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Supreme Court dismisses case against review of Constitution

A seven-member Supreme Court panel has dismissed a case brought by US-based Ghanaian lawyer challenging the constitutionality of the Constitution review process.

Prof. Stephen Kwaku Asare was contending amongst others that the President under the constitution, does not have the power to set up a commission to review the country's supreme law, the 1992 Constitution.

The power to review the constitution should rest with Parliament, he argued.

He wanted the declaration that the late President John Mills erred when in 2010, he set the Constitution Review Commission chaired by Professor Albert Kodzo Fiadjoe to review Ghana's constitution.

According to Joy News' Fred who was in court, the seven-member panel, chaired by Chief Justice Georgina,  dismissed the case by a 5 - 2 decision.

Prof. Asare was challenging the activities of the Constitution Review Implementation Committee chaired by Prof. Emmanuel Victor Dankwah.

The committee was set review the report of the Constitution Review Commission (CRC) and to prepare grounds for a possible referendum on the CRC's proposals  and recommendations for constitutional amendment.

But Prof. Asare said, “Professor Dankwah and his so called Constitution Review Implementation Committee have no power under the laws of Ghana to schedule a referendum and/or to amend the Constitution of Ghana.”

He said “Parliament is the sole body that can initiate, consider and propose amendments to the Constitution.”

Parliament’s power to amend the Constitution, he insisted, “is not only plenary and exclusive but also cannot be delegated to or usurped by the President, the so-called Constitution Reform Commission or the Constitution Review Implementation Committee.”

He wanted a "declaration that the powers granted to the President under Article 278(1) to 'appoint a commission of inquiry into any matter of public interest' does not include the power to establish a commission to review and propose amendment bills to the Constitution where such powers to review and propose amendment bills to the Constitution have been expressly, exclusively and specifically conferred to Parliament."

One of the seven reliefs Professor Asare was asking was "A declaration that the Constitution Review Implementation Committee (CRIC) set up by the President to finalize amendment bills for both the entrenched and non-entrenched provisions is alien to the Constitution and any and all of its activities directed at finalizing amendment bills that touch on any and all aspects of the Constitution, whether entrenched or non-entrenched, are unlawful, unconstitutional, impermissible, null, void and of no effect."

According Joy News' Fred Smith, even though the court upheld some of the US-based Accounting Professor's argument, it dismissed some key aspects of his case.

The court will give full details of the reasons for its decision on October 29, 2015.

Prof. Ken Attafuah, lawyer for Prof. Asare expressed disappointment with the ruling.

He said he is eagerly waiting for the reasons of the court, expressing the hope that the reasoning of the minority - Justice Anin Yeboah and Justice Jones Dotse, would also be given.

Barely two hours after the court's decision, Prof Asare posted a reaction on his facebook wall.

He wrote, "This morning the Supreme Court in a 5-2 decision held that the President can not only set up a Commission to review the Constitution and thereby initiate the amendment process but also he can do it as often as he wants with Commissions whose  membership, size, dispositions, values and terms of reference are determined solely by him. In effect, the Court’s majority gave  judicial blessing to the notion that this country is under an imperial presidency.

"Not only does the holding effectively wrestle the power to initiate amendment from Parliament, a legislative body comprising of 275 MPs, and outsource it to one man but it also effectively rewrites chapter 25 of the Constitution in a radical way; puts the President in charge of the process of altering the text and stability of the Constitution; and significantly undermines, devalues and erodes confidence in the Constitution as the supreme, paramount and perdurable law of the land.

"Plainly, when we seek to amend the Constitution, we should do so by following the Chapter on Amending the Constitution not the chapter on Presidential Commission.

"Nevertheless, the Supreme Court is the final arbiter of our Constitutional disputes and we are obliged to accept its opinion on this vexed issue even while vehemently disagreeing with it. We leave it to posterity to judge whether a reasonable and honest reading of the Constitution can lead to the result announced by the Court’s majority."

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