PROFESSOR STEPHEN KWAKU ASARE v. THE ATTORNEY-GENERAL
2004
SUPREME COURT
GHANA
CORAM
- ACQUAH C.J. (PRESIDING)
- BADDOO, J.S.C.
- DR TWUM, J.S.C.
- PROF KLUDZE , J.S.C.
- DR DATE-BAH, J.S.C
Areas of Law
- Constitutional Law
2004
SUPREME COURT
GHANA
CORAM
AI Generated Summary
A private Ghanaian citizen challenged the swearing‑in of Rt. Hon. Peter Ala Adjetey, Speaker of Parliament, as acting President for four days in February 2002 while President John Agyekum Kufuor and Vice‑President Aliu Mahama were both outside Ghana. Invoking the Supreme Court’s original jurisdiction, the plaintiff sought a declaration that the Speaker’s swearing‑in was unconstitutional under article 60(11) and an injunction restraining the Speaker (and successors) from performing presidential functions except upon true inability. Delivering the lead opinion, Date‑Bah JSC adopted a purposive approach, reading article 60(8) to make absence from Ghana a subset of inability and harmonizing article 60(11) accordingly, so that the Speaker acts when both the President and Vice‑President are absent. The Court rejected arguments grounded in separation of powers, alleged “dual presidency,” and modern communications, emphasizing continuity of executive authority by an official present in Ghana. Prof. Kludze JSC wrote separately to concur, and all other justices agreed. The action was dismissed.
DR DATE-BAH J.S.C.: [was invited by his Lordship the Chief Justice to deliver his opinion first]. This is an action brought to invoke the original jurisdiction of the Supreme Court. It is expressed by the plaintiff to be pursuant to articles 2(1)(b) and 60 of the 1992 Constitution and rule 45 of the Supreme Court Rules, 1996 (CI 16).
The facts
The facts of the case may briefly be stated as follows: On 21 February 2002, the President of the Republic wrote to the Speaker of Parliament, informing the Speaker that the President would be travelling to Australia to attend the Commonwealth Heads of Government Meeting, scheduled to take place from 2 to 5 March 2002 and that he would be away from Ghana from 24 February until 10 March. He further informed the Speaker that during that period, because the Vice-President would also be absent from the country from the 24 to 27 February, the Speaker was, pursuant to article 60(11) of the Constitution, to act as President for those four days. Accordingly, on 24 February, the Speaker swore the Presidential oath and acted for the President from the 24 to 27 February.
On 28 February, the plaintiff, in his capacity as “a concerned, private Ghanaian citizen, who is interested in upholding the respect for, and compliance with, the Constitution and the rule of law”, as he declares in his writ, filed a writ at the Supreme Court, invoking the original jurisdiction of the court and seeking the following reliefs:
“(1) A declaration that upon a true and proper interpretation of article 60(11) of the 1992 Constitution, the purported swearing-in of the Speaker of Parliament, the Right Honourable Mr Peter Ala Adjetey, as President of Ghana, on or about Monday 24 February 2002, is inconsistent with, or is in contravention of the said provision of the Constitution and is therefore unconstitutional, void and of no effect.
(2) A perpetual injunction to restrain the Speaker of Parliament, the Right Honourable Peter Ala Adjetey, and any other person succeeding to the Office of Speaker of Parliament, from performing the functions of President of the Republic of Ghana except in the event of the President and the Vice-President being unable to perform the functions of the President.
(3) Such other ancillary or consequential orders or directives as the court may deem fit to give.”
Article 60(11) of the 1992 Constitution is in the following terms:
“(11) Where the President and the Vice-President are both unable to perform the functions o