Separation of Powers and Constitutional Supremacy

 

The principles of constitutional supremacy and separation of powers are foundational to Ghana's governance framework, ensuring checks and balances among the Executive, Legislature and Judiciary. These key principles, entrenched in Ghana's Fourth Republican Constitution (‘Constitution,’) provide for judicial oversight to uphold constitutional provisions while preserving the independence of each branch of government. Recent judicial decisions have further refined their application, particularly in relation to the exercise of some legislative and executive powers.

 

The Supreme Court reaffirmed this oversight role in Alexander Afenyo Markin v Speaker of Parliament & Attorney General,[1] where it upheld its power to assess the legality and constitutionality of parliamentary procedures and processes. This marked another shift from the historically somewhat chequered treatment of the subject in previous decisions. For example, in Tuffuor v Attorney-General,[2] the Supreme Court held that the courts cannot question how Parliament conducts its business and whether what happens in Parliament is legal. The Court added that Parliament’s actions are a ‘closed book,’ ‘in so far as Parliament has acted by virtue of the powers conferred upon it' by the Constitution. Subsequently, in Ghana Bar Association v Attorney General,[3] the Court dismissed a challenge to Parliament’s approval of a Chief Justice, saying that it had no power to question how Parliament made its decision.

 

However, in another trend of cases, such as New Patriotic Party v Attorney-General,[4] J H Mensah v Attorney-General,[5] and Amidu v J A Kufuor & Others,[6] the Supreme Court asserted that although the Court cannot interfere with Parliament's acts within its constitutional powers, it must step in if Parliament violates the Constitution. These decisions also emphasised that no government institution is above judicial scrutiny and especially when there is an allegation of a constitutional violation, the Supreme Court is duty bound to intervene.

 

In Markin v The Speaker, the Supreme Court appears to have followed its earlier decision in Abdulai v Attorney-General,[7] where the Court held that although it would not interfere in a matter that is strictly related to parliamentary procedure if the issue involves interpreting the Constitution, the Court would intervene. In Abdulai, the Supreme Court explained that ‘even though Parliament is a master of its procedure, it cannot be overemphasised that all the House’s rules, order, procedures and practices also have a master, the 1992 Constitution of the Republic of Ghana.’ Accordingly, ‘neither Parliament has an institution, nor its members, officers, orders, practices, conventions or procedures can be said to be independent of an/or exempt from the limitations imposed by the Constitution. In Markin, the Supreme Court seemed to uphold these principles, which form the present position of the law on the Court’s judicial oversight over the other branches of government. Thus, although Parliament may make and control its own rules and procedure, it is not immune from judicial scrutiny to ensure compliance with the Constitution.

 

While the Court has affirmed its power to assess the constitutionality of acts of the legislature, executive and state institutions, it has also recognised the limits of this power. In Dr Amanda Odoi v Speaker of Parliament & Attorney General,[8] the Court refused Plaintiff’s invitation to determine the legality of a bill that was yet to receive presidential assent because it took the view that its power to assess the constitutionality of legislation could only be invoked in respect of laws that had been passed by Parliament and assented to by the President. The Court was therefore not going to intervene and determine constitutionality of bill which had not been enacted into law.

 

These cases illustrate the Supreme Court’s dual role in safeguarding constitutional supremacy while respecting the separation of powers. The Court’s approach demonstrates a careful balancing act, intervening to uphold constitutional principles when necessary while exercising restraint to avoid undue encroachment on legislative and executive functions. As Ghana’s legal landscape continues to evolve, these judicial pronouncements serve as a guidepost for navigating the legal complexities in a constitutional democracy and provide insights for future legal reforms and policy strategies.

 

The Constitutional independence of State bodies

 

The Constitution establishes some bodies and offices that are to operate free from executive control. The courts have jealously guarded this independence to protect the functions of those offices, such as the Electoral Commission in Apaloo v Electoral Commission[9] and the Lands Commission in Okudzeto Ablakwa & Another v Attorney-General & Another.[10] This was evident in the Supreme Court’s decision in Ghana Centre for Democratic Development v Attorney General,[11] where the Court affirmed the constitutional protection of the independence of the office of the Auditor-General. It held that a directive from the President to the Auditor-General to proceed on leave, was unconstitutional.

 

Thus, although the President appoints the Auditor-General, that office exercises substantive and functional independence and is therefore not subject to the control and direction of the appointing authority.

​

The jurisprudence emerging from these decisions reflects a broader constitutional philosophy in which the separation of powers is not merely theoretical, but operationalised through judicial enforcement of institutional autonomy.

 

[1] Writ J1/01/2025; 12 November 2024

[2] [1980] GLR 637

[3] [1995-96] 1 GLR 598

[4] [1993-94] 2 GLR 35

[5]  [1996-97] SCGLR 320

[6] [2001-2002] 2 GLR 510

[7] [Writ J1/07/2022; 9 March 2022]

[8] [Writ J1/13/2023; 18 December 2024]

[9] [2001-2002] SCGLR 1

[10] [2011] 2 SCGLR 986

[11] [Writ J1/01/2021; 31 May 2023]