2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered the constitutional implications of placing members of the judicial service under different pension schemes. The court determined that the plaintiff's members, which include non-bench Judicial Officers, do not fall under the constitutional mandate to be placed under the CAP 30 scheme. The court also addressed issues of discrimination, asserting that the current practices do not violate constitutional provisions. Sections 213(1)(a) and 220 of the National Pensions Act, 2008 (Act 766) were found consistent with the Constitution to the extent that they do not infringe upon the non-variation clauses for judicial entitlements. The President's duty to determine judicial conditions of service cannot be fully delegated to subordinate bodies without involving the Judicial Council.
JUDGMENT
MAJORITY OPINION
DOTSE JSC:
CAPACITY OF PLAINTIFF AND RELIEFS CLAIMED
The plaintiff has instituted the instant action as a corporate citizen of Ghana pursuant to article 2 (1) of the Constitution 1992 for the benefit of its members, whose pension rights guaranteed by the Constitution 1992, are allegedly being infringed upon by the Defendants.
Additionally, the plaintiff states that, in so far as some of the reliefs it seeks against the defendants, go beyond the immediate confines of its members, (who are to a large extent the non-bench members of the Judicial Service) the plaintiff should be deemed to have commenced the action as a matter of public interest also pursuant to article 2 (1) of the Constitution 1992.
In that respect, the plaintiff is deemed to be seeking to enforce the pension rights of the Judges of the Superior Court of Judicature and also of the lower court, who by the nature of their profession cannot pursue their own grievances through the court’s system whilst still in active public service. This then explains the basis of the reliefs which the plaintiff claims against the defendants which are as follows:-
i. Declaration that upon a true and proper construction of article 127 (4) and (5) of the 1992 Constitution, all persons serving in the Judiciary were entitled to be placed on CAP. 30 pension scheme upon the coming into force of the 1992 Constitution.
ii. Declaration that the practice of placing or continuing to place some of the persons serving in the Judiciary on or under the SSNIT pension scheme after the coming into force of the 1992 Constitution was wrongful and violates article 127 (4) of the 1992 Constitution.
iii. Declaration that the practice of placing or continuing to place Judicial Officers falling under Article 161 (b) and (c) of the 1992 Constitution on the SSNIT pension scheme, whiles leaving the Judicial Officers on the bench, namely Judges and Magistrates under article 161 (a) of the 1992 Constitution, on CAP. 30 pension scheme was discriminatory, contrary to article 17 (2) of the 1992 Constitution.
iv. Declaration that all persons serving in the Judicial Service were and are entitled to have their gratuity and pension entitlements computed or re-computed under CAP. 30 pension scheme and paid the difference of sums due and owing them between the two schemes, if any, together with interest, including a refund of all SSNIT contributions deducted from their salaries with effect from 1992.
v. Declaratio