PREROGATIVE WRITS: Does the Supreme Court have jurisdiction ? By Samuel Kissiedu

So I entered into a conversation the last time at the premises of UG School of Law. The point that drew my attention was when I heard a colleague law student say that the Supreme Court does not have the jurisdiction to issue prerogative writs. I sought to challenge this proposition made by the colleague but had to exit the conversation after spending some minutes arguing and we were unable to reach a consensus as to the right position of the law on the issue of prerogative writs. This article therefore seeks to articulate the legal position on the issue of prerogative writs in Ghana. I further argue that the Supreme Court of Ghana has jurisdiction, both appellate and original to issue prerogative writs as and when necessary.

According to the Black’s law dictionary (8th edition, p1640), prerogative writ, also known as extraordinary writ is a writ issued by a court exercising unusual or discretionary power, for example, habeas corpus, certiorari, mandamus and prohibition.To begin with,Article 2 and 130(1) of the 1992 Constitution vests the Supreme Court with the original and exclusive jurisdiction to determine the constitutionality of either an act or a law that may be challenged in the country. Article 2(1)provides that, “A person who alleges that (a) an enactment or anything contained in or done, under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”. Article 130(1) also provides that, “subject to the jurisdiction of the High Court in the enforcement of Fundamental Human Rights as provided in article 33, the Supreme Court shall have exclusive original jurisdiction in (a) all matters relating to the enforcement or interpretation of this Constitution and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution”.

It is obvious then, that the Constitution has given the mandate to the Supreme Court to interpret the provisions in it and enforce them. As article 1(2) makes the Constitution the supreme law of Ghana, any law or act that is found to be inconsistent with the constitution shall to the extent of the inconsistency be void. My question is this, without the issue of prerogative writs, how can the Supreme Court effectively discharge these functions that has been given it by the Constitution? In my opinion, the answer to this question can be found in articles 2(2), 126(4) and 132. Article 2(2) provides that, “The Supreme Court shall, for the purposes of a declaration under clause (I) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.Article 126(4) also provides that, “in the exercise of the judicial power conferred on the judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction, issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of those courts. Finally, article 132 provides that the Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.

It seems to me that what the Constitution sought to do is to empower the Supreme Court, as the highest court of the land, to be able to issue any order whether prerogative or not in order to give effect to the provisions of the constitution.In the case of MARTIN AMIDU V ATTORNEY-GENERAL & ISOFOTON S.A, the Supreme Court per Date-Bah JSC made a distinction between orders made under article 2(2) and article 132. Date-Bah JSC stated that, “orders made under article 2(2) may look similar to those under article 132, but they are not subject to the limits of the prerogative writs and orders.  The purpose of article 2(2) is to enable full effect to be given to declarations of unconstitutionality made by this Court under article 2(1).  Accordingly, it has to be interpreted liberally to give this Court wide power to ensure the supremacy of the Constitution.  The time limits, for example, applicable to the prerogative writs under the rules of court do not, therefore, apply to orders made under article 2(2). Thus, the import of this statement by Date-Bah JSC, as he then was, is that although the orders that the Supreme Court can issue under article 132 can be equated to prerogative writs, the orders the Supreme Court may issue under article 2(2) are very broad and can take the form of any kind in order not to defeat the whole intent and purpose of article 2(1).

Then in the case of New Patriotic Party v Rawlings, Amua-Sekyi JSC opined that, “We do not need a petition of right or a notional defendant like the Attorney-General before we can exercise our democratic right of calling an erring President to order under article 2 of the Constitution, 1992 which not only commands him to obey any order or direction this court may give, but also makes his failure to obey any order or direction a ground for his removal from office. What happens when the President refuses to perform a public duty imposed on him by a statute? He must, like anybody, be amenable to the prerogative writ of mandamus to compel him to discharge the duty”. It appears that the Supreme Court justices are very clear in their minds as to the legal position in terms of grant of prerogativewrits and have sought to include even the President of the Republic as being amenable to prerogative writs. Clearly then, the Supreme Court has not been timorous and would not kowtow to any submissions that purport to oust its jurisdiction in respect of grant of prerogative writs.

Further credence can be found in the case of THE REPUBLIC V THE HIGH COURT, GENERAL JURISDICTION, EX-PARTE ZANETOR RAWLINGS,where counsel for the applicant applied to the Supreme Court for an order of certiorari to quash the decision of the High Court judge for wrongfully assuming jurisdiction to interpret and define the scope andapplication of article 94(1)(a) of the 1992 Constitution and an order of prohibition directed to the High Court judge to restrain him from proceeding to hear the dispute between the applicant and the interested parties pending a decision in the instant application. The order of certiorari was issued to quash the High Court judge’s decision although the order for prohibition was dismissed on some other grounds other than want of jurisdiction by the Supreme Court.

Also in the case of Republic v High Court (Commercial Division), Accra; Ex parte Attorney-General, the Supreme Court stated as follows, “the remedies available to the Supreme Court when exercising its supervisory jurisdiction under article 132 were not limited to the issuing of the conventional writs of certiorari, mandamus, prohibition, etc. The court was also empowered under article 132 to issue orders and directions as shall be necessary to prevent illegalities, failure of justice and needless delays in the administration of justice, for the purpose of enforcing or securing the enforcement of the court’s supervisory power.”

Lastly, in the case of AMIDU v KUFUOR, the Supreme court held that under article 57(4) of the Constitution, 1992 the executive actions of the President might be challenged by an action in the Supreme Court either under article 2 of the Constitution, 1992 or by the prerogative writs. That is to say, an alleged ultra vires act by the President can only be challenged under article 2(1) and it is only prerogative writs or such special orders as provided in article 2(2) that may be issued by the Supreme Court to remedy the situation if a declaration is so made.

In conclusion, the writer is not disputing that the High Court has jurisdiction to issue prerogative writs as the constitution is very clear in article 33(2) that the High Court may issue such directions or orders or writs including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled. It is however the writer’s opinion that in the same vain the Supreme Court also has the jurisdiction to issue prerogative writs in whatever nature as some decided cases illustrate. Whether the Supreme Court is exercising its original or appellate jurisdiction, it is my humble submission that where the court finds it appropriate to issue prerogative writ, it may lawfully issue and failure to obey by the party will come with steep repercussions as we are all already aware of.