THE PREAMBLE OF THE 1992 CONSTITUTION, A SUGGESTION THAT GHANA IS A RELIGIOUS STATE? By Selikem Timothy Donkor


The recent political atmosphere in Ghana was clouded with a philosophical and constitutional issue about whether certain actions of the Akuffo Addo Government, impliedly postulates a picture of Ghana as a religious state, or otherwise. The debate this time around, did not have its ends in the microphones of radio stations, instead, it was settled in the annals of the court through the jurisprudential exercise of the highest court of Ghana. I must point out that, this treatise is not an attempt to review the decision of the supreme court in the famous HAJJ case (Bomfeh v. Republic), but a revisit to the foundational and implied ideological underpinnings of the 1992 constitution in answering the above postulated question, which I think was not exhaustively answered by the jurisprudence of the Supreme Court.

Every constitutional law student, I think, shares the conventional view that the preamble of a constitution does not form part of the justiciable provisions of the constitution and at best, can only be seen as an affirmation of the supposed beliefs, aims and ideals of the society in which the constitution was made. However, the preamble of a constitution plays a vital role even when it is itself not justiciable. Under rules of statutory interpretation (sec 12(7), 13 of Interpretation Act, 2009), inference can be drawn from the values, presumptions and underlying ideals asserted in preambles which then can assist the court in the task of interpretation. On this ground, this article will attempt to demonstrate whether it can be implied from the preamble of the 1992 Constitution, that Ghana is a religious state and what constitutional implications that will have on the democratic and liberal values in the 1992 Constitution of Ghana.

The Preamble of the 1992 Constitution of Ghana reads:

| IN THE NAME OF THE ALMIGHTY GOD, We the People of Ghana, IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity……….. |.

The preamble clearly shows that, the presumption that God exists, is fundamental and foundational to us devolving for ourselves this constitution. Thus, the very belief underlying all solemn declarations, beliefs and values in the Constitution is shrouded on the belief that there is a God. It must be pointed out that, Ghana is not the only country which, in its preamble, introduces the concept of God as an underlying authority and basis for the Constitution (The 1996 Constitution of South Africa and the 1999 constitution of Nigeria employ the word ‘God’ in their Preambles). It seems inconsistent or rather paradoxical, that a constitution whose preamble affirms the existence of God as a foundational authority, could have provisions in that same constitution which affirm the values of secularity and liberalism. If by secularism as defined by the Oxford Dictionary, we mean ‘the separation of the state from religious institutions ‘and by being religious we mean ‘affirming and believing in a particular religion’, then it is linguistically implausible that the same thing can be both religious and secular at the same. Since a set of all secular things will preclude a set of all religious things as an inverse relation of symmetry. By this, I mean that a thing which is secular is not religious and thus a thing which is non-religious is by necessity unsecular. The aim to resolve this seeming inconsistency, is why the author deploys this philosophical/ jurisprudential exercise.

Art 21(1) (b) and (c) of the 1992 Constitution reads:

(1) All persons shall have the right to

b. freedom of thought, conscience and belief which shall include academic freedom c. freedom to practice any religion and to manifest such practices.

Art 17 (2), (3) of the 1992 Constitution of Ghana reads:

2. a person shall not be discriminated against on grounds of sex, race, gender, color ethnic, origin, religion or social and economic status

3. For the purpose of this article ‘discriminate’ means – to give different treatment to different persons attributable mainly or only to their respective descriptions (as mentioned in CLAUSE 1), where by persons belonging to one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to the persons of another description

Art 35 (5) of the 1992Constitution reads:

5. The state shall actively promote the integration of peoples of Ghana and prohibit discrimination and prejudice on grounds of place origin, circumstances of birth, ethnic origin, gender, religion, creed or other beliefs.

