The Maze of Complexity: Unravelling the Knots of Judicial Discretion in Re Republic vrs. Speaker of Parliament and Attorney General, Ex Parte: Rockson-Nelson Etse K. Dafeamekpor Suit No. GJ/0560/2024.

INTRODUCTION:

On the 31st of January 2021, the opening and subsequent closure of an LGBTTQQIAAP+ Advocacy Centre in Accra, Ghana, dominated the media and drew sharp reactions from an overwhelming number of Ghanaians. 

In response to the growing attempts in advocacy for the acceptance of LGBTTQQIAAP+ by both international and domestic collaborators, eight (8) Members of Parliament decided to introduce a Private Members Bill called the Promotion of Sexual Rights and Ghanaian Family Values Bill to the Parliament of Ghana.

The Promotion of Sexual Rights and Ghanaian Family Values Bill was introduced to the Parliament of Ghana in July, 2021.

The Bill proscribed the promotion, advocacy, funding and acts of homosexuality, protects and supports children, persons who are victims or accused of LGBTTQQIAAP+ and related matters. 

The Bill was laid before the Parliament of Ghana on Monday the 2nd day of August, 2021.

Following the passage of the Bill by the rank and file of Parliament at First Reading it was subsequently referred to the Committee of Constitutional, Legal and Parliamentary Affairs for consideration.

The Constitutional, Legal and Parliamentary Committee held three public hearing to give individuals and organisations who submitted memoranda on the Bill the opportunity to justify their submissions and offer further explanations on their views on the matter.

Prominent among these were the National House of Chiefs, Key Watch Ghana, Assemblies of God, Interfaith Diversity Network for West Africa and the Alliance for Equality and Diversity. 

The Constitutional, Legal and Parliamentary Affairs Committee sought the opinion of the Attorney-General and Minister of Justice on the Bill and same was duly considered and incorporated same into its report. 

On the 5th day of July, 2023, the Parliament of Ghana unanimously voted to grant the Bill a Second Reading and agreed to proposed amendments by the Constitutional, Legal and Parliamentary Affairs Committee Including the proposal of a short title, Human Sexual Rights and Family Values Bill, 2021.

The Constitutional, Legal and Parliamentary Affairs Committee, by its report, recommended to Parliament to adopt and pass into law the Human Sexual Rights and Family Values Bill, 2021, subject to the amendments proffered by the Committee. 

The Parliament of Ghana voted unanimously to pass the Human Sexual Rights and Family Values Bill into law awaiting Presidential assent on 28th February, 2024. 

President Akufo-Addo in a statement to members of the Diplomatic Corps at Peduase on 4th March, 2024, said that “a challenge has been mounted at the Supreme Court by a concerned citizen to the Constitutionality of the proposed legislation“ and that he will therefore await the court’s decision before taking action on the Bill. 

The Clerk of Parliament attempted to submit the Human Sexual Rights and Family Values Bill to the Jubilee House for the President of Ghana to signify his assent or otherwise to the Bill on 14th day of March, 2024. 

The Office of the President officially communicated to the Clerk of Parliament to desist from presenting the Human Sexual Rights and Family Values Bill, 2024, to the President for his assent by a letter dated 18th March, 2024, referenced, Ops 140/1/24/235 and signed by the Secretary to the President, Nana Bediatuo Asante.  

And in the said letter, the Secretary to the President indicated to the Clerk of Parliament that the Attorney General had by a letter dated 18th March, 2024, informed the Office of the President that he had been duly served with two Applications for an Order of Interlocutory Injunction filed at the Supreme Court. 

The Secretary to the President further indicated that the pending Applications were for an Order to restrain the Clerk of Parliament and Parliament from presenting the Bill to the President of Ghana and to restrain the President of Ghana from signifying his assent to the Bill. 

The Secretary to the President also indicated in the said letter that it would be improper for the Clerk of Parliament to present the Bill to the President and equally improper for the Office of the President to receive the Bill until the Supreme Court determines the matters raised in the suits.

It is against the actions of the President of Ghana that Mr. Rockson-Nelson Dafeamekpor, a Member of Parliament for South Dayi Constituency and one of the eight sponsors of the Bill, invoked the supervisory jurisdiction of the High Court for judicial review in the nature of Mandamus to compel the Speaker of Parliament to present the Bill, duly passed by Parliament of Ghana in accordance with Article 106 of the 1992 Constitution, to the President of Ghana to signify his assent or otherwise in accordance with Article 106(7) of the 1992 Constitution.

