CONSTITUTIONALISM

Constitutionalism means government which is limited by the terms of a constitution, not government
limited only by the desires and capacities of those who exercise political power. The real justification of
Constitutions, the original idea behind them, is that of limiting government and of requiring those who
govern to conform to laws and rules. Most Constitutions, as we have seen, do purport to limit
government.

Before we can conclude, however that a country which has a Constitution limiting government, we
must see how the Constitution works in practice, and see in particular whether usage and convention
operate to strengthen or weaken constitutional limitations. In the same way we cannot conclude that a
country lacks constitutional government simply because its Constitution appears to impose no
limitations on the government. It may well be that the ordinary law of the land combined with usage
and convention supply those checks which the law of the Constitution did not.

A constitutional government and a democracy are not the same thing. A constitutional government in
modern times will also be democratic but a democratic government is not necessarily constitutional.

Constitutionalism does not merely require the existence of a Constitution. It presupposes the existence
of a Constitution and anyone embarking on Constitutionalism a government must need one to start
with. The art of providing a system of effective restraints on the exercise of governmental power
makes these limitations eminent. Government must be carried out according to pre-determined rules
which at the same time restrain government activity.

The failure of constitutional government in the developing world particularly in Africa is often
attributed to cultural diversity between the developing countries and the Western European countries
from which most of the governmental institutions have been borrowed. According to this view, the
crises in constitutional government in Africa can be explained away by the difference in the culture of
the advanced Europe and the undeveloped Africa.

The developing countries in Africa inherited alien governmental structures (institutions) from their
colonial masters. The institutions being alien, it was not surprising that the leaders were unable to
keep the system running smoothly after independence. One is uncertain about the extent to which the
cultural diversity theory offers an adequate explanation of the difficulties constitutional government
faces in the developing countries.

Another reason often cited is that the citizens of these states do not give their first allegiance to the
state because of ethnic allegiance. In the struggle for independence, the different ethnic groups united
to fight against the common enemy (the colonial master) and once that was achieved individual ethnic
groups re-united with their members, leaving the state without any coercion.

Another important point which is of recent development is the developmental needs of the developing
countries. According to this view, the developmental needs of the developing countries require them to
postpone the expectation of the arrival of constitutional government and the realization of civil
liberties. African leaders tried to put their respective countries on the path of accelerated development
which they thought would bring them to the level of modernity. Not only did they have to do it but they
have to do it within the shortest possible time for their people to appreciate their fight for political
independence. But in many instances, the resources available to prosecute that agenda were not
adequate enough.

WHY CONSTITUTIONALISM

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If then the essence of Constitutionalism is the existence of limitations or restraints on governmental
power, the question arises how to make these restraints effective. It is in relation to this that the
existence of a written constitution becomes very relevant and important to the concept of
Constitutionalism.

Ever since France and USA gave the lead in the 18 th century, the view has become firmly established
that the restraint on the exercise of governmental power to be effective must be embodied in a
supreme written document, preferably enforceable by parties before an Independent Judiciary, which
is not aligned with any governmental power.

What this written constitution does is that it ensures that the limitations which are placed on the
government are known and therefore excursions outside these limits can be checked by the
Constitution.

Chief Justice Marshall in Marbury v. Madison said

“The question whether an act repugnant to the Constitution can become the law of the
land is a question deeply interesting to the United States, but, happily, not of an intricacy
proportioned to its interest. It seems only necessary to recognise certain principles,
supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such
principles as, in their opinion, shall most conduce to their own happiness is the basis on
which the whole American fabric has been erected. The exercise of this original right is a
very great exertion; nor can it nor ought it to be frequently repeated. The principles,
therefore, so established are deemed fundamental. And as the authority from which they
proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different
departments their respective powers. It may either stop here or establish certain limits not
to be transcended by those departments. The Government of the United States is of the
latter description. The powers of the Legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the Constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing, if these limits
may at any time be passed by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished if those limits do not confine
the persons on whom they are imposed, and if acts prohibited and acts allowed are of
equal obligation. It is a proposition too plain to be contested that the Constitution controls
any legislative act repugnant to it, or that the Legislature may alter the Constitution by an
ordinary act”.

