For many years, 31st December was observed in Ghana as a public holiday.

That observance was later declared unconstitutional by the Supreme Court in what has come to be known as the 31st December Case. While the decision itself is familiar to many, the reasoning behind it is less often revisited, and for some, not fully remembered.

This article does not defend coups d’état, nor does it question Ghana’s commitment to constitutional democracy. Rather, it revisits the constitutional reasoning adopted by the Court, to ask whether it was internally consistent, particularly in light of the Constitution’s own provenance and subsequent constitutional practice.

How 31st December became a public holiday

On 31st December 1981, a coup d’état led by Flight Lieutenant Jerry John Rawlings overthrew the 1979 Constitution and the civilian government of Dr. Hilla Limann. The coup ushered in the Provisional National Defence Council (PNDC), a revolutionary regime which exercised both legislative and executive authority.

In the exercise of those combined powers, the PNDC declared 31st December a public holiday, to commemorate what it described as a revolution. The holiday was observed annually throughout the PNDC era.

Following the return to constitutional rule under the Constitution of the Republic of Ghana, the holiday continued to be observed, including during the early years of democratic governance.

It was in this context that the continued celebration of 31st December as a public holiday was challenged before the Supreme Court.

The Supreme Court’s decision

The challenge was premised on the argument that the use of public funds to celebrate the overthrow of a constitutional order was inconsistent with the spirit of the 1992 Constitution, which is committed to constitutionalism, democracy, and the rule of law.

The Supreme Court upheld the challenge. It held that the continued celebration of 31st December as a public holiday, funded by public resources, contravened the spirit of the Constitution, and it accordingly declared the holiday unconstitutional.

The moral impulse behind the decision is understandable. Ghana’s constitutional order rightly rejects unconstitutional changes of government. However, constitutional adjudication requires not only fidelity to values, but also analytical coherence.

It is that coherence which invites closer examination.

The overlooked constitutional provenance

A critical background fact is often omitted from discussions of the case.

The 1992 Constitution itself is contained in the Schedule to PNDC Law 282 (PNDCL 282). It was promulgated under the authority of the PNDC and signed into law by Chairman Rawlings, the same individual who led the 31st December 1981 coup.

This historical and legal fact has never been treated as constitutionally problematic. On the contrary, the Constitution has been fully accepted, operationalised, and celebrated as the supreme law of the land.

That acceptance raises a legitimate question:

If the Constitution’s PNDC provenance does not taint its legitimacy, why should the commemoration of a date associated with that same historical transition be uniquely unconstitutional?

Public funds and constitutional acceptance

The issue becomes sharper when public funding is considered.

Under the 1992 Constitution, all three arms of government were established:

• the Executive,
• Parliament, and
• the Judiciary.

All of these institutions, including the courts and the Supreme Court itself, are funded entirely by public funds appropriated under the Constitution. Judges, ministers, Members of Parliament, and public officers all receive their emoluments from the Consolidated Fund.

If the use of public funds under a constitutional order emerging from a PNDC legal process is constitutionally acceptable for:

• governance,
• adjudication,
• and the daily operation of the state,

It becomes difficult to argue that the same public funds become constitutionally offensive solely because they support a commemorative holiday.

Public funds are constitutionally neutral; what matters is authorisation and legality, not symbolism alone.

Constitution day and national elections

State practice since 1992 reinforces this point.

7th January is celebrated as Constitution Day, with public funds expended on official ceremonies and commemorations. The Constitution celebrated on that day is the same Constitution scheduled to PNDCL 282.

In addition, Ghana has conducted multiple presidential and parliamentary elections under the 1992 Constitution, all financed by substantial public expenditure. Elections are celebrated as the highest expression of constitutional democracy, notwithstanding the Constitution’s historical pathway.

No one suggests that these elections offend the spirit of the Constitution because of the Constitution’s PNDC provenance. On the contrary, they are seen as affirmations of constitutional legitimacy.

The problem of selective symbolism

Placed side by side, a difficulty emerges.

Public funds are constitutionally acceptable when used to:

• operate state institutions,
• pay public officers,
• celebrate Constitution Day,
• and conduct national elections,
• all under a Constitution born through a PNDC enactment.

Yet the same public funds were held to be constitutionally impermissible when used to commemorate 31st December, solely because of its historical symbolism.

That distinction is not grounded in constitutional text or structure. It is a symbolic judgment, not a doctrinal one.

What could have been said instead

None of this means that 31st December had to remain a public holiday. Parliament was under no constitutional obligation to preserve it. It could have been repealed, replaced, or allowed to fade into history as a matter of policy choice.

What is open to question is the elevation of that policy choice into a constitutional prohibition, based on reasoning that appears selective once the broader constitutional landscape is considered.

The constitution as a prospective and historical document

 A further difficulty with the reasoning in the 31st December Case lies in the temporal reach implicitly attributed to the Constitution. The 1992 Constitution is prospective in character. It seeks to regulate future conduct, entrench democratic governance going forward, and prevent the recurrence of unconstitutional change of government. It does not purport to operate retrospectively so as to forbid the acknowledgment of historical events that predate its coming into force. Condemning unconstitutional takeovers as a matter of constitutional principle is not the same as constitutionally outlawing the remembrance of past political ruptures. The Constitution regulates the future; it does not erase the past.

This understanding is consistent with long-standing Ghanaian constitutional jurisprudence. In Tuffour v Attorney-General, Sowah JSC observed, in substance, that a constitution does not descend from the skies fully formed; it is rooted in, and shaped by, the history of the society that adopts it. The Constitution necessarily embodies that history even as it seeks to order the future. Ghana’s constitutional journey includes both rupture and restoration, and the 1992 Constitution reflects that complex inheritance rather than denying it.

Read in this light, the difficulty with the reasoning in the 31st December Case lies not in its commitment to constitutional democracy—a commitment that is unassailable—but in attributing to the Constitution a retrospective intolerance that it does not claim for itself. Once the Constitution has accepted its own provenance, legitimised institutions born of that transition, and sanctioned the use of public funds for governance, elections, and even the celebration of Constitution Day, it becomes analytically difficult to single out the acknowledgment of one historical moment as constitutionally impermissible.

Courts are sometimes called upon to speak in morally resonant terms, particularly in societies shaped by constitutional disruption. But constitutional interpretation must remain internally coherent and disciplined, lest symbolism eclipse doctrine. Revisiting the reasoning in the 31st December Case is therefore not an exercise in historical nostalgia or political advocacy. It is an invitation to reflect on how concepts such as “the spirit of the Constitution” should be applied with restraint, consistency, and fidelity to the Constitution’s text, structure, and history.

Conclusion

Courts are sometimes called upon to speak in morally resonant terms, especially in societies shaped by constitutional disruption. But constitutional interpretation must remain internally consistent, lest symbolism eclipse doctrine.

Revisiting the reasoning in the 31st December Case is therefore not an exercise in historical nostalgia or political advocacy. It is an invitation to reflect on constitutional coherence, and on how concepts such as “the spirit of the Constitution” should be employed with restraint.

History may be contested. Constitutional reasoning must remain disciplined.

By: Emmanuel Adabayeri

The writer is a lawyer and a constitutional commentator