Cumulative and conjunctive reading of Articles 35(5), 12(1) (b)(c), and 17(2) (3) suggests that, per the justiciable provisions of the constitution, discrimination by any individual actor, corporation or by the government on grounds of belief, religion, sex, ethnicity will constitute an illegality, and subject to Art 1(2), it will to that extent of inconsistency be void. If this position is true, then how could the preamble of 1992 Constitution, the very substratum of the constitution, be in violation of the object and purpose of the constitution it underlies? – Does the preamble of the 1992 by using the term ‘God’ adopts a discriminatory language against unbelievers in God or believers in ‘gods’ alike?

The author in his candid view, thinks that there is no inconsistency between the preamble of the constitution and the meaning of its justiciable provisions with respect to the issue of religiosity or secularism. In the author’s view, the preamble of the 1992 Constitution only suggests that Ghana is a theistic state and not that it is a religious state. To aver proof to this position, the author will offer a linguistic analysis as to the difference between ‘theism’ and ‘religion’, and will go on to support his view that, a state can be theistic and yet not religionist, but a state which is religionist is necessarily theistic.

Theism is defined by the Oxford dictionary as ‘the belief in the existence of God or gods. Thus, a person or a state is theistic if and only if it has a belief which affirms the existence of God(s). Religion on the other hand is defined by the Oxford dictionary (supra) as ‘the belief in and the worship of God or gods. It appears by mere glance from the two definitions that the word belief appears in both definitions but I must point out that they do not take the same contextual meaning. The word ‘belief’ as used in the definition of theism has a distinct connotation from ‘belief’ as used in the definition of religion and this is due to the proximate qualifiers which award contextual meaning to the word ‘belief’ in each sentential employability. The crux of difference between the two definitions is that, whereas the former uses ‘belief in the existence’, the latter uses, ‘belief in …’ without the word existence. Is there any substantive difference between ‘belief in God’ and ‘belief in the existence of God’? It is the answer to this question that will justify why, the author thinks that, the preamble only asserts that there is God and not that Ghana as a state believes in any particular God thus aligned to any religious values.

Theism as a general term means, a belief in the existence of God. Anything that affirms the existence of God is theistic. On the other hand, anything that denies the existence of God is atheistic. Inferring from the previous discussion, we can then conclude that Ghana by affirming the existence of God in its preamble can thus be classified as a theistic state. But does being theistic imply being religious? No. Being religious means being avowed to a particular system of belief and practices. It is possible for a person or an entity to affirm that God exist yet not commit to any system of belief and practices about that God. Such an entity then is theistic yet non-religious. All states that assert the existence of God in their preambles can be classified as ‘Theistic States’ but not necessarily religious states if they are not aligned to any particular God nor to any set of religious beliefs or doctrine. Most Arab states, use religious codes and scriptures as their constitution and as a source of law. The usage of such scriptural texts as a source of law and constitution establishes prima facie that such a state is aligned to the values and beliefs established in that scriptural text and to that effect accords a ‘religious status ‘to such a state. An example of such states is Saudi Arabia. Art 1 of the 1992 Constitution of Saudi Arabia states that ‘The kingdom of Arabia is a sovereign Arab Islamic State’. Saudi Arabia is in this sense a religious state; not just that it affirms the existence of God rather, it aligns itself with the beliefs and practices of Islam by stating that it is an Islamic state. In the same Art 1 of the 1992 Constitution of Saudi Arabia, the Qur’an, which is the official scriptural text of Islam, is recognized as the source of law in Saudi Arabia. This corroborates the earlier position that, Saudi then avows to the beliefs and practices of Islam and to that effect, is a religious state. Ghana, as a case study in this essay, does not have any outright provision which aligns it with any organized religion and per the analysis above, its preamble only affirms the existence of God and not a belief in a particular God(s). Art 11 of the 1992 constitution which outlines the laws of Ghana does not give recognition to any scriptural or religious text as its source of law. Ghana then cannot be classified as a religious state but can be classified as a Theistic State. Now that it has been demonstrated that Ghana is a theistic state, to what extent is this affirmation of theism in its preamble, consistent or inconsistent with certain justiciable provisions in its Constitution?

