Are Supreme Court orders binding on Parliament?

If the matters in contention relate only to parliamentary proceedings, procedures, processes and practices, then the court would stay its hand and not interfere with them.

However, if it is alleged that Parliament has acted unconstitutionally, then since Parliament is neither sovereign nor supreme, but is subject to the supremacy of the Constitution, the court, as the final arbiter and decider of what the law is, can make binding orders concerning Parliament.

Under Article 115 of the Constitution, Parliament has complete freedom in its proceedings and this freedom should be respected in court and other places outside Parliament.

This idea appears to be related to the US-originated ‘political question doctrine’, which says that when an issue is politically sensitive, courts, being non-political, should not decide on it.

In Baker V Carr (1962), the US Supreme Court set the criteria for identifying a political question, and their courts do not automatically avoid such cases unless they meet these criteria.

Thus, in Baker V Carr itself, the court decided that redrawing electoral boundaries, although political, could be adjudicated because it affected the equal protection provisions of their Constitution.

Position

In Ghana, the now-settled position appears to be that while the courts would generally shy away from interfering with Parliament, Parliament is not a law unto itself.

Its powers to make laws and regulate its procedures, as outlined in Articles 93 and 110 of the Constitution respectively, are expressly stated to be ‘subject to the Constitution.’

Therefore, Parliament and its actions are not exempt from constitutional limits; and while Parliament controls its procedures, those procedures must always follow the Constitution.

If Parliament is alleged not to have followed the Constitution, then the Supreme Court would have the power under Articles 2 and 130 of the Constitution to interfere and make orders that are binding on Parliament.

But our courts have applied this doctrine in a somewhat checkered manner. In Tuffuor v Attorney-General (1980), Justice Sowah ruled that courts cannot question how Parliament conducts its business or whether what happens in Parliament is legal.

He described Parliament’s actions as a ‘closed book’, but only ‘in so far as Parliament has acted by virtue of the powers conferred upon it by the [Constitution]’.

In Ghana Bar Association v Attorney-General (1995), the court dismissed a challenge to Parliament’s approval of a Chief Justice, saying it had no power to question how Parliament made its decision.

However, in the NPP v Attorney-General (1994) (the 31st December Case), Justice Adade stated that the political question doctrine does not apply in Ghana because constitutional interpretation is a matter for the Supreme Court alone.

Later, in J H Mensah v Attorney-General (1997), Justice Acquah clarified that although the courts cannot interfere when Parliament acts within its constitutional powers, they can step in if Parliament violates the Constitution.

In Amidu v J A Kufuor & Others (2001), Justice Acquah emphasised that no government institution is above judicial scrutiny, and especially when there is an allegation of a constitutional violation, the Supreme Court has the duty to intervene.

The most recent and authoritative re-statement of the Ghana position is in Abdulai V Attorney-General (2022), where Justice Kulendi confirmed that the political question doctrine may apply only when an issue is strictly related to parliamentary procedure.

However, when the issue involves interpreting the Constitution, the court has a duty to intervene.

He explained that ‘even though Parliament is a master of its procedure, it cannot be overemphasised that all the House’s rules, orders, procedures and practices also have a master; the 1992 Constitution of the Republic of Ghana.’

Accordingly, ‘neither Parliament as an institution nor its members, officers, orders, practices, conventions or procedures can be said to be independent of and/or exempt from the limitations imposed by the Constitution.’

Conclusion

Everyone interested in the matter should examine exactly what happened in Parliament on October 17, 2024, and decide for themselves whether what happened was merely parliamentary procedures or involved determining constitutional issues.

If it was the former, then the Supreme Court should hold its hand. But if it was the latter, then the orders of the Court are binding on Parliament and Parliament must comply with them.

The writer is a lawyer.