March 15, 2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per DR. S. K. Date-Bah JSC, addressed a constitutional reference from the High Court (Asuman-Adu J.) under Article 130 concerning the Ghana Cocoa Boards use of the Ghana Cocoa Board (Re-Organisation and Indemnity) Law, 1985 (PNDCL 125) during a 19931994 retrenchment. Former employees had sued for payments and benefits following redundancy, and argued that applying PNDCL 125 after the 1992 Constitution came into force violated their rights under Article 24. The Court placed Article 24(3)s protection of union association and collective bargaining within an international labour law context, referencing ILO standards and Ghanas directive principles (Article 40). Adopting a purposive interpretation, the Court held that sections 2 and 3 of PNDCL 125, which allow unilateral disregard of collective agreements and denial of redundancy awards, do not fall within Article 24(4)s limited derogations. It concluded the retrenchment was unconstitutional, noting it had unanimously answered the referred question in the affirmative on 5 March 2013.
DR. DATE-BAH JSC:
Asuman-Adu J. has, pursuant to Article 130 of the 1992 Constitution, referred the following issue to the Supreme Court for determination:
“Whether in view of Articles 1(2), 12(1) and 24(3) and (4) of the 1992 Constitution of the Republic of Ghana, the application of PNDC Law 125 of 1985 to the retrenchment exercise in 1993 to 1994 by the defendant was unconstitutional and for that matter void”.
On 5th March, 2013, this Court unanimously answered this question in the affirmative and indicated that its reasons for this decision would be filed later. Accordingly, there is set out below the said reasons.
The context for the determination of the issue referred is as follows. The issue statedby the learned High Court judge has arisen from two consolidated suits involving former employees of the Ghana Cocoa Board. The plaintiffs in one of the suits have claimed the following relief:
“Payment of balances due them in respect of their being declared redundant between 1993-1994 together with interest at the Bank-lending rate up to date of payment.”
The plaintiffs in the second suit have, in turn, claimed the following reliefs:
“(1) An order directing the defendant to pay the Plaintifs their retrenchment portage at the current rate.
(2) Damages for refusal to pay the said retrenchment on time.
(3) Costs.”
These suits are the consequence of action taken by the defendant in the suits, that is the Ghana Cocoa Board, under the authority of the Ghana Cocoa Board (Reorganisation and Indemnity) Law, 1985 (PNDCL 125). It is the plaintiffs’ contention that the application of this Law to them after the entry into force of the 1992 Constitution was unconstitutional since it infringed their fundamental human rights under article 24 of the 1992 Constitution.
Sections 1 to 4 of PNDCL 125 provide that:
(1) “Notwithstanding the provisions of any enactment and subject to the provisions of this Law, the Ghana Cocoa Board (referred to in this Law as “the Board”) shall re-organise its establishment structure in such manner as it deems necessary to secure optimum efficiency of the Board.
(2) The Board shall, in the discharge of its function under sub-section (1) of this section, have the power to terminate the employment of any employee of the Board on ground of redundancy.
Notwithstanding anything to the contrary in his contract of employment or any collective agreement applicable to him an employee of the Board whose employment is terminated under section