The High Court held that the Applicant satisfied all the legal requirements for a Mandamus application but exercised its discretion not to grant the Mandamus application because there are two suits at the Supreme Court, both challenging the constitutionality of the bill in terms of its substance and the procedure for making the Bill. Thus, the application for Mandamus is premature, as the Bill is being challenged at the Supreme Court, and it would be peremptory to grant the application.

My submission is founded on the following reasons :

I respectfully disagree with the High Court’s decision in THE REPUBLIC VRS. SPEAKER OF PARLIAMENT AND ATTORNEY GENERAL, EX PARTE: ROCKSON-NELSON ETSE K. DAFEAMEKPOR SUIT NO. GJ/0560/2024 CASE. I respectfully submit that the court’s ruling that the mandamus application was premature, citing  two suits at the Supreme Court, both challenging the constitutionality of the bill in terms of its substance and the procedure for making the Bill is inaccurate. The suits at the Supreme Court challenging the bill’s constitutionality and procedural propriety does not necessarily render the mandamus application premature.

1. The High Court misinterpreted the Applicant’s reasons for seeking the Mandamus order and the implications of granting the order in this particular case. 
2.  The court did not exercise its discretionary powers to grant or refuse a mandamus application in accordance with law.
3. Historical Development of Prerogative Writs
4. Prerogative Writs as a Common law remedy
5. Jurisdiction of the High Court to Grant an Application for Judicial Review
6. Legal Requirements for a Mandamus Application
7. Procedure for Law making in Ghana
8. The case presented to the court, including the arguments made by both the plaintiff and defendants .
9. An Analysis of the Court’s Ruling

HISTORIC DEVELOPMENT OF PREROGATIVE WRITS

Prerogative writs have a rich history in the English legal system, dating back to the medieval period. These writs were originally used by the Crown to exercise its prerogative powers, but over time, their scope and application have evolved significantly.  

Prerogative writs are defined as a special class of writs which were originally issued by the Crown, in the exercise of its prerogative powers, to control the actions of inferior courts and officials[1]. They are extraordinary remedies, issued in exceptional circumstances, to correct errors or abuses of power.

Prerogative writs emerged during the reign of King Henry II (1154-1189), as a means for the King's Council (Curia Regis) to supervise inferior courts and officials[2].  The writ of mandamus, for example, was used to compel officials to perform their duties[3]. During the 14th and 15th centuries, prerogative writs became more widely used, solidifying the Crown's authority.

PREROGATIVE WRITS AS A COMMON LAW REMEDY

 The writs of mandamus, prohibition, habeas corpus, quo warranto and certiorari, are all common law writs[4]. Article 11(1)(e) provides that the laws of Ghana include the common law. The common law of Ghana is a term of art and it is made up of the rules of law generally known as the common law, rules of equity and rules of customary law including those determined by the Superior Court of Judicature. In effect, the English common law including the rules of common law and rules of equity which were passed on by the British to the then Gold Coast which have not been departed from continue to form part of the Common law of Ghana[5].  

JURISDICTION OF THE HIGH COURT TO GRANT AN APPLICATION FOR JUDICIAL REVIEW

Judicial Review refers to the double-prong concept that conveys the power of the judiciary to invalidate legislation and executive actions on grounds of unconstitutionality on one hand and the power to determine the legality of administrative actions on the other[6].

The famous unanimous decision of the United State Supreme Court in February 1803, written by Chief Justice John Marshall, is commonly regarded as the beginning of the judicial review of federal laws in the United State.

The power of judicial review of lower courts, adjudicating authorities and administrative bodies and officials is vested in the High Court by Articles 141 and 161 of the 1992 Constitution of Ghana.

Order 55 rule 1 of the High Court Civil (Procedure) Rules (C.I 47) also further highlights the supervisory jurisdiction of the High Court: 

"An application for (a) an order in the nature of mandamus, prohibition, certiorari or quo warranto; or (b) an injunction restraining a person from acting in any public office in which the person is not entitled to act; or (c) any other injunction, shall be made by way of an application for judicial review to the High Court.”

The power of judicial review vested in the High Court  to ensure public office holders and public institutions such as the Parliament of Ghana and the President of the Republic of Ghana exercise their mandate in accordance with the Constitutional and statutory provisions that created them or their offices.

Article 141 of the 1992 Constitution of Ghana vests the power to Supervise lower courts and any lower adjudicating authority in the High Court.

Article 141 provides as follows: 

The High Court shall have supervisory jurisdiction over lower courts and any lower adjudicating authority; and may in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.

Article 161 defines supervisory jurisdiction to mean as:

“Supervisory jurisdiction” includes jurisdiction to issue writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.

Section 16 of the Court’s Act 1993 (Act 549) further provides that 

“the High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus-prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers”.

