Act, 2016 as far back as in December 2016.
In seeking draw parallels between various provisions of the Constitution, the Supreme Court stated that while Article 252 provided for the appointment of the District Assemblies Common Fund (the “DACF”) Administrator by the President with the approval of Parliament, Parliament in its wisdom added consultation of the Council of State to the appointment process.
However, what the Supreme Court failed to acknowledge was that the addition of consultation of the Council of State was Parliament’s innovative approach to reconcile two seemingly contradictory provisions on of the Constitution on the appointment of the DACF Administrator. Because while Article 252(4) provides that the DACF Administrator shall be appointed by the President with the approval of Parliament, Article 70(1)(c) provides that the DACF Administrator shall be appointed by the President acting in consultation with the Council of State.
It is therefore very unfortunate that the Supreme Court would rely on such a provision as a basis for its holding that Parliament has power to provide for the appointment of public officers in any manner it deemed fit, including modifying the appointment architecture under the Constitution.
Further, the Supreme Court erred gravely when it relied on the provision of the tenure of office of the DACF Administrator in the repealed DACF Act as the basis for its holding that Parliament had the discretion to provide for the tenure of office of any public officer without recourse to Article 199(1). Indeed, the basis of the exercise of such power is not the residual power of the Parliament or any other power that Parliament possess but rather the express power of Parliament under Article 252(5); which gave Parliament the express mandate to by law prescribe the functions and tenure of office of the DACF Administrator.
After making these erroneous deductions based on provisions in the repealed DACF Act, the Court further drew inspiration from section 4 of the same repealed Act (on the qualifications of the DACF Administrator) to hold that section 13(1) of the OSP Act which specified the qualifications of the SP was valid. In fact, had the Court not been so possessed by the spirit of Ransford France, the Court would have most likely discovered that there is no provision on the qualifications of the DACF Administrator in the Local Governance Act which is the law in force.
Regarding the provisions in the other Acts which were cited by the majority with approval, it is quite clear that the fact that Parliament has exercised its power in that manner in those Acts cannot be a justification for the constitutionality of the appointment of the SP.
First, the constitutionality of the mode of appointment and tenure of public officers under those Acts were not in issue in the Ayine case. So, the Court could not have pronounced on their constitutionality or otherwise. Second, sound constitutional principles dictate that the fact that an unconstitutional act has been consistently perpetuated does not make such an unconstitutional act constitutional.
This view was aptly captured by Her Ladyship Justice Dordzie (Mrs) when she observed in her succinct dissenting opinion as follows:
The issue before the court arises out of an Act of Parliament, so the question before us must be in relation to the said Act only for the purpose of determining its constitutionality. One cannot call in aid provisions of the Constitution to support an Act when the Act in question is proved to be inconsistent with particular provisions of the Constitution.
V.Application of Appiah-Ofori v. Attorney-General and Yovuyibor v. Attorney-General
In arguing its case, the Plaintiff invited the Supreme Court to adopt its decision in Appiah-Ofori v Attorney-General. Because in the Plaintiff’s view, Appiah-Ofori is on all fours with his arguments.
However, the Court stated that the facts in Appiah-Ofori were different, so that decision was not applicable to the Plaintiff’s case.
I totally disagree with the Court’s reasoning.
It seems the Court’s decision may have been influenced by a misreading of the Appiah-Ofori decision. Because in Appiah-Ofori, the Court held that since the retirement age of the Auditor-General was not specifically provided for in the Constitution, the 60-year general retirement age for public officers under Article 199(1) of the 1992 Constitution applied to the Auditor-General. So, it was constitutional for Parliament to provide 60 years as the retirement age for the Auditor-General. under section 10(4) of the Audit Service Act, 2010 (Act 584).
However, the majority sought to use the Court’s holding as authority for its decision that Parliament could determine the tenure of office of public offices under any public service it creates without recourse to the sixty year retirement age under the Constitution. This conclusion of the Court could only have been reached through a misconception of the import of the Appiah-Ofori decision.
I also found it interesting that the Court stressed on the proposition that the Constitution does not prescribe a single compulsory retirement age for all classes of public officers. While I agree with this position of the Court, I was at a loss as to why this was an issue for determination by the Court in the first place. Indeed, a careful reading of the Constitution makes this fact very clear. So, the Court’s extensive reference to its decision in Yovuyibor v. Attorney-General was at best superfluous.
The Court seemed to have for a reason that is not so clear dedicated much time in giving treatise on the undisputed fact that not all public officers retire at the same age. Linked closely to this point is the Court’s decision to raise the non-issue of the difference between a “public office” and “public service”.
Ayine presented the Supreme Court with the golden opportunity to correct the wrong it committed in Ransford France. Unfortunately, the Court missed this opportunity.
The effect of this missed opportunity is that the spirit of Ransford France has received the Court’s tacit blessing to linger on.
It is unnerving that Ayine has joined Ransford France in establishing that where there is the suspicion that the application of sound constitutional principles in a case will lead to an administrative, political or social upset, the Supreme Court can under the ruse of purposive interpretation ignore the history, wording and context of a provision in the Constitution.
The silver lining however is that, unlike in Ransford France, two members of the Ayine panel dissented. And considering how incisive and succinct Justice Dordzie’s (Mrs.) dissenting opinion was, there is hope that someday the Supreme Court will depart from this decision and in the process exorcise the spirit of Ransford France in no uncertain terms.
