Courts, constitutions and interpretation in Africa : a focused inquiry into comparative constitutional interpretation in Ghana and Nigeria

• Pages: 57-94
• Date: 01 January 2013
• Published date: 01 January 2013
• DOI: 10.10520/EJC161849
• Author: Atupare P. Atudiwe

COURTS, CONSTITUTIONS AND

INTERPRETATION IN AFRICA: A FOCUSED

INQUIRY INTO COMPARATIVE

CONSTITUTIONAL INTERPRETATION IN

GHANA AND NIGERIA

Atupare P Atudiwe*

ABSTRACT

After military rule in Ghana and Nigeria, the decision was taken to return the

countries to constitutional democracy. The constitutions that were promulgated

in fulfilment of this objective, one may say, sought to embody or represent the

‘spirit’ of the people as reflected in their respective political and constitutional ex-

periences. It would therefore be reasonable that the courts interpret these in a

manner that best reflects the supreme interests of the people. But there are various

theories of constitutional interpretation such as the positivist, purposive, ethical,

originalist, non-originalist, literalist and mechanical brands of interpretation.

Admittedly and as a matter of principle, there are good reasons for a panel of

judges to follow one or more of these styles in interpreting a constitution. But the

choice should not be made arbitrarily. The political as well as the constitutional

experiences of the people should be the basic denominator for any preferred the-

ory of constitutional interpretation for a country. This article attempts a

discourse on the positivist and non-positivist tacks of interpreting a constitution,

especially by the courts in Ghana and Nigeria. Primarily, it takes the position

that judicial attempts in these two countries to conceive the constitution as ‘law’

are better appreciated if a non-positivist style of constitutional interpretation is

adopted. Transiting from military dictatorship and its attendant violation of hu-

man rights, and the problem of exclusion in the constitution making process in

these two countries, it is palpably dangerous to rely on the literal interpretation of

the Constitution.

COURTS, CONSTITUTIONS AND INTERPRETATION IN AFRICA 57

BA, LLB(Gh); MA (Brock) LLM, PhD(Queens, Canada); Lecturer, Faculty of Law, University of

Ghana, Legon.

*

I INTRODUCTION

This article examines different styles of constitutional interpretation in

Ghana and Nigeria, in particular, judgments illustrating legal positivism and

judgments illustrating non-positivist styles. It would take a paper longer

than this to work through the cases in Ghana and Nigeria that deal explicitly

with approaches to constitutional interpretation. My aim here is much more

modest. It is just to highlight and distinguish these two dominant styles of

constitutional interpretation indulged in by the courts of Ghana and Nige-

ria; and to underscore their manifestations in certain areas of law. With this

background, I will then turn in the latter part of the article to suggest that the

adoption of the non-positivist style of legal reasoning assists in understand-

ing law as an expression of moral values and fundamental principles and as

deriving much of its force from the concurrent presumption that constitu-

tions or Parliament would not intend to deprive the citizen of his or her basic

rights and liberties, contrary to settled principles of natural justice. In that

case, the aim of constitutional interpretation should be to discover and

embrace certain values that in the end safeguard the well-being of the people.

II THE CONSCIENCE OF THE CONSTITUTION AND THE COURTS’

INTERPRETIVE APPROACHES

The central and general assumption underlying our main argument in

this article is that the written constitutional texts of Ghana and Nigeria nei-

ther embody ‘‘hollow hopes’’ in the search for progressive goals, nor

represent an exhaustive account of the legal values that are necessary for a

comprehensive conception of law as a moral ideal.1On that account, we

must begin our analysis with some specific answers to some preliminary but

very vital questions. What do judges in Ghana and Nigeria think ‘the Consti-

tution’ in their respective countries is? How do they go about interpreting

their ‘Constitution’? In answering these related questions, it is important to

note that each country has a written Constitution that purports to define it-

self—both in terms of its origins and its status as supreme law. Thus, the

Preamble to the Ghanaian Constitution provides:

WethePeopleofGhana,

IN EXERCISE of our natural and inalienable right to establish a framework of

58 (2013) MLJ VOLUME 7

1 See N Simmonds Law as a moral idea (Oxford: Oxford University Press, 2007).

government which shall secure for ourselves and posterity the blessings of lib-

erty, equality of opportunity and prosperity;

IN A SPIRIT of friendship and peace with all peoples of the world;

AND IN SOLEMN declaration and affirmation of our commitment to;

Freedom, Justice, Probity and Accountability;

The Principle that all powers of Government spring from the Sovereign Will of

the People;

The Principle of Universal Adult Suffrage;

TheRuleofLaw;

The protection and preservation of Fundamental Human Rights and Freedoms,

Unity and Stability for our Nation;

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS

CONSTITUTION.

Section 1 of the Ghanaian Constitution then states:

(1) The Sovereignty of Ghana resides in the people of Ghana in whose name and

forwhosewelfarethepowersofgovernmentaretobeexercisedinthemanner

and within the limits laid down in this Constitution.

(2) The Constitution shall be the supreme law of Ghana and any other law found

to be inconsistent with any provision of this Constitution shall, to the extent of

the inconsistency, be void.

ThepreambletotheNigerianConstitution provides:

We the people of the Federal Republic of Nigeria, having firmly and solemnly re-

solve, to live in unity and harmony as one indivisible and indissoluble sovereign

nation under God, dedicated to the promotion of inter-African solidarity, world

peace, international co-operation and understanding, and to provide for a Con-

stitution for the purpose of promoting the good government and welfare of all

persons in our country, on the principles of freedom, equality and justice, and

for the purpose of consolidating the unity of our people;

Do hereby make, enact and give to ourselves the following Constitution:-

Section 1 of the Nigerian Constitution then provides:

(1) This Constitution is supreme and its provisions shall have binding force on

the authorities and persons throughout the Federal Republic of Nigeria.

(2) The Federal Republic of Nigeria shall not be governed, nor shall any persons

or group of persons take control of the Government of Nigeria or any part

thereof, except in accordance with the provisions of this Constitution.

COURTS, CONSTITUTIONS AND INTERPRETATION IN AFRICA 59