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Opinions of Friday, 9 August 2013

Columnist: Korang, Daniel

Delegated legislation

Delegated legislation: a modern method of constitutional emendment?

Daniel Korang (aka Prof)


One essential feature of the Ghana Legal System is the power of parliament to delegate legislative power to other bodies outside parliament. The exercise of this unique legislative power culminates in the enactment of a vast body of legislation called delegated legislation. However, it is not uncommon, at least in Ghana, for parliament, in a principal enactment to delegate legislative power to itself for subsidiary enactments. The 1992 Constitution is replete with instances where the constitution delegates power to parliament to enact Acts for specified purposes.
It is a fundamental aspect of the nature of delegated legislation that the power to make it must be conferred by a relevant Act of Parliament, such as the Constitution. This power may either be conferred in general terms, or it may be expressly contemplated by specific provisions in the enabling Act. In association with this key concept is the requirement that the delegated legislation must be within the limits of the power that has been conferred.
One controversial issue in relation to delegated legislation is whether or not the exercise of a delegated legislative power amounts or is capable of amounting to proper amendment of the enabling Act. In order words, if parliament is empowered under the 1992 Constitution to enact an Act for a specified purpose, does the exercise of that power amount to amendment of the constitution?
This issue was the point of divergence of opinion in the recent Supreme Court case of ASARE vrs ATTORNEY-GENERAL (2012) SCGLR 460 (decision delivered on 22ND MAY, 2012).
The brief facts of this case relevant to our present discussion are that the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527) received the Presidential Assent on 16th December 1996. The object of the Act was to amend the Constitution of Ghana. Section 1 of the Act repealed Article 8 of the 1992 Constitution and made it permissible for a citizen of Ghana to hold the citizenship of any other country in addition to his citizenship of Ghana. The section however went on to list certain public offices which a dual citizen is ineligible to hold in Ghana. In an open-ended faction, section 1(2)(g) of Act 527 provided that, “any office specified by an Act of Parliament”.
Pursuant to this section of the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527), the Citizenship Act, 2000 (Act 591) was enacted in which parliament added some other public offices which a dual citizen cannot hold. The Plaintiff in this action claimed inter alia that such additions amounted to an effective amendment of the text of the 1992 Constitution, and as such were unconstitutional as parliament did not follow the constitutional steps for amendment stated in chapter 25 of the Constitution.
The issue here is whether or not by enacting the Citizenship Act, 2000 (Act 591) and by adding to the public offices which dual citizens cannot hold, parliament sought to and did amend the 1992 Constitution and whether parliament had to follow chapter 25 of the Constitution?
Even though the Supreme Court was unanimous in substantially dismissing the plaintiff’s case, Her Lordship Justice Akuffo JSC was of the firm view that, the enactment by parliament of the Citizenship Act, 2000 (Act 591) amounted to an effective amendment of the 1992 constitution and as such, Act 591 was unconstitutional as its enactment did not follow the steps laid down in chapter 25. The learned Justice of the Supreme Court stated in conclusion that:
“For the foregoing reasons, I am of the view that the addition of the offices of:- Chief Justice; Commissioner, Value Added Tax Service; Director General, Prisons Service Chief Fire Officer; Chief Director of a Ministry and; the rank of a Colonel in the Army or its equivalent in the other security services in section 16 (2) (a), (h) – (l), to the list of proscribed positions is unconstitutional.”
I propose, in this article, to expose the error of jurisprudence that gave birth to the conclusion by the learned judge. In doing so, I wish to discuss in some detail some important matters which are necessary in determining the validity or otherwise of a delegated legislation.

