The 1992 Constitution & The Rule of Law
Definition and types of constitutions (written vs unwritten, rigid vs flexible), supremacy of the Constitution, principles of the Rule of Law (Dicey), and constitutionalism in Ghana.
Under Article 2 of the 1992 Constitution, any Ghanaian citizen can file a writ at the Supreme Court invoking its original jurisdiction to declare any presidential act, parliamentary statute, or chieftaincy practice null and void if it breaches constitutional provisions. This mechanism has been used repeatedly to strike down unlawful government actions in Ghana.
Key Syllabus Learning Objectives
- 1Define a constitution and classify constitutions into written/unwritten and rigid/flexible
- 2Explain the supremacy of the 1992 Constitution of Ghana as articulated under Article 1(2)
- 3Analyze A.V. Dicey's three cardinal pillars of the Rule of Law and their practical application
- 4Describe constitutionalism and explain how it prevents despotic rule and corruption
- 5Evaluate the role of the Supreme Court of Ghana in constitutional interpretation and judicial review
Constitutional Typologies & The Supremacy Clause
- Written Constitution: All governing laws and procedures are contained in a single authoritative volume.
- Rigid Amendment Process: Requires a special referendum for entrenched provisions (Article 290) to prevent whimsical partisan amendments.
- Supremacy of the Constitution: Any law, executive decree, or traditional taboo that clashes with the Constitution is instantly void to the extent of the inconsistency.
In the landmark case of NPP v. Attorney General (31st December Case), the Supreme Court ruled that using public funds to celebrate a military coup anniversary was inconsistent with the 1992 Constitution.
The Constitution is the supreme legal bedrock; no decree, leader, or tradition can supersede it.
Dicey's Rule of Law & Judicial Independence
- Supremacy of Regular Law: No arrest or detention without an enacted law; prohibition of retroactive criminal laws.
- Equality Before the Law: Ministers of State, parliamentarians, and ordinary citizens are judged by the same penal code.
- Judicial Review: The power of the Supreme Court to nullify any unconstitutional executive act or legislative enactment.
Former ministers of state and Members of Parliament in Ghana have been prosecuted and sentenced to prison terms by ordinary courts for causing financial loss to the state, exemplifying equality before the law.
When the Rule of Law flourishes, justice is predictable, foreign investments are safe, and individual freedoms are preserved.
- Memorize Article 1(2) verbatim; quoting it precisely earns maximum introductory marks in constitution essays.
- Always state A.V. Dicey by name when discussing the three pillars of the Rule of Law.
- Distinguish clearly between 'entrenched clauses' (requiring national referendum) and 'non-entrenched clauses' (requiring two-thirds parliamentary vote).
- Confusing 'Rule of Law' with 'Rule by Law' (Rule by Law is when tyrants use draconian laws to oppress people; Rule of Law requires just, fair, and constitutional laws).
- Thinking that an unwritten constitution means a country has no written laws at all (the UK has numerous written statutes like Magna Carta, but lacks a single codified document).
- Assuming that the President of Ghana can unilaterally suspend the Constitution at will.
- Can I define a constitution and classify written vs unwritten and rigid vs flexible?
- Do I know the exact wording and legal effect of Article 1(2)?
- Can I explain A.V. Dicey's 3 pillars of the Rule of Law?
- Can I explain how judicial review preserves constitutionalism in Ghana?
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