SKY VRS PARLIAMENT OF GHANA (J1/09/2024) [2024] GHASC 66 (18 December 2024)

Page 1 of 97 IN THE SUPERIOR COURT OF JUDICATURE THE SUPREME COURT ACCRA - AD 2024 CORAM: LOVELACE-JOHNSON, (MS) JSC (PRESIDING) PROF. MENSA-BONSU (MRS) JSC ACKAH YENSU, (MS) JSC ASIEDU, JSC GAEWU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC WRIT No: J1/09/2024 18TH DECEMBER, 2024. RICHARD SKY …. PLAINTIFF VRS. 1. PARLIAMENT OF GHANA …. 1ST DEFENDANT 2. ATTORNEY GENERAL …. 2ND DEFENDANT _____________________________________________________________ Page 2 of 97 JUDGMENT _____________________________________________________________ PROF. MENSA-BONSU (JSC) … “Then lest he may, Prevent. And since the quarrel Will bear no colour for the thing he is, Fashion it thus: that what he is, augmented Would run to these and these extremities And therefore think him as a serpent’s egg Which, hatched, would as his kind grow mischievous – And kill him in the shell” William Shakespeare ‘Julius Caesar’ Act 2 Scene 1 INTRODUCTION: The plaintiff, a citizen of Ghana who, in a pre-emptive strike, has invoked the original jurisdiction of the Supreme Court under Article 2(1) and Article 130 of the Constitution of Ghana,1992, to challenge the constitutionality of the ‘Human Sexual Rights and Ghanaian Family Values Bill, 2021’ (“the Bill”) as passed by Parliament in 2024. The plaintiff says he is seeking to uphold the fundamental human rights and freedoms guaranteed under the Constitution of the Republic of Ghana,1992, and contends that the Bill, as passed by Parliament violates certain provisions in the Constitution of Page 3 of 97 Ghana,1992. In ringing tones, the plaintiff declares his purpose in paragraph 3 of his amended Statement of Case filed on 21st November, 2024 thus: ” My Lords, this case comes before the Supreme court not as an inquiry into the moral judgments surrounding sexual relationships within our society, nor does it seek to traverse the deeply personal and varied landscape of human sexuality through the lens of judicial scrutiny. Rather, at its core, this action embodies a profound constitutional inquiry, inviting the honourable Court to properly delineate the boundaries of legislative power as enshrined in our nations supreme legal document. It is a call to action for the judiciary to affirm its indispensable role in our democracy by making a definitive determination on the precise scope and limits of the Parliaments authority to legislate on matters that touch upon the fundamental human rights and freedoms of the individual.” Fine words of purpose! However, putting it thus simply obscures the real significance of this suit which has at its core, the concept of separation of powers; and the scope of the powers of each arm of government in the legislative process. FACTS AND BACKGROUND On 28th February, 2024 the Parliament of Ghana passed a bill known as the ‘Human Sexual Rights and Family Values Bill 2021.’ The Bill began its life as a Private Members Bill. It was therefore subject to provisions in article 106 of the Constitution, 1992, regarding the legislative processes, but also the specific constitutional provisions under article 108 of the Constitution, 1992. The plaintiff contends in paragraph 6 of his Statement of Case that the substance of the Bill “proposes to criminalize same-sex sexual relationships, expanding the scope of criminalization to include not only those who identify as lesbian, gay, Page 4 of 97 bisexual, transgender, queer, or pansexual, but also allies and advocates for sexual and gender minorities’ rights.” Consequently, he concludes that the Bill violates the fundamental human rights and freedoms guaranteed under the Constitution of the Republic of Ghana. The Bill, as required under article 106 (1), has not yet been assented to by the President, nor have the law-making processes set down under article 106(7) (8) (9) and (10) under the Constitution, been fully exhausted. The plaintiff has, nevertheless, initiated this legal action in the Supreme Court to challenge the constitutionality of the Bill and truncate the legislative process because “allowing potential constitutional violations by Parliament to go unchallenged would contravene the foundational tenets of the Constitution” (emphasis supplied). THE WRIT The plaintiff is before this Honourable Court to invoke the interpretative and enforcement jurisdiction of the Supreme Court in a pre-emptive move to challenge the power of Parliament to make certain types of law. Specifically, the plaintiff seeks the interpretation of articles 12, 15, 17, 18, 21, 106, 33(5) and 108 of the Constitution of Ghana,1992, and his prayer is that the entire Bill be struck down as unconstitutional, null and void. He seeks the following reliefs: “a. A declaration that upon a true and proper interpretation of Article 33(5) of the Constitution of 1992, in the light of Articles 12(1) and (2), 15(1). 