New Patriotic Party v Attorney-General [1993-94] 2 GLR 35

• Case Title and Citation

New Patriotic Party v Attorney-General [1993-94] 2 GLR 35

• Court Name and Bench

Court: Supreme Court of Ghana

Judges: Archer CJ, Adade Francois JSC., Abban JSC., Amua-Sekyi JSC., Aikins JSC., Bamford-Addo JSC., Hayford-Benjamin JSC., Ampiah JSC.

• Date of Judgment

The judgment was given on 8th March, 1994.

• Parties Involved 

The plantiff was the New Patriotic Party, one of the registered political parties in Ghana, who sought a declaration that the making of 31st December a public holiday to commemorate a successful coup d’ etat was in contravention of Articles 3, 35(1) and 41(f) of the 1992 Constitution of Ghana. The other party is the Attorney-General of Ghana and he was made party due to the fact that an action was being brought in accordance with the Article 2 of the 1992 Constitution which invokes the jurisdiction of the Supreme Court when constitutional matters demand interpretation and for such interpretation, the Attorney-General, by virtue of Article 88 of the 1992 Constitution, is the rightful party to serve as defendant to the suit as it is against the State.

• Facts of the Case

Pursuant to the 31st December, 1981 coup, the Provisional National Defence Council, hereinafter referred to as PNDC, the military regime that took the reins of the government, declared 31st December a statutory public holiday. It was financed with public funds and duly celebrated every year. A civilian government was then elected into office on 7th Jnuary, 1993. This civilian government then announced that 31st december 1993 will be a statutory public holiday to commemmorate the coup. The plaintiff brought an action  under article 2(1) of the Constitution 1992 against the Attorney-General for a declaration that the public celebration of the coup d’etat of 31 December out of public funds was inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 particularly articles 3(3)-(7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the celebration and refrain from carrying out the celebration with public funds

• Issues Raised in the case

1. Whether or not the Supreme Court had jurisdiction to entertain the action 
2. Whether or not the Directive Principles of State Policy were justiceable
3. Whether or not the celebration of the 31st ecember coup was justified
4. Whether or not the law making the 31st ecember a public holiday was inconsistent with the letter and spirit of the 1992 Constitution
5. Whether or not an application for public funds to celebrate the 31st December coup would be unconstitutional 

• Arguments of the Respective Parties

The Plaintiff (New Patriotic Party)

The plaintiff contended that the public celebration of the anniversary of the coup out of public funds was inconsistent with the letter and spirit of the Constitution, especially Article 3 which talks about the defence of the Constitution. oppled the N krumah regime was illegal. So was the coup of 13 January 1972 which overthrew the Constitution, 1969 and ousted the Busia regime from office. and the revolution of 31 December 1981 that overthrew the Constitution, 1979 and toppled the Limann regime was also illegal. Learned counsel intimated that he was not very much concerned with the palace coup of 5 July 1978 and the uprising of 4 June 1979, for those coups were directed against military regimes which had illegally enstalled themselves in power. But learned counsel for the plaintiff contended that the indemnity, as provided in the transitional provisions of the Constitution, 1992, should not prevent this court from holding that all those three coups were illegal and therefore unconstitutional.

The plaintiff relied on the Directive Principles of State Policy. These are found in Chapter 6 of the 1992 Constitution and ordinarily, serve as a guide on how policies should be formulated for the development of the state, as well as a guide to the citizenry, Parliament and the Judiciary on the interpretation of the Constitution. 

The plaintiff further came in defence of Article 41(f) of the 1992 Constitution, which grants citizens the duty to combat the misuse of public funds.

The New Patriotic Party sought two declarations from the court; that the public celebration of 31st December and the funding of such from the public funds is contrary to the letter and spirit of the Constitution and a consequential order prohibiting the financing of the celebration from public funds. 

Pusrusant to seeking these declarations, the plaintiffs invoked the original jurisdiction of the Supreme Court under Articles 2(1) and 128 of the 1992 Constitution of Ghana, which is to interprete the Constitution. 

