CAPACITY TO BRING AN ACTION UNDER ARTICLE 2(1) OF THE 1992 CONSTITUTION by Kwadwo Gyan

This article summarizes the position of the law on what the legal requirements are respecting the locus standi of a person to competently invoke the original jurisdiction of the Supreme Court of Ghana under Articles 2(1) and 130 (1) of the 1992 Constitution. Additionally, readers should take away brief guides as to enforcement jurisdiction of the High Court in respect of human rights actions conferred by Article 33.

The starting point is the locus classicus case of Tuffuor v. Attorney-General where the Court of Appeal, sitting as an additional Supreme Court held, per Sowah JSC (as he then was) that in respect of capacity to enforce a provision of the constitution which is not a human rights action, a plaintiff under article 1 (2) of the Constitution, 1979, need not have any community of interest with any person or authority. His community of interest is with the Constitution.
In the case of Osei Boateng v. National Media Commission, Date-Bah JSC highlighted that the Supreme Court has been consistently vigilant in identifying and striking down writs that invoke the original jurisdiction of this Court to enforce article 2(1) of the Constitution, but which are in substance actions for which the Constitution has provided other fora for their determination.
The following examples illustrate: In Yiadom I v Amaniampong [1981] GLR 3 (a chieftaincy dispute couched as a writ to invoke the original jurisdiction of this Court under article 2(1); Ghana Bar Association v Attorney-General [1995-96] 1 GLR 589 SC; ]2003-2004] SCGLR 250 (an action primarily aimed at removing the Chief Justice from office clothed in the garb of an action for the interpretation and enforcement of the Constitution under article 2(1); and Yeboah v J.H. Mensah [1998-99] SCGLR 492 (an election petition dressed up as a writ for the interpretation and enforcement of the Constitution).

In respect of human rights actions as contradistinct from actions under article 2(1) the plaintiff has to prove a “personal interest” in the outcome of the litigation. Sam (No. 2) v Attorney- General [2000] SCGLR 305 is cited as authority for this. In that case, this Court interpreted the words “in relation to him” and “that person” in article 33(1) to mean that a plaintiff must have a personal interest in litigation brought pursuant to article 33(1), whereas in litigation brought under article 2(1) any citizen of Ghana irrespective of personal interest can seek an interpretation and enforcement of the Constitution. In Osei Boateng, the plaintiff argued in response to the preliminary objection that rather, his suit was based on the “public interest” leg of article 2(1), in contradistinction from the personal interest leg provided for in article 33(1). He contended that the substance of his case is that the plaintiff is complaining as citizen of Ghana that the National Media Commission, a creature of the Constitution, has exercised its constitutional mandate in a manner that sins against the Constitution.

The Supreme Court has held that its jurisdiction under article 2(1) is a special one available to only citizens of Ghana irrespective of personal interest, which entitles them to seek an interpretation and enforcement of the Constitution, in furtherance of the duty imposed on all citizens “to defend the Constitution” under articles 3(4)(a) and 41(b). See also the case of FEDYAG v Public Universities of Ghana [2010] SCGLR 265 which also makes the distinction between public interest actions under article 2(1) and personal interest actions under article 33(1).
From the foregoing, it should be understood that the only locus standi needed under article 2(1) is citizenship of Ghana.

The Supreme Court in Adjei-Ampofo v Accra Metropolitan Assembly [2007-2008] SCGLR 611 where a similar contention arose, said (at pp. 621-622): “Although the High Court’s jurisdiction in Article 140(2) appears to be very broad, the provision is nothing more than a practical restatement of the exception to the Supreme Court’s jurisdiction, as defined by article 130(1) in cases brought under article 2(1). The High Court’s enforcement power is therefore to be exercised within the scope of article 33(1), the language of which is clear. Hence the emphasis we must not loose sight of in article 33(1) is the phrase “in relation to him”. In other words, in the High Court, the actual, ongoing or threatened contravention of the fundamental human right or freedom must be in relation to the plaintiff and no one else. However where the human right or freedom sought to be enforced is not in relation to the plaintiff’s personal rights and freedoms, but for the purpose of enforcing a provision of the Constitution under article 2 (1), the proper court is the Supreme Court. In the latter case, such a plaintiff would not have access to the High Court for lack of locus standi. Likewise the former would not have access to the Supreme Court because he or she would be seeking to invoke the original jurisdiction of the High Court to enforce his or her personal fundamental right or freedom. Thus the two jurisdictions are not concurrent. The jurisdiction of the Supreme Court is not ousted simply because of the provision sought to be enforced. The court’s jurisdiction in such a case is determined by whether or not the plaintiff is pursuing a personal interest (as in the Edusei and Bimpong –Buta cases as well as the case of Oppon v. Attorney-General [2003-2004] 1 SCGLR 376, for example), or the enforcement of a provision of the Constitution in interest of the public good (as in the CIBA case and Sam (No. 2) v. Attorney –General.

The view of the law expressed above is now settled law, having been re-affirmed by the majority decision in FEDYAG v Public Universities of Ghana [2010] SCGLR 265. Thus, in FEDYG, the Court was satisfied that even if the plaintiff were relying on article 23 alone, the Supreme Court would still have jurisdiction because he would be relying on article 23, not in his own personal interest, but in order to test the constitutionality of the defendants’ action in the public interest. Similarly, in the case of New Patriotic Party v. Attorney-General (CIBA case) the court extended the meaning of citizen in Sam No.2 to include natural or artificial citizens. Thus, in that case, the court allowed the New Patriotic party to bring the action to enforce the economic rights of the Ghanaian industries.
I trust that this digest offers readers a quicker and consolidated view of the law on the afore-discussed.