17(1) and (2), 18(2) and 21(1)(a)(b)(d) and (e) of the Constitution, the passage of the “The Human Sexual Rights and Family Values Bill, 2024” by Parliament on 28th February 2024 contravened the Constitution and is to that extent null, void and of no effect. Page 5 of 97 b. A declaration that Parliament exceeded its authority under Article 106(2) and 108(a)(ii) of the Constitution, in passing “The Human Sexual Rights and Family Values Bill,2024” as same imposes a charge upon the Consolidated Fund or other public funds of Ghana. c. A declaration that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution, in light of Article 296(a)(b) and (c), by admitting and allowing Parliament to proceed upon and pass “The Human Sexual Rights and Family Values Bill,2024” into law as the same imposes a charge upon the Consolidated Fund or other public funds of Ghana. d. A declaration that upon a true and proper interpretation of Article 102 and 104(1) of the Constitution, Parliament lacked the requisite quorum to pass “The Human Sexual Rights and Family Values Bill,2024”. e. An order restraining the Speaker of Parliament and the Clerk of Parliament from presenting “The Human Sexual Rights and Family Values Bill,2024” to the President for his assent. f. An order restraining the President of the Republic from assenting to “The Human and Sexual Values Bill ,2024” as such action will directly contravene the Constitutional safeguards of liberties and rights of Ghanaians. g. An injunction barring any attempts to enforce the provisions of “The Human Sexual Rights and Family Values Bill,2024” particularly those criminalizing same- sex relationships and related advocacy efforts. h. Such further orders or directions as to this Honourable Court may seem meet. CAPACITY OF PLAINTIFF Page 6 of 97 As is required of constitutional litigation under the Constitution of Ghana, 1992, the plaintiff must establish his or her capacity to bring the suit and to invoke the original jurisdiction of the Supreme Court, as established under article 2(1) of the Constitution 1992. In his amended Statement of Case filed on 21st November, 2024, the plaintiff submitted in paragraph 10 of his statement of case that “he is a citizen of the Republic of Ghana, maintaining a residence in Ghana, and is a lawfully registered voter”, thus entitled to invoke the original jurisdiction of the Court pursuant to articles 2(1) (b) and 130(1) (a) of the Constitution of Ghana, 1992.”, The plaintiff cites David Kwadzo Ametefe v The Attorney-General and Martin Alamisi Amidu Writ No J1/3/2017; Unreported. It is also true, as the plaintiff points out, relying on Tuffour v Attorney General [1980] GLR 637 at 667, that a plaintiff need not have a personal interest beyond the commitment to the Constitution itself. All of these issues are well established and in a long line of authorities. The point is made quite eloquently in Sam (No.2) v Attorney General [2000] SCGLR 305 [1999-2000] 2 GLR 336 by Ms Akuffo JSC (as she then was) when she restated the legal position at pp. 371-372 thus: - “Every citizen of Ghana, by virtue of such citizenship, has an innate interest in the integrity of the supreme law of the land, the national constitution. As such, therefore any perceptible insistency or contravention in any enactment or act or omission of any person with the constitution constitutes a sufficient occasion for the invocation of article 2…. In the context of article 2(1) therefore there can never be an officious bystander or nosy busybody. Every Ghanaian is and must be an interested party.” See also: Amidu (No. 2) v Attorney-General, Isofoton S.A. and Forson (No 1) [2013-2014] 1 SCGLR 167 at 180 per Date-Bah JSC. Page 7 of 97 CAPACITY OF THE DEFENDANTS The plaintiff has initiated this action against the institution of Parliament as 1st defendant. Anticipating a challenge of sorts to this manner of proceeding, he justifies the selection of the entire Parliament as 1st defendant in his statement of case thus: “it is imperative, therefore, to address the jurisdictional and procedural propriety of citing Parliament, an independent constitutional body established under article 93(2) as 1 st defendant in adherence to principles of judicial efficiency and constitutional fidelity” (paragraph 12) He concludes in para 16 of his amended Statement of Case that “the involvement of Parliament as a defendant is indispensable for the just, full and final resolution of this case. This approach ensures the principles of accountability, transparency and justice are upheld, in accordance with the Constitution. It is therefore respectfully posited that this Honourable Court admits the necessity of Parliament’s inclusion as a party to this action, enabling a thorough examination and adjudication of the constitutional matters at hand, in service of the lofty ideals of our constitutional democracy.” No doubt, these are fine words, but do they suffice to show that the institution of Parliament is the proper defendant in a suit which claims, among other things, to be challenging the manner of exercise of the Speaker’s constitutionally mandated duty? It is unclear that a sufficient case has been made to include the entire institution of Parliament as 1st defendant. Page 8 of 97 With respect to the 2nd defendant, there certainly is no doubt about the competency of the 2nd defendant to be so cited, relying on article 88 of the Constitution, 1992. SUMMARY OF PLANTIFF’S CASE AND LEGAL ARGUMENTS: Plaintiff has presented his case under three main themes or “planks”: Violation of Human Rights; Unauthorized Imposition of a Financial Burden Through a Private Member’s Bill and the Non-Compliance with Quorum Requirements. Violation of Human Rights The plaintiff discusses the bundle of rights under chapter 5 of the Constitution of Ghana,1992. Specifically, Article 12(protection of fundamental human rights); Article 15(the inviolability of personal dignity); Article 17(prohibition against discrimination); Article 18(privacy safeguard); Article 21(freedom of expression, association and speech) and Article 35(other universal rights not provided for in the Constitution,1992). The plaintiff further in his discussion suggests that the Bill in its current state violates all these rights protected by the Constitution, 1992. The plaintiff indicated specific clauses in the Bill which violate the Constitutional rights stated supra and how Parliament passing the Bill under its legislative process under Article 106 of the Constitution 1992 violates these aforementioned rights. Non-Compliance with Article 108 The Plaintiff contends that the Speaker of Parliament failed to exercise proper discretion under Article 296 of the Constitution,1992 when the Bill was going through the legislative Page 9 of 97 process, without due obedience to Article 108 of the Constitution 1992. It is the Plaintiff’s contention that being a Private Member’s Bill, same has financial implications in its implementation, and therefore imposes a charge on the consolidated fund or public purse. This, the plaintiff views as constitutionally untenable, and a wrongful exercise of discretion by the Speaker of Parliament, by not giving an opinion to that effect as provided under article 108 of the Constitution, 1992. Non-Compliance with Quorum Requirements Plaintiff says here that Parliament violated the Constitution by not satisfying the prescribed quorum as provided for in Article 104(1) of the Constitution of Ghana,1992. This breach in the view of the Plaintiff is a deviation from the principles of legislative function. The plaintiff’s evidence of lack of quorum is a video broadcast purported to have been taken during the voting process to pass the Bill. This the plaintiff contends is a constitutional violation for this Honourable Court to resolve. SUMMARY OF 1ST DEFENDANT’S CASE AND LEGAL ARGUMENTS The 1st defendant contends that the plaintiff’s prayer for a declaration that upon a true and proper interpretation of Article 33(5) of the Constitution 1992, in the light of Articles 12(1) and (2), 15(1). 17(1) and (2), 18(2) and 21(1)(a)(b)(d) and (e) of the Constitution,1992, the passage of the “The Human Sexual Rights and Family Values Bill,2024” by Parliament does not properly invoke the jurisdiction of the Court. The 1st defendant contends that the plaintiff does not demonstrate in his Statement of Case how the Bill contravenes the said provisions of the Constitution in Articles 12(1) and (2), 15(1). 17(1) and (2), 18(2) and 21(1)(a)(b)(d) and (e) of the Constitution. Further, that Page 10 of 97 the plaintiff’s claim that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution by not exercising the discretionary powers as provided in Article 296(a) (b) and (c), is unfounded. He adds that the plaintiff’s contention that the 1st defendant by admitting and allowing Parliament to proceed upon and pass “The Human Sexual Rights and Family Values Bill, 2024” into law is improper, as the Bill constitutes a charge upon the Consolidated Fund or other public funds of Ghana. This, the 1st d efendant also submits, has no foundation in any of the constitutional provisions on which the plaintiff seeks reliefs. This is on account of the fact that he fails to point at any part of the Bill which makes provision for the matters set out in article 108, such as that the Bill may be said to be one that “imposes a charge upon the Consolidated Fund or other public funds of Ghana”. Essentially, the 1st defendant contends that the plaintiff’s discussions under the three headings in his Statement of Case, are silent on his legal argument as to the meaning he puts to these provisions in contention, in order to establish that there is, indeed, an issue of rival meanings put on the same provision. Therefore, they do not pass the test set out on constitutional interpretation and enforcement in Ex parte Akosah supra. The plaintiff, according to the 1st defendant, did not show where the words of article 108 of the Constitution 1992 are either imprecise or unclear or unambiguous ; neither does the plaintiff’s case raise any question relating to any conflict between Parliament or any other institution. Further, the 1st Defendant says that the plaintiff has not fulfilled that duty imposed on every plaintiff in such a suit as this to demonstrate to the Court that its jurisdiction has been properly invoked. Finally, the 1st defendant says that the plaintiff failed to exhibit any evidence to support his claim that there was no quorum during the passage of the Bill by Members of Parliament under articles 102 and 104(2) of the Constitution of Ghana,1992. In the view Page 11 of 97 of the 1st defendant, it was not sufficient for the plaintiff to allege that he saw low numbers in a video. It is therefore the 1st defendant’s prayer that the declaratory reliefs being sought by the plaintiff must fail since they do not invoke the Honourable Court’s exclusive original jurisdiction. SUMMARY OF 2ND DEFENDANT’S CASE AND LEGAL ARGUMENTS The 2nd defendant submitted that the plaintiff has invoked the Supreme Court’s jurisdiction to determine whether or not the 1st defendant complied with the provisions of Article 108 of the Constitution 1992 and to that extent, rendered the passage of the Bill null, void and of no effect. The response of the 2nd defendant was canvassed along the lines of the three themes under which the plaintiff organized his argument. The 2nd defendant contends that the plaintiff’s claim that the Bill violates some human rights provision of the Constitution 1992 invokes the enforcement jurisdiction rather than the interpretation jurisdiction. The 2nd defendant holds the view that the reliefs being sought by the plaintiff are at variance with his legal arguments. Otherwise put, the plaintiff’s reliefs do not advance any argument on the true and proper interpretation of Article 33(5) of the Constitution,1992. The 2nd defendant remains of the view that since the plaintiff’s reliefs amount to the enforcement of human rights, the High Court is the proper forum to resort to, as provided by Article 33(3) of the Constitution of Ghana,1992 and same must be dismissed citing the decision in Bimpong-Buta vs General Legal Council and Others [2003-2004] 2 SCGLR 1200 to buttress his argument. In respect of the plaintiff’s reliance on article 108, the 2nd defendant contends that there is no evidence showing that the 1st defendant has rendered an opinion as required by Page 12 of 97 Article 108 of the Constitution,1992 on the Bill in contention. The 2nd defendant submits that the provisions of Article 108(a)of the Constitution 1992, impose both a duty and discretion by the use of the words “shall not” and unless the Bill is introduced or the motion is introduced by, or on behalf of the President the requirement of a financial implication assessment must accompany it. Such discretionary power imposed on the Speaker who is the person presiding must be exercised fairly and candidly in accordance with Article 23 and 296 of the Constitution 1992 citing Marian Awuni v. WAEC [2003- 2004] 1 SCGLR 471; Gregory Afoko v. Attorney-General (Writ No. J1/8/2019); Unreported. The 2nd defendant again contends that the exercise of the Speaker’s discretion must be verifiable and same must not be left to speculation, inference or deduction by anybody. It is a case of whether the 1st defendant has done it or not, without leaving room for inference or supposition. The relevance of the discretion being verifiable in the view of the 1st defendant, is that any citizen could on the basis of that discretionary power as exercised, determine whether it was done within the confines of Articles 23 and 296 of the Constitution 1992 and when any one is aggrieved they would have the right to challenge same. The 2nd defendant, thus, regards the failure of the Speaker to comply with the provision of Article 108 of the Constitution,1992 as a violation of the Constitution, to which every citizen of Ghana is subject. In any case, the 2nd defendant submits forcefully that should the 1st defendant have expressed the opinion that the Bill was not subject to Article 108 of the Constitution, that opinion would have been erroneous and unconstitutional. This is because in the view of the 2nd defendant the Bill in contention clearly makes provision for some of the matters stated under Article 108(a) of the Constitution,1992. Page 13 of 97 Following these submissions, the 2nd defendant launches into the legislative history of article 108 of the Constitution,1992 from the Independence Constitution of 1957 until the instant one of the Fourth Republic which make provision for the same matters and in like language as the provisions in Article 108 of the Constitution 1992. Further, that a careful and objective scrutiny of the clauses of the Bill would show that the Bill fits well into the scope of the remit of article 108 of the Constitution, 1992, as there is the likelihood that the implementation would constitute a charge on the Consolidated fund. For the 2nd defendant, it would be disingenuous for anyone to suggest that Article 108 of the Constituton,1992 does not apply simply because the provisions in a Bill do not directly impose a charge on the Consolidated fund. Therefore, once the Bill does not emanate from the President, Article 108 of the Constitution kicks in. In sum, the 2nd defendant submits that article 108 of the Constitution should be construed objectively and purposively to mean a limit on Parliament’s powers to pass a Bill which has financial implications for the state, without the Speaker’s prior determination. Concluding, the 2nd defendant’s answer to the plaintiff’s claim of lack of quorum to pass the Bill under Article 106 of the Constitution 1992 would largely be dependent on the plaintiff’s evidence to support that claim. ISSUES FOR DETERMINATION The parties appeared unable to harmonise these issues into a joint Memorandum of Issues, and so did not file one. Instead, each party filed a separate one, as they are Page 14 of 97 permitted to do by Rule 50(30 of Supreme Court Rules 1996, as amended (C.I .16). The Court is thus left with the duty to determine the relevance of the issues so filed. PARTIES’ MEMORANDUM OF ISSUES The plaintiff’s issues were: “1. Whether or not upon a true interpretation of article 33(5) of the 1992 Constitution in the light of Articles 12(1) (2), 15(1), 17(1) (2) 18(2) and 21(1) (a)(b) and (e), the passage of the “The Human Sexual Rights and Family Values Bill, 2024” is inconsistent with the 1992 Constitution. 2. Whether or not the “The Human Sexual Rights and Family Values Bill ,2024” should have been validly admitted by the Speaker of Parliament without an attachment of Financial Impact Analysis Report as required by Article 108(a) (ii) of the 1992 Constitution and Section 100(1) of the Public Financial management Act, 2016, Act 921. 3. Whether or not the “The Human Sexual Rights and Family Values Bill is not discriminatory, an invasion of the citizenry’s privacy of home and a violation of the fundamental rights of the citizen as enshrined in the 1992 Constitution. 4. Whether or not upon a true and proper construction and interpretation of clauses 3,4,5,6,7,8,9,10,11,12,14 and 17 of “The Human Sexual Rights and Family Values Bill, same are compatible or consistent with the rights of Ghanaians as enshrined in the 1992 Constitution. 5. Whether or not Parliament was quorate at the time of passage of the Bill. Page 15 of 97 6. And any other issue(s) arising from pleadings in this matter as the Honourable Court may seem meet?” On the part of the defendants, the 1st defendant filed the following issues: “1. Whether or not the Supreme Court’s jurisdiction has been properly invoked under Articles 2 and 130(1) of the 1992 Constitution of the Republic of Ghana to interpret the provisions of Articles 12(1) and (2), 15(1), 17(1) and (2), 18(2), 21(1) (a), (b), (d) and (e), in terms of article 33(5)? 2. Whether or not the Supreme Court’s jurisdiction has been properly invoked under Articles 2 and 130(1) of the 1992 Constitution of the Republic of Ghana to interpret the provisions of articles 106(2) and 108(a)(ii) of the 1992 Constitution of the Republic of Ghana? 3. Whether or not the voting requirements constitutionally provided for in article 104 of the 1992 Constitution of the Republic of Ghana is subject to the quorate requirements in Article 102 of the 1992 Constitution of the Republic of Ghana?” The 2nd defendant’s Memorandum of Issues was as follows: 1. Whether the determination by the Speaker of Parliament (or the Speaker’s failure to determine that the “The Human Sexual Rights and Family Values Bill, 2024 complied with article 108 of the Constitution was contrary to the letter and spirit of article 108 of the Constitution and to that extent rendered the passage of the Bill null, void and of no effect. Page 16 of 97 2. Whether or not in passing the Human Rights and Family Values Bill, 2024 (the Bill), Parliament had exceeded its authority. JURISDICTION It is trite law that jurisdiction (or the lack thereof) is cardinal to any court’s ability to assume power over any matter placed before it in any action. In Ghana Bar Association v Attorney-General and Another (Abban case) [2003-2004] SCGLR 250, the concept was explained by Edward Wiredu JSC at p. 266 thus: ‘Jurisdiction is simply the power of a court to hear and determine a cause or matter brought before it, lack of which would render any decision taken or order made null and void and of no effect. If jurisdiction is granted a court by a statute, then what is already specified therein determines the nature and extent of that jurisdiction so granted to that court which cannot be extended or modified. Where jurisdiction is wrongly assumed, however, all proceedings taken would be a nullity’ Therefore, whether articulated or not, every court begins from the standpoint of an enquiry into whether or not it has jurisdiction in the matter placed before it. It is equally trite that the jurisdiction of the Supreme Court is circumscribed by the Constitution. In National Media Commission v Attorney-General [2000] SCGLR 1 at p.11, Acquah JSC (as he then was) stated thus; “But to begin with, it is important to remind ourselves that we are dealing with our national constitution, not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers Page 17 of 97 in them. It gives certain rights to persons as well as to bodies of persons and imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers and privileges and rights must be exercised and enforced not only in accordance with the letter”. Thus, no institution under the Constitution can assume any power or act in any manner unless permitted to do so by the Constitution. Acquah CJ in Luke Mensah v Attorney- General J1/1/2004; judgment delivered on 5th March 2004; Unreported expressed the necessity for the Supreme Court to intervene in situations when it is imperative to do so. However, the matter in question must fall within the jurisdiction of the court. He intones the principle thus: “We are convinced that as the highest court of the land, charged with the constitutional authority to interpret and enforce the Constitution, and thereby promote rule of law in our society, we should, in fitting situations, rise up to the occasion and determine disputes likely to endanger our infant democracy. And we would do this, if the subject matter falls within our jurisdiction.” Consequently, the issue of jurisdiction is not to be treated lightly. Therefore, a plaintiff who seeks to invoke the original jurisdiction of the Supreme Court to interpret and enforce the Constitution, must demonstrate that the matter falls within the ambit of the original jurisdiction conferred on the Supreme Court by the Constitution, 1992, the issue of jurisdiction being an unassailable pre-condition to the exercise of any judicial power. Original Jurisdiction Page 18 of 97 In Adumoah Twum II vs. Adu Twum II [2000] SCGLR 165 Acquah CJ stated that “the original jurisdiction vested in the Supreme Court under Articles 2(1) and 130(1) to interpret and enforce the provisions of the Constitution is a special jurisdiction to be invoked in suits raising genuine or real issues of interpretation of a provisi on of the Constitution; or enforcement of a provision of the Constitution; or a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the Constitution”. Therefore, the issue set down by the 1st defendant in the Memorandum of Issues is the first barrier that every plaintiff must scale, if the action is to be grounded within the ambit of the powers of the Supreme court. Every plaintiff must first ask himself or herself, “Is this a proper case for the invocation of the original jurisdiction of the Supreme Court?” Article 2 of the Constitution, 1992, sets down the scope of a plaintiff’s duty follows: “(1) A person who alleges that _ (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect. (2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.” Page 19 of 97 The scope of the original jurisdiction of the Supreme Court is set down under article 130 (1) as follows: “130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in – (a) all matters relating to the enforcement or interpretation of this Constitution; and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law under this Constitution.” The duty of the plaintiff to deal with this constitutional requirement is not to be taken lightly. On its part, the Supreme Court is under obligation to ensure that it operates within the confines of its constitutional mandate and does not, like an octopus, spread its tentacles all around, vainly searching for prey. In Danso v. Daaduam II & Anor. [2013- 2014] SCGLR 1570, the Supreme Court, per Anin Yeboah JSC (as he then was) upheld a preliminary objection challenging the jurisdiction of the Court to determine the suit initiated by the plaintiff. He stated at p. 1575 as follows: - “The Plaintiff has invoked our original jurisdiction for the reliefs stated above. It is therefore the duty of the Plaintiff to demonstrate to this court that our jurisdiction has been properly invoked. This he can do by showing as per his writ and reliefs sought that his case presented to this court raises a real or genuine issue for interpretation or enforcement.” Page 20 of 97 In Benjamin Komla Kpodo & Another v. Attorney-General Writ No. J1/03/2018; judgment dated 12th June, 2019 (Unreported) Sophia Akuffo C.J. restated the principle thus: - “it has become our practice that in all actions to invoke our original jurisdiction, whether or not a Defendant takes objection to our jurisdiction, or even expressly agrees with the Plaintiff that our jurisdiction is properly invoked, we take a pause to determine the question of the competence of the invocation of our jurisdiction, before proceeding with the adjudication of the matter or otherwise”. (emphasis supplied.) In taking “a pause to determine the question of the competence of the invocation of our jurisdiction”, one must resort to the text of article 2 of the Constitution, 1992, since it provides the basis for the exercise of that power. The plaintiff has come to this court to seek the interpretative and enforcement jurisdiction under the rubric of article 2 (1) against the body of Parliament for performing a legislative function in a manner of which the plaintiff disapproves, and believes to contravene the Constitution. Is Parliament amenable to the jurisdiction of the Supreme Court? Indeed it is. Who is amenable to the jurisdiction of the Supreme Court? It is clear from provisions of the Constitution that the other branches of Government, as well the Judicial branch itself, are amenable to the jurisdiction of the Supreme Court. This was forcefully restated by the Court in respect of the Executive branch in Martin Alamisi Amidu v. President Kuffour and The Attorney-General [2001-2002] SCGLR 86 at p.100. per Acquah JSC as follows: Page 21 of 97 "There is no doubt that the 1992 Constitution prescribes a government consisting of three branches: the legislature, executive, and the judiciary, each playing a distinct role…. Now each of these branches of government, offices, bodies and institutions is, of course, subject to the Constitution, and is therefore required to operate within the powers and limits conferred on it by the Constitution. And in order to maintain the supremacy of the constitution and to ensure that every individual organ, body or institution of state operates within the provisions of the Constitution, authority is given in article 2 thereof to any person who alleges that a conduct or omission of anybody or institution is in violation of a provision of the Constitution to seek a declaration to that effect in the Supreme Court. Thus so long as an individual, body or institution or organ of government performs its functions in accordance with the relevant constitutional provisions and the law, the Supreme Court has no business or jurisdiction to interfere in the performance of its functions. But where it is alleged before the Supreme Court that any organ of Government or an institution is acting in violation of a provision of the Constitution, the Supreme Court is duty bound by articles 2(1) and 130(1) to exercise jurisdiction, unless the Constitution has provided a specific remedy... no individual nor creature of the Constitution is exempted from the enforcement provision of article 2 thereof. No one is above the law. And no action of any individual or institution under the Constitution is immune from judicial scrutiny if the constitutionality of such an action is challenged."