The defendant (Attorney-General)

The defendant contended that the celebration could not have been said to be overthrowing the Constitution and thus, cannot be deemed to have contravened Article 3(3) of the 1992 Constitution. Defendant further claimed that the celebration was for good works and value brought aboout by the coup, which served as the underpinning of the current government (at the time of ruling), which sought to continue these good works and not the coup itself. They argued that the President was also the leader of that 31st December coup and intended to continue its works. 

He also contended that moneys were legally and properly appropriated under the 1993 budget for the celebration of the event. The defendant also stated that the case of the plaintiffs was an attempt to challenge the validity of the transitional provisions of the 1992 Constitution, which ordinarily are not to be in contention in the court.Under Section 34 of the Transitional Provisions, it is stated that the court is not to enquire into the overthrow of the government in power before the Provisional National Defence Council, thereby stripping the Supreme Court of jurisdiction to entertain the action.

The defendant also contended that ordering that 31 December be not observed as a public holiday, and celebrated out of public funds, is tantamount to issuing all injunction against the President or the State, and that this court cannot, and should not, issue such an injunction. He cited in support of this contention the American case of State of Mississippi v Johnson, 71 US 475 (1867), where the court stated that the President cannot be restrained by injuction from carrying out an Act of Congress.

He also stated that the argument in contention is a political one and should not be entertained by the court, as th at would violate the concept of Separation of Powers within our government institution.

• Holding of the Court

1. The Supreme Court had jurisdiction to entertain the matter.
2. The Directive Principles of State Policy were justiceable
3. The celebration of the 31st December coup was not justified
4. The law making the 31st December a public holiday is inconsistent with the 1992 Constitution
5. The application for public funds to celebrate the 31st December coup was unconstitutional

• Ratio Decidendi

The Supreme Court had jurisdiction because by virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana had the constitutional right to protect the constitutional order established by the Constitution so that it was not abolished or sought to be abolished. The citizen had to exercise that right by seeking an interpretation as to the meaning and effect of a particular provision or provisions of the Constitution. The issue in this matter raised a justiceable issue which fell under Article 2 of the 1992 Constitution of Ghana. 

The political question is inapplicable in Ghana due to the fact that the Constitution in itself is a political document. Thus, if the court decides not to handle political questions or issues, it risks abandoning its Constitutional mandate and duty and this is inexcusable.

The Directive Principles of State Policy are justiceable due to the fact that the Constitution as a whole is justiceable and in the absence of any text in the Constitution  that states that the Directive Principles of State policy are not justiceable, they are deemed to be justiceable. These principles are there to facilitate the performance of duties given by the Constitution.

The defence of the Constitution under Article 3 did not have to necessarily be a defensive action against persons. In the instant case, , since the celebration of 31 December as a public holiday with carnivals, route marches, etc would have the tendency to glorify the coup d’etat of 31 December it would not only be unfair to those who were adversely affected by the coup but had become impotent to resort to court action by reason of the indemnity provision of section 34(2) of the transitional provisions of the Constitution, 1992 but would weaken the people’s resolve to enforce their right or perform their duty under article 3(4), and would in the result undermine and subvert the Constitution, 1992. Accordingly, even though the celebration might not be a violent means of subverting the Constitution, 1992, it surely was an unlawful means under article 3(4)(a). Such conduct would clearly be inconsistent with the duty to defend the Constitution and would be clearly against the letter and spirit of the Constitution. The defendant’s claim that the celebration would be for the good works and values brought about by the coup could not be a constitutional justification for elevating an event of non-national interest into a national one on which to expend national resources. Accordingly, therewas no logical reason in the insistence that 31 December be celebrated as a national holiday and financed out of public resources.

With regards to funding, with the Contingency Fund and Consolidated Funds set by the Constitution, it has expressly stated that the application or enforcement of the expenditure should not be inconsistent with any provision of the Constitution. Thus, with the celebration deemed unconstitutional, it would be unlawful to allocate public funds to it. 

• Conclusion & Observation

This case clearly shows that the Supreme Court of Ghana and Ghana’s justice system upholds the supremacy of the Constitution and would go the length to ensure that it is protected. Inasmuch as the making of 31st December a public holiday did not constitute a coup in itself, I am of the view that allowing it to be celebrated would have glorified the concept of coup d’etat in the eyes of the citizenry. Therefore, I agree with the holding of the court in this case.