2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Gbadegbe JSC, addressed the constitutional limits of Parliament’s role under article 11(7) of the 1992 Constitution when considering subsidiary legislation. The Minister for Local Government laid LI 1853, establishing the Atwima Kwanwoma District Assembly, with regulation 6 naming Twedie as the Assembly’s principal offices. After twenty-one sitting days, the instrument matured into law but with regulation 6 altered to substitute Foase for Twedie. Challenging this change, the plaintiffs sought declarations that the substitution contravened article 11(7). The Attorney-General argued withdrawal and re-laying of a new instrument and later disputed the Gazette publication date. The Court found no evidence supporting withdrawal, applied Evidence Act presumptions about Gazette notices and burdens, held Parliament cannot amend laid instruments, and expunged the illegal substitution, granting all reliefs.
GBADEGBE JSC:
The question for our decision in this case turns on the law making power of Parliament in relation to the bringing into being of subsidiary legislation under article 11(7) of the 1992 Constitution by which it is provided thus:
“Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall-
(a) be laid before Parliament;
(b) be published in the Gazette on the day it is laid before Parliament; and
(c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all the members of Parliament.”
The scope of the power conferred on Parliament under article 11 (7) of the Constitution has been the subject of previous determinations of this court in the unreported cases of Stephen Nii Bortey Okane v The Attorney General, numbered as J1/2/2011 dated23 June 2011 and Nii Tetteh Opremeh v the Attorney-General and Others, Suit No J1/3/2010 dated 07 December 2011. By the said decisions, this court held that there is no authority in Parliament in the course of considering any Order, Rule or Regulation so laid before it under the said article to purport to amend the instrument. By amendment, we meant the doing of any act by Parliament that has the effect of effecting any change whatsoever in the instrument so laid before it in terms of the content as there is no such authority discernible from a fair reading of article 11(7) of the Constitution by which the power is conferred on the legislature in regard to the making of subsidiary legislation. The restricted scope of Parliament’s authority is inherent in the fact of the instrument that subsequently comes into law bearing the same number as that which was laid before it. The practice of the instrument that subsequently becomes law bearing the same title and number is clearly supportive of the constitutional intendment of the legislature not making any changes and or additions to what is laid before it although it does not take away Parliament’s authority to annul it. The instrument can thus be said to have been made by the minister or other authority and submitted to Parliament as the law making body to give its assent to it as it is the sole body constitutionally charged under article 93(2) of the 1992 Constitution with the exercise of legislative power. The circumstances in whi