Authored By: Joycelyn Appau-Asumeng
Presbyterian University Ghana
ABSTRACT
The Role of Judicial Review as a Constitutional Safeguard in Ghana: Striking a Delicate Balance between Legislative and Judicial Powers in a Democratic System. Judicial review derives its powers from Articles 2 and 130 of the 1992 Constitution of Ghana, enabling the Supreme Court to ascertain the constitutionality of laws and actions by state agencies.2
Cases such as Tuffuor v Attorney-General [1980] GLR 6373and New Patriotic Party v Attorney General (CIBA case) [1997-98] 1 GLR 3784underscore the significance of judicial review in preserving constitutional parameters and fundamental rights. It also knows that courts can hurt their independence if they use their power in the wrong way.
The article ends by saying that judicial review is an important part of making the rule of law stronger in Ghana. It makes sure that the judiciary and the legislature stay within their proper roles and work together, which improves democratic governance.
INTRODUCTION
Judicial review refers to the power of the Judiciary in a constitutional government to review the decisions and actions of the other arms of government as to their constitutional propriety (Kline, 2000)5.
Judicial review anchors separation of powers within constitutional limits by ensuring that governmental powers thus granted are exercised judiciously and within the set boundaries. Apart from limiting the powers of government, it is important to ensure that powers as granted are utilized judiciously. The courts are thus enjoined to review the decisions of the executive and the legislature to determine the constitutionality or otherwise of their actions. Just like separation of powers, judicial review in constitutional democracies is meant to safeguard the liberties of the people (Bradley & Ewing, 1997)6.
This doctrine traces its modern roots to Marbury v Madison (1803), where the Inited states supreme court established the judiciary’s duty to invalidate unconstitutional laws.7 Ghana integrated this principle into successive constitutions, influenced by British common law and its own constitutional development, culminating in the 1992 Constitution.
It comprises the power to review and interpret the constitution, acts of parliament, to determine the constitutionality or otherwise of such acts, and to declare any law null and void which is deemed repugnant and inconsistent with the constitution. The courts are also enjoined to review the decisions of the executive and the legislature to determine the constitutionality or otherwise of their actions.
The main question of the research is: How does judicial review keep the powers of the legislature and the judiciary in Ghana’s democratic system in check? This article contends that judicial review in Ghana does not undermine parliamentary authority; rather, it fortifies democratic governance by preserving the equilibrium between the legislature and the judiciary. The article analyses the role of judicial review as a balancing mechanism within Ghana’s constitutional framework, utilising essential constitutional provisions and significant cases such as Tuffuor v. 7 William Marbury v. James Madison, Secretary of State Attorney-General8and New Patriotic Party v. Attorney-General (CIBA case)9, in conjunction with recent rulings.
THE LEGAL FRAMEWORK FOR JUDICIAL REVIEW IN GHANA
The 1992 Constitution10, which is the highest law in Ghana, is the basis for judicial review in the country. Article 1(2) says, “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void11.” This means that the Constitution is the highest law in Ghana, and any law that goes against it is not valid.
Article 2(1)12 clearly says that judicial review is possible. It says that “A person who alleges that – (a) an enactment or anything contained in or done, under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.” The framers wanted to make it easy for all citizens to enforce the Constitution, which is why this broad locus standi exists.
Article 130(1)(a) gives the Supreme Court sole authority over “all matters relating to the enforcement or interpretation of this Constitution.” 13This means that the Court is the last word on constitutional issues. This jurisdiction strengthens the separation of powers by making sure that Parliament, which is the highest law-making body, stays within the limits set by the Constitution and that the judiciary protects the Constitution.
The doctrine of separation of powers, though not expressly codified, is implicit throughout the 1992 Constitution.14 It makes sure that the legislature makes laws, the courts interpret them, and the executive carries them out. Judicial review is the way to keep the legislative and executive branches from going too far outside of the Constitution.
Importantly, the Constitution also embraces the doctrine of checks and balances. While judicial review subjects Parliament’s enactments to constitutional scrutiny, the judiciary itself is not immune from checks. For example, judges are bound by legal principles such as judicial restraint and the presumption of constitutionality,15 which require the courts to respect the legislature’s role as representative of the people, intervening only where a clear constitutional breach is established.
This legal framework places judicial review at the core of Ghana’s constitutional democracy, establishing the basis for a comprehensive jurisprudence that reconciles legislative power with judicial autonomy.
JUDICIAL INTERPRETATION AND IMPORTANT CASES
The courts give meaning and power to the constitutional provisions on judicial review by interpreting them. Over the years, the Supreme Court of Ghana has made many important decisions that have set the limits of judicial review and made the balance between legislative and judicial powers clearer.
Tuffuor v. Attorney-General [1980] GLR 637 (SC)16 is one of the first and most important cases. The Court ruled in this case that Parliamentary actions that contravene the constitution are void, upholding the status of Chief Justice (Justice Apaloo) who had been subjected to vetting by Parliament, deeming it an unconstitutional process under the 1979 constitution of Ghana17. The court affirmed its jurisdiction to hear the case the case and found that any Ghanaian citizen has standing to bring such a case to protect the constitutional order.