There is however, no uniformity in practice about whether the “policy” of the Constitution should be
performed by the Judiciary or simply by hoping that the organ of government will restrain them and
keep within the boundaries of their constitutional power. Perhaps, the boldest one can get in this area
is to assert that some countries rely on the Judiciary as well as the Legislature to keep the boundaries
of governmental power undisturbed, while others leave everything entirely to the good sense of the
legislators.
No country has a wholly “written” or ”unwritten” constitution, an appraisal of Constitutionalism in the
country, with one written document called the Constitution will be sadly deficient if it is only focused
on the constitutional document. There must also exist the ethos of that particular society belief in the
idea that the power of government ought to be restrained.

In conclusion, one may say that the key concern of constitutionalism is the division of governmental
power in such a way that there is effective restraint on the arbitrariness inherent in power so the
individual in the society will be the beneficiary. Such a system of restraints may be embodied partly in
a written document (constitution) and partly left to be enforced by the force of tradition (unwritten
constitution). It is important to know that these forms of restraints should be legal that the government
so restrained will be under law and that these restraints be enforceable before an independent body of
arbiters in the event of a claim by an individual of his violation.

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CASES

SHALABI v. ATTORNEY-GENERAL (1972) 1 GLR 259

FACTS

The plaintiffs, formerly of British nationality, took out a writ for a declaration that they were Ghanaian
citizens and therefore entitled to operate a transport business notwithstanding the provisions of the
Ghanaian Business (Promotion) Act, 1970 (Act 334). They had obtained Ghanaian passports in 1968 by
virtue of the Ghana Nationality Decree, 1967 (N.L.C.D. 191). For the Attorney-General it was submitted
inter alia that the National Liberation Council, being the sovereign body in the land, could do whatever
it liked, including depriving persons of their citizenship; and that by the Ghana Nationality
(Amendment) Decree, 1968 (N.L.C.D. 333), paragraph 1 of N.L.C.D. 191 had been obliterated by
retrospective substitution and consequently every person who acquired citizenship thereunder ought
to be deemed never to have acquired such citizenship.

HELD

The main contention put forward on behalf of the Attorney-General, however, is that N.L.C.D. 333 itself
provided in paragraph 2 thereof that "This Decree shall be deemed to have come into force on the
25th day of July 1967," i.e. the same date of the coming into force of N.L.C.D. 191. N.L.C.D. 333 was in
fact made on 15 February 1969, and it was published in the Gazette on 21 February 1969.

It is submitted on behalf of the Attorney-General that:

(a) the foregoing words show quite clearly that the National Liberation Council intended to obliterate
the original paragraph 1 of N.L.C.D. 191 as if it had never been enacted.

(b) And consequently every person who acquired citizenship thereunder ought to be deemed never to
have acquired such citizenship,

(c) the National Liberation Council being

(i) the sovereign legislative body in the land could make such a law and that the courts must enforce
these laws.

(ii) the sovereign body in the land could do whatever it liked including depriving persons of their
Ghanaian citizenship.

Any legal submission or proposition which would have the effect of depriving even one person, who at
a certain point in time was undoubtedly a Ghanaian citizen, of that citizenship has to be considered
with care and circumspection. Even greater care is required when the basis of this submission or
proposition is the monstrous doctrine of legislative omnipotence or omnicompetence. For the
avoidance of any doubts the Constitution of the Second Republic of Ghana, 1969, banished this
doctrine from the realm. Of course the provisions of this Constitution are not strictly relevant to this
case.

The wider question here is whether citizenship once conferred can be withdrawn by processes other
than those specifically mentioned at the time of the acquisition of such citizenship.

The answer, it is submitted on behalf of the Attorney-General, is that the National Liberation Council
being sovereign could do everything except turn a man into a woman or vice versa. We are grateful
that it has not been suggested that the National Liberation Council could do even that. "The doctrine of
sovereignty" as has been observed by a learned writer, Heuston (in Essays in Constitutional Law (2nd
ed.), p. 1), is essentially the work "of Oxford men"; but even though our present leaders are also
Oxford men it behoves us to consider whether this doctrine propounded in the comparative security of

3
the Senior Commons of Oxford can be applied in all its fullness in the turbulent conditions of tropical
Africa. The doctrine was eloquently propounded by Hobbes of Magdalen College, Oxford, in his
Leviathan (The Fontana Library). An absolute ruler he said at p. 143 was necessary because in his
absence the life of man becomes "solitary, poor, nasty, brutish, and short." The experience of Ghana,
and indeed of most African countries has been that it is with the presence of a "Leviathan" in our midst
that life becomes "solitary, poor, nasty, brutish, and short."

