The preamble of the 1992 Constitution reminds us that our rights do not come from the Constitution but are merely guaranteed by it. It declares and affirms our commitment to Freedom, Justice, Probity, Accountability, Equal Citizenship, Rule of Law, Universal Adult Suffrage, Protection and Preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation, and to the Principle that all powers of Government spring from the Sovereign Will of the People.
But the framers of the Constitution do not decide the meaning of those values. Those who interpret it decide what those values mean and they are opportunistically and purposively undermining these values through a growing interpretive malfeasance that must be halted and reversed.
It is useful to start with the question of who interprets the Constitution to better appreciate the nature of this interpretive malfeasance. Many will intuitively identify the Supreme Court as the interpreter of the Constitution but they will only be partially correct. The correct answer is that all the constitutional organs, be it the President, Parliament, Political Parties, Electoral Commission, Administrative Bodies, etc. are involved in interpreting the Constitution, although it is the SC that has the final word on what the constitution is but only when there is a dispute about its meaning. Thus, these organs are the first movers in interpreting the Constitution and the Supreme Court is only the second, albeit the final, mover.
I submit that the first movers engage in opportunistic interpretation, whose purpose is to expand their power, frequently at the expense of undermining those constitutional values articulated by the Preamble to the Constitution. For instance, chapter 25 of the Constitution provides a very clear roadmap for amending the Constitution, which assigns the President a mere ministerial task. Nevertheless, that has not stopped the President from misappropriating his commissioning power in Chapter 23 to attempt to rewrite the Constitution. Similarly, although the Constitution imposes varying levels of constraints on the President’s appointment power, this has not stopped the President from acting as if there are no checks on this power. As a last example, even though Article 94(2)(A) is not concerned with dual citizens per se, but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization, that has not stopped the political elites from unlawfully excluding dual citizens from the political arena.
To the extent that these opportunistic interpretations are challenged at the Supreme Court, they subject the Court to a second mover’s curse. In effect, the Supreme Court is never the first mover in interpreting the Constitution, exposing the Court to both conscious and unconscious bias.
At the unconscious level, the Court may be subject to what psychologists call an approval bias. That is, the Court is likely to accept interpretations of state actors that the Court will not reach as a first mover (if it was asked to interpret the Article without the curse of knowing the state actor’s interpretation). Second movers tend to approve what the first mover has decided. As an example, if the Court was asked to interpret Article 60(11) as a first mover, there is no way it would have said the Article requires swearing in the Speaker to act as President when the President and Vice-President are out of the Country. But once the Chief Justice administered the oath to the Speaker to act as President, it exposed the Court to an approval bias, leading the Court to approve the swearing in, even though the action created a dual presidency, contrary to the constitutional values of a single presidency and separation of powers.
The Court may also be subject to a “too big to be wrong bias.” Once again, consider a plaintiff who challenges the swearing in of a Speaker as violating Article 60(11) of the Constitution. To agree with the plaintiff that this action is unconstitutional, the Court has to effectively say that the heads of the legislature, executive and judiciary took an action that violated the Constitution. The Justices might unconsciously be against the small man.
This phenomenon is accentuated by our culture, which associates power with wisdom and being right. This cultural bias is particularly problematic as it leads the Court to unconsciously construe power broadly and rights narrowly, contrary to the constitutional promise of limited power and broad rights. This would explain why the Court could use its contempt power to imprison editors, notwithstanding the constitutional promise of free speech and avoiding a culture of silence.
Sometimes the bias is conscious. In the nuclear meltdown bias, the Court imagines a nuclear meltdown from striking out an extant practice and uses that imagined doom to allow an unconstitutional practice to continue even it erodes important constitutional values and commitments. In effect, the Court assigns unwarranted constitutional weight to longstanding political practice. This explains why the Electoral Commission can opportunistically choose not to publish constitutional instruments to regulate the creation of constituencies, as required by the Constitution, and get the Court to agree that the violation by the EC is permissible because to allow the EC to follow the Constitution will lead to a nuclear meltdown. In fact, no such meltdown would have occurred as Court decisions have prospective, not retroactive effect. As it turned out, the Constitution was the sole victim of a meltdown at the joint hands of the EC and the Court.
