Contemporary Constitutional Issues in our Multiparty Democracy “ Subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this Constitution or otherwise, there is no provision, express or by necessary implication of this Constitution which deals with the matter, that has arisen, Parliament shall, by Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with. ” This is a wonderful opportunity for Parliament to make laws on constitutional issues. There is also the issue of the justiciability of the Directive Principles of State Policy. The previous position of the Supreme Court in the case of New Patriotic Party v. Attorney-General[1997-98] 1 GLR 378 that Chapter 6 provisions are only directly enforceable when they are tagged along Chapter 5 or other provisions of the 1992 Constitution was not good enough. It should be possible for the Supreme Court to declare that a particular Act of Parliament or act of the Executive is void because it contravenes a provision in the Directive Principles of State Policy. Fortunately, that is the current position of the Court in the recent case of Ghana Lotto Operators Association v. National Lottery Authority[2007-2008] SCGLR 1089. What is left is for our judges to operationalize the Directive Principles of State Policy Next are the many provisions bordering on the human rights, freedom, administrative justice and legitimate exercise of discretionary power of and for the ordinary Ghanaian which are under-theorized, under-applied and misapplied every day in our courts. The substantive provisions on these are well known to you and are contained in articles 33, 23, and 296 of the Constitution. Although we have a human rights procedure in Order 67 and an administrative justice procedure in Order 55 of our Civil Procedure rules, our experience in bringing human rights and administrative justice cases is that many judges fear to apply those procedures and insist that we bring those actions by writ of summons and thereby spend up to five (5) years in court over a matter that needs no more than a few days to address. These are the provisions that we need to amend in the Constitution. We could save the situation by further expounding on articles 23 on administrative justice, article 33 on human rights enforcement and article 296 on the limits on the exercise of discretionary power. I can provide details on some of the cases during the question time. If the courts have refused to do it, we the people must do it for them through a constitutional amendment. We also need to ensure that we identify in our Constitution for possible amendment, those provisions that deal more with economic governance. We talk too much in this country about our political governance. We have gotten that basically right now. Let us identify in our Constitution, those provisions that need to be amended in order to 14
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Contemporary constitutional issues in our multiparty democracy : 22nd April, 2009, British Council Hall, Accra ; 2009 Annual Law Week celebration, Ghana School of Law, 20th - 26th April. 2009
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