LLB CONSTITUTIONAL LAW - SEPERATION OF POWERS IN GHANA ( part 2)

Historical Context: Post-Independence Separation of Powers
After independence in 1957, Ghana sought governance structures to prevent excessive concentration of power. However, military coups and authoritarian regimes disrupted initial democratic attempts, favoring executive dominance while sidelining the judiciary and legislature. This weakened the system of checks and balances, as seen in the Re Akoto and Seven Others (1961) case. The Supreme Court upheld the Preventive Detention Act, reflecting limited judicial autonomy and executive overreach.

Subsequent constitutions attempted to restore separation of powers, such as those of 1969 and 1979, but were short-lived due to military interventions in 1972 and 1981. These periods nullified constitutional safeguards, leaving Ghana with a legacy of executive supremacy and weakened judicial independence.

The 1992 Constitution: A Turning Point
The adoption of the 1992 Constitution marked a critical milestone in restoring democratic governance. While the Constitution does not explicitly use the term “separation of powers,” it clearly delineates the roles of the executive, legislature, and judiciary, ensuring checks and balances. Key provisions include:

Article 58: Vests executive power in the President.
Article 93: Vests legislative power in Parliament.
Article 125: Vests judicial power in the judiciary, granting the Supreme Court authority over constitutional interpretation.
The Constitution also established independent institutions like the Commission on Human Rights and Administrative Justice (CHRAJ) and the Electoral Commission to reinforce checks and balances.

Judicial Interpretation and Notable Cases
Judicial interpretation has been instrumental in shaping the practical application of separation of powers under the 1992 Constitution. Notable cases include:

New Patriotic Party v. Attorney-General (31st December Case): The Supreme Court emphasized judicial restraint, avoiding interference in executive or legislative functions without compelling constitutional grounds. Chief Justice Archer warned against judicial “officiousness,” reinforcing the judiciary’s respect for constitutional boundaries.

Ghana Bar Association v. Attorney-General & Another: The judiciary upheld the non-justiciability of certain executive actions, affirming that judicial powers must not encroach on the executive’s constitutional discretion, particularly in appointments.

Tsatsu Tsikata v. Chief Justice & Attorney-General: This case highlighted the interplay between judicial independence and executive influence. The judiciary recognized the constitutional duty of the Attorney-General to represent the Chief Justice, illustrating the interdependence among the branches.

Kwaku Asare v. Attorney-General: The Court held that while separation of powers is a constitutional principle, it should not impede purposive interpretation of constitutional provisions. Justice Kludze argued that clear constitutional mandates override strict adherence to separation of powers.

Contemporary Reflections on Separation of Powers
Under the 1992 Constitution, Ghana’s democratic institutions have matured, fostering a balance between autonomy and interdependence among branches. Courts have played a pivotal role in clarifying boundaries while acknowledging the necessity of cooperation. For example, in cases like Tsikata v. Chief Justice & Attorney-General, the judiciary has emphasized collaboration where mandated by the Constitution.

The principle of separation of powers is not absolute but must adapt to governance realities. The Constitution’s checks and balances aim to prevent abuse of power while allowing necessary interdependence.

Checks and Balances: Ensuring Accountability
The 1992 Constitution integrates checks and balances to prevent any branch of government from exercising unchecked power. Key mechanisms include:

Judicial Review: The judiciary reviews executive and legislative actions for constitutional compliance. For instance, in 31st December Case, the Court clarified limits on executive authority.

Legislative Oversight: Parliament exercises control through budget approval, executive appointments, and investigative committees like the Public Accounts Committee. These ensure accountability and transparency in governance.

Executive Role in Judicial Appointments: The President appoints judges, subject to the advice of the Council of State, balancing executive influence with external oversight.

Parliamentary Approval of Treaties: International agreements and key appointments require parliamentary ratification, limiting unilateral executive actions.

Impeachment Mechanisms: Parliament can initiate impeachment proceedings against the President for misconduct, with the judiciary ensuring fairness and legitimacy.