The doctrine propounded by Hobbes the political scientist, was taken over by Blackstone, of All Souls
College, Oxford. He said, Commentaries (3rd ed.), Vol. 1, pp. 159-160:

"The power and jurisdiction of parliament, says Sir Edward Coke ... is so transcendent and absolute,
that it cannot be confined, either for causes or persons within any bounds.... It hath sovereign and
uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing,
reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or
temporal, civil, military, maritime or criminal: this being the place where that absolute despotic power
which must in all governments reside somewhere, is entrusted by the constitution of these
kingdoms ... It can, in short, do everything that is not naturally impossible; and therefore some have
not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is,
that what the parliament doth, no authority upon earth can undo." Even Blackstone was obliged to
express doubts concerning the effect of statutes contrary to the law of God or impossible to be
performed or with absurd consequences manifestly contradictory to common reason. Even he
reprobated those who talked of the omnipotence of Parliament for using "a figure rather too bold."

It was left to another Venerian Professor of law and a Fellow of All Souls Oxford, Professor A. V. Dicey,
to clothe naked and arbitrary power with the glossy mantle of academic legality. It is worth noting that
it was not by accident that the man who wrote the Law of the Constitution also wrote Law and Public
Opinion in England which traced the connection between the development of English law and the
course of English opinion. In fact when as Heuston points out at p. 2, Leslie Stephen asked the
question why did not Parliament command all blue-eyed babies to be killed, Dicey's answer was that
there were both internal and external limits to parliamentary sovereignty. The internal limit is the fact
that members of parliament are not usually men of outrageous views; the external limit is the
possibility that the English electorate would not obey such a statute. It was partly because of the
absence of those limits, both external and internal and partly due to the uncritical application of the
doctrine of parliamentary omnipotence in all its pristine nudity by the courts under the old regime, that
this country was led into what the preamble to the new Constitution describes as a regime of tyranny.
The same preamble tells us that the chiefs and people of Ghana have "solemnly resolved never again
to allow ourselves to be subjected to a like regime." This court shall assist them in that solemn
resolution. I do not think the coup leaders accepted or approved of the doctrine of the absolute
sovereignty of the legislature. The constitutional provisions which they placed before the Constituent
Assembly establishes this beyond doubt. I shall not presume that they claimed for themselves what
they disapproved of in others.

Even though they were military men, the National Liberation Council did not rule by martial law; they
did not set up military tribunals to execute the laws of the land as was done in Pakistan in 1958 under
Ayub Khan. They did not even set up a military regime side by side with the civilian authority such as
was done in Ireland during the disorders in the year 1919 to 1921. They dismissed the then President
from office and also from office as the Commander-in-Chief; they dismissed all his Ministers; they
dissolved the National Assembly and the Convention People's Party. The only direct amendment made
in the 1960 Constitution was to abolish the Presidential Commission otherwise that constitution was
merely suspended.

The Proclamation provided in paragraph 3 that "Until such time as a new Constitution is promulgated
by the People of Ghana, the National Liberation Council shall have power for such purposes as they
may think fit and in the National Interest to make an issue decrees which shall have the force of law in
Ghana." I cannot read from this Proclamation or from anything said or done by the leaders of the coup
any other thing than that they were an interim government recognising the rights of the people of
Ghana as the only body to promulgate a new constitution, i.e. as the repository of sovereignty.

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As such the National Liberation Council could have had no greater powers than the people. The rights
which had been denied them by the aid of the courts' interpretation and construction of the 1960
Constitution were restored; the only limitation to the exercise was the national interest reflecting the
exigencies of the moment. It is true that the National Liberation Council took certain steps to clean the
Aegean stables. We are not now called upon to consider the legality of those acts. They, however, set
up a Constitutional Commission to draft proposals for a Constitution; they convened a Constituent
Assembly to draft a new constitution; and as soon as the new Constitution was adopted, new elections
were held and the government of the country entrusted to new rulers. There was nothing in the
Proclamation stating that the Decrees of the National Liberation Council were not to be challenged in
any court; such a provision appears in the Nigerian Proclamation. There is nothing in the Constitution
of the United States of America which gives power to the judiciary to pronounce on the validity of Acts
of Congress. This power was self-acquired by the courts; for as Madison remarked in The Federalist
(1961 ed.), No. 51, p. 356 "A dependence on the people is, no doubt the primary control on the
government; but experience has taught mankind the necessity of auxiliary precautions."