LEGAL REQUIREMENTS FOR A MANDAMUS APPLICATION

Mandamus is defined as a writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body usually to correct a prior action or failure to act[7].

For the right to an order of Mandamus to be recognised by the court, a statute or an enactment must impose a duty of a public nature on a person or an institution to perform.

Annan J. in the case of Republic v Chieftaincy Secretariat; Ex parte Adansi Traditional Council[8]  delivered himself thus:

"Generally, an order of mandamus did not lie against the State or servants of the State acting as such to carry out duties laid on the State. Where, however, a person, whether holding office as a State servant or not had a statutory duty of a public nature towards another person, an order of mandamus would lie to compel performance of the duty at the instance of a person aggrieved by the refusal to perform that duty unless another remedy was indicated by the statute. But before a court would make such an order of mandamus, the applicant must satisfy four main conditions, namely:

• That there was a duty imposed by the statute upon which he relied, 
• That the duty was of a public nature[9],
• That there was a right in the applicant to enforce the performance of the duty and 
• That there had been a demand and a refusal to perform that public duty enjoined by statute[10]."

The above case shows that a Mandamus Application would be granted where the demand to perform a public duty enjoined by statute, a Constitutional provision or an enactment is refused directly or by necessary implication.

PROCEDURES FOR LAW MAKING IN GHANA

Article 93(2) of the 1992 Constitution of Ghana vests Legislative Power in the Parliament of Ghana which power is to be exercised in accordance with the 1992 Constitution of Ghana. 

Article 93(2) of the 1992 Constitution provides:

(2) Subject to the provisions of this Constitution the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution. 

Article 106 of the 1992 Constitution of Ghana provides for the mode of exercising legislative power:

(1) The power of Parliament to make laws shall be exercised by bills passed by Parliament and assented to by the President.

(2) No bill, other than such a bill as is referred to in paragraph (a) of article 108 of this Constitution, shall be introduced in Parliament unless.

1. it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction; and 
2. it has been published in the Gazette at least fourteen days before the date of its introduction in Parliament.

(3) A bill affecting the institution of chieftaincy shall not be introduced in Parliament without prior reference to the National House of Chiefs.

(4) Whenever a bill is read the first time in Parliament, it shall be referred to the appropriate committee appointed under article 103 of this Constitution which shall examine the bill in detail and make all such inquiries in relation to it as the Committee considers expedient or necessary.

(5) Where a bill has been deliberated upon by the appropriate committee, it shall be reported to Parliament.

(6) The report of the committee, together with the explanatory memorandum to the bill, shall form the basis for a full debate the bill for its passage, with or without amendments, or its rejection by Parliament.

(7) Where a bill passed by Parliament is presented to the President for assent he shall signify, within seven days after the presentation, to the Speaker that he assents to the bill or that he refuses to assent to the bill, unless the bill has been referred by the President to the Council of State under article 90 of this Constitution.

THE APPLICANT’S CASE

The Applicant contended that:

1. The Parliament of the Republic of Ghana on the 28th February, 2024 passed the Bill and per the 1992 Constitution of Ghana particularly Article 106(7) , the bill has to be presented to the President for him to either assent to it or for the president to signify his refusal to assent to the bill or for him to refer the Bill to the council of state under Article 90 of the 1992 Constitution.
2. The letter from the Secretary to the President informing the clerk of Parliament not to transmit the bill to the Presidency until the matters before the Supreme Court are resolved was unconstitutional.
3. The clerk of Parliament has responded to the letter from  the Secretary to the President indicating that he is waiting for an indication in writing from the Office of the President on when to present the Bill to the President for his consideration.
4. It is in breach of the provisions of Article 106 of the 1992 Constitution which imposes a constitutional duty on the President to receive a Bill passed by the Parliament of Ghana to signify his assent or otherwise. The application for mandamus sought by the Plaintiff is to compel the  President of Ghana and  the Parliament of Ghana to perform their constitutional mandate in accordance with Article 106 of the 1992 Constitution.

THE RESPONDENT’S CASE

The Respondents also contended that:    

1. There are two separate cases pending before the Supreme Court which affects the substance and effect of the application before the High Court.
2.  That there are two injunction applications pending in respect of those cases seeking to restrain the Parliament of Ghana and the president of Ghana from proceedings with the bill and that due to the pendency of these cases, the Parliament of Ghana and the president are unable to proceed with the Bill.
3. The  respondent argued that granting the Mandamus application would overstep the Supreme Court's jurisdiction, which is already seized of the two cases. 
4. The  Applicant lacks a legal right to enforce the duties claimed against Parliament and the President because the  Applicant has not requested a performance of a duty that has been refused.

