Renowned US-based Ghanaian lawyer and scholar, Professor Stephen Kwaku Asare, popularly known as Kwaku Azar, has offered what looks like a simple explanation to the brouhaha over a suit filed by Majority Chief Whip, Rockson-Nelson Dafeamekpor, challenging the ‘status’ of the Ghana Bar Association (GBA).

Dafeamekpor, who is the Member of Parliament for South Dayi, alongside private legal practitioner Israel Tetteh and the Ghana Law Society, filed a writ at the Supreme Court challenging the exclusive recognition of the Ghana Bar Association (GBA) within Ghana’s legal and constitutional framework.

The suit, filed on Tuesday, September 23, 2025, invokes the original jurisdiction of the Supreme Court under Articles 2(1) and 130(1) of the 1992 Constitution.

The plaintiffs argued that the current GBA, a private voluntary association, should not be treated as the sole representative body for lawyers in the country.

FULL TEXT: Read details of SC suit by Dafeamekpor, two others challenging GBA’s exclusivity

The plaintiffs are seeking seven key declarations, including a request for the court to interpret references to the “Ghana Bar Association” in the Constitution and the Legal Profession Act as generic or umbrella terms, rather than exclusive to the existing GBA.

In a post shared on Facebook on September 27, 2025, Kwaku Azar using a euphemism, gave a background to how the Ghana Bar Association (GBA) made it into some provisions of the 1992 Constitution of Ghana.

He asserted that the Ghana Bar Association was the only law association that existed at the time when the Constitution was being drawn, but now there are other associations that want to enjoy the same rights as the GBA.

“Article 88 of the Umuofia Constitution says the National Union of Umuofia Students (NUUS) shall have a seat in Parliament.

“When the Constitution was written, NUUS had members from only 3 universities. Today, 11 new universities exist, but NUUS still lets only the original 3 choose the MP. Kwame Patapaa (President of a new university law school) has gone to the Supreme Court, asking that all universities be included,” the legal luminary wrote on X.

He added that others have argued that because the other associations did not exist when the Constitution was being put together, they should be ignored.

Dafeamekpor, two others run to Supreme Court to challenge GBA's exclusive status

“Yaw Tetensem argues the new schools don’t count since they didn’t exist when the Constitution was passed. Should the constitutional seat for NUUS belong only to the original 3 universities, or must it expand to include all universities in Umuofia today?

Would your answer change if the Constitution named the Umuofia Lawyers Association instead, but now, some lawyers have opted not to belong to that association, and are suing to still be included in the constitutional benefits?” he quizzed.

The academic, in a subsequent post, gave a breakdown of the arguments of the two factions and the likely ruling of the court.

Read his full posts below:

Article 88 of the Umuofia Constitution says the National Union of Umuofia Students (NUUS) shall have a seat in Parliament.

When the Constitution was written, NUUS had members from only 3 universities.
Today, 11 new universities exist but NUUS still lets only the original 3 choose the MP.

Kwame Patapaa (President of a new university law school) has gone to the Supreme Court, asking that all universities be included.

Yaw Tetensem argues the new schools don’t count since they didn’t exist when the Constitution was passed.

Should the constitutional seat for NUUS belong only to the original 3 universities, or must it expand to include all universities in Umuofia today?

Would your answer change if the Constitution named the Umuofia Lawyers Association instead, but now, some lawyers have opted not to belong to that association, and are suing to still be included in the constitutional benefits?

Patapaa v. Tetensem captures the challenge of constitutional interpretation. At first glance, it may seem simple to say “NUUS means NUUS” or “ULA means ULA.” In truth, constitutional questions are rarely that straightforward.

The case exposes a deeper design flaw: by outsourcing public representation to private bodies, the Constitution makes itself vulnerable to their internal fortunes. Such associations can expand, contract, or even dissolve, leaving constitutional text hostage to private politics.

Our task, however, is not to redesign the Constitution but to apply it as it stands. We are asked to live with the flaw while still giving effect to constitutional purposes.

As Justice Sowah observed in Tuffuor v. Attorney-General, the Constitution is a “living organism capable of growth and development.” That insight must guide us in navigating imperfect constitutions, where amendments are neither easy nor always desirable.

Within this case, two variations of the problem emerge. The Expansion Problem arises when new institutions appear after promulgation. The Contraction Problem arises when members exit an existing institution after promulgation.

Both confront us with the same fundamental puzzle: should the Constitution be left hostage to the shifting fortunes of private associations?

Scenario 1: NUUS Parliamentary Seat

In Support of Yaw Tetensem (Limit to 3 universities)
• Textualist approach: The Constitution spoke when NUUS meant three, universities; that historical meaning should bind today.

• Stability concern: Expanding membership would, in effect, amend the Constitution without the people’s consent.

In Support of Kwame Patapaa (Expand to all universities)

• Purposive approach: The framers’ intent was to give students a voice, not just three campuses.

• Avoid absurdity: It would be inequitable for 3 universities to monopolize a parliamentary seat while 11 others are excluded.

•Public character doctrine: Once named in the Constitution, NUUS takes on a public role and must serve all students.

Likely Court Resolution

•Literalist court: Would restrict representation to the three original universities, holding that expansion requires formal constitutional amendment. Such a ruling would be textually defensible but would clash with Sowah’s “living organism” principle, effectively disenfranchising most students.

•Purposive court: Would rule that NUUS’s constitutional seat must expand with the student body. Otherwise, representation becomes arbitrary and exclusionary.
Scenario 2: Umuofia Lawyers Association (ULA)

Argument for Limiting to ULA Members

• Literal reading: If the Constitution names ULA, only members qualify.

• Freedom of association: Those who leave cannot insist on privileges of an organisation they reject.
Argument for Including All Lawyers

• Functional reading: The Constitution aimed to empower the profession of law, not just a voluntary club.

•Avoid hostage-taking: If benefits depend on joining, ULA could expel critics or dissolve, crippling the Constitution.

•Public character doctrine: ULA, once named, must reflect the entire Bar as a constitutional conduit, not a private gatekeeper.

Likely Court Resolution

•Literalist court: Would limit constitutional privileges to ULA members alone. This aligns with textual fidelity but risks making constitutional benefits contingent on the internal decisions of a private club, undermining constitutional supremacy.

•Purposive court: Would hold that benefits extend to all lawyers, since the Constitution cannot be left at the mercy of voluntary membership rules. This approach better reflects Sowah’s “living organism” vision.

Summary

Whether the issue is expansion (NUUS) or contraction (ULA), the underlying principle is the same: the Constitution must not be left hostage to private clubs.

Literalist rulings, while faithful to text, risk freezing constitutional provisions or rendering them sterile, results at odds with Sowah’s doctrine of a living, adaptive Constitution.

PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.

Da Yie!

BAI/VPO

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