Though the assertion that any law that comes about through judicial review is a “judge made” law is widely accepted, that description is a bit misleading. Judges cannot make laws; judges interpret laws, and if that interpretation results in a new implementation or enforcement of the law, we can see that that law is not new, the interpretation is. We can therefore not say that the law was made by a judge. Judicial review or law interpretation in general is like what Jesus said of the Sabbath. The Ten Commandments says, “Remember the Sabbath and keep it holy.” The problem during the time of Jesus was what “holy” meant. The Israelites of the day interpreted holiness to be strict adherence to the technicalities of the Sabbath, such as not cooking or doing any work. However, whenever there was an emergency on the Sabbath, even involving their sheep, they were willing to break this law by looking for the lost sheep. When Jesus healed a man on the Sabbath, and the Pharisees wanted to rebuke him for it, he said, “Which is lawful on the Sabbath: to do good or to do evil, to save life or to kill?”

Then he added, “The Sabbath was made for man, not man for the Sabbath.”

Since Jesus had already said that he did not come to destroy the word of God, but to fulfill it, it means his new interpretation of the Sabbath must be in pursuant to or in conformity with the scriptures. Jesus thus did not make a new law; he interpreted the scriptures in a new way that was consistent with  the  scriptures: good  works on  the  Sabbath  is  okay.  Now  we  have  a  better understanding of what is meant by “keep it holy.” Holiness has a broader meaning than what the Israelites of the day thought. If you work to save a life on the Sabbath, that good work is part of holiness, and to do nothing on the Sabbath when you could have saved a life is evil. We can say that Jesus was engaged in “divine law review.”  In all of this, the original interpretation of the scriptures remains unchanged, and the new interpretation does not create new problems.

Like the Sabbath, the Courts Interpretative Powers can only come from Strict Scrutiny

Every constitution has the letter and the spirit. The letter of the constitution is exactly what the words say. The spirit of the constitution is what can be determined by looking at various parts of it with regards to a particular issue. This is what the US Supreme Court calls “strict scrutiny,” that is,  scrutinizing the  details  of the  constitution in  order to  determine how the  issue must be interpreted. Such was the case of Griswold v. Connecticut, 1965. The State of Connecticut passed a law banning the use of contraceptives. When the US Supreme Court took up the case, there was nothing called “right to privacy,” and nowhere in the constitution could this be found. The court’s interpretation of the constitution through strict scrutiny established this right which is now found in  many constitutions  of  the  world,  including  Ghana’s.  The  Court  looked  at  the  following provisions in the US Constitution:

Amendment I Freedom of Religion, Speech, Press, Assembly

Congress shall make no law respecting an establishment of religion, or prohibiting   the   free

exercise  thereof;  or  abridging  the  freedom  of speech,  or  of  the  press;  or  the  right  of the  people  peaceably  to assemble, and to petition the Government for a redress of grievances.

The right to free speech also implies the right to silence, which is a form of privacy. Freedom of religion and assembly also come with privacy to decide how to worship and who to associate with.

Amendment IV         Against Unreasonable Searches and Seizures

The  right  of  the  people  to  be  secure  in  their  persons, houses,  papers, and  effects,  against unreasonable searches and seizures, shall not be violated,  and  no  warrants  shall  issue,  but upon   probable  cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V                       Against Self-incrimination, Due process

No person shall… shall any person be subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to be a witness against himself,  nor be  deprived  of  life,  liberty,  or  property,  without  due process  of  law;  nor  shall  private property be  taken  for  public use without just compensation.

Protection against self-incrimination is a form of privacy by being allowed to remain silent.

Amendment IX              Other Rights may be retained by the People

The enumeration in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people.

The people may have other rights, such as privacy that is not specifically mentioned.

When the Court put all the above provisions together, it came up with the right to privacy. Though not directly stated, one can clearly see that there is intent of privacy in the overall reading of the  sections mentioned. Thus, the  right to  privacy was  arrived at  not  just through what Ghanaian courts like to call “purposive interpretation” or because it was a good thing, but because the constitution warrants it.

Swearing in the Speaker

In our present discourse about whether or not to swear in the Speaker, we can determine what to

do by looking at certain provisions in the constitution itself. First, by looking at Article 57, which says, “There shall be a President of the Republic of Ghana…”

This means there shall be one person as president. By swearing in the Speaker, have we not violated Article 57? If we have an elected president and an acting president concurrently active, we clearly have two presidents. Some of the ramifications of this arrangement are:

1.  Which of the two speaks for Ghana?

2.  Once we swear in another president, should that not automatically nullify the powers of the first one?

3.  If the first president’s powers are nullified, how can he officially act as the representative of Ghana, and should anyone deal with him as the President?

4.  When the President and Vice President are UNABLE to perform their duties, it means no one is acting as president, and therefore the speaker can act.

These  listed  considerations alone  would indicate  that  we  should not  swear  in  the  Speaker. Whenever the speaker is sworn in, it is an indication that the order of succession in the presidency is completely exhausted, and that the only alternative left is for the Speaker to temporarily hold the presidency until a new president is elected. This is a condition of national emergency, not a routine assumption of power by a subordinate.

Next, we would look at Article 58(3), which says,

(1) of this article may be exercised by him either directly or through officers subordinate to him.

Then we look at Article 60(8) which says,

Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform.”

It must be noted that in all the considerations above, the Speaker is not mentioned. When the President is UNABLE to perform his duties, it is not the Speaker who takes over but the Vice President. Section 8 should have been divided into two sections to read,

(i)        Whenever the President is absent from Ghana the Vice-President shall perform the function of the President until the President returns.

(ii)       Whenever the President is for any other reason unable to perform the functions of his office,  the  Vice-President  shall  perform  the  function  of  the  President  until  the President is able to perform.

So far, all the considerations still indicate a singular presidency. Now we come to the source of our discontent, section 11, which reads,

Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the  Vice-President is able to perform those factions or a new President assumes office, as the case may be.

To interpret this section properly, we must keep the considerations above in mind. The key question is, are the President and Vice President UNABLE to perform their duties just because they are outside the country? Does the constitution say the Speaker must be sworn in whenever both president and vice president are absent from Ghana or if they are UNABLE to perform their duties? Since the answer is when they are unable to perform their duties, and since they are still performing their duties, the Speaker must not be sworn in. If the Speaker must not be sworn in, we don’t have to consider section 12 to raise any further confusion.

Clearly the spirit of the constitution indicates that the speaker should not be sworn in.

Those who support the  swearing in  of the  Speaker do  so  because of  the  Supreme Court’s unanimous ruling in the case of Asare v Attorney General [2003-4] SCGLR 823. In this ruling, the Court said, “The purposive interpretation to be given to Article 60(11) is that where both the President and the Vice-President are absent from Ghana, they are to be regarded as unable to perform  the  functions  of  the  President  and  thus  the  Speaker  is  obliged  to  perform  those functions.”

I respectfully disagree with the Court’s decision. Court’s Interpretation of the constitution must ultimately rest on the provisions of the constitution, not just what the Court thinks “would further the cause of justice” because such an interpretation adds to the constitution what the constitution itself has not mandated. Any addition to the constitution must be by amendment, not court interpretation. Simply saying “the purposive interpretation to be given to Article 60 (11) is that where both President and Vice President are absent from Ghana, they are to be regarded as unable to perform those functions” will not suffice. Where does the constitution allow the Court to “regard absent as unable?” This comes down to “this is what we think” instead of “this is what the constitution directs.” This error is manifested by the numerous possible impasses that can occur because of this interpretation: