The Republican Constitutions of Ghana have provided enormous democratic policies and principles which have guided the various governments in their regimes.

However, one critical principle which was not reflective in our Republican Constitutions until 1979, is the Directive Principles of State Policy (DPOSP). It was the Third Republican Constitution of 1979, specifically, chapter 4 that birthed this principle in Ghana.

As nature will have it, even after the military regime that cut short the Third Republican Constitution, the DPOSP still found their way in Chapter 6 of the 1992 Constitution when the fourth republic came into existence.

The DPOSP in its very nature serves as guidelines and a benchmark for governments to realise certain goals and aspirations.

Similarly, the DPOSP serves as an interpretative tool and where appropriate, may be used by the courts as an aid to interpretation or construction. The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.[1]

Further, in OCCUPY GHANA V ATTORNEY-GENERAL[2], the Supreme Court unanimously speaking through Dotse JSC held as follows;

“Furthermore, article 34 (1) which deals with the Directive Principles of State Policy provide thus:-“The Directive Principles of State Policy contained in this chapter, shall guide all citizens, Parliament, the President, the Judiciary the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking or implementing any policy decisions, for the establishment of a just and free society.” Emphasis The above provisions are a clear injunction on the Judiciary to bear the above in mind when interpreting the Constitution. There is thus no room for us as a Judiciary to be pedantic in dealing with issues of constitutional interpretation. This is especially so when in article 37 (1) of the Constitution, (which also includes the provisions on the Directive Principles of State Policy). It is directed that, “the state shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality,”

The hullabaloo about DPOSP is whether or not the provisions in Chapter 6 of the Constitution, 1992, are justiciable and/or enforceable. The essence of this article is to firstly, highlight the difference between “justiciable” and “enforceable” and secondly, determine the justiciability and/or enforceability of DPOSP in light of the decisions of the Superior Courts of Ghana.

MEANING OF JUSTICIABLE/ JUSTICIABILITY

Justiciable has been defined in the Black Law Dictionary, 9^th Edition as follows;

“a case or dispute properly brought before a court of justice; capable of being disposed of judicially”

Justiciability has also been defined as “the quality or state of being appropriate or suitable for adjudication by a court.”

Justiciability deals with the ability of the court to assume jurisdiction over a matter and deal with it. In BAKER V CARR[1] the American Supreme Court held as follows;

“in deciding generally whether a claim is justiciable, a court must determine whether ‘the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right can be judicially molded.”

Similarly, in MENSAH V ATTORNEY GENERAL[2], the Supreme Court speaking through Aikins JSC held that;

Once there is a controversy, a justiciable issue, the court has jurisdiction to enter­tain the issue raised by the plaintiff's writ; in which case, in my view, the plaintiff can be said to be properly before the court: see the Tuffour case (supra).

The point being made is that justiciability is a prerequisite for the invocation of a court’s jurisdiction only. A matter which is justiciable will call for a competent court to assume jurisdiction.

In captain Robert Mbati Ndana V THE CHIEF OF DEFENCE STAFF, THE MINISTER OF DEFENCE AND THE ATTORNEY-GENERAL[3], Anin Yeboah jsc (as he then was) held as follows;

“The jurisdiction of courts to sit in judgment over parties is derived from statute and where statute says clearly that to be justiciable claims or proceedings should satisfy specific time frames, effect must be given to them in order to give life and meaning to the rule of law, which is the bedrock of our constitutional democracy. The jurisdictional issue does not concern itself with the merits of the appeal if the proceedings are a nullity”.

To better appreciate “justiciable/justiciability” recourse ought to be made to the meaning of “non-justiciable” as it pertains to the American Concept of Non-Justiciable Political Questions. This doctrine which is premised on the doctrine of separation of powers is to the effect that certain matters are outside the adjudicatory scope of the judiciary and as such must not be dealt with by the courts. Thus, a political question is one that the courts cannot exercise jurisdiction over since they are non-justiciable. In explaining the concept of non-justiciable political questions, the court in ZIVOTOFSKY V CLINTON[1] held  that courts lack authority to decide political questions when there is a commitment of the issue to another department or where there is a lack of judicially discoverable and manageable standards for resolving them

Essentially, “justiciable” or “justiciability” deals with jurisdiction of the court to wit, whether there exist adjudicatory matters for which the court can exercise its jurisdiction.

MEANING OF ENFORCEABLE/ENFORCEABILITY

Enforce has been defined in the Black Law Dictionary, 9^th Edition as follows;

“To give force or effect to (a law, etc.); to compel obedience to”

“Enforce” in other words can be explained as giving legal effect to a provision, rule or law or ensuring its compliance. The Supreme Court has had the opportunity to explain what enforcement of the constitution means. In EMMANUEL NOBLE KOR V THE ATTORNEY GENERAL AND JUSTICE ISAAC DELALI DUOSE[2], Atuguba JSC stated as follows;

“As Apaloo C.J, delivering the judgment of the Supreme Court in Yiadom v. Amaniampong (1981) GLR 3 at 8 said, inter alia, “To enforce a provision of the Constitution is to compel its observance.” Certainly, it cannot be said that this court cannot compel the observance of a provision of the Constitution unless it first acquires the murkiness”

A similar interpretation had been adopted by the Supreme Court in an earlier decision of OKUDZETO ABLAKWA & ANOR. V ATTORNEY GENERAL AND OBETSEBI LAMPTEY[3], where Adinyira (Mrs) JSC stated that;“Article 2 (1) of the 1992 Constitution imposes on the Supreme Court the duty to measure the actions of both the legislature and the executive against the provision of the Constitution. This includes the duty to ensure that no public officer conduct himself in such

a manner as to be in clear breach of the provisions of the Constitution. It is by actions of this nature that gives reality to enforcing the constitution by compelling its observance and ensuring probity, accountability and good governance.”

It is therefore beyond hesitancy that the words “justiciable” and “enforceable” are not synonymous and cannot be used interchangeably as legally, they both have different meanings. Whereas to enforce a constitutional provision means to compel the observance of that provision, justiciable deals with the court’s jurisdiction to deal with a matter.

The question “are the DPOSP in chapter 6 of the 1992 Constitution justiciable” has been long answered by our Supreme Court from the days of NPP V ATTORNEY GENERAL (31^ST DECEMBER CASE)[1] through3 NPP V ATTORNEY GENERAL (CIBA CASE)[2] to the current position as espoused by Date-Bah JSC in GHANA LOTTO OPERATORS ASSOCIATION V NATIONAL LOTTERY AUTHORITY[3]

In the 31^ST DECEMBER CASE, Adade JSC held as follows; “I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not justiciable: it is. First, the Constitution, 1992 as a whole is a justiciable document. If any part is to be non-justiciable, the Constitution, 1992 itself must say so. I have not seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me that chapter 6 is not justiciable. The evidence to establish the non-justiciability must be internal to the Constitution, 1992, not otherwise, for the simple reason that if the proffered proof is external to the Constitution, 1992, it must of necessity conflict with it, and be void and inadmissible: we cannot add words to the Constitution, 1992 in order to change its meaning. Secondly, notice that article 1(2) of the Constitution, 1992 speaks of inconsistency with “any provision of this Constitution, 1992”; and article 2(1) of the Constitution, 1992 makes reference to inconsistency with or contravention of “a provision of this Constitution.” None of these articles expresses an exception in favour of chapter 6. Does it not follow that chapter 6 too, along with the rest of the Constitution, 1992, is in the contemplation of articles 1 and 2 of the Constitution, 1992? Thirdly, the very tenor of chapter 6 of the Constitution, 1992 supports the view that the chapter is justiciable. The opening article, i.e. 34 of the chapter reads: “34. (1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”(The emphasis is mine.)This is a compendious provision, grouping together a whole host of state institutions and other bodies, discharging different functions. The language employed therefore has been such as caters for these different functions.”

Hence, the majority in the 31^ST DECEMBER CASE held that the DPOSP in chapter 6 were justiciable.

However, in the CIBA CASE, Bamford Addo JSC after stating and discussing paragraphs 95-97 of the Report of the Committee of Experts (Constitution) held as follows;

“In general therefore it is correct to say that the directive principles are principles of state policy which taken together constitute a sort of barometer by which the people can measure the performance of their government. That they provide goals for legislature programmes and a guide for judicial interpretation but are not of and by themselves legally enforceable by any court. However, there are exceptions to this general principle. Since the courts are mandated to apply them in their interpretative duty, when they are read together or in conjunction with other enforceable parts of the Constitution, 1992, they then in that sense, become enforceable. But as clearly explained in the Report, standing independently they are not justiciable: see also article 34 of the Constitution, 1992. Every provision of the Constitution, 1992 has meaning and effect and therefore it would be wrong to ignore or disregard clear constitutional dictates. Apart from the above stated requirement for enforceability of most of the provisions of chapter 6 of the Constitution, 1992, there are particular instances where some provisions of the directive principles form an integral part of some of the enforceable rights either because they qualify them or can be held to be rights in themselves. In those instances, they are of themselves justiciable also. It is my view that where provisions under chapter 6 of the Constitution, 1992 are made independent rights either by specific words or by necessary implication they become of themselves justiciable rights”

In simple terms, her Ladyship held that where the provisions in chapter 6 of the 1992 Constitution are independent or stood alone, then they were not justiciable, however, where the DPSOP provisions are read together or in conjunction with other enforceable parts of the Constitution, then they became justiciable.