The Supreme Court ruled in New Patriotic Party v. Attorney-General (CIBA case) [1997–98] 1 GLR 37818 that corporate bodies, including political parties could file a constitutional challenge in the supreme court under Article 2 of the 1992 constitution of Ghana19. It broadened the scope of who can bring a constitutional challenge, cementing the right of corporate bodies to enforce the constitution under Article 2.
Sam (No. 2) v Attorney General [2000] SCGLR 305, the supreme court held that any Ghanaian citizen has the standing (locus standi) to invoke the supreme court’s original jurisdiction to seek an interpretation of the constitution or a declaration that an enactment is inconsistent with the constitution, even without showing a personal interest in the matter.20
These cases demonstrate how the Supreme Court has used judicial review both to assert constitutional supremacy over Parliament and to check executive and administrative actions. At the same time, they reveal the challenges inherent in balancing respect for democratic processes with the need to uphold constitutional principles.
BALANCING LEGISLATIVE AND JUDICIAL POWERS
The interaction between Parliament and the judiciary in Ghana’s constitutional order is defined by a delicate balance. On the one hand, Parliament embodies the sovereign will of the people through its legislative mandate. On the other hand, the judiciary safeguards the supremacy of the Constitution, ensuring that Parliament does not overstep its constitutional boundaries. Judicial review is the primary mechanism through which this balance is achieved.
The Supreme Court can use judicial review to throw out any statute or conduct that goes against the Constitution. This stops Parliament from making legislation that go against the rights or principles of the Constitution. For instance, in the CIBA case21, the Court said that parts of the Political Parties Law went against the Constitution. This showed that constitutional principles are more important than laws passed by the legislature. These rulings show that judicial review is a way to fix things, not a way to take away Parliament’s power.
At the same time, the courts have recognised the need for judicial restraint. They often apply the presumption of constitutionality, meaning that legislation is assumed valid unless proven otherwise. This doctrine reflects respect for Parliament’s democratic mandate, ensuring that judicial review is exercised only where clear constitutional violations exist. In Republic v High Court (Commercial Division), Accra; Ex Parte Opuni [2018] SCGLR 65122, for instance, although the Court intervened to protect fair trial rights, it refrained from questioning Parliament’s authority to create the laws under which the prosecution was initiated.
Parliament also retains tools to respond to judicial review. It can amend laws or even initiate constitutional amendments where it disagrees with judicial interpretations, provided such amendments comply with entrenched constitutional provisions. This iterative process illustrates that judicial review does not result in judicial supremacy but in an ongoing dialogue between Parliament and the judiciary.
Judicial review in Ghana is a way to keep things in check: it puts constitutional boundaries on what Parliament can do while still accepting that Parliament is the body that makes laws. The resulting balance protects both the supremacy of the Constitution and the legitimacy of democracy.
CRITICAL ANALYSIS AND CHALLENGES
First, judicial review protects the Constitution’s power. The concept makes ensuring that Parliament stays within constitutional limitations by letting judges throw out laws that are not constitutional. The cases of Tuffuor v. Attorney-General and CIBA show how the courts have always defended the Constitution against attacks from lawmakers.
Second, judicial review safeguards basic rights and freedoms. In Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 770,23 for instance, the Supreme Court stepped in to protect the integrity of the electoral process, which is necessary for people to enjoy their political rights under the Constitution.
Third, judicial review upholds the rule of law by holding all public officials, including Parliament, accountable to the Constitution. This enhances public confidence in democratic governance and prevents arbitrary law-making.
CHALLENGES AND CRITICISMS
Judicial review has been criticised, even if it has some good points. Judicial activism is a big worry. Some people say that courts go too far when they utilise their own opinions instead of the opinions of the legislature. In NDC v Attorney-General & Electoral Commission [2020]24, critics contended that the Court conferred undue discretion upon the Electoral Commission, prompting enquiries regarding the judiciary’s failure to fulfil its duty of rigorous constitutional oversight.
Another problem is finding the right balance between judicial independence and accountability. Judges should be able to interpret the Constitution without any outside interference from politicians. But when judges throw down laws passed by Parliament, people may think that this goes against the will of the people, especially when the verdicts seem to have political connotations.
Additionally, there are practical challenges. Judicial review cases often involve delays and technical complexities, which can slow governance processes. The frequent resort to judicial review in electoral disputes also risks politicising the judiciary and eroding public trust in its impartiality.
RECENT DEVELOPMENTS AND WAY FORWARD
Judicial review is still an important aspect of Ghana’s constitutional democracy, especially in the Fourth Republic. The Supreme Court has had to settle very important cases in the last few years that put the balance between legislative power and judicial oversight to the test.
One important case is Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 77025, in which the Court told the Electoral Commission to remove names from the voters’ register that had been added incorrectly. This ruling not only reinforced the court’s responsibility in preserving constitutional requirements in elections, but it also showed that the judiciary was willing to step in and make important decisions about things that directly affect the legitimacy of Parliament.
