1. Even a cursory review of the Supreme Court’s majority opinion on the constitutionality of the Constitution Review Commission (CRC) and Constitution Review Implementation Committee (CRIC) reveals that it is per incuriam. The majority opinion is pregnant with fundamental and inadvertent errors and severely miscarries justice. Thus, ordinarily, I would have sought a review of the decision to give the Court an opportunity to correct the errors. However, I also believe that endless litigation in the pursuit of perfect justice is wasteful.

2. The majority opinion reveals a Court that is, (i) struggling to constitutionalize a clearly non-constitutional act; (ii) claiming to take a broad view of the Constitution while being dangerously narrow;  and (iii) trying too hard to make sense of a situation that does not make a whole lot of sense.

3. This is why the majority opinion is a complicated one to decode. It is a majority opinion in that 5 people voted for certain conclusions. But it is unclear whether the majority agrees on the reasons for the positions taken or on anything else.

4. The majority opinion is authored by Justice Benin, or so it seems, with concurrence by Justices Akamba, Gbadegbe and Baffoe Bonnie. The Chief Justice however wrote her own opinion without once referring to Benin’s opinion. Justice Baffoe Bonnie concurred with the Chief Justice as did Justice Akamba, although the latter’s concurrence seems to be an afterthought as it only appears, in passing, in his last sentence. On closer inspection, the dual majority opinions may have been necessitated by the Chief Justice’s disagreements with and implied dismissal of every single rational provided by Justice Benin. The “majority opinions” cast Justice Baffoe Bonnie in an interesting light as he seems to agree with the underlying conflicting rationale of Justice Benin and Chief Justice Wood.

5. Mimicking the Court, I will discuss the majority opinions around 2 broad issues:

1. Does the President have the power to initiate amendments to the Constitution?

2. If he has the power can he employ a Commission of Inquiry under Article 278 to effectuate that power?

6. But take note that the President himself says his power to initiate amendments to the Constitution comes from Article 278, which empowers him to set up Commissions to investigate any matter of Public interest. The Attorney General reiterates this view and conceeds that the  “the proper interpretation of Article 289(1) of the Constitution is that the amendment of the Constitution should be undertaken by Parliament alone, provided there is no provision in the Constitution dealing with amendment to the Constitution.” The Attorney General finds that provision in Article 278(1), apparently because amendment of the Constitution is of great public interest. No Justice in the majority seems to accepts this proposition. Rather, as explained below, the majority finds the President’s power from elsewhere in the Constitution andthe Benin camp justifies Commissions as a mere vehicle for exercising the President’s power while the Wood camp finds the use of a Commission to be inappropriate, improper and unsuitable.

7. There is a reason for the majority’s unusual posture. Only the Chief Justice properly addresses the use of the Commissioning power to initiate amendments to the Constitution. The Chief Justice finds huge problems describing it as inappropriate, improper and unsuitable but mysterioulsy not unconstitutional. The others Justices, sadly, fail to seriously analyze the propriety of the commissioning power, thereby ignoring critical and serious constitutional violations. In effect, there is no way to make a credible argument that the President’s power to amend the Constitution comes from Article 278, as asserted by the President in C.I. 64.

8. While the 5 Justices hold that the President has the power to initiate amendment to the Constitution, there are 2 camps on why this is so. The Benin camp finds this power in Article 106(14), which provides that  “A bill introduced in Parliament by or on behalf of the President shall not be delayed for more than three months in any committee of Parliament.” The Justices in this camp reason that the Article 106(14) gives the President a general power to introduce bills in Parliament. Since there is no limitation on the type of bill that the President can introduce in Article 106(14), it follows that the President has a “right” to initiate amendments to the Constitution. Concurring with Justice Benin’s reasoning, Justice Gbadegbe adds that, “The subject to phrase in Article 289 means there are other parts of the Constitution that are concerned with the power to amend the Constitution (which allows him to find that power in Article 106(14) and apparently Article 58(2)). He adds that “Parliament’s power to amend the Constitution is part of its legislative power and not a specific grant of power.” Further, the steps taken by the President come within the Article 58(2) charge to him to “execute and maintain the Constitution.” Justice Akamba concurs with this position, although at the end of the opinion, he declares that he concurs with the Chief Justice’s camp, without explaining why.

9. The second camp, led by Chief Justice Wood, asserts that “Article 289 is silent on who is clothed with power, whether exclusively or otherwise, to engage in or undertake those frontend or pre–legislative activities that precede the actual constitutional amendment processes and procedures outlined in Chapter 25. Thus, the camp holds that the“Constitution must be construed broadly to include, or at least not to exclude, the President” in those frontend activities. Thus, the President’s power to initiate amendments is Judge-given and not derived from the Constitution itself. Concurring, Justice Baffoe Bonnie reasons that “Article 278 should be construed to have 3 phases: frontend, middleend and backend. The frontend involves all activities leading to drafting of bills; middleend will be the activities that take place after the bill gets there. The backend is the presidential assent.” He holds, therefore, that the President can be involved in the so called frontend activities, which he declares to be “administrative activities.” Justice Baffoe Bonnie also does not seem to be too aware of the distinctiveness of the supporting rationale, agreeing with both Benin (Article 108 portable power) and Wood (Judge-given power).

