When registered political parties treat the Supreme Court as an extension of their legal research department rather than an arbiter of live legal disputes, constitutional adjudication loses its anchor. The New Patriotic Party (NPP)’s writ seeking an interpretation of presidential tenure under Articles 60, 66(1) and (2) of the 1992 Constitution is a clear illustration of this trend and I will demonstrate why I reached this conclusion shortly. While framed under the high-minded rhetoric of seeking clarity and securing electoral certainty, the action suffers from fatal procedural defects, speculative pleadings, and a plain invitation for the court to deliver an unconstitutional advisory opinion.
What the NPP is Essentially Saying in the Writ
The NPP argues that Article 66(2) of Ghana’s 1992 Constitution imposes a lifetime limit of two presidential terms, whether consecutive or interrupted. It contends that the constitutional provision does not restrict the two-term limit to successive periods in office and seeks declarations from the Supreme Court to clarify the scope of the restriction.
The party also seeks clarification on the eligibility of a Vice-President who assumes the presidency following the death or removal of an elected President. Its argument, as previously summarised, is that where the Vice-President serves more than half of the predecessor’s unexpired term, that period should count as a full presidential term, limiting the number of times the successor may subsequently be elected President.
More broadly, the NPP seeks to establish that a person cannot circumvent the constitutional two-term limit by serving interrupted terms or by having another person occupy the presidency between their periods in office. The action therefore asks the Supreme Court to determine how Articles 60 and 66 should operate together in calculating presidential tenure and eligibility.
I will now address why the writ is problematic and legally indefensible.
The Jurisdictional Defect: Chasing Hypotheticals Under the Bilson Rule
The foremost hurdle confronting the NPP’s action is that it asks the apex court to perform a function that the 1992 Constitution never gave it: delivering abstract legal advice in the absence of a live controversy.
Article 2(1) and 130(1) of the 1992 Constitution provides that:
2(1) A person who alleges that –
(a) an enactment or anything contained in or done, under the authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.
130(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in –
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.
A careful reading of the provision will demonstrate that a person can challenge an enactment, or anything contained in or done under the authority of that or any other enactment, or any act or omission of any person. Nowhere was speculation or public debate, however, fierce or intense, included in Article 2(1).
In Bilson v Attorney-General [1993–94] 1 GLR 104, Adade JSC (as he then was) settled this principle decisively, when he stated that the Supreme Court’s duty under Articles 2(1) and 130(1) is to interpret the Constitution within the furnace of actual disputes between adverse parties, not to provide comfort or advance legal counsel to prospective litigants. The court dismissed that action precisely because the declaration was sought in a factual vacuum.
This warning was reinforced in New Patriotic Party v National Democratic Congress and Others [2000] SCGLR 461, where the bench cautioned that a mere political intention, ambient rumour, or future possibility cannot constitute an actionable constitutional wrong without an accompanying act or omission.
The NPP’s action presents no such act. The Electoral Commission has not opened nominations, no candidate has filed papers claiming a right to a third term, and the Commission has taken no official step to accept or reject any nomination under the disputed provisions. The suit relies on what an individual might theoretically do in a future election cycle, what party loyalists debate on morning radio, or what political strategists fear might happen. Naming the Attorney-General as a nominal defendant cannot manufacture a genuine dispute where no state agency has committed an unconstitutional act. It reduces the Supreme Court’s original jurisdiction to an academic workshop.
Manufacturing Ambiguity Where the Constitutional Text Is Plain
Beyond the absence of a live dispute, the substantive argument advanced by the plaintiff is intellectually strained. Article 66(2) of the 1992 Constitution states plainly that a person shall not be elected to hold office as President of Ghana for more than two terms.
Article 66 provides that:
(1) A person elected as President shall, subject to clause (3) of this article, hold office for a term of four years beginning from the date on which he is sworn in as President.
(2) A person shall not be elected to hold office as President of Ghana for more than two terms.
(3) The office of President shall become vacant –
(a) on the expiration of the period specified in clause (1) of this article; or
(b) if the incumbent dies or resigns from office or ceases to hold office under article 69 of this Constitution.
(4) The President may, by writing signed by him, and addressed to the Speaker of Parliament, resign from his office as President.
The text of the 1992 Constitution reproduced above contains no reference to consecutive terms, successive periods, or interrupted tenures.
The NPP asserts that because unnamed commentators have suggested that the term limit applies only to consecutive runs, the court must issue a declaration confirming that the word consecutive does not exist in the text.
This posture creates controversy out of thin air. From Republic v Special Tribunal; Ex parte Akosah through to Agyei-Twum v Attorney-General and Ex parte Dr Zenator, the Supreme Court has maintained that its interpretative mandate is not engaged when statutory or constitutional text is plain, clear, and unambiguous. A litigant cannot pluck a settled, ordinary English phrase, manufacture confusion about what it might mean to an anonymous commentator, and demand an apex court ruling to confirm the obvious.
The Problematic Borrowing of Foreign Constitutional Architecture
The most vulnerable aspect of the NPP’s writ lies in its effort to limit the eligibility of a Vice-President who assumes office following the death or removal of a substantive President. The plaintiff asks the court to declare that a Vice-President who serves more than half of a predecessor’s unexpired tenure has exhausted a full term and may seek election only once more.
This relief is a direct attempt to import the text of the 22nd Amendment to the United States Constitution into Ghanaian jurisprudence without an amendment enacted by Parliament. The United States Constitution contains an express, mechanical formula stating that serving more than two years of another person’s term counts as a full term for eligibility purposes.
Ghana’s 1992 Constitution contains no such formula. Instead, the framers deliberately used distinct language across different articles. Article 60 governs a Vice-President who assumes office to complete the unexpired residue of a term, whereas Article 66(2) explicitly limits a person who is elected to hold office as President.
Article 60 (6) and (7) provides that:
(6) Whenever the President dies, resigns or is removed from office, the Vice-President shall assume office as President for the unexpired term of office of the President with effect from the date of the death, resignation or removal of the President.
(7) Where the unexpired term served by the Vice-President under clause (6) of this article exceeds half the term of a President, the Vice-President is subsequently only eligible to serve one full term as President.
Again, these provisions of the Constitution are equally clear and do not need any definitive pronouncement from the Supreme Court.
Urging the Supreme Court to read an arbitrary mathematical fraction into Article 66 is not constitutional interpretation; it is judicial legislation. It invites the court to amend the Constitution through the back door, bypassing the sovereign amendment procedures set out in Chapter 25.
The Danger of Encouraging Strategic Pre-Emption
Allowing political organisations to secure abstract declarations regarding potential electoral candidacies years in advance sets a disruptive precedent. If the Supreme Court entertains this writ, it opens its registry to endless anticipatory suits from competing political parties seeking declarations on internal party qualifications, administrative regulations before publication, or the eligibility of prospective candidates who have not yet filed nomination papers.
The judiciary preserves its institutional authority by intervening only when actual rights have clashed and a real constitutional wrong has occurred. Dragging the bench into electoral positioning undermines that distance.
Under the binding authority of Bilson v Attorney-General and New Patriotic Party v NDC, the NPP’s suit fails to meet the threshold of justiciability. It lacks an adverse act, asks the court to explain plain language, and attempts to import foreign constitutional mechanics into domestic law. If the Supreme Court adheres to its own settled precedents on judicial restraint, it must dismiss the writ as an inadmissible request for an advisory opinion.
Excel in Your Law Exams with BrakoPowers
At BrakoPowers Law Hub, we equip law students and legal candidates across Ghana with high-performance study guides, case summaries, and exam techniques.
Be First to Comment