To hold that the National Liberation Council assumed dictatorial and irresponsible powers like the old
regime is to leave the National Liberation Council with no memorial. They would be as if they should
not have been. The seven gallant and true gentlemen of the Council would be likened unto the seven
biblical devils who rushed to fill the vacuum created when the only mighty devil was cast out. The
gratitude shown by the chiefs and people of Ghana in the Preamble to the Constitution, 1969, for the
heroic struggle against oppression would have been singularly misplaced. It is at times fashionable to
delineate power or sovereignty by a logical process. Kelson had done it with his "Grundnorm," Austin
did a similar thing, only less severely, Olivercrona and Kant with their "Initial Hypothesis." These
however, as Laski has remarked, are only brilliant exercises in logic and not in life. Chairman Mao's
aphorism that political power flows from the barrel of the gun may be picturesque and graphic, but it
does not explain why even in China an act is considered wrong not because the actor had no gun, but
because he had no ideology. Most of the cases in which the question of the unlimited powers of the
National Liberation Council has been raised have been High Court cases. I agree with Anterkyi J. that
the whole purpose of the coup and the Proclamation that followed setting up the National Liberation
Council, was to dismiss the then President and to dismantle his machinery for exercising absolute and
unlimited powers, see Republic v. Director of prisons; Ex parte Salifa, High Court, 8 July 1968,
unreported; digested in (1968) C.C. 107. I am bound by the decision of the Court of Appeal sitting as
the Supreme Court in the case of Awoonor-Williams v. Gbedemah, 8 December 1969, unreported;
digested in (1970) C.C. 18 but the ratio decidendi of that case is that a person against whom adverse
findings are made by a commission of inquiry is disqualified under article 71 of the Constitution, 1969,
from being a Member of Parliament. The pronouncement on the unlimited power of the National
Liberation Council was clearly obiter; but it is nevertheless entitled to the greatest respect. The
pronouncements on the powers of the National Liberation Council in Sallah v. Attorney-General, Court
of Appeal, sitting as the Supreme Court, 20 April 1970.

STATE v GOC THE GHANA ARMY EX BRAIMAH (1967) GLR 192

One A., a Nigerian national resident in Ghana, was arrested on 3 January 1967 by army authorities
under the authority of N.L.C.D. 109 on suspicion of having committed the offence of stealing. On 4
January the Attorney-General gave his consent in writing for A.'s detention for a period of 28 days
pursuant to section 15 (5) of Act 30 (as amended by N.L.C.D. 93). When this period of detention
expired on 1 February, the Attorney-General issued another consent in writing for a further 28-day
period of detention.

On 7 February, A. applied, by his nephew B., for a writ of habeas corpus, submitting that the further
period of detention was unlawful. When the application was granted in the High Court the General
Officer Commanding Ghana Army appealed.

HELD,

In allowing the appeal: the Attorney-General had the right to issue further written consents for the
detention of a suspected person following the expiration of the original 28-day period of detention.
Section 10 (1) and (2) of the Interpretation Act, 1960 (C.A. 4), overcame the inconvenience that was
formerly caused by the doctrine that a statutory power was exhausted by its first exercise. The court

5
was also satisfied that the inquiry into the matters relating to the arrest and detention of A. for an
offence against the ordinary criminal law was complex enough to require for its completion a longer
time than 28 days and that it was not safe for A. to be at large while the inquiries were being
conducted. Battersea Borough [p.193] Council v. County of London Electricity Supply Co., Ltd. [1913] 2
Ch. 248, C.A. applied.

Per curiam. (1) Since the liberty of the individual was involved, the court had a duty to safeguard that
liberty by satisfying itself that the detention was solely for the purpose of executing the object for
which the power of detention had been conferred upon the Attorney-General. When the Attorney-
General has been ordered by the court, on an application for habeas corpus, to file a return under
section 2 of the Habeas Corpus Act, 1964, it should not be an acceptable return merely to exhibit his
written consent for the citizen's detention. The return must go further and state clearly facts from
which the object of the detention could reasonably be ascertained. The facts must establish the
existence of an inquiry being carried on and there must be facts showing reasons for a protracted
inquiry; it must also be shown that it was not safe that the person detained be at large while the
inquiry proceeded.

