Will Supreme Court charge chiefs for High crime for disobeying its orders in Elorm Kwami Gorni v AG?

The 1992 Constitution of Ghana bars chiefs from engaging in ‘active politics’ and requires that any chief who nurtures any such intention to seek a political position abdicates his stool or skin.

Article 276(1) categorically states; “A chief shall not take part in active party politics; and any chief wishing to do so and seeking election to Parliament shall abdicate his stool or skin.”

However, what constitutes ‘active politics’, became a matter of contention. Thus, on the back of this, the case of Elorm Kwami Gorni v The Attorney General was instituted at the apex court to settle the controversy.

The plaintiff, Kwami Gorni averred that in his campaign for re-election as president of Ghana in 2020, several chiefs publicly endorsed then-candidate Nana Akufo Addo while others also endorsed the leader of the largest opposition party, John Mahama in contravention of the Constitution.

In its judgment,  the apex court admitted without any equivocation that the contentious phrase indeed was amenable and subject to an interpretation.

Further, the court, in bemoaning the practice, noted that; 

“By all accounts, chiefs “taking sides” in partisan politics-even being  perceived to have done so-has been damaging to the prestige and fortunes of the chieftaincy institutions as well as the particular chiefs.”

As such, it held that when a chief merely commends projects, policies, and infrastructure of a political party, it does not amount to them participating in ' active party politics'.

However, any act of a chief that endorses the person, or the candidature of a candidate for a political position or urges voters to vote for him or her to the exclusion of other contenders, sins against the phrase as contained in Article 276(1) of the Constitution.

“To sum up: We hold that the phrase “active party politics” contained in Article 276(1) is amendable and subject to interpretation by this Court in the exercise of our original jurisdiction under Article 130(1)(a). We further hold that commendations or expressions of appreciation (or criticism) by Chiefs about the policies, projects, and programs of a candidate or their party, whether past, present, or proposed, do not amount to participation in “active party politics.” However, endorsement of the person of the candidate or of their party, whether free-standing or embedded in an otherwise innocuous statement, is violative of Article 276(1),” the court held.

Aftermath of the orders

As if these Supreme Court orders carried no weight at all, more and more chiefs are still flagrantly endorsing publicly, the NPP’s flagbearer, Dr Mahamadu Bawumia, John Mahama of the NDC, Nana Kwame Bediako Cheddar, Alan Kyeremanteng among others, as they embark on their campaign tours in preparation for the 2024 General elections.

Consequences

The Supreme Court has power per Article 2(2) of 1992 to issue such orders and directions it deems appropriate to give effect to its declarations made in defence of the Supremacy of the Constitution.

When it does, anybody, including the President or Vice President who fails to obey or carry out the terms of such an order commits a high crime and shall be liable to imprisonment not exceeding ten years without the option of a fine per Article 2(4), (5).

So the question is, Will the Supreme Court enforce its power of contempt under Article 2(4) of the 1992 Constitution against such chiefs to serve as a deterrent?