(emphasis supplied) In Ezuame Mannan v. The Attorney General Suit No: J1/11/2021Unreported; The plaint of the plaintiff was that Parliament had not complied with the constitutional processes in article 106 in enacting Section 43 of Act 1019. The plaintiff successfully proved that the provision in question was belatedly inserted in the Bill that was laid before Parliament; and that consequently, the Memorandum that accompanied the Bill as required by Article Page 22 of 97 106(4),(5) and (6) of the Constitution, 1992, did not sufficiently lay out the policy change that was being brought by the tenor of the new law, and therefore the provision did not comply with the constitutional requirement. The offending section 43 was duly struck down by the Supreme Court. The point is reiterated in a number of cases such as Okudzeto Ablakwa & Another v Attorney-General & Obetsebi Lamptey [2011] 2 SCGLR 986; and Justice Abdulai v. The Attorney General J1/07/2022 (9th March, 2022); Unreported. In Okudzeto Ablakwa & Another v Attorney-General & Obetsebi Lamptey (supra), the Supreme Court, speaking through Sophia Adinyira JSC stated as follows: “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.” The same point is taken at p.16 of Justice Abdulai v Attorney-General (supra), when Kulendi JSC reiterated the point and stated thus: “...no arm of Government or agency of the State, including Parliament, is a law unto itself because, without exception, everyone and everything in Ghana is subject to the Constitution. As a result, an allegation that Parliament has acted and/or is acting in a manner that is inconsistent with, in contravention of and/or ultra vires to the Constitution, will render Parliament, the actions, orders, rules or procedures in issue, amenable to the jurisdiction of this Court.” Page 23 of 97 There is thus sufficient authority to state without any equivocation that the Supreme Court has jurisdiction over all the branches of government. In the instant case, the plaintiff alleges that the provisions of an enactment, The Human Sexual Rights and Family Values Bill, 2024, constitute a breach of his constitutional rights. He relies on article 2(1) to invoke the jurisdiction of the Supreme Cou rt, where it is provided that “(1) A person who alleges that _ (a) an enactment or anything contained in or done under the authority of that or any other enactment, may seek redress in the Supreme Court. ” (emphasis supplied) The question is what “enactment” is in issue in the suit by the plaintiff? The answer purports to be, “The Human Sexual Rights and Family Values Bill, 2024”. The inevitable question is whether a Bill qualifies to be described as “an enactment” within the meaning of article 2 (1). Here, the dictum of Wiredu JSC (as he then was) in National Democratic Congress v Electoral Commission [2001-2002] SCGLR 954 at 958 is apposite when he states the law as follows: - “Where an act or omission of any person is challe nged under article 2 of the 1992 Constitution such an act or omission must be shown to have taken place, and it must be shown that such act or omission falls foul of a specific provision of the Constitution, or at the very least, the spirit of an actual provision.” Page 24 of 97 Is there an “enactment” in issue in the instant case? How does the Constitution define “enactment”? Article 295 defines “enactment” as “An Act of Parliament, a Decree a Law or a Constitutional Instrument or a statutory instrument or any provision of an Act of Parliament, a Decree a Law or of a constitutional or of a statutory instrument.” The same definition is provided in section 1(1) of the Interpretation Act, 2009 (Act 792). What then is an “Act of Parliament”? As generally understood, it is obviously a law passed by Parliament by the exercise of its legislative power under the Constitution. 'Act of Parliament' is itself defined in article 295(1) of the Constitution to mean “an Act enacted by Parliament and includes an Ordinance.” Article 106 of the Constitution of Ghana, 1992, provides the steps in the law-making process for an “Act of Parliament” to be born. Article 106 of the 1992 Constitution provides as follows; “Mode of exercising legislative power 1) The power of Parliament to make laws shall be exercised by bills passed by Parliament and assented to by the President. 2) No Bill, other than such a Bill as is referred to in paragraph (a) of article 108 of this Constitution, shall be introduced in Parliament unless; Page 25 of 97 (a) it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the Bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction; and (b) it has been published in the Gazette at least fourteen days before the date of its introduction in Parliament. 3) A Bill affecting the institution of chieftaincy shall not be introduced in Parliament without prior reference to the National House of Chiefs. 4) Whenever a Bill is read the first time in Parliament, it shall be referred to the appropriate Committee appointed under article 103 of this Constitution which shall examine the Bill in detail and make all such inquiries in relation to it as the Committee considers expedient or necessary. 5) Where a Bill has been deliberated upon by the appropriate Committee, it shall be reported to Parliament. 6) The report of the Committee, together with the explanatory memorandum to the Bill, shall form the basis for a full debate on the Bill for its passage, with or without amendments, or its rejection by Parliament. 