Introduction
The political question doctrine is a principle of judicial self-restraint carved out of the doctrine of separation of powers. The doctrine is defined as a question that a court will not consider because it involves the exercise of discretionary power by the executive or legislative branch of government. It is therefore a non-justiciable question — one that the courts should refrain from adjudicating because the matter is expressly or impliedly constitutionally committed to another branch of government.
An examination of the Supreme Court's decisions on the doctrine reveals a significant ambivalence: in some decisions, the court categorically states that the doctrine does not apply in Ghana; in others, the court applies the doctrine in substance without expressly invoking it. The author argues that this ambivalence is the product of a conceptual confusion — a failure to distinguish between the question whether the doctrine is part of Ghana's constitutional law at all, and the separate question whether the doctrine should be upheld on the particular facts of a given case.
The author's submission is that the doctrine applies in Ghana. The authorities which take the view that it does not apply mix up these two distinct questions and, on careful analysis, actually acknowledge the doctrine's existence while declining to apply it on the facts.
The Doctrine as a Principle of Judicial Restraint
The Supreme Court's decisions on its exclusive original jurisdiction to decide constitutional matters have been consistent on one point: the court must exercise restraint and refrain from deciding matters that are properly, by law, consigned to another branch of government. In the Abban case, Edward Wiredu JSC acknowledged that the judiciary itself had limitations under the 1992 Constitution and must be the first to respect the new legal order and not clothe itself with powers it does not possess.
In Abu Ramadan & Nimako (No 2) v Electoral Commission & Attorney-General (No 2), the Court underscored this need for judicial self-restraint in terms that are themselves a formulation of the political question doctrine:
It is not permissible for the court to substitute its own decision for that of the body or persons exercising a discretion conferred on it by the Constitution. This is necessary to keep the court itself within its proper limits in order to give effect to the supremacy of the law, which appears to be the foundation of the original jurisdiction. The court's function is to set limits on the exercise of the discretion, which by the Constitution has been vested in an institution or body of persons; and a decision made within these boundaries cannot be impugned.
The Doctrine Has Nothing to Do with Politics
A critical preliminary point — which explains much of the confusion in the cases — is that the political question doctrine is not about politics. As defined, the doctrine only requires the courts to refrain from adjudicating on matters which involve the exercise of discretionary power lawfully entrusted to either the executive or legislative branch of government. It does not require the courts to refrain from adjudicating on legal questions merely because such matters are deemed "political," or the parties are politicians, or the matter has political consequences.
What will determine whether the doctrine applies is whether the matter properly belongs exclusively to another branch of government to deal with. In the 31st December case, Abban JSC (in the minority) emphasised that judges must do everything possible to ensure that sentiments and personal views do not influence or cloud their vision of objectivity when construing constitutional provisions.
As a Doctrine Rooted in Separation of Powers, It Applies in Ghana
The authorities both for and against the application of the doctrine agree that its foundation is the doctrine of separation of powers. In the landmark American case of Baker v Carr, Justice Brennan held that the non-justiciability of a political question is primarily a function of the separation of powers. Critically, even those Ghanaian cases which disavow the doctrine acknowledge this foundational link.
In the Justice Abdulai v Attorney-General case, where the court held that the doctrine does not apply in Ghana, the court nonetheless stated:
It is a function of the principle of separation of powers, that certain questions presented for resolution by the courts, that are expressly or impliedly constitutionally committed to the elected/political branches of the government for resolution, be left to those branches because such questions may be said to be non-justiciable and consequently the judiciary ought to abstain from deciding them.
If the doctrine is, as the court concedes, a function of the separation of powers, and if the separation of powers is — as all the cases agree — a core component of Ghana's constitutional framework under the 1992 Constitution, then the conclusion that the political question doctrine does not apply in Ghana is a non-sequitur. The doctrine is derived from a principle that the court itself says applies in Ghana. It must therefore apply.
Arguments Against the Doctrine Examined
The Justice Abdulai decision identified three premises for concluding that the doctrine does not apply in Ghana: (i) the 1992 Constitution establishes a constitutional, as against a parliamentary, supremacy; (ii) the preponderance of authorities such as the 31st December case and the Amidu case are against the doctrine; and (iii) the constitution is sui generis.
