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JUDGEMENT
My Lords:
- Hans Kelsen is a prominent figure in legal philosophy (jurisprudence) due tohis work, "Pure Theory of Law," which was published in German in 1960 and translated into English in 1967. Central to his work is the concept of the "Grundnorm”, a fundamental theory that represents the norm from which all legal norms in a legal system derive their validity. The Grundnorm serves as the foundational principle, which Kelsen referred to as the “first principle," from which the entire legal order, including the constitution, statutes, and judicial precedents, derives its legitimacy (sourced from: https://www.lsd.law).
In Ghana, the reality of a colonial past, combined with a largely borrowed legal system (common law), the “severance” from the colonial past brought about by (political) independence, and the incident of sovereignty, renders the constitution the basic or fundamental law (Grundnorm) that validates all other legal norms in society. The hierarchical order of the laws of Ghana epitomises this.
The laws of Ghana and their hierarchical order are depicted by Article 11 of the Constitution as follows:
“(1) The laws of Ghana shall comprise- (a) this Constitution.
(b) enactments made by or under the authority of the Parliament established by this Constitution.
(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution.
(d) the existing law; and
(e) the common law.”
- Article 11 of the Constitution affirms it as the fundamental law of Ghana andthe source that grants legitimacy to all other laws within the country. Within the hierarchy of laws established by Article 11, enactments, also referred to as statutes or legislation, hold second place in importance after the Constitution (Grundnorm). Below the Constitution and statutes are: (a) Orders, Rules, and Regulations made under the Constitution, and (b) existing laws (that is, those laws that were in effect before the Constitution but were continued in force or legitimised by it). At the bottom of Ghana's legal framework is common law, which includes, inter alia, the principles of judicial precedent (case law), stare decisis, and the doctrines of natural justice, such as nemo judex in causa sua (no one is a judge in his own case) and the audi alteram partem (listen to the other side) rules.
- In the event of a conflict between a constitutional provision and a statutoryprov