Art 21(1) (b) and (c) as mentioned above, states that ‘all persons in Ghana shall have as a right, freedom of thought, belief and conscience’. This provision was interpreted in the Bomfeh v. AG. In that case, the learned Justice Dotse stated that, Art 21(1)b, c is a prohibitive provision. In the sense that, it prevents government from shaping and interfering with the thoughts, beliefs and religious values of persons. The learned Justice went ahead to point out that Art 56 of the 1992 Constitution, prohibits parliament from enacting laws that impose political and religious objectives on citizens. This in effect corroborates the position that, it was the intent of the framers to allow for Ghana to be a secular state, in the sense that, no religious or political value is imposed on the people. The people are allowed to form their set of values, beliefs and principles in so far as it is in line with the laws and principles of the state. The secularity principle then prohibits a state from avowing to a set of religious principles. Since we have demonstrated that the preamble of the 1992 Constitution of Ghana does not establish it as a religious state, then it is clear that it cannot be said that, its preamble, so long as the issue of religiosity is the matter of concern, is inconsistent with Art 21, 35 and 56 of the 1992 Constitution. But is there any inconsistency with Ghana being a theistic state as postulated in its preamble with the justiciable provisions of the Constitution?

As pointed out above, Art 17, prevents discrimination on the grounds of religious belief and Art 21(1), allows for freedom of thought, belief and conscience. A conjunctive reading of these two provisions suggests that, since there is freedom for belief and conscience then an atheist can form a belief about God’s nonexistence under Art 21(1); and since Art 17 bars discrimination on grounds of ‘religion’ then discrimination against an atheist will be unjustified and thus a violation of Art 21(1) and 17 of the 1992 Constitution. If so, then, can the view that the preamble of the 1992 constitution brands Ghana as a theistic state be held as prejudicial, discriminatory and violating the beliefs of Atheists?

It is in the opinion of the author that since the preamble of a constitution is not part of the justiciable provisions of the constitution, it cannot be said that Ghana’s laws discriminate against Atheists in the sense that its laws endorse theism since the preamble is not part of its laws. But, as a recommendation, if Ghana, by its laws, does not endorse theism nor abolish or banish atheism, then why should its Constitutional preamble engulf a belief in God- an assertion of theism? The author thinks that, it will be prudent and more consistent if the preamble of the constitution is made in such a way that, it is consistent with the justiciable provisions of the constitution. In that sense, having a preamble which asserts theism, yet a set of justiciable provisions which admonishes the imposition of religious/political beliefs and values on citizens, postulates a seeming inconsistency between the spirit of the constitutional preamble and its justiciable provisions which in a way undermines constitutionalism. On that basis, in order to preserve the spirit of Art 35(5), which sustains the spirit of nationhood and integration, it will be prudent for the preamble of the 1992 constitution to be amended so as to entrench the position that, Ghana’s laws are not discriminatory against Atheist nor do its laws impose theism on its citizens.

I will on this hand conclude that, the preamble of the 1992 Constitution of Ghana needs change – if possible an ‘Amendment’ – so as to ensure it being consistent with the very spirit of secularity and liberalism that underpins the justiciable provisions in the 1992 Constitution. This change if done, will ensure a sense of nationhood and integration since the supposed theistic nature of the preamble which is prejudicial to the beliefs of atheists may affect the respect they accord to the constitution as a whole. And this weakened sense of patriotism and respect may affect the spirit of nationalism. It is a mandate of each citizen of Ghana to defend the constitution as constituted in Art 41. And Art 2(1) and 130 accords each citizen the right to make applications to the supreme court in defense of the constitution. But if a vital part of the constitution; its preamble is prejudicial to a section of citizens; how then can these same citizens act in its defense? The need for such an amendment to maintain a consistency between the preamble and the provisions of the constitution need not be overstated. It is needful and must be embraced by all.