The Court also agreed with the Commission’s decision to make a new voters’ register in National Democratic Congress v. Attorney-General & Another [2020]26. Some people in the public and civil society, however, criticised the verdict, saying that the Court had given the Commission too much freedom, which made the review process less strict than it should have been.
Three important steps are needed to make the balance between Parliament and the courts stronger. First, the courts must continue to be careful and only get involved when there are clear violations of the Constitution. This will help people trust that the courts are fair. Second, Parliament needs to make sure that laws are written better and that the Constitution is followed so that there aren’t as many pointless fights with the courts. Finally, civic education needs to be improved so that people see judicial review as a fundamental protection for their rights and the integrity of democratic governance, not as a threat to democracy.
CONCLUSION
Judicial review in Ghana is firmly based on the 1992 Constitution 27and has become an important tool for protecting the supremacy of the Constitution. Judicial review makes sure that all public authorities follow the rules set down in the Constitution by giving the Supreme Court the right to look at the actions of Parliament and other state institutions. Landmark decisions like Tuffuor v.
Attorney-General28 and the CIBA case 29have shown that the judiciary is responsible for upholding constitutional principles. More recent cases like Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 770 30show that judicial review is still important in disputes over elections and governance.
The analysis reveals that judicial review does not undermine parliamentary sovereignty but complements it by ensuring that the laws enacted reflect constitutional values and protect fundamental rights. Nevertheless, challenges such as accusations of judicial activism, tensions between independence and accountability, and the risk of politicisation highlight the need for cautious and principled application of the doctrine.
In conclusion, judicial review remains indispensable to Ghana’s democratic system. It is not designed to weaken Parliament but to maintain harmony between the legislature and the judiciary under the overarching supremacy of the Constitution. As Ghana’s democracy matures, the effectiveness of judicial review will depend on the willingness of both institutions to respect their constitutional limits and on the continued trust of citizens in the judiciary as the ultimate arbiter of constitutional disputes.
TABLE OF CASES
- Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 770. • Marbury v Madison 5 US (1 Cranch) 137 (1803).
- National Democratic Congress v Attorney-General & Electoral Commission [2020] GHASC 25.
- New Patriotic Party v Attorney-General (CIBA case) [1997–98] 1 GLR 378. • Republic v High Court (Commercial Division), Accra; Ex Parte Opuni [2018] SCGLR 651. • Sam (No. 2) v Attorney General [2000] SCGLR 305
- Tuffuor v Attorney-General [1980] GLR 637 (SC).
TABLE OF LEGISLATION
- Constitution of the Republic of Ghana, 1992
- Constitution of the Republic of Ghana, 1979
Bibliography
Books
- K Gyandoh and A Griffiths, The Constitution of Ghana: An Introduction (2nd edn, Ghana Publishing 1972).
- Kline,[2000]
- Bradley and Ewing; 1997
Journal Articles
- H Kwasi Prempeh, ‘Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa’ (2006) 80(4) Tulane Law Review 1239–1324. • E K Quashigah, ‘Judicial Activism and the Enforcement of the Constitution in Ghana’ (2007) 19(2) African Journal of International and Comparative Law 355.
- H Kwasi Prempeh, ‘Presidentialism in Africa: The Case of Ghana’ (2008) 16(2) Journal of Democracy 125.
1 LLB Student, Presbyterian University, Ghana.
2 1992 constitution of Ghana
3 Tuffuor v Attorney-General [1980] GLR 637
4 New Patriotic Party v Attorney-General (CIBA case) [1997-98] 1 GLR 378
5 Kline, 2000
6 Bradley and Ewing; 1997
7 William Marbury v. James Madison, Secretary of State of the United States 5 U.S. 137 (more) 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352; 1997; Eastman, 2005
8 Tuffuor v. Attorney-General
9 New Patriotic Party v. Attorney-General (CIBA case)
10 1992 constitution of Ghana
11 Ibid, Art 1(2)
12 Ibid, Art 2(1)
13 Ibid, Art 130(1)(a)
14 H Kwasi Prempeh, ‘Presidentialism in Africa: The Case of Ghana’ (2008) 16(2) Journal of Democracy 125.
15 E K Quashigah, ‘Judicial Activism and the Enforcement of the Constitution in Ghana’ (2007) 19(2) African Journal of International and Comparative Law 355.
16 Tuffuor v. Attorney-General [1980] GLR 637 (SC)16
17 1979 constitution of Ghana
18 New Patriotic Party v. Attorney-General (CIBA case) [1997–98] 1 GLR 378
19 Art,2 of the 1992 constitution
20 Sam (No. 2) v Attorney General [2000] SCGLR 305
21 CIBA Case
22 Republic v High Court (Commercial Division), Accra; Ex Parte Opuni [2018] SCGLR 651
23 Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 770
24 NDC v Attorney-General & Electoral Commission GHASC 25 [2020]
25 Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 770
26 National Democratic Congress v. Attorney-General & Another [2020]
27 the 1992 Constitution
28 Tuffuor v. Attorney-General
29 the CIBA case
30 Abu Ramadan & Nimako v Electoral Commission (No 2) [2016] SCGLR 770