The Court’s purported use of the purposive approach as its interpretative lens facilitates its interpretive malfeasance. The purposive approach is an approach to statutory and constitutional interpretation under which courts interpret an enactment in light of the purpose for which it was enacted. The courts may consult extraneous materials from the pre-enactment phase of legislation for ascertaining the legislative purpose and read the disputed text accordingly.
The purposive approach is typically employed to interpret a statute with broadly worded text and a seemingly clear purpose. However, there are various strains of “purposivism”. Some purposivists consult the statute’s purpose only as a device for interpreting vague provisions of its text, and in no circumstances to override the text. Others focus on understanding the law in relation to both those passing the law and those who must live with it.
Our Supreme Court seems to have settled on the purposive approach articulated by the Israeli jurist Aharon Barak. In this reincarnation of the purposive approach, establishing the ultimate purpose depends on the relationship between the original intent of the text’s author (subjective purpose) and the intent of a reasonable author and of the legal system at the time of interpretation (objective purpose). This is easy to establish when the subjective and objective purposes coincide. But when they don’t, the relative weight given to each purpose depends on the nature of the text. For example, subjective purpose is given substantial weight in interpreting a will; objective purpose, in interpreting a constitution. Thus, at the core of this approach is both a normative and empirical flavor.
Critics correctly argue that as purposive interpretation goes beyond the words within the statute, considerable power is bestowed upon judges as they look to extraneous materials for aid in interpreting the law. There is scope for judicial bias in deciding what the lawmaker intended. The approach assumes that the lawmaker has one intention and ignores the fact that lawmakers are normally divided on party lines and have multiple conflicting purposes when enacting legislation.
The approach favoured by our Court is even more dangerous because of the emphasis on the “intent of the reasonable person” and the “intent of the system,” both of which are purely fictional constructions that didn’t and couldn’t author or mean anything. This provides a license for the Judge to give the text a meaning that is disconnected from the framers’ intent and may even conflict with it. Such an exercise, of course, is not interpretation. It is a fanciful exercise in imagining what a reasonable person might have wanted the Constitution to say. Anyone, including Okomfo Anokye could be this reasonable person. It is Okomfo Anokye jurisprudence!
Although Judge Barack imposes a linguistic constraint that runs out and can be replaced by the fictional interpretation, it can easily be seen and is now well known that it does not take long for the interpretation to be divorced from or even antithetical to anything an author might have had in mind.
In addition to the general problems of the purposive approach, our Supreme Court misapplies the purposive approach in at least 3 ways:
First, the Court instinctively turns to purposive approach even when the text in question is sufficiently clear. The Court has failed to distinguish between very specific language and broad principles in the Constitution. In consequence, the text of the Constitution no longer controls. In consequence, “Shall means shall not;” “Unable to perform means absent from the country;” etc. Second, while the Court often alleges that it is doing a purposive approach, it seldom explicates the purpose of the contested Article but merely announces a verdict that frequently does not follow from the text, which is then justified on grounds that it has engaged in purposive construction. Thus, the so-called purposive approach has become a talisman that allows the Supreme Court to delete from or add to the Constitution, at will, heralding the era of Judicial Supremacy and Tyranny. Third, in most cases, the holding of the Court is inconsistent with not just the ordinary meaning of the text but worse the actual purpose of the contested Article.
In the next article, I will analyze 5 constitutional cases decided by the Supreme Court. The cases will show that the Court, under the guise of engaging in purposive interpretation, has upheld several actions of various state actors that violate both the letter and spirit of the Constitution. In consequence, the Court has created a dual presidency, approved unequal citizenship, turned back the clock on administrative procedures, subject the rules of court committee to the control of the legislature and even imprison those who dare criticize them. I will propose some ideas to reverse the opportunistic and purposive misinterpretation of the Constitution in the third article.
By: S. Kwaku Asare, GIMPA