June 12, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In this original jurisdiction case, Chief Justice Akuffo, writing for a unanimous Supreme Court panel, interpreted Article 252(2)’s mandate that not less than five percent of the “total revenues of Ghana” be allocated to the District Assemblies Common Fund (DACF). The Court rejected the Attorney-General’s reliance on Article 176(2) to let Parliament define total revenue, explaining Article 176 addresses custody and retention, not inclusion for DACF calculations. Adopting a purposive, living constitutional approach, the Court held that total revenue means funds available for the Government’s discretionary use in the year. Petroleum revenue constituting the Annual Budget Funding Amount and non-tax revenue paid to central government must be included; deferred Ghana Petroleum Funds, foreign loans and grants tied to specified uses, retained internally generated funds, and levy-based specific-purpose funds are excluded. The Court declared unconstitutional Act 947’s attempt to cap DACF by treating it as a statutory earmarked fund and ordered strict compliance with Article 252(2) as construed.
JUDGEMENT
AKUFFO CJ:-
Background
By a Writ of Summons, issued 27th December, 2017, the Plaintiffs suing in their capacity as citizens of Ghana, for the interpretation and enforcement of the Constitution, pursuant to articles 2(1)(b) and 130(1)(a), claimed the following reliefs from this Court:
“1. A declaration that upon a true and proper interpretation of article 252 clause 2 of the Constitution, neither Parliament nor the Minister responsible for Finance may allocate an amount that is less than five per cent (5%) of the total revenues of Ghana to the District Assemblies Common Fund;
“2. A declaration that upon a true and proper interpretation of article 252 clause 2 of the Constitution, sections 3(2), 3(5) and 7 of the Earmarked Funds Capping and Realignment Act, 2017 (Act 947) and Section 126(2) of the Local Governance Act, 2016 (Act 916), to the extent that they purport to limit the proportion of revenue to be allocated to the District Assemblies Common Fund to tax revenue and not total revenue, are inconsistent with and in contravention of the Constitution and are thus null and void and of no effect whatsoever;
“3. A declaration that the exclusion of the District Assemblies Common Fund in the disbursement of benchmark revenue from oil operations as provided for under sections 3, 16 and 21 as well as the First Schedule of the Petroleum Revenue Management Act, 2011 (Act 815) as amended is unconstitutional and therefore null and void;
“5. Any other order or orders as this Honourable Court may deem fit in the circumstances.”
The facts giving rise to this action are common cause between the parties and are coherently and concisely set out in the Defendant’s Statement of Case as follows:
a. Article 252(1) of the 1992 Constitution established the District Assembly Common Fund (DACF) and Article 252(2) mandates Parliament to make annual provision for the allocation of not less than five percent (5%) of the total revenue of Ghana to District Assemblies for development, to be paid into the District Assemblies Common Fund (hereinafter referred to as ‘the DACF’) in quarterly installments.
b. Towards the implementation of the provisions of Article 252, Parliament passed the District Assemblies Common Fund Act, 1993 (Act 455), Section 17 of which defined total revenue as revenue collected by or accruing to the Central Government other than foreign loans, grants, non-tax revenue and revenues already collected by or for District Assemblies under any enactme