(2) However necessary N.L.C.D. 93 was in the light of existing circumstances, it did constitute a very
wide departure from the accepted principles of the administration of the criminal law, and it was easily
susceptible to abuse as indeed its administration under the old regime had proved. Moreover its
historical association with the old regime was not likely to engender unqualified public confidence in
the undoubted efforts of the present government to undo the injustices of the old regime. For these
reasons it was hoped that an early consideration could be given to its removal from the statute book.

APPEAL from a ruling of the High Court. Accra, wherein Anterkyi J. granted the application of one B. for
a writ of habeas corpus that freed his uncle A. from detention under N.L.C.D. 93. At issue was the right
of the Attorney-General to issue any number of written consents for successive 28-day periods of
detention. The facts are sufficiently stated in the judgment of the court.

JUDGMENT OF AKUFO-ADDO C.J.

Akufo-Addo C.J. delivered the judgment of the court. This is an appeal by the General Officer
Commanding the Ghana Armed Forces against an order of Anterkyi J. in the High Court, Accra, granting
the respondents' (Yusufu Iteriba Aminu's) application for a writ of habeas corpus and ordering his
release from custody. The appeal came before us on 3 March when after hearing counsel's argument
we allowed it, reversed the order of Anterkyi J. aforesaid and reserved our reasons for the judgment.

The respondent, a Nigerian national resident in Ghana, was arrested on 3 January 1967 by the army
authorities on suspicion Of having committed the offence of stealing. The army authorities acted in
pursuance of the provisions of the Law Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109),
which gave to the army authorities the same powers of arrest and prosecution as are vested in the
police under the Criminal Procedure Code, 1960 (Act 30), the Police Service Act, 1965 (Act 284), and
the Public Order Act, 1961 (Act 58).

On 4 January 1967, the Attorney-General gave his consent in writing for the detention of the
respondent for a period of 28 days beginning from 4 January 1967. The Attorney-General was acting
under the provisions of the Criminal Procedure Code (Amendment) Decree, 1966 (N.L.C.D. 93), which
amended section 15 of the Criminal Procedure Code, 1960, by adding the following subsection thereto:

Notwithstanding anything to the contrary, a person taken into custody without a warrant may, with the
consent in writing of the Attorney-General, be held in custody for a period of twenty-eight days or
such other period as the Attorney-General may determine and the provisions of section 96 of this Code
(relating to bail) shall not apply to a person so held."

The period of 28 days expired on 1 February 1967 and on that day the Attorney-General issued
another consent in writing for the [p.195] detention of the respondent for a further period of 28 days
as from 1 February 1967.

6
On 7 February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to the High Court,
Accra, for a writ of habeas corpus for the release of the respondent from custody on the ground that
the Attorney-General had no power to give consent, once the respondent had completed the original
28 days in custody, for the further detention of the respondent. The respondent's counsel contended
that his ground was based on a true and proper construction of the provisions of N.L.C.D. 93 (i.e.,
section 15 (5) of the Criminal Procedure Code). The respondent's case therefore was that his detention
as from 1 February 1967 was unlawful. As already stated, Anterkyi J. accepted the respondent's view of
the law and ordered his release.

The basic point involved in this appeal, namely, the construction to be placed on the provisions of
N.L.C.D. 93, that is, section 15 (5) of Act 30, falls within a relatively small compass, and does not
appear to present much difficulty. Indeed we did not have any difficulty in accepting the submission of
the Attorney-General advanced in support of his right to issue any number of written consents for the
detention of a suspected person as often as it became necessary to do so. The Attorney-General
referred to section 10 (1) and (2) of the Interpretation Act, 1960 (C. A. 4), which are in substance a
reproduction of section 32 (1) of the English Interpretation Act, 1889 (52 & 53 Vict., c. 63), and which
is in the following terms:

"Where an Act passed after the commencement of this Act, confers a power or imposes a duty, then,
unless the contrary intention appears, the power may be exercised and the duty shall be performed
from time to time as occasion requires."

He relied on the case of Battersea Borough Council v. County of London Electricity Supply Co., Ltd.
[1913] 2 Ch. 248, C.A. This was a case in which the plaintiffs who were the highway authority for the
metropolitan borough of Battersea applied for an injunction to restrain the defendants who were "an
authorised undertaker" within the London Electric Supply Act, 1908 (8 Edw. 7, c. 57), from laying
electric energy. The injunction was asked for on the ground that these two areas were, and had for
many years, already been connected. The provision in the London Electric Supply Act, 1908, under
which the defendants were operating (section 4 (2)) provided that, "an authorised undertaker . . .
may . . . by means of electric mains make a connection between any two or more areas which that
authorised undertaker . . . is authorised to supply . . ." It was [p.196] held that the section did not
authorise one connection only, but that connections might be made between two areas from time to
time as required.