 Ayine v. Attorney-General (SC, 13th May 2020).
 Article 190 of the Constitution provides in part: “190(1) The Public Services of Ghana shall include- (d) such other public services as Parliament may be law prescribe.”
 Article 199(1) of the 1992 Constitution provide as follows:
“A public officer shall, except as otherwise provided in this Constitution, retire from the public service on attaining the age of sixty years.”
  1 SCGLR 705.
 In Ransford France, the Supreme Court held that declaring the refusal or failure of the Electoral Commission to publish regulations to guide the exercise of its discretionary power in the creation of new constituencies unconstitutional would lead to a nuclear melt-down of government. By so doing, the Court weakened the constitutional significance of article 296(c) of the Constitution.
  SCGLR 484.
 [1993-1994] SCGLR 343.
  GLR 637.
 His Lordship Justice Kpegah JSC is however of the view that Tuffuor v. Attorney-General does not deserve the pedestal upon which it has been raised. In the case of New Patriotic Party v. Attorney-General [1997-98] 1 GLR 378 – 461, His Lordship observed as follows.
In arguing the issue of capacity, the plaintiff relied heavily on the case of Tuffour v Attorney-General... This case is considered as a landmark decision in our constitutional law. The case has assumed such a stature and is accorded so much reverence in legal circles that there is virtually the temptation to cite it in every constitutional case. This is often done without regard to the fact that it was a case which was decided under a Constitution-the Constitution, 1979… My view of the Tuffour case… is that the court was probably overwhelmed by the merit of the case and gave the wrong reasons for a correct decision. The case cannot therefore be relied upon where a plaintiff is seeking to simply enforce the personal rights of a third person. I had been tempted to consider the often-quoted guideline enunciated in the case ostensibly for the interpretation of our Constitution, but I will leave this aspect for a more propitious occasion.
 Specifically, the Court was interpreting article 127(8) of the 1979 Constitution.
 In the case of Asare v. Attorney-General [2003-2004] SCGLR 823, the Supreme Court explained the spirit of the Constitution refers to the underlying values and principles of the Constitution. Archer CJ however questioned the use and import of the “spirit of the Constitution as an aid to interpretation. He stated in the case of New Patriotic Party v. Attorney-General [1993-94] 2 GLR 35 as follows.
Wherein lies the spirit of a Constitution? Is it embedded in the whole document? Or in parts of the document? When we interpret statutes, we do not rely on the spirit of the Act… I have found it unnecessary to dive and delve further into what is meant by the spirit of the Constitution because I am convinced that it is a cliche used in certain foreign countries when interpreting their own constitutions which were drafted to suit their own circumstances and political thought. Whether the word “spirit” is a metaphysical or transcendental concept, I wish to refrain from relying on it as it may lead me to Kantian obfuscation. I would rather rely on the letter and intendment of the Constitution, 1992.
 Tuffuor (n 6).
 National Media Commission v. Attorney-General  SCGLR 1, 11 (Acquah JSC).
 [2003-2004] SCGLR 364.
 Ibid 370 (Prof Kludze JSC).
 [2003-2004] SCGLR 823.
 Ayine (Amegatcher JSC).
 Article 298 of the 1992 Constitution of Ghana states:
“Subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this Constitution or otherwise, there is no provision, express or by necessary implication of this Constitution which deals with the matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with.”
 Ghana Independent Broadcasters Association v. Attorney-General & National Media Commission (SC, 30th November 2016) (Benin JSC).
 Memorandum on the Proposals for a Draft Constitution for Ghana, 1968  (emphasis added).
 Ayine (Amegather JSC) (emphasis added).
 In Osei Kwadwo II v. The Republic [2007-2008] SCGLR 1148, Justice Kpegah used this expression in describing the majority decision of the Supreme Court in the case of In Re Parliamentary Election for Wulensi Constituency; Zakaria v. Nyimakan [2003-2004] 1 SCGLR 1.
 Act 455.
 Act 936.
 Section 235(1)(a) of the Local Governance Act, 2016 (Act 936).
 See section 3 of the repealed District Assemblies Common Fund Act, 1993 (Act 455).
 The Memorandum to the Local Governance Bill, 2016, provides as follows:
“Under clause 127, the contradiction in the Constitution as regards the procedure for the appointment of the Common Fund Administrator is resolved by combining the two separate and contradictory provisions in articles 70 (1) and 252 (4) of the Constitution.”
 Article 199(1) of the 1992 Constitution provides that:
“A public officer shall, except as otherwise provided in this Constitution, retire from the public service on attaining the age of sixty years”.
 Article 252(5) of the 1992 Constitution provides as follows:
“Parliament shall by law prescribe the functions and tenure of office of the Administrator in such a manner as will ensure the effective and equitable administration of the District Assemblies Common Fund.”
 Ayine (Dordzie (Mrs) JSC).
 Appiah-Ofori (n 6).
 The Court explained that Appiah-Ofori did not hold that “all public office holders appointed pursuant to Article 70 or whose offices are part of the public services of Ghana should retire at the age of sixty (60) years”.
 Section 10(4) of the Audit Service Act, 2010 (Act 584) provides that the Auditor-General shall retire from office upon attaining sixty years.
 Yovuyibor (n 7).