Exercising Legislative Power for the “Proper Purpose”
A statutory power may only be legitimately exercised for the purposes for which it is conferred. The exercise of the power for an ulterior object will be invalid. In some cases it may be difficult to ascertain whether or not the regulations have been made for an improper purpose. In the South African case of Friends of Ellison v SA (2007) 96 SASR 246, Bleby J said that; “whether or not a regulation has been made for an improper purpose can often be determined from the nature of the regulation itself”. The question may be one of an analysis of the effect of the relevant subordinate legislation and then determining whether, because of that effect, the provision may be characterised as seeking to achieve something different from the purpose that applies under the principal or enabling Act.
Bleby J went on to say that:
“All delegated legislation will generally be enacted for a purpose…If the empowering legislation specifies in some detail the purpose for which the delegated legislation may be enacted, and that purpose is not apparent from the delegated legislation itself, in the event of challenge it may be necessary to inquire, according to evidence of extraneous facts, whether the legislation was enacted for that purpose or for some other purpose. That will be a permissible inquiry.”
Thus the question whether an enactment was enacted for the purpose for which the power was conferred may lend itself to an inquiry as to how relevant the enactment is to the purpose for conferring the power unto parliament. In determining this question, it must be borne in mind that the enactment of the challenged delegated legislation may have been influenced by political or other considerations which are not in themselves indicators of invalidity.
Thus in Friends of Ellison v SA (2007) 96 SASR 246, Bleby J succinctly made the point that:
“It is not unusual for political considerations to enter into the decision to exercise a particular regulation-making power. However, that does not render the regulation invalid as being made for an improper purpose, and it is not for a court to judge whether some political influence had been brought to bear if the regulation on its face appears to be a valid exercise of the regulation-making power.”
What is the purpose of the legislative power conferred under section 1(2)(g) of the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527)? Clearly, the purpose was for parliament to enact law to add to and not to take from the public offices listed in section 1(2)(a)-(f) of Act 527. Under section 16 (2) of the Citizenship Act, 2000 (Act 591), parliament only added some more public offices far from reducing them. It is also note worthy that the offices added by parliament are among those which require their holders to maintain firm, unshakeable and complete allegiance to Ghana. Atuguba JSC rightly observed in his judgment that:
“It is noticeable from the offices which cannot be held by a dual citizen of Ghana that they are all high profile or leadership positions (see article 286(5)) which involve confidentiality and unalloyed allegiance to Ghana and if some other countries do not consider them to be such Ghana is not precluded from doing so.”
Obviously, in adding to the list, parliament was moved by some political considerations which have vital bearing on national security and public policy. Does this make the addition invalid and unconstitutional or does this suggest that parliament exercised the power for an improper purpose?
The case of South Australian River Fishery Association Inc and Warrick v SA (2003) 85 SASR 373 is necessary in this regard. This case related to regulations made after the election of the Rann Government. The circumstances of the case involved a compact between the Labor Party and an independent Member of Parliament under which the Member agreed to support a Labor Government in the Lower House of Parliament in order to enable Mike Rann to form a Government. One requirement of the compact was that the Government immediately banned the use of gill nets in the Riverine corridor of the Murray and phase out commercial fishing of native species within 12 months.
The plaintiffs argued that regulations subsequently made to prohibit the use of gill nets were invalid because they were made for an improper purpose as a result of the political compact. This was rejected by the Court. It was held whether political considerations played a part in deciding whether or not to make a regulation that is apparently within power is not an indicator of invalidity. The exercise of a power to make particular regulations will often be motivated by political considerations. The question is whether the regulations are within the true nature and purpose of the regulation-making power. Doyle CJ said the following:
“Another way of putting it is that the court must decide whether the amending regulations go beyond what could be reasonably adopted for that purpose… In this respect the court takes a broad approach. The court does not impose its view of the solution to an issue. The court does not substitute its decision as to how a matter should be dealt with… The role of the court is to consider whether the amending regulations have a sufficient relationship to the head of power, not whether the amending regulations embody what the court regards as the appropriate response to the circumstances in question.”

At a point later in his judgment, Doyle CJ made the point that an “improper purpose” is a purpose that is not within the scope of the empowering legislation. In ASARE vrs ATTORNEY-GENERAL (2012) SCGLR 460, the impugned section 16 (2) of the Citizenship Act, 2000 (Act 591) was appropriate to achieve an end within the delegated power or, in other words, the section had a purpose that was within the power conferred to “add to” the listed offices. The enabling constitutional provision stated that “any office specified by an Act of Parliament”. By enacting section 16 (2) of the Citizenship Act, 2000 (Act 591), it may properly be said that parliament was legitimately specifying additional offices which dual citizens are excluded from holding.

Does the Citizenship Act, 2000 (Act 591), amount to Constitutional Amendment?
It is important to note that constitutional amendments entail a cumbersome process. Chapter Twenty-Five of the Constitution, Article 289 of which provides that:-
“(1) Subject to this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution.
(2) This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless –
(a) the sole purpose of the Act is to amend this Constitution; and
(b) the Act has been passed in accordance with this Chapter.”
The import of this all-important provision is that, for any amendment of the constitution to be valid, the amending Act of Parliament must have been enacted “with the sole purpose of amending the constitution”. The long title of the Citizenship Act, 2000 (Act 591) reads as follows:-
“An Act to consolidate with amendments the law relating to citizenship of Ghana, to state in respect of citizenship by birth the legal conditions applicable at the given points in time, to bring the law in conformity with the Constitution as amended and to provide for related matters.”
From the long title, it is clear that the Act was enacted inter alia “to bring the law in conformity with the Constitution as amended” and not to amend the constitution. A correct reading of the whole Act does not suggest any legislative intent to amend the 1992 Constitution as amended.

From the foregoing analysis, it has been made clear that the power delegated by the Constitution to parliament was correctly exercised for the proper purpose of specifying certain offices which dual citizens cannot hold in Ghana. The exercise of that power required parliament to enact the Citizenship Act, 2000 (Act 591) by following the ordinary processes of passing law. Parliament was not amending the 1992 constitution and therefore did not have to follow the steps laid down under article 25 of the constitution. To this end, the learned justice of the Supreme Court, Justice Akuffo JSC was, with utmost respect, wrong in holding that parliament had to follow the process of constitutional amendment in passing the Citizenship Act, 2000 (Act 591). Delegated legislation when properly made does not and cannot amount to an amendment of the enabling constitution.

Daniel Korang (LL.B)
Enso Nyame Chambers
Mob: 0248278729

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