Although the decision in this case was based on the grammatical meaning of the relevant section of
the London Electric Supply Act, 1908, and not strictly on the interpretation and application of section
32 (1) of the English Interpretation Act, 1889, aforesaid, it has generally been accepted as embodying
the spirit of section 32 (1) of the Interpretation Act, 1889, and in this regard reference may be made to
a footnote in Halsbury's Laws of England (3rd ed.), Vol. 36 at p. 437 which says, "The purpose of this
provision [i.e. section 32 (1) of the English Interpretation Act] was to overcome the inconvenience
formerly caused by the doctrine that a statutory power is exhausted by its first exercise unless . . . a
contrary intention can be discovered" and the Battersea County Council case is there cited in support.
The words of section 10 of our Interpretation Act, 1960, following closely the wording of section 32 (1)
of the English Act would seem to us to be plain enough to sustain the Attorney- General's contention
even without the aid of the decision in the Battersea County Council case which undoubtedly
strengthens the case for the Attorney-General.

The respondent's counsel's contention that the exercise of the Attorney-General's power "from time to
time as occasion requires" can only refer to the exercise of the power in the case of a different person
at a time and not to its repeated exercise in the case of the same person, seems to us to be too
extravagant to merit any consideration.

The respondent's counsel further contended that the Battersea County Council case was
distinguishable from the instant case in that the case dealt with a private right whereas the instant
case deals with the liberty of the citizen. On the question of the Battersea County Council case being
one relating to a private right, it is enough to point out that the Interpretation Act, 1960, makes no
distinction between what are private rights and what are not in the area covered by the Act. Section 1
of the Act provides that:

7
"1. Each provision of this Act applies to every enactment being-

(a) the Constitution, an Act (including this Act) of the Constituent Assembly or of the Parliament of the
Republic of Ghana,

(b) a legislative measure continued in force by the Constitution, or

[p.197]

(c) an instrument made (directly or indirectly) under any such enactment, except insofar as the
contrary intention appears in the enactment.

(The emphasis is mine. The National Liberation Council in existing circumstances takes the place of the
Parliament of the Republic of Ghana.) It may here be of interest to refer to section 39 of the English
Interpretation Act, 1889, which by way of supplement defines an "Act' in the following terms: In this
Act the expression 'Act" shall include a local and personal Act and a private Act." From which it follows
that the operation of N.L.C.D. 93 cannot be based on any presumed distinction between a so-called
private right and a public right such as the right of the citizen to his liberty.

The further contention implicit in the submissions of the respondent's counsel that in the instant case
we are dealing with the liberty of the subject as opposed to the exercise of a private right and
therefore somewhat different considerations should be applied in the view to be taken by the court of
the exercise of the Attorney-General's powers cannot be lightly dismissed as being irrelevant.

The fact that the liberty of the subject is concerned does of course place upon the court the obligation
to give the words of the enactment their ordinary meaning: see Bowditch v. Balchin (1850) 5 Exch.
378; Barnard v. Gorman [1941] 3 All E.R. 45, H.L. and Liversidge V. Anderson [1941] 3 All E.R. 338,
H.L., but the actual operation of the powers created by the enactment does raise issues that go far
beyond the mere matter of determining the meaning of the words of the enactment.

It may be necessary at this stage to refer very briefly to the history of this piece of legislation. In
September 1962, the Criminal Procedure (Amendment) (No.3) Act, 1962 (Act 139), was passed by
Parliament which amended the Criminal Procedure Code, 1960 (Act 30), in the following terms:

"The Criminal Procedure Code, 1960 (Act 30) is hereby amended by the addition to subsection (2) of
section 15 thereof of the following proviso—

'Provided that any person taken into custody as aforesaid may, with the consent in writing of the
Attorney-General, be held in such custody for a period of twenty-eight days or such other period as the
Attorney-General may determine'."