In the GHANA LOTTO OPERATORS CASE, the Supreme Court unanimously speaking through Date-Bah JSC held as follows;

“As far as this present Court is concerned, we are of the view that, because there is a conflict between two previous Supreme Court decisions, we are free either to choose between the two decisions or to formulate a different rule that is right in our view, since there is currently no binding precedent. We would humbly submit that that right rule is a presumption of justiciability in relation to the provisions of Chapter 6 of the Constitution, 1992, as outlined above. Applying this presumption of justiciability, our view is that the economic objectives laid out in Article 36 of the Constitution are legally binding and are not merely a matter of conscience for successive governments of our land. The objectives have, though, to be liberally construed in order not to interfere with the democratic mandates of successive governments. Where, however, a government introduces legislation which is flagrantly at odds with any of the objectives set out in the Article, we believe that this Court has jurisdiction to strike down the provisions in the legislation which are incompatible with the objectives concerned. In short, article 36(2)(b) is justiciable.

The Court expressed the current position when it held that the DPOSP in chapter 6 is presumed to be justiciable.  The current position as expressed above was further reinforced by the Supreme Court in EZUAME MANAN V THE ATTORNEY-GENERAL AND SPEAKER OF PARLIAMENT, where Kulendi JSC in rendering the majority decision opined as follows;

“The first question that arises in that case, is whether Article 40, being one of the directive principles of state policy, is justiciable. While there has been an evolution away from the position that directive principles in general are non-justiciable, to the current position of the law that directive principles are prima facie justiciable, it must be established that Article 40 in and of itself is justiciable.”

It is my respectful view that the question “are the DPOSP in chapter 6 justiciable” has never been germane and was still birthed the first day it was asked. However, the academic exercise embarked upon by the Supreme Court in answering this question is borne out of the erroneous understanding that “justiciable” is synonymous to “enforceable”. As expressed above in this article, they are two different legal terms. Respectfully, if the court had averted its mind to the true legal meaning of “justiciable”, it would have in my opinion concluded that Articles 2 and 130 of the Constitution, 1992 had exclusively and unambiguously vested jurisdiction in the Supreme Court to interpret and enforce the Constitution. In light of this I hold the view expressed by Adade JSC in the 31^ST DECEMBER CASE to the effect that Chapter 6 of the 1992 Constitution is justiciable as the courts can assume jurisdiction over matters involving those provisions.

In my humble opinion, the real question that ought to have been asked and answered is: ARE THE DIRECTIVE PRINCIPLES OF STATE POLICY IN CHAPTER 6 OF THE 1992 CONSTITUTION ENFORCEABLE?

In other words, can the executive, legislature, judiciary and the citizenry be legally compelled to enforce the provisions stipulated in chapter 6? It is this question that needs an apt resolution from the courts.

To resolve this question, resort will once again be made to Article 2 of the 1992 Constitution which empowers the Supreme Court to enforce the 1992 Constitution. On the basis of this provision alone, one would have hurriedly concluded that the DPOSP being a part of the 1992 Constitution is enforceable. However, a critical look at some of the provisions in chapter 6 will reveal that it will be harsh and impracticable for some of the provisions to be enforced especially at certain times. For example, Article 38(3) of the 1992 Constitution provides as follows;

The State shall, subject to the availability of resources provide -

(a) equal and balanced access to secondary and other appropriate pre-university education, equal access to university or equivalent education, with emphasis on science and technology;

(b) a free adult literacy programme, and a free vocational training, rehabilitation and resettlement of disabled persons; and

(c) life-long education.

Will it not be harsh, unreasonable and impracticable if a citizen of Ghana sues the Attorney-General today at the Supreme Court seeking an order of the Supreme Court to compel the government to comply with this provision and build a secondary school in his or her district?

It must therefore be understood that the execution of the goals, aspirations and policies as stipulated in Chapter 6 of the 1992 Constitution is dependent on so many factors which may not be within the control of the government, legislature, judiciary or the citizenry.

In short, considering the nature of chapter 6, the DPOSP stipulated therein should be presumed to be enforceable. The legal effect of this presumption is that it shifts the burden on to the other party to bring evidence to show why he/she should not be compelled to observe the specific provision in Chapter 6 of the 1992 Constitution.

CONCLUSION

As demonstrated above, the real question that should have been asked and answered is the enforceability or otherwise of the DPOSP stated in chapter 6 of the 1992 Constitution. Despite the absence of a clear answer to this query, it is my opinion that the provisions stated in Chapter 6 should be presumed to be enforceable and not justiciable. The provisions in chapter 6 are already justiciable since by Articles 2 and 130 of the Constitution, 1992, the Supreme Court has jurisdiction to determine all matters bothering the interpretation or enforcement of the Constitution which includes the DPOSP in chapter 6 of the 1992 Constitution.

[1] [1993-94] 2 GLR 35-192

[2] [1997-98] 1 GLR 378

[3] Ref No. J6/1/2008

[1] 566 US 189, 195

[2] Civil Appeal No. J1/16/2015

[3] [2011] 2 SCGLR 986

[1] Article 34(1) of the 1992 Constitution

[2] Civil Appeal No. J1/19/2016

[1] 369 US 186, 1987 LED 2D

[2] [1997-98] 1 GLR 227-281

[3] CIVIL MOTION SUIT NO. J7/4/2011