Introduction
Ghana’s democracy stands at the intersection of politics and principle—a vibrant arena where parliamentary debates often echo the pulse of the nation. Yet beneath the noise of partisanship lies a deeper constitutional question: Does a parliamentary majority amount to sovereign authority? The 1992 Constitution answers this resoundingly—No.
In Ghana, it is not Parliament, the Executive, or even the majority that reigns supreme. It is the Constitution, the written covenant of the people, that defines, confines, and sustains every power of the state. While Parliament may command numbers, the Constitution commands legitimacy. The framers of the 1992 Constitution deliberately departed from the British model of parliamentary sovereignty, choosing instead a system anchored in constitutional supremacy, one where the rule of law, not the rule of men or numbers, governs the Republic.
Thus, even as the political temperature rises and parliamentary rhetoric intensifies, the ultimate referee remains the Constitution itself. In Ghana’s constitutional democracy, majority power is political, while constitutional power is legal, and where the two collide, legality prevails. The Supreme Court’s pronouncements in landmark cases such as Tuffuor v. Attorney-General [1980] GLR 637 and J.H. Mensah v. Attorney-General [1996-97] SCGLR 320reaffirm that Parliament may be a “closed book,” but never one beyond constitutional review.
Parliamentary Power under Constitutional Restraint
Ghana’s Parliament enjoys broad legislative authority underArticle 93(2), which vests it with “power to make laws for the peace, order and good government of Ghana.” However, this authority operates strictly within constitutional confines. No Act of Parliament can contravene the Constitution, and if it does, it is subject to judicial nullification under Article 1(2).
This principle is judicially entrenched through the Supreme Court’s exclusive jurisdiction in constitutional interpretation, as outlined in Articles 125 and 126. Article 125(3) provides that:
“The judicial power of Ghana shall be vested in the Judiciary; accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
Therefore, even where Parliament acts by majority vote, its decisions are reviewable by the courts. This judicial oversight reflects not a limitation on democracy but a safeguard against majoritarian excesses.
The Role of the Majority and Minority in a Constitutional Democracy
Since 1993, Ghana’s parliamentary practice has been shaped by the dynamics between the majority and minority caucuses. The majority controls the legislative agenda, committees, and often influences the approval of executive policies. However, having a majority in Parliament does not equate to parliamentary supremacy.
In Ghana’s constitutional democracy, the majority is an operational reality but not a constitutional absolute. Its decisions are valid only to the extent that they conform to the Constitution. For instance, a simple or even unanimous parliamentary vote cannot alter presidential succession as defined under Article 60, which outlines a fixed line of authority in the event of the President’s absence or incapacitation. Additionally, Parliament cannot amend entrenched provisions by resolution without following the stringent processes set forth in Articles 290 and 291.
Thus, Ghana practices majoritarian democracy under constitutional supremacy, not parliamentary supremacy. The majority exercises political control, but constitutional limits serve as the legal guardrails against legislative overreach.
This illustrates that while political power in Parliament may shift between majority and minority, sovereign power remains with the Constitution, not the prevailing party.
Judicial Guardianship of the Constitutional Order
Articles 125 and 126 anchor the Judiciary as the guardian of the Constitution. Through the Supreme Court’s interpretative mandate, it ensures that Parliament and the Executive operate within constitutional limits. This judicial review function is the practical expression of constitutional supremacy, affirming that the Constitution, not political convenience, defines legality.
Several landmark decisions, such as Tuffuor v. Attorney-General[1980] GLR 637, have reinforced this principle by asserting that all state organs, including Parliament, derive legitimacy only from constitutional compliance.
Tuffuor v. Attorney-General: Constitutionalism over Procedural Formalism
In Tuffuor v. Attorney-General [1980] GLR 637, the Supreme Court affirmed the supremacy of the Constitution as a living document, capable of interpretation consistent with its spirit and purpose. Justice Sowah, delivering the celebrated judgment, declared:
“The Constitution has its spirit… it is a living organism capable of growth and development as the political, social, and cultural situation changes.”
This reasoning remains central to understanding Ghana’s constitutional order. It means that even when Parliament acts under procedural regularity, its decisions may still be unconstitutional if they offend the spirit or express provisions of the Constitution. The Court in Tuffuor was categorical that no authority, not even Parliament, can act ultra vires the Constitution.
Therefore, the supremacy of the Constitution transcends institutional convenience or political expediency and defines the limits of every constitutional actor.
J.H. Mensah v. Attorney-General: Parliament as a “Closed Book”
In J.H. Mensah v. Attorney-General [1996-97] SCGLR 320, the Court was called upon to determine whether the courts could question internal parliamentary procedures, specifically the process of passing the Appropriation Bill. The Court, per Bamford-Addo JSC, held that while Parliament is not above the Constitution, its internal proceedings are largely insulated from judicial inquiry. Parliament was described as a “closed book” in so far as it operates within the parameters of its constitutional mandate.
This doctrine of non-interference serves a dual purpose: it preserves parliamentary autonomy while maintaining judicial restraint. However, this insulation is not absolute. The courts retain jurisdiction where a constitutional infraction rather than a mere procedural irregularity is alleged. Hence, the judiciary may not intrude into how Parliament debates, but it may intervene where Parliament exceeds its constitutional authority.
Political Questions, Judicial Power, and the Doctrine of Res Judicata
A critical question emerges: what happens when a political question, constitutionally allocated to the judiciary, is simultaneously before the Speaker of Parliament for determination? Can the Speaker’s ruling constitute res judicata, precluding judicial review?
The answer lies in Articles 125 and 126 of the Constitution. Article 125(3) expressly provides:
“Neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
This clause extinguishes any notion that parliamentary or executive adjudication can attain judicial finality. Therefore, when the Speaker or Parliament interprets constitutional provisions as part of internal business, such an interpretation cannot bar the courts from later reviewing the same matter.
Res judicata, in its true legal sense, applies only to determinations made by bodies exercising judicial power. Since Parliament does not possess judicial power, its rulings cannot constitute res judicata against the courts.
This demarcation is essential to prevent a scenario where political organs become self-judging in constitutional disputes. The Judiciary’s interpretative supremacy under Article 125(3) ensures that the Constitution remains the arbiter of all power, including that of the Speaker and Parliament itself.
Conclusion
The 1992 Constitution positions itself as the ultimate repository of sovereignty. It distributes powers among the Legislature, Executive, and Judiciary but subjects all to constitutional supremacy. Through Tuffuor v. Attorney-General, we learn that the Constitution is a living guide—not a political instrument. Through J.H. Mensah v. Attorney-General, we appreciate that Parliament is autonomous but not absolute.
Parliament may be a “closed book,” but it is not a sealed one against constitutional scrutiny. Its pages must always turn within the bounds of the Constitution. When political questions intersect with constitutional adjudication, Constitutional supremacy, not parliamentary finality, must prevail.
In Ghana’s constitutional order, therefore, the rule of law, not the rule of the majority, remains the ultimate expression of sovereignty.
In the end, what political commentators now echo in jest carries enduring truth in law: the law is the law, and in Ghana, that law is the Constitution.
The writer, Eric Ofori Kwaah, is a solicitor and barrister of the Supreme Court of Ghana