10. I believe both camps committed fundamental error. For starters, it is legal nonsense for Justice Benin to hold that President has a “right to initiate amendment to the Constitution.” The Constitution confers power on State Actors to perform functions, such as amending the Constitution. Such powers are not to be confused with rights (see Preamble of the Constitution, where we the people exercising our natural and inalienable right create and empower government). Even more important, the power to enact statutes is fundamentally and unequivocally distinct from the power to amend the Constitution. Thus, the processes and procedures to carry out the former are not portable to the latter. To equate the two is wrong as a matter of law and dangerous as a matter of governance and legal philosophy. It is not by accident that the two issues are consigned to separate chapters in the Constitution and the processes for each carefully and meticulously delineated. Any reviewing Court that takes its task seriously will reverse on this ground. The claim that the “subject to the Constitution” phrase in Article 289 somehow invites the President to also introduce amendment bills makes as much sense as arguing that the President can partake in the administration of the Judiciary because the Chief Justice’s 125(4) power is given subject to the Constitution.

11. The Wood camp is equally wrong when it suggests that there is “silence” on who is clothed with the power to engage in or undertake those frontend activities that precede the actual constitutional amendment process. The frontend activities are part of the actual amendment process and the bifurcation is needless and, as explained below, creates a nonsensical result. To illustrate very briefly, consider Article 78(1) which says “Ministers of State shall be appointed by the President with the prior approval of Parliament … .” Now, appointing ministers involves seeking resumes, doing background checks, etc. Likewise, to carry out Parliament’s approval power necessarily involves frontend activities, including background checks, office visits by the nominees, consulting with constituents with relevant knowledge, etc. It will be absurd to suggest that the Constitution is silent on who is clothed with the power to undertake these frontend appointment and approval activities. No Constitution can accommodate such minutiae. It is to avoid such absurd and narrow interpretations of the Constitution that Article 297(c) states that “where a power is given to a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act of thing.”

12. The consequence of the majority’s holding is that the President can initiate the amendment process and draft bills, as the CRIC has done. What then is role of Parliament in amending entrenched provisions of the Constitution? Article 290 is in this form:

i. “A bill for the amendment of an entrenched provision shall, before Parliament proceeds to consider it, be referred by the Speaker to the Council of State for its advice and the Council of State shall render advice on the bill within thirty days after receiving it.

ii. The bill shall be published in the Gazette but shall not be introduced into Parliament until the expiry of six months after the publication in the Gazette under this clause.

 iii. After the bill has been read the first time in Parliament it shall not be proceeded with further unless it has been submitted to a referendum held throughout Ghana and at least forty percent of the persons entitled to vote, voted at the referendum and at least seventy-five percent of thepersons who voted cast their votes in favour of the passing of the bill.

iv. Where the bill is approved at the referendum, Parliament shall pass it.

13. Under the reasoning of the Supreme Court, a Presidential initiated amendment bill must be referred by the Speaker to the Council of State for advice. Parliament cannot consider it before then. The bill shall be published in the gazette and cannot be introduced in Parliament for a 6-month period. After the 6-months period, it goes through a first reading in Parliament. Then a referndum is held. In this rendition of the Constitution, Parliament has no role whatsoever, except for the duty to pass a bill, previously approved at a referendum. This, of course, cannot be and is not the proper role of Parliament envisaged by Article 289. The absurd result flows only from the very narrow interpretation that the Supreme Court has errenously given to Article 289(1).

14. It is this outcome that probably pricked the conscience of the Chief Justice when she wrote “but, even more crucially, the necessary constitutional amendments that would tighten all the loose or  open ended constitutional provisions, and provide for such critical matters as who is qualified to engage in front end activities, who may initiate and propose draft amendment bills are perhaps called for. In the words of the Plaintiff, the “when who, how, how often and by whom”, are crucial matters that should not be left to chance, conjecture or speculation.” With respect to the Chief Justice, no amendment is needed. What is needed is for Article 289(1) to be properly, rather than narrowly, construed.

15. On the issue of whether the President’s power can be effectuated with commissions, two camps emerged. The Benin camp, which holds that “because he has the right to initiate an amendment to the Constitution, he can use any administrative vehicle, including commission of inquiry. In concurrence, Justice Gbadegbe, adds that, “A comission can be used because this is a matter of public interest. If it an issuse of public interest then it is not suject to judicial review because of the political doctrine question.” Justice Akamba is emphatic that Article 278 provides the President an all purpose commissioning power.

16. The Wood camp, and she is alone on this, does a more serious job of analyzing the commissioning power. She analyzes the nature, function and character of the Commission, benchmarked against the Constitution, and concludes that “the use of a Commission is improper, inappropriate and unsuitable. Neverthless, it is notunconstitutional because the President “met all the legal requirements in setting it up.” Why is the use of such Commissions improper, inappropriate and unsuitable yet not unconstitutional? Only Chief Justice Wood knows and she does not tell us in the opinion.

