THEOPHILUS DONKOR v. THE ATTORNEY GENERAL
2019
SUPREME COURT
CORAM
- AKUFFO (MS), CJ (PRESIDING)
- DOTSE, JSC
- GBADEGBE, JSC
- BENIN, JSC
- MARFUL-SAU, JSC
- AMEGATCHER, JSC
- KOTEY, JSC
Areas of Law
- Constitutional Law
- Administrative Law
- Public Service Law
2019
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court held that members of governing boards of statutory boards and corporations appointed by the President are not members of the Public Service and can be removed at will by the President. However, public service officers appointed in accordance with article 195 of the Constitution can only be removed in accordance with their contract terms or for just cause. Section 14 of the Presidential (Transition) Act 2012 (Act 845) was declared unconstitutional to the extent that it required Chief Executives or Directors-General to cease office upon the assumption of office by a new President.
KOTEY, JSC:-
1.0 Introduction
By a writ of summons issued on 4th January 2017, the Plaintiff invoked the original jurisdiction of this court pursuant to Articles 2 (1) and 130 seeking certain reliefs. The said writ was amended pursuant to leave of this court granted on the 8th March 2017. The Plaintiff therefore filed an amended writ and statement of case on 10th March 2017. The Defendant filed an amended Statement of case on 23rd March 2019. The following reliefs are indorsed on the amended writ.
1. A declaration that the removal from office of such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana does not amount to a just cause and is accordingly unconstitutional;
2. A declaration that to the extent that section 14 of the Presidential (Transition) Act 2012 (Act 845) requires all Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations to cease to hold office merely on account of the assumption of office of the person elected as President of the Republic of Ghana, the said section 14 is unconstitutional as being inconsistent with the letter and spirit of the Constitution, particularly Articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution;
3. An order of perpetual injunction restraining any person or authority from removing from office such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana.
1.1 Memorandum of Agreed Issues
The parties filed the following joint memorandum of agreed issues on the 9th May 2017.
1. Whether and to what extent the public services of Ghana as defined under Article 190 of the 1992 Constitution are separate from and/or independent of the executive authority of Ghana.
2. Whether or not the expression “a member of the public services” as used in Article 191 of the 1992 Constitution affects members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution.
3. Whether or not the President of the Republic of Ghana in line with Article 297(a) of the 1992 Constitution has the legal