Case of the week: Francis Osei-Bonsu v. Attorney General

Supreme Court  ·  WRIT NO. J1/18/2023 ·  24 Apr 2024 ·  Ghana

Facts:

The plaintiff challenged the constitutionality of Section 16(2)(a) and (h)-(l) of the Citizenship Act, 2000 (Act 591). He argued that these provisions, which expanded the list of public offices, (eg Chief Justice, Chief Director) dual citizens could not hold, were inconsistent with Article 8(2) of the 1992 Constitution.

The plaintiff contended that since the Constitution explicitly lists disqualifications, Parliament could not unilaterally alter or expand this list without following the formal constitutional amendment process outlined in Articles 289 and 291. The Attorney General, in an unusual but commendable move, conceded that the provisions in question were unconstitutional. The Supreme Court was thus tasked with determining whether Parliament had overstepped its constitutional bounds by adding disqualifications to dual citizenship holders outside the prescribed amendment procedure.

Holding:

The Supreme Court ruled in favor of the plaintiff, holding that:

• The additions made by Section 16(2) of Act 591 to the list of offices disqualifying dual citizens constituted an amendment to the Constitution.
• Any amendment to the Constitution must follow the formal procedures set out in Articles 289 and 291 of the 1992 Constitution, which Act 591 failed to do.
• The provisions were thus unconstitutional and were struck down.

Implications of the Decision:

This case reinforces the principle of constitutional supremacy, affirming that constitutional amendments must strictly follow prescribed legal procedures. It also serves as a cautionary reminder that Parliament’s legislative powers are constrained by the Constitution. The decision protects dual citizens from arbitrary disqualification beyond what the Constitution expressly provides. Moreover, it underscores that qualifications and disqualifications for public office must strictly adhere to constitutional criteria.

Significant Quote:

“The supremacy of the Constitution is not only entailed in the substantive values of the constitutional provisions but also in the prescribed procedure through which such provisions are executed or amended. The free hand of Parliament to amend the Constitution is also constrained by the prescribed procedure and, in some relevant context, the substance. There is no power vested in Parliament to unilaterally ignore the procedure through which the Constitution is to be amended. If Parliament wishes to effect an amendment to the Constitution, it must do so in accordance with what procedure the Constitution laid down, enshrined in Chapter 25.”- Kulendi JSC

Commentary/Insight:

By striking down the unconstitutional provisions of Act 591, the Court reaffirmed the rule of law and and the respect for separation of powers, ensuring that legislative power does not extend beyond constitutional limits, no matter how well-intentioned. This decision is, thus, a crucial precedent that will prevent future attempts to alter fundamental rights through mere statutory enactments rather than formal constitutional amendments.

Additionally, this case underscores that the amendment process itself is a safeguard against arbitrary governance in which Parliament will be allowed to modify constitutional provisions unilaterally through regular legislation, thereby weakening the Constitution’s supremacy and sanctity.