1999
SUPREME COURT
GHANA
CORAM
AI Generated Summary
CHRAJ sued the Attorney-General in the Supreme Court, seeking declarations that Section 35(2) of the 1992 Constitution’s Transitional Provisions authorized it to restore properties confiscated during the AFRC and PNDC eras, including confiscations by the AFRC Special Court, and that its authority applied even where those confiscations were later confirmed by the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325). The petition of Col. C.R. Tachie-Menson for restoration of his assets prompted CHRAJ’s assertions. The Attorney-General argued CHRAJ has only investigative functions under Act 456, lacks judicial power, cannot review or supervise court or tribunal decisions, and that Section 35(1) bars any reversal of confiscations. Writing for a unanimous court, Hayfron-Benjamin J.S.C. held CHRAJ has neither review nor supervisory jurisdiction, interpreted Section 35(2) ejusdem generis as limited to confiscations based on holding public or political office, found PNDCL 325 did not revive rights or grant retrospective powers, and viewed CHRAJ’s discretion under Section 13(2) as time-limited. The Court concluded the writ disclosed no cause of action and dismissed CHRAJ’s claims unanimously.
REASONS FOR JUDGMENT
C. HAYFRON-BENJAMIN. J.S.C.:
On the 31st July, 1998 this Court dismissed the writ of the Commissioner invoking the assistance of this Court to resolve an apparent conflict in the relative positions of the parties vis-a-vis their respective functions under the Constitution. For whereas the Plaintiff (Commissioner for Human Rights and Administrative Justice) is:
"In the performance of (their) functions, not subject to the direction or control of any person or authority",
the Defendant (Attorney-General) on the other hand is a member of the Executive Branch of Government and Chief Legal Adviser to the Government. The principles of the separation of powers to which to a great extent our Constitution gives support enjoin this Court as arbiters of conflicts within the Constitution in the interpretation or enforcement thereof not to adopt attitudes and positions which may appear to incline us into proffering advice on matters which do not come within the ambit of our adversarial adjudicatory system as sanctioned by our Constitution. The parties to this litigation are constitutionally independent, yet the Plaintiff contends that their paths may so cross each other as to authorise him to compel the Defendant to take a stand on matters regarding the exercise of the Plaintiffs functions. Thus by his Writ of Summons the Plaintiff claims against the Defendant are:
(a) A declaration that Section 35(2) of the Transitional Provisions of the 1992 Constitution which empowers the Plaintiff to restore properties confiscated by the State applies to and embraces all confiscations of property made by the Armed Forces Revolutionary Council and the Provisional National Defence Council under any Decree or Law made by the Council, whether such confiscations were made by a special Court or Tribunal such as the Armed Forces Revolutionary Council Special Court set up under the AFRC (Special Courts) Decree 1979 (AFRCD 3) as amended by the AFRC (Special Courts) (Amendment Decree, 1978), (AFRCD 19).
(b) A declaration that, even assuming, (which is denied) that the Plaintiff has no jurisdiction under the said Section 35(2) to entertain a petition or the restoration of confiscated property where the initial confiscation was made by a Special Court or other Judicial Tribunal, the Plaintiff's power under Section 35(2) would become exercisable where the initial confiscation is later confirmed by a subsequent Decree or Law such as The Confiscated Assets (Removal of Do