Articles 75 & 268 of the 1992 constitution: A restraint on the common law principles of Capacity to enter and terminate a Contract by Donkor Selikem Timothy

The student of constitutional law understands it as a rule of thumb that the doctrine of separation of powers owes its ideological underpinnings to the writings of one, Baron De Montesquieu in his book ‘The Spirit of Laws’. Unknown to many, Aristotle, the father of political science has depicted a primordial form of separation of powers in his book ‘The Politics’ and it can only be right, if we pin the originality of the thought of separation of powers to the Macedon Philosopher. The doctrine, which is as old as 20 centuries, still has contemporary relevance in our constitutional arrangements and institutional frameworks.  Per this doctrine, the task of governance is categorized into three distinct but uniform system of tasks. One is the task of legislating, the other, the task of adjudicating and finally, the task of execution and implementation of policies. These categories have manifested in forming functional arms which we today qualify as the ‘legislature’, the ‘executive’ and the ‘judicial arms of government’. Article 57, 125, 93 of the 1992 constitution establishes the executive arm, the judiciary arm and the legislative arm of government respectively.  This essay attempts to explain how the constitutional dogma of separation of powers, affects the common law contractual capacities or rights of parties in the entry and termination of a contract as depicted under Article 75 and 296 of the 1992 constitution. Before this, a discussion shall be raised on the relationship between Ghana’s domestic law and international law, which I think is necessary to warrant the theoretical ground for the later germane discussion.

 

The twin principles of international law, monism and dualism, which defines the relationship between international law and municipal has not just been a theoretical exercise divorced of practical effects but has had practical consequences on domestic legal systems and structures of nation states. It is often generally conceived that Ghana is a dualist state in the sense that, international laws are not directly incorporated into the Laws of Ghana unless made so by parliament under Article 75. This position has been partly rejected by Emmanuel Y. Benneh. According to him, subject to paragraph (e) of clause 1 of Article 11 of the 1992 constitution of Ghana, common law principles prior 1874 are directly incorporated into the laws of Ghana and since it has been a practice of England, where these common law principles are formed, that international law(customary international law) is part of the laws of England, then it appears that international law by virtue of being part of English law prior 1874, shall by such incorporation by reference made under paragraph (e) of clause 1 of Article 11, be part of  the laws of Ghana. I have rejected this position partly on two grounds.

 

First, I have reasoned that, the monist view applies only if the incorporation of international law into domestic law, is not made contingent on the dictates and provisions in domestic law. Such that, per the in-depth and quite ingenious analysis made by E.Y Benneh, the incorporation of international law which was part of English law, has been so made only because our domestic law paragraph (e) of clause 1 of Article 11, has warranted and allowed for such incorporation. Per this reasoning, we still shall maintain our dualist position since there is no such direct framework of operation between international law and Ghana law and that, any such convergence or confluence is as a result of the dictates and defines of our domestic law, making international law not superior or directly part of our laws as a country.

Secondly, I have rejected the submission of E.Y Benneh on grounds that, what is incorporated as rules of common law into Ghana’s law under paragraph (e) of clause 1 of Article 11, is not international law in its purest form but a national law of another country, which is English law. If England on grounds of monism, allows for international law to be directly incorporated into its domestic laws, by virtue of that incorporation, the international law so incorporated becomes English law. And by virtue of paragraph (e) of clause 1 of Article 11, on grounds of technicality of language, Ghana does not import international law through common law principles rather it imports English law through common law rules and principles. Thus, it is an overstress of language to reason that, an importation of a national law which contains international law, is an importation of international law. For the form of importation is a form of national law though its substance might be of an international character.  On this ground alone, this paper shall operate on a justified presumption, that Ghana is a dualist state.

 

In the case of Ndebugre v. Attorney General [2016], a matter for determination before the court was whether subject to the dictates of Art 75, a contract which falls under the remit of Art 268, should as a matter of substance and procedure, be ratified by parliament and if so, whether the executive, the arm responsible for negotiating these contracts, should have the right to terminate such contracts or the right to terminate rests solely in the legislature.  The complexities surrounding Art 75 has tentacles that have extended into the realms of constitutional law, international law, contract law and jurisprudence. The supreme court in Amidu v. Waterville & Woyome [2012], had emphasized that, a contract which falls within the remit of Art 75, yet not ratified by parliament shall have no binding character on the state. This determination by the court has shown that, it is not only the executive arm of government which plays a role in the entry of treaties and contracts of international and financial character. Art 75 has ensured that, on grounds of policy, doctrine and accountability, the legislature should be the function of government that make laws absolutely, thus some contracts and treaties which are of legislative and binding effect, must fall under the primary legislative function of parliament as outlined under Article 106.

 

The supreme court in Ndebugree v. Attorney General[1] concluded that, the right to terminate contracts that fall under Art 75 and 268 of the 1992 constitution by the executive as a matter of rights guaranteed by common law doctrines has been severed away by the constitutional dictate in Article 75 and 268. As such, a ratified contract by parliament, can only be terminated by parliament unless, the terms of the ratified document, stipulates otherwise. The judgment of the court has entrenched further the nature of separation of powers under Ghana’s constitutional framework. It has shown that, the arms of government are parts of a uniform whole, where their individual functions are so peculiar, that one should not have a right to do nor have a right to undo, that which is a right of another, unless such a right is rightly ceded or delegated. The reasoning which underscored the decision of the court was that, the right to legislate is purely a function of the legislature, and international agreements, made in pacts, treaties and contracts, carry legislative effects and as such, such agreements if wholly made by the executive, will imply a usurpation of the legislative function of the legislature. The second reasoning is on grounds of accountability and oversight role. The court reasoned that, if indeed the framers saw it fit for mineral contracts made under Article 268 to be first ratified by parliament, then they saw the role of parliament to check the prudence of such contracts, and if parliament so considers a contract as fit and ratified, it only makes sense that if the executive intends not executing such a contract, it must redirect itself back to parliament to reconsider the reasons for which there is a change of decision.

 

For the first time in the constitutional history of Ghana, post 1992, the constitution as the highest law of the land as grounded by Art 1(2), was shown not to only exhibit its superiority over statutory provisions or enactments as seen in the cases of Mensima v. AG(1997) , NPP v. AG (1997)-(CIBA) nor just against the actions of individuals and public actors as seen in NPP v. IGP (1993), NPP v. GBC (1993)  but also against principles of common law and equity as guaranteed as part of Ghana’s laws under Art 11(e).

 

In conclusion, the decision of the court in Ndebugre v. Attorney General, has re-emphasized the dualistic character of Ghana against the reservations raised by E.Y Benneh as discussed above. It has cemented the superiority of the Constitution over any other law, such that, international law can only find its feet into the domestic law, be it by an enactment or incorporation by reference in the constitution.