On constitutional supremacy: The argument that constitutional supremacy negates the doctrine misunderstands both the doctrine and the supremacy principle. The political question doctrine has never pretended that all acts of the executive and legislature are immune from judicial enquiry. It only provides that where a matter is constitutionally committed to another branch — within constitutional limits — the court should not usurp that function. Constitutional supremacy and the political question doctrine operate on entirely different axes.
On the preponderance of authorities: A close reading of the cases reveals that the decisions said to support the proposition that the doctrine does not apply in Ghana actually applied the doctrine in substance. The Tuffuor v Attorney-General case applied the doctrine without expressly naming it — a fact acknowledged by Hayfron-Benjamin JSC in the Abban case and by Kpegah JSC in the Amidu case. The 31st December case, far from rejecting the doctrine, proceeded on the basis that the court should not intrude into areas of discretion vested by the constitution in the other branches of government. The decisions that said the doctrine does not apply were per incuriam the earlier Tuffuor and Abban decisions.
On the sui generis principle: The sui generis argument cannot bear the weight placed upon it. The principle merely underscores that Ghana's history and peculiar circumstances are relevant to understanding the constitution. It is only a general statement which underscores the relevance of local context. It cannot serve as the basis for discounting established constitutional law principles — such as the separation of powers — which the constitution itself endorses.
The Decisions Which Say the Doctrine Does Not Apply Are Per Incuriam
The first reported case in which the court emphatically held that the doctrine does not apply in Ghana is the 31st December case. Before that decision, however, the court had applied the doctrine in Tuffuor v Attorney-General. The court in the 31st December case never acknowledged or departed from Tuffuor. It was therefore decided per incuriam that prior binding authority.
The Abban case subsequently departed from the 31st December case and emphatically endorsed the political question doctrine. In that case, Hayfron-Benjamin JSC held that the non-justiciable political question was "certainly one ground upon which the jurisdiction of this court may be ousted." The Abban case was the most current decision of the court at the time, and subsequent decisions were bound by it.
The JH Mensah case and the Justice Abdulai case, which rejected the doctrine, were per incuriam both Tuffuor and Abban. The Justice Abdulai case also failed to consider the Amidu case, in which Kpegah JSC took the position that the doctrine applies in Ghana. A decision which overlooks binding earlier decisions of the same court and reaches a different conclusion is per incuriam those overlooked decisions.
Under What Circumstances Does the Doctrine Apply?
The doctrine applies where the court's original jurisdiction is invoked and the court is required to determine two issues: first, whether the 1992 Constitution by its text committed the matter to another branch of government; and second, whether that branch of government has exceeded its power in the performance of that duty or omitted to perform that duty as prescribed by the constitution.
Where the answer to the first question is affirmative, and the answer to the second question is negative — that is, the branch has acted within its constitutional mandate — the courts have no jurisdiction to place themselves in the position of that branch and decide the manner for exercising their constitutional power. It is in this context that Dr Date-Bah JSC held in Centre for Public Interest Law v Attorney-General that the matter be left to the electorate. That test has remained the dominant test in the jurisdiction for determining the application or otherwise of the political question doctrine.
Conclusion
The political question doctrine applies in Ghana. The court, regardless of the position it has formally taken, has in substance consistently acknowledged and applied it. The decisions which thunder that the doctrine does not apply are per incuriam earlier decisions of the court which clearly endorsed and applied the doctrine. Those decisions proceed on the basis of three premises — constitutional supremacy, the preponderance of authorities, and the sui generis constitution — none of which withstands scrutiny.
The discussion will not put an end to debates on the political question doctrine. What it demonstrates is that the ambivalence of the Supreme Court on this question is not a genuine jurisprudential disagreement about the applicability of a principle, but rather a confusion between the abstract applicability of the doctrine on the one hand, and the facts of individual cases which determined whether the doctrine was upheld on the other. On that score, the court has always been — and remains — in agreement.