MONDAY ESSAY: The Court That Waits: Ripeness And The Path To The Supreme Court

Introduction

If it is not necessary to decide more, it is necessary not to decide more.

Access to the Supreme Court of Ghana, without doubt, is not automatic. A person seeking audience before the Supreme Court must ensure to comply with the relevant rules required to properly invoke the appropriate jurisdiction of the hallowed court. Before the Court can hear a dispute, especially in relation to its original jurisdiction, the matter must satisfy a series of threshold requirements that regulate when judicial power may be exercised. Amongst these, arguably, includes the doctrine of ripeness. Ripeness requires that a legal controversy be sufficiently developed so that a court can resolve it without all manner of speculation. In practice, ripeness forces both litigants and judges to consider timing since a claim brought too early risks an advisory opinion, something that the Supreme Court has said time and time again that it would not give. Also, a claim brought too late may also cause irreparable harm. This doctrine, it is argued, balances the need for concrete facts against the need for timely relief. This essay examines how ripeness should function as a gateway to the judicial review power of the Supreme Court. With proper understanding and clarity of the ripeness doctrine, practitioners and clients alike may better understand why a Court should choose to wait, and what that waiting means for the path to justice. 

 The Ripeness doctrine

The doctrine is built on the foundation that a court will only hear a matter if the facts giving rise to the complaint have actually occurred or are sufficiently threatened and in the process of being executed. It relates to the timing of judicial review and it asks the relevant question of “whether the court is equipped to adjudicate the issues presented before it?” Its rationale is to prevent the courts from entangling themselves in abstract disagreements through the means of avoidance of premature adjudication. Courts, according to this doctrine, should deliberately avoid judicial review of actions that may be modified in the course of time or may never occur, talk-less of being enforced. By way of formulae, in applying this doctrine, a court would evaluate the fitness of the issues for judicial decision and also the hardship that may be caused to the parties in the event that the court withholds its consideration. The hardship element requires a balancing of competing interests which is premised on the real effects of a proposed action or omission. Though criticised as a discretionary barrier, it is argued by the writer that the doctrine of constitutional ripeness, as opposed to prudential ripeness, ensures that courts do not decide abstract or hypothetical controversies, in a bid to maintain the efficiency and modesty of the highest court of the land.

Constitutional and prudential thresholds according to Ghanaian jurisprudence

The Supreme Court of Ghana has been clear, as part of its jurisprudence, that it would not allow the invocation of its jurisdiction to be used as the basis of rendering advisory opinions on subjects that are far too speculative and may never occur. It is for this reason that in the case of New Patriotic Party v National Democratic Congress and Others [2000] SCGLR 461, the Supreme Court stated that a plaintiff “equating intention with actionable act” was “quite absurd”. The Court stressed that “mere intention alone without any accompanied act or omission, cannot be an act which is capable of being declared null and void and of no effect.” The Supreme Court of Ghana, in carefully circumscribing the impact of this doctrine and sounding a caution in relation to its applicability within the Ghanaian constitutional context, has made it clear that as a general rule no law exists to inhibit the jurisdiction of the court in matters involving the interpretation of the constitution. However, the Court in Bilson v Attorney-General [1993-94] 1 GLR 104 stressed that the same principle of justiciability precludes the giving of advisory opinions based on hypothetical facts which are not part of an existing controversy. Though the learned Judge in a subsequent case of Amidu v President Kufuor and Others [2001-2002] 2 GLR 510 confessed to have had some second thoughts about the position stated in the Bilson case, the writer humbly argues that that former view remains valid, and more so, even in this present time of an ever-increasing case load in the Supreme Court mostly made up of frivolous cases disguised as interpretation and enforcement matters. 

In the recent case of Richard Dela Sky v Speaker of Parliament and Another, Writ No. J1/09/2024, the Supreme Court, though not making specific reference to the doctrine of ripeness seemed to have given approval to the doctrine’s core thesis. Speaking through Prof. Mensah-Bonsu JSC, the Court stated that “where the plaintiff in the instant case invites the Supreme Court to interpret a Bill which has not completed  its life-cycle to mature into an Act…one is confronted with a novel situation…It would seem that the plaintiff has short-circuited the process of legislation and not permitted the “enactment” to be born, before seeking to invoke the original jurisdiction of the Supreme Court to interpret the “as-yet-unformed enactment” and strike it down…It thus cannot be in anybody’s interest for the Supreme Court to sully forth at will and stop Parliament or anyone else from thinking of, debating or taking a position on particular issues by prematurely making value judgments and blocking whatever proposition is under discussion because it is speculated that it does not measure up to any provision in the Constitution. The Supreme Court is not in the business of giving advisory opinions or anticipating and suppressing Parliament’s law-making powers.”

Conclusion

In conclusion, ripeness serves as both a constitutional safeguard and a tool of judicial restraint. By requiring that disputes be fully developed before review, it ensures that courts decide real controversies, not hypothetical ones, and that parties receive concrete rather than speculative relief. Yet the doctrine’s uncertain divide between constitutional mandate and prudential choice creates confusion about when courts, in this case the Supreme Court, must wait. As the Court continues to re-examine ripeness, clarity is needed to balance timely access to justice with the need for mature and focused adjudication. In the end, the Court that waits does so not to deny justice, but to deliver it at the right time.

God bless!