March 15, 2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
AsumanAdu J., sitting in the High Court, referred a constitutional question to the Supreme Court under Article 130 concerning whether the Ghana Cocoa Boards application of PNDC Law 125 to its 19931994 retrenchment was unconstitutional in light of Articles 1(2), 12(1), and 24(3), (4). The context was two consolidated suits by former Cocoa Board employees seeking balances from redundancy, retrenchment compensation, interest, damages, and costs. On March 5, 2013, the Supreme Court unanimously answered the question in the affirmative and later issued reasons. Writing for the Court, Dr. DateBah held that article 24(3) protects freedom of association and, implicitly, collective bargaining. Informed by ILO Conventions 87 and 98 and the ILOs 1998 Declaration, and guided by article 40, the Court adopted a purposive interpretation: state agencies cannot unilaterally set aside collectively bargained terms or individual employment contracts. Sections 2 and 3 of PNDC 125 violate article 24(3) and do not fit article 24(4)s permitted derogations, rendering the retrenchment unconstitutional.
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 stated by 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. (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.
2. 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 unde