ISSUES THE PARTIES AGREED ON TO BE RESOLVED BY THE HIGH COURT

The High Court adopted the following issues for consideration:

1. Whether or not the Applicant has made a case for the grant of the Order of Mandamus.
2. Whether this is an appropriate case for which an order of mandamus should be issued.

DECISION OF THE HIGH COURT

1. The High Court held that Article 106(7) of the 1992 Constitution imposed a duty on the Speaker of Parliament  to submit the bill passed by Parliament to the President to assent or refuse to and make a referral under Article 90 of the 1992 Constitution[11]. 
2. The High Court also noted that the Speaker of Ghana and the President of Ghana are both Public Office Holder pursuant to Article 295 and 286(5) of the 1992 Constitution[12].
3.  On the requirement of a demand and a refusal for the grant of a mandamus application, the High Court made a very profound statement that "the current law in Ghana is that the demand and refusal rule is only applicable to statutes and not the constitution[13]. Therefore, the Applicant did not need to make a demand on the Speaker and the President before bringing the present action as the duty complained of is one imposed by the Constitution and not Statute”[14].
4. Furthermore the court noted that the  “1st Respondent and the President of the Republic of Ghana owe a public legal duty to act and the duty is imposed by the Constitution, therefore, the present Applicant being a member of Parliament and a Ghanaian can bring this present action for the reliefs he is seeking and I am therefore satisfied that issue 1 as raised by the court, which is, whether or not the Applicant has made a case for the grant of the Order of Mandamus is answered”[15].
5. On the basis of refusing to grant the application for judicial review in the nature of a Mandamus application, the High Court reasoned that, “The reliefs sought in the Supreme Court affect the Constitutionality of the Bill whilst the present one before me is an order to compel the 1st Respondent and the President to perform their duties. Each of these courts has the requisite jurisdiction and competence to deal with the cases before them. However, the 1st relief being sought before me is a declaration that Parliament compiled with the provisions of Articles 106 (1-6) of the 1992 Constitution in the passage of the Bill but this same issue is being challenged in the 2nd suit filed on the 5th March, 2024 which is pending before the Supreme Court”.
6. The High Court further noted that, “in the 2nd suit before the Supreme Court, Parliament is accused of breaching provisions of the Constitution in the passage of the Bill and as such the Bill should be declared null and void.      I am therefore hesitant to grant the 1st relief being sought by the Applicant as these acts of Parliament leading to the  passage of the Bill are being challenged in the Supreme Court. In the event that the Supreme Court finds merit in that case and declares the Bill as null and void because of some Constitutional provisions were breached, it will cease to exist and have no effect so I am of the considered opinion that it is appropriate to await the outcome of that case before insisting that the Bill should be passed into law by the President when the legitimacy of the Bill is being questioned”.
7. The High Court concluded that,  “the cases before the Supreme Court concerns the Constitutionality and validity of the Bill itself. Those cases are saying that the Bill is unconstitutional and should not be passed into Law, therefore, it is my considered opinion that this Application for Mandamus is premature as the essence of the very Bill is being challenged at the Supreme Court and it would be premptory to grant the application”.

CRITIQUE OF THE HIGH COURT’S DECISION

The High Court misinterpreted the Applicant’s reasons for seeking the Mandamus order and the implications of granting the order in this particular case.

It is instructive to note that the Applicant's reason for filing the application for judicial review in the nature of a mandamus application, as can be gleaned from the third relief he sought from the court[16],  was not to compel the President to assent to the bill, but to compel Parliament to present the passed bill to the President for his assent or refusal in accordance with Article 106(7) of the 1992 Constitution.

The Court's reasoning that,  

“In the event that the Supreme Court finds merit in that case and declares the Bill as null and void because of some Constitutional provisions were breached, it will cease to exist and have no effect so I am of the considered opinion that it is appropriate to await the outcome of that case before insisting that the Bill should be passed into law by the President when the legitimacy of the Bill is being questioned”' respectfully demonstrates the Court's misinterpretation of the Plaintiff's reasons for seeking the Mandamus order and the implications for granting of the order in the present case.

The Court granting the order of Mandamus  does not mandate the President to sign the Bill into law. Pursuant to Article 106(7) of the 1992 Constitution, the President can refuse to assent to the bill within 7 days after its presentation and refer it to the Council of State, as per Article 90 of the 1992 Constitution.

The Mandamus order sought by the Applicant aimed to compel the Parliament of Ghana to present the bill to the President and the President to signify his assent or refusal, as per Article 106(7) of the 1992 Constitution. 