17. As one example of the issues that may have troubled the Chief Justice, Article 281(2) states that “Subject to the provisions of this Chapter, the Rules of Court Committee established under article 157 of this Constitution shall, by constitutional instrument, make rules regulating the practice and procedure of all commissions of inquiry and for appeals from commissions of inquiry.” The reader should ask what rules regulated the practice and procedure of the Constitution Review Commission? On the commissioning power of the President, I cannot do better than restate Justice Dotse’s powerful words, “With those basic constitutional principles in view, it is clear that, for example the President even if he is satisfied that it is in the public interest to appoint a Commission of Inquiry to inquire into the issues of replacement or revision of the voters register may not do so because the Constitution 1992 has reserved those functions to another constitutional body created under the Constitution 1992, and that is the Electoral Commission.”

18, To sum up, the Court’s majority opinion is pregnant with fundamental and inadvertent errors, including:

i. The power to initiate ordinary legislative bills is not portable and cannot be used to initiate bills to amend the Constitution.  A bill to amend the Constitution is sui generis and is different from an ordinary legislative bill. To allow the use of “bill” in both chapters 10 and 25 to cloud this fundamental distinction is an elementary and embarrassing error that our Supreme Court Justices must avoid, especially where the Court quotes Tuffuor v Attorney General [1980] GLR 637 where Justice Sowah highlights that “a written constitution such as ours is not an ordinary Act of Parliament.”

ii. Parliament’s power to amend the Constitution is not part of its general power to legislate under Chapter 10. Rather, it is a specific grant of power that must be exercised in only the manner prescribed by Chapter 25.

iii. Article 289 is not silent on who can initiate amendments to the Constitution. If Parliament has the power to amend the Constitution, it follows that it has the power to do everything that is necessary and incidental to the exercise of that power, including initiating amendments.

iv. The President’s Article 278 power is not an all-purpose commissioning power. The balance of Chapter 23 defines and narrows the contours of this power. So too do the principles underlying the Constitution, such as separation of powers, limit the power.

v. Without prejudice to (iv) above, the President has no power to set up a Commission to operate under its own rules. It is only the Rules of Court Committee that can make rules to govern the operations of Commissions.

vi. To the extent that the CRC operated under its own rules, in clear violation of Article 281(2), the President’s use of a Commission is not just improper, inappropriate and unsuitable, it is also clearly unconstitutional.

vii. The phrase “subject to the Constitution” is not a signal to comb the Constitution to find extra powers for the President. Article 289(1) is not subject to Article 106(14). Nor is it anyway connected to Article 278.

viii. The President has no “right” to initiate amendments to the Constitution. He is only given a duty (not power) to assent to amendment bills.

ix. The essence of seperation of powers is that the other branches of government are precluded from exercising powers assigned to another branch. The grant of power to a particular branch need not come with specific prohibitions of the other branches. If the power has not been granted to a branch then that branch is prohibited from exercising that power. Unlike citizens who have the right to do everything that is not prohibited by law, government has no power to do anything unless it is specifically empowered by the people.

x. The political doctrine question is irrelevant in matters bordering on amending the Constitution and certainly does not clothe the President with unfettered powers to investigate any and all issues of public interest.

xi. The President’s Article 58(2) power to execute and maintain the Constitution is purely executive in nature and has nothing to do with amending the Constitution.

19. Whether it is desirable to invoke the Supreme Court’s review jurisdiction depends on (a) the discovery of a new and important matter of evidence which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given; (b) exceptional circumstances which have resulted in miscarriage of justice.

20. Although I have now discovered that Chief Justice Wood interacted with members of the Constitutional Review and Implementation Committee on April 30, 2013 and commended the Constitution Review Commission (CRC) for engaging in comprehensive consultation during the review process, I believe more careful due diligence would have allowed me to discover this important piece of information (see http://www.ghananewsagency.org/politics/judiciary-must-be-accountable-to-the-people-59596). Had I discovered this information prior to or during the pendency of litigating the constitutionality of the CRC, I would, no doubt, have raised an objection to the Chief Justice sitting on and selecting the panel to decide the case.

21. Where, as here, the Court’s opinion is per incuriam, the ordinary course of action is to seek review of the opinion. However, given the character of the Court, I believe it serves no useful purpose to seek a review and a correction of the record. Further, Justice Dotse’s thorough and incredibly illuminating dissent should suffice to prevent the reader from accepting, or at least not questioning, the majority’s flawed reasoning.

22. Going forward, Parliament, if it is truly the desire of the people to periodically review and amend the Constitution, should first amend the Constitution to provide for such a framework. The ensuing Constitutional Review Act should carefully delineate the events that can trigger a review (e.g., every quarter of a century), membership of the commission, the terms of reference, function, mode of operation, funding and audit of the Commission, the submission and publication of the Commission’s report, procedures for transmittal of draft bills to Parliament, procedures for conduct of any referendum, etc.