In the Memorandum that was published with the Bill in respect of the aforesaid Act, the government
stated the following as the reasons and objects of the amendment: [p.198] "Experience has shown that
the period of twenty-four hours for which the police can detain a person to conduct investigations is
rather too short. The object of this Bill is to provide that where circumstances demand the approval of
the Attorney-General should be obtained for a person to be kept in custody for a period of twenty-eight
days or more as specified by the Attorney-General whilst police investigations have not been
completed."

By N.L.C.D. 93 of October 1966, entitled Criminal Procedure Code (Amendment) Decree, 1966, the
Criminal Procedure Code (Act 30), was amended.

"(a) by the repeal of the proviso to subsection (2) of section 15 thereof, and

(b) by the insertion immediately after subsection (4) of the said section 15 of the following subsection:-

8
'(5) Notwithstanding anything to the contrary, a person taken into custody without a warrant may, with
the consent in writing of the Attorney-General, be held in custody for a period of twenty-eight days or
such other period as the Attorney-General may determine and the provisions of section 96 of this Code
(relating to bail) shall not apply to a person so held'."

The legislation embodied in the new subsection (5) is in substantially the same terms as those of the
repealed proviso to subsection (2), the only change being its transposition from being a proviso to the
status of a subsection. The reason for the transposition is not apparent on the face of the legislation. It
is, however, reasonably clear that the National Liberation Council, which since it came into power has
repealed a number of laws passed by the old regime on the ground either that they are obnoxious or
that they offend against the accepted principles of the rule of law, considers, by re-enacting the law in
question, that the circumstances which called for the original enactment in 1962 still prevail and that
the law is still necessary for the purposes mentioned in the memorandum to the original Bill to which
reference has already been made. Whatever these circumstances were, and presumably still are, they
cannot be held to be so extraordinary as to clothe the enactment with the character of "emergency
legislation." Indeed the enactment does not pretend to be emergency legislation or anything of that
nature. Nor does it confer upon the executive officers concerned an unlimited discretion in the exercise
of the powers thereunder. It is no more than an extension, albeit a very wide extension, of the law
which requires that a person arrested on suspicion of having committed a crime must be produced
before a court within 24 hours of his arrest.

It is therefore part of the provisions relating to the day to day administration of the criminal law and it
is strictly in this context that the issues raised by its operation have to be considered.

Although no open reliance was placed on the well-known cases dealing with executive encroachment
on the liberty of the subject, i.e. cases like Liversidge v. Anderson [1941] 3 All E. R. 338, H.L.; Greene
v. Home Secretary [1941] 3 All E. R. 388, H. L.; R. v. Home Secretary; Ex parte Budd [1942] 1 All E.R.
373, C.A. and the Ghana case of In re Okine [1959] G.L.R. 1 (and the cases cited therein) there were
utterances in the course of the hearing which sounded like faint echoes of the principles canvassed in
these cases. These cases arose out of the operation of some emergency legislation or out of matters in
respect of which some member of the executive had been vested with unlimited discretionary power,
and a common feature of the decisions contained therein was the refusal of the court, barring proof of
mala fides, to go behind the exercise of executive discretion and to accept as closing the matter, a
statement by the officer concerned either that he had "reasonable cause to believe" in the existence of
a certain state of affairs affecting the exercise of his powers or that he was "satisfied" that it was
necessary to exercise his discretionary powers. The matters involved in these cases were not matters
relating to the detection, investigation, prosecution and punishment of breaches of the law ordinarily
known to the criminal law; and for that or some other reason an examination of the executive powers
relating thereto did not admit of any objective tests, it being sufficient to accept the subjective
appraisal by the officer concerned of the circumstances justifying the exercise of the powers involved.
Apart, however, from the fact that the dissenting view of Lord Atkin in Liversidge v. Anderson (supra)
has come to be accepted as a correct statement of the strict common law doctrine of reasonable cause
(see Nakkuda Ali v. Jayaratne [1951] A.C. 66 at p. 71, P.C.), it is, we think, obvious that the principles
canvassed in these cases can have no application to the exercise by the executive officers concerned
of the powers vested in them by the enactment under consideration.

As has already been mentioned we are here dealing with an enactment that makes
additional provisions for the investigation and prosecution of crimes under the Criminal
Code, and the basic principles governing such investigation and prosecution have not been
altered in any way. A fundamental principle of the administration of the criminal law is that
whoever alleges that a citizen has committed a crime or has deserved to suffer a
deprivation of his liberty must prove the allegation to the satisfaction of a duly constituted
court. It follows that if in the progress from arrest to conviction the legality of any step
taken is challenged, the officers concerned must be prepared to lay bare the facts and the
law which justify them in taking that step.

