FREE Revision for the 2025 School of Law Entrance Exam-Session 7- JUDICIAL REVIEW OF LEGISLATION

Overview
This lecture focused on judicial review of legislative action in Ghana's constitutional law framework. Dr. Ernest explained the concept of judicial review in two senses: first, under Articles 2 and 130 of the Constitution where the Supreme Court reviews the constitutionality of legislation and executive actions; and second, in the administrative law sense under Article 23, involving the application of prerogative writs like mandamus and certiorari. The lecture examined the scope, parameters, and limitations of the Supreme Court's power to review legislative actions through analysis of recent landmark cases.
Key Concepts or Theories:
Constitutional supremacy: The Constitution is supreme and no organ of government is above it
Judicial review as a mechanism to enforce constitutional supremacy
Substantive and procedural review of legislation
Separation of powers and its impact on judicial review
Threshold requirements for invoking the Supreme Court's original jurisdiction
Important Questions Raised:
When can the Supreme Court exercise judicial review over legislation?
What is the scope of the Supreme Court's power to review legislative actions?
How does the doctrine of separation of powers limit judicial review?
What is the distinction between judicial review of bills versus enacted legislation?
How does the Supreme Court balance constitutional rights protection with respect for parliamentary autonomy?
Key Takeaways and Summary of Learning Objectives
The Supreme Court's power of judicial review is based on Articles 1(2), 2, 130, and 11(7) of the 1992 Constitution
Judicial review covers both substantive inconsistency (content that violates constitutional provisions) and procedural irregularity (failure to follow constitutionally prescribed procedures)
The Supreme Court cannot review bills that have not yet become law through presidential assent
The Supreme Court will not interfere with parliamentary procedures unless they clearly violate constitutional provisions
Legislation that automatically imposes penalties without due process violates constitutional rights to fair hearing and presumption of innocence
Human rights enforcement cases should be brought to the High Court under Article 33, not to the Supreme Court under Articles 2 and 130
Topic 1: Constitutional Basis and Scope of Judicial Review
The Supreme Court's power of judicial review is firmly established in Ghana's 1992 Constitution. Unlike the United States, where judicial review was judicially created through Marbury v. Madison, Ghana's Constitution explicitly provides for it. Article 1(2) establishes constitutional supremacy, stating that any law inconsistent with the Constitution is void to the extent of the inconsistency. Article 2 enables any person to invoke the Supreme Court's jurisdiction to declare acts unconstitutional, while Article 130 grants the Court original jurisdiction in constitutional matters. Article 11(7) provides for review of subsidiary legislation.
The scope of judicial review covers both substantive and procedural aspects. Substantive review examines whether the content of legislation undermines constitutional provisions, as seen in cases like the National Lotteries case where the Supreme Court struck down legislation creating a monopoly that violated freedom of association. Procedural review examines whether legislation followed constitutionally prescribed procedures, such as proper amendment processes for entrenched provisions or correct procedures for delegated legislation.
Relevant Q&A
Ebenezer: What happens if you invoke the Supreme Court's jurisdiction on interpretative issues but it turns out to be a human rights enforcement issue?
Dr. Ernest: If a case is presented to the Supreme Court under Articles 2 and 130, but it emerges that it's actually a human rights action, the case will be dismissed. The Court will not make a direct referral to the High Court. You would need to restart the case in the High Court following the proper procedure under Article 33.
Topic 2: Landmark Cases on Judicial Review
Several landmark cases illustrate the Supreme Court's approach to judicial review. In Richard Sky v. Parliament of Ghana and Attorney General, the Court held that judicial review applies only to enacted laws, not bills still in the legislative process. The Court dismissed Sky's challenge to the Human Sexual Rights and Ghanaian Family Values Bill as premature since it had not yet received presidential assent. Justice Mensa Bonsu emphasized that a bill is merely a draft in the process of becoming law and has not yet crystallized into an enforceable enactment.
In Kwadwo Appiagyei v. Attorney General, the Court struck down the Imposition of Restrictions Act (Act 1012) as unconstitutional because it vested emergency powers solely in the Executive, bypassing Parliament and the courts.