The 1992 Constitution provides a specific procedure for lawmaking, and it is trite learning that where the Constitution prescribes specific method for doing something, those procedures must be followed[17].

The  Applicant does not insist that the Bill be passed into law by the President but rather seeks compliance by the Parliament of Ghana and the President of Ghana with their constitutional obligations as provided for in Article 106 (7) of the 1992 Constitution.

The court did not exercise its discretionary powers to grant or refuse a mandamus application in accordance with law.

Discretionary powers are powers conferred on a public official or body which enable them to decide a matter according to their own judgement, without being bound by fixed rules or guidelines[18].

It is trite learning that an application for judicial review is not an automatic right but a discretionary remedy that the court may grant. The aim of judicial review is to ensure that public officials stay within the law and do not abuse their powers[19].

In Ghana, Article 296 of the 1992 Constitution governs the exercise of discretionary powers, which provides that 

“Where in this Constitution or in any other law discretionary power is vested in any person or authority a. that discretionary power shall be deemed to imply a duty to be fair and candid; b. the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and  c. where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.

As noted by Lord Denning, the discretion of a judge is not a whimsical or fanciful thing, but a judicial discretion to be exercised according to the rules of law and the principles of Justice”[20].

In granting a discretionary remedy the applicant must show that he has a clear right, that the respondent has a statutory duty and that there is remedy available to the applicant[21].

The Applicant is a citizen of Ghana and a sitting Member of Parliament of the Republic of Ghana, thus have a clear right to enforce compliance with the 1992 Constitution of Ghana[22].

Also, Article 106(7) of the 1992 Constitution imposes a duty on the Parliament of Ghana to present a passed bill to the President, and imposes a duty on the President to signify his assent to the bill or otherwise.

Furthermore, the only way to ensure compliance with the Constitutional obligations imposed on the President of Ghana and the Parliament of Ghana was for the High Court to grant the mandamus application.

 The High Court acknowledged that the Applicant had made a case for the grant of the Mandamus application thus, the court had jurisdiction to hear the application[23]. Therefore, the High Court should have exercised its discretion in favor of the applicant since the Applicant met the criteria for granting a discretionary remedy specifically an order for Mandamus.

CONCLUSION

 From the discussion so far, I submit that the High Court erred in refusing the mandamus application since the Applicant met the criteria for granting a discretionary remedy specifically an order for Mandamus.

My conclusion is premised on the following : 

1. The High Court misinterpreted the Applicant’s reasons for seeking the Mandamus order and the implications of granting the order in this particular case. 
2. The court did not exercise its discretionary powers to grant or refuse a mandamus application in accordance with law.

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[1] Halsbury's Laws of England, Vol. 37 (2019), para. 134.

[2] F.W. Maitland, The Constitutional History of England (1908), p. 143.

[3] R v. Barker (1611) 12 Co. Rep. 63.

[4] Blackstone’s Commentaries on the Laws of England (1765-1769), in Book 3, Chapter 10.

[5] Sir Dennis Dominic Adjei, Modern Approach to the Law of Interpretation in Ghana, 3rd Edition.

[6] Dankwa E.V.O. and Flinterman, C. (1977) Judicial review in Ghana 14(1) UGLJ, pp. 1-44, at 25.

[7]  Ninth Edition of Black’s Law Dictionary by Bryan A. Garner at page 1046

[8] [1968] GLR 7360

[9] Mould v Devine [6] 1 GLR 533

[10] In Re Botwe & Mensah [1959] GLR 457

[11] Page 10

[12] Page 10

[13] Larbie Mensah IV alias Agree Addoquaye v National House of Chiefs and Another [2011] 2 SCGLR 883

[14] Page 11

[15] Page 12

[16] An Order directed at the President of Ghana to signify his assent or otherwise within seven days to the Human Sexual Rights and Family Values Bill as presented by Parliament in accordance with Article 106 (7) of the 1992 Constitution of Ghana.

[17] Ghana Bar Association v Attorney-General (Abban case)  [2002-2004]1 SCGLR at 259

[18] Halsbury’s Laws of England, 2013

[19] P.P. Craig, Administrative Law, Sweet and Maxwell, 1989 (sixth ed.) p. 22.

[20] Metropolitan Properties Co. (FGC) Ltd v. Lannon, [1969]

[21] Republic v High Court, Accra: Ex parte Attorney General (Ohene Agyapong) Interested Party [2012] 2 SCGLR 1204.

[22] Tuffuor v. Attorney – General [1980] GLR 637; Sam v Attorney – General (NO. 2)[1999-2000] 2 GLR 336

[23]  Page 12