CITATION: [1997–98] 1 GLR 378–461
Facts of the Case:
In this case, the New Patriotic Party (NPP), a registered political party and a body corporate, brought an action against the Attorney-General under Article 2(1) of the 1992 Constitution, challenging the constitutionality of the Council of Indigenous Business Associations Law, 1993 (PNDCL 312), which established the Council known as CIBA.
PNDCL 312 brought a number of indigenous business associations under the umbrella of CIBA. The Schedule listed organisations such as the Ghana National Association of Garages, National Drinking Bar-Operators Association, Ghana Hairdressers and Beauticians Association, Ghana National Tailors and Dressmakers Association, Federation of Ghanaian Jewellers, and Federation of Market Women.
Under section 4(1) of the Law, the associations specified in the Schedule were required to register with CIBA. Section 3 also gave the Council functions, including monitoring the operations of the registered associations and recommending improvements.
The NPP argued that these provisions interfered with the constitutional freedom of association, particularly the right under Article 21(1)(e) to freedom of association, and were inconsistent with Article 37(2)(a) concerning participation in development through associations. It therefore asked the Supreme Court to declare the offending provisions unconstitutional and void.
Before considering the substantive constitutional challenge, however, the Attorney-General raised a preliminary objection, challenging the capacity of the NPP and the justiciability of the Directive Principles of State Policy in Chapter 6, including Article 37 of the 1992 Constitution.
Legal Issue:
Whether PNDCL 312, particularly sections 3(b) and 4, was inconsistent with the constitutional right to freedom of association under Articles 21(1)(e) and 37(2)(a), and therefore void to the extent of the inconsistency.
To the Decision of the Court:
The Supreme Court held that the NPP had locus to bring the action. The word “person” in Article 2(1) included a legal or corporate person, not merely a natural person. On the substantive issue, the Court, by a majority, held sections 3(b) and 4 of PNDCL 312 unconstitutional and void.
The Court reasoned that freedom of association includes the freedom to choose whether or not to associate. Compelling the specified associations to register with CIBA removed the element of voluntariness inherent in freedom of association. The absence of a mechanism for leaving CIBA also undermined that freedom.
The Court also considered the degree of governmental control over CIBA, including the Minister’s role in appointments and regulations, and found that this created impermissible state interference with the associations.
How Do You Apply the Principle?
The case established that freedom of association includes both the freedom to associate and the freedom not to associate.
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