2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana case concerns a constitutional challenge to the President’s submission to Parliament, and Parliament’s approval, of a Master Facility Agreement (MFA) between the Republic of Ghana and the China Development Bank to finance multi‑sector development projects. The plaintiff alleged violations of Articles 40(a), 57(3), 58(1)-(4), 73 and 108 of the 1992 Constitution and section 18(7) of the Petroleum Revenue Management Act, 2011 (Act 815), arguing the MFA’s clause requiring at least 60% of the loan to be paid to PRC contractors was discriminatory and contrary to Ghana’s national interest. The Court held the action within its original jurisdiction, treated the MFA within Article 73’s international relations ambit, found the 60% PRC‑contractors proviso non‑discriminatory, rejected the Act 815 claim as unfounded, struck out removal‑related allegations under Article 69’s special procedure, and dismissed the suit. A concurring opinion emphasized judicial restraint and political accountability when assessing national interest in executive economic policy.
J U D G M E N T
ATUGUBA, AG. C.J
The plaintiff by its writ claims as follows:
1. “A declaration that the President of the Republic of Ghana acted in breach of his constitutional obligations under article 40(a), 57(3), 58(1)-(4) and 73 of the Constitution 1992 of the Republic of Ghana when he caused to be submitted to the Parliament of the Republic of Ghana for approval the Agreement between the Republic of Ghana and the China Development Bank known as the Master Facility Agreement.
2. A declaration that the purported approval by the Parliament of the Republic of Ghana of the Agreement between the Republic of Ghana and the China Development Bank known as the Master Facility Agreement is of no effect, null and void to the extent that it was introduced in Parliament in breach of articles 57(3), 58(1)-(4) and 108 of the Constitution 1992 of the Republic of Ghana.
3. A declaration that having submitted to the Parliament of the Republic of Ghana for approval the Agreement between the Republic of Ghana and the China Development Bank known as the Master Facility Agreement in breach of articles 57(3), 58(1)-(4) and 108 of the Constitution 1992 of the Republic of Ghana as well as section 18(7) of the Petroleum Revenue Management Act, 2011 (Act 815) the President of the Republic of Ghana has acted in a manner prejudicial or inimical to the economy of the state and has accordingly violated article 69(1) (b) (ii) of the aforesaid Constitution.
4. A further declaration that the President of the Republic of Ghana acted in wilful violation of the oath of allegiance and the presidential oath set out in the Second Schedule and or is in wilful violation of article 58(2) of the Constitution 1992 of the Republic of Ghana when he caused to be submitted to the Parliament of the Republic of Ghana for approval the Agreement between the Republic of Ghana and the China Development Bank known as the Master Facility Agreement.
5. A declaration that having wilfully violated the oath of allegiance and the presidential oath set out in the Second Schedule and is in wilful violation of article 58(2) of the Constitution 1992 of the Republic of Ghana when he caused to be submitted to the Parliament of the Republic of Ghana for approval the Agreement between the Republic of Ghana and the China Development Bank known as the Master Facility Agreement.
6. An order of perpetual injunction restraining the Parliament of the Republic of Ghana from considering and approval the documents