The courts in Ghana have a duty to safeguard the liberty of the citizen and in any matter affecting that
liberty the actions of the executive and its officers are subject to the supervision and control of the
courts on habeas corpus (see Halsbury's Laws of England (3rd ed.), Vol. II. p. 25). If, therefore, a citizen
who is detained under the provisions of N.L.C.D. 93 applies to the court for a writ of habeas corpus the

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onus is upon the executive officers concerned to satisfy the court by all the legal means by which facts
are judicially established that the citizen is being detained solely for the purpose of executing the
object for which the power of detention is conferred on them. The object is stated quite clearly in the
memorandum to the original Bill to which we were referred by the Attorney-General. For that reason
when the executive officer concerned is ordered by the court, on an application for habeas corpus, to
file a statement in the nature of a return under section 2 of the Habeas Corpus Act, 1964 (Act 244)
(which in this country regulates the exercise of the citizen's common law right to the writ), it shall not
be an acceptable return merely to exhibit the Attorney-General's written consent for the citizen's
detention. The return must go further and state clearly facts from which the object of the detention
can reasonably be ascertained, for the court as a tribunal of facts will have to be satisfied of the
existence of the facts justifying the detention. The facts must establish the existence of an inquiry
being carried on and there must be facts showing reasons for a protracted inquiry such as the
complexity of the inquiry or other matters causing delay; it must also be shown that it is not safe that
the person detained be at large while the inquiry proceeds. And in this, unlike the cases to which
reference has been made earlier, the existence of the bona fides of the officer concerned is wholly
immaterial although the proved absence of bona fides will more readily earn the detained applicant his
release. Official good faith cannot in the administration of the criminal law be a substitute for evidence
and proof.

The court in the execution of its duty to protect the citizen's liberty always proceeds on the
well-known principle, at any rate as acknowledged in democratic countries, of the primary
necessity in the administration of the law to establish a healthy balance between the need
to protect the community against crime and the need to protect individual citizens against
abuse of executive power. Subject to the limits imposed on this twofold protection by the
establishment and maintenance of the requisite balance, the scales are to be held evenly,
at any rate in normal times, between the community, that is the State and the individual
and there can be no question of "leaning over backward," so to speak, to favour the State
at the expense of the citizen or to favour the citizen at the expense of the community. And
the courts' vigilance in protecting the citizen against any encroachments on his liberty by
the executive becomes meaningful and real only when pursued on the basis of this
principle.

Naturally any extension of the powers of the executive that tends to impinge upon the liberty of the
citizen is viewed with the gravest suspicion, for such extended powers are in their operation fraught
with serious dangers. In this regard the Attorney-General did assure the court at the hearing that so
long as he remained in that office the provisions of N.L.C.D. 93 would be resorted to only when there
was a real need for doing so and strictly in furtherance of the object intended to be achieved by that
enactment. We have no reason whatever to doubt the Attorney-General's assurances or his integrity or
his devotion to the course of legal propriety, and if in this judgment we appear to be somewhat at
pains to set the limits to which the courts will tolerate the use of the powers conferred by the Decree in
question, it is only because it is not safe, in the nature of things human, to erect principles round the
personality and character of any particular person.

The courts are not unaware of the complexity and the large number of the matters that in
prevailing circumstances call for investigation by police and other officers and the heavy
burden on their efforts and time that those entail, but the courts will be failing in their
duty if for that reason alone they should in any way relax their vigilance in protecting
individual liberty. We think by the time a police or other officer decides to arrest a man on
suspicion of having committed a crime one can safely say that that decision is based on
material which properly engenders the suspicion. For that reason further investigation, if
proceeded with, with due diligence and appropriate competence, should not be protracted
unduly. It is necessary therefore to stress the point that the mere fact that the enactment
under consideration does empower the Attorney-General to issue any number of written
consents for the detention of an arrested person shall not be taken to constitute a carte-
blanche for the officers of law and order to disregard the need for the propriety in the
administration of the criminal law. So to allow the law to be applied will be to create a
premium on cultivated disregard on the part of officialdom for the existence of the citizen's
rights which may ultimately lead to incompetence and callousness in the investigation and
prosecution of crimes.

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DECISION

Appeal allowed.

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