2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The plaintiff, a Ghanaian citizen, brought an original action in the Supreme Court seeking to invalidate the Human Sexual Rights and Family Values Bill, 2024 before it had received presidential assent, arguing that the private-members’ bill violated fundamental rights, breached Article 108’s fiscal rules and was passed without a proper quorum. Parliament and the Attorney-General opposed the claim, contending that the Court’s jurisdiction had not been properly invoked because a bill is not yet an "enactment" and because no real issue of constitutional interpretation arose. In a unanimous decision delivered by Mensa-Bonsu JSC, with separate concurrences, the Court dismissed the action as premature. It held that judicial review under Articles 2 and 130 can only be exercised over enacted laws or completed acts, that the plaintiff presented no evidence of quorum breach, and that questions about the Speaker’s discretion or the Bill’s substantive content were not justiciable until the legislative process—including possible presidential assent or referral—was complete. All reliefs were therefore refused.
<u>PROF. MENSA-BONSU (JSC) </u>
... "Then lest he may, Prevent. And since the quarrel
Will bear no colour for the thing he is, Fashion it thus: that what he is, augmented
Would run to these and these extremities
And therefore think him as a serpent's egg
Which, hatched, would as his kind grow mischievous -
And kill him in the shell"
William Shakespeare 'Julius Caesar' Act 2 Scene 1
The plaintiff, a citizen of Ghana who, in a pre-emptive strike, has invoked the original jurisdiction of the Supreme Court under Article 2(1) and Article 130 of the Constitution of Ghana, 1992, to challenge the constitutionality of the 'Human Sexual Rights and Ghanaian Family Values Bill, 2021' ("the Bill") as passed by Parliament in 2024. The plaintiff says he is seeking to uphold the fundamental human rights and freedoms guaranteed under the Constitution of the Republic of Ghana, 1992, and contends that the Bill, as passed by Parliament violates certain provisions in the Constitution of Ghana, 1992. In ringing tones, the plaintiff declares his purpose in paragraph 3 of his amended Statement of Case filed on 21st November, 2024 thus:
"My Lords, this case comes before the Supreme court not as an inquiry into the moral judgments surrounding sexual relationships within our society, nor does it seek to traverse the deeply personal and varied landscape of human sexuality through the lens of judicial scrutiny. Rather, at its core, this action embodies a profound constitutional inquiry, inviting the honourable Court to properly delineate the boundaries of legislative power as enshrined in our nation’s supreme legal document. It is a call to action for the judiciary to affirm its indispensable role in our democracy by making a definitive determination on the precise scope and limits of the Parliaments authority to legislate on matters that touch upon the fundamental human rights and freedoms of the individual.”
Fine words of purpose! However, putting it thus simply obscures the real significance of this suit which has at its core, the concept of separation of powers; and the scope of the powers of each arm of government in the legislative process.
On 28th February, 2024 the Parliament of Ghana passed a bill known as the ‘Human Sexual Rights and Family Values Bill 2021.’ The Bill began its life as a Private Members Bill. It was therefore subject to provis