7) Where a Bill passed by Parliament is presented to the President for assent he shall signify, within seven days after the presentation, to the Speaker that he assents to the Bill or that he refuses to assent the Bill, unless the Bill has been referred by the President to the Council of State under of this Constitution. 8) Where the President refuses to assent to a Bill, he shall, within fourteen days after the refusal, Page 26 of 97 (a) state in a memorandum to the Speaker any specific provisions of the Bill which in his opinion should be reconsidered by Parliament, including his recommendations for amendments if any; or (b) inform the Speaker that he has referred the Bill to the Council of State for consideration and comment under article 90 of this Constitution. 9) Parliament shall reconsider a Bill taking into account the comments made by the President or the Council of State, as the case may be, under clause (8) of this article. 10) Where a Bill reconsidered under clause (9) of this article is passed by Parliament by a resolution supported by the votes of not less than two -thirds of all the members of Parliament, the President shall assent to it within thirty days after the passing of the resolution. 11) Without prejudice to the power of Parliament to postpone the operation of a law, a bill shall not become law until it has been duly passed and assented to in accordance with the provisions of this constitution and shall not come into force unless it has been published in the Gazette.” (emphasis supplied). These provisions mean that the act of making law is based upon cooperation between the Executive and the Legislature. The Constitution has prescribed steps that are to be taken for any law-making activity of Parliament to mature into “an enactment” capable of coming within the ambit of the provision in article 2 (1). The Constitution contemplates that there might be disagreement between the President and Parliament and has prescribed a means by which the matters would be concluded. When these steps have not been exhausted, the judicial role does not arise. However, after the steps have been concluded, then the judiciary may be called upon to measure the provisions against constitutional provisions, which may lead to the legislation, or parts of it being struck Page 27 of 97 down, if found to be inconsistent with the Constitution by the Supreme Court. But not until then. Thus, where the plaintiff in the instant case invites the Supreme Court to interpret a Bill which has not completed its life-cycle to mature into an Act, and to count as “an enactment”, one is confronted with a novel situation. In paragraph 29 he submits as follows: “Turning our attention to the specific issues at hand, we confront a legislative proposition that, if fully enacted, would not only infringe upon the constitutionally guaranteed rights of individuals, but also set a dangerous precedent for legislative overreach into the private lives and freedoms of citizens.” It would seem that the plaintiff has short-circuited the process of legislation and not permitted the “enactment” to be born, before seeking to invoke the original jurisdiction of the Supreme Court to interpret the “as-yet-unformed enactment” and strike it down. The plaintiff sees danger if such Bills are allowed to be passed. What must be made clear here, is that whatever danger the plaintiff sees is all on the side of an insupportable interference in the legislative process, which is properly the domain of Parliament. A resort to the Supreme Court to prevent Parliament from passing law in exercise of its legislative powers would count as undue interference. How would the plaintiff have viewed a legislative act of which he approved, being interrupted by the Supreme Court on the ground that the proposed provisions had the poten tial to enhance privileges intended for the plaintiff and not for everyone similarly situated? It is certain the move by the Supreme Court would have elicited howls of protest from everyone, including those who stood to benefit, for the undue interference in the legislative process, which such an act by the Supreme Court would present. The framers of the Constitution being Page 28 of 97 conscious of the dangers of “mission creep” understood the need to define and delineate the bounds of any jurisdiction or powers conferred on any institution, and entrusted the Supreme Court with power to police same. It thus cannot be in anybody’s interest for the Supreme Court to sully forth at will and stop Parliament or anyone else from thinking of, debating or taking a position on par ticular issues by prematurely making value judgments and blocking whatever proposition is under discussion because it is speculated that it does not measure up to any provision in the Constitution. The Supreme Court is not in the business of giving advisory opinions or anticipating and suppressing Parliament’s law-making powers. It is for good reason that article 2(1) speaks of “enactment” so that there would be a definitive product of the legislative process to consider, and to measure against any constit utional provision. Everything has its appointed time and place, and much harm could be done to an otherwise good case by a hasty anticipation of its possible effects, which could prove to be largely speculative. Beyond being required to be “an enactment” properly so-called, there are conditions that enable the Supreme Court to exercise its power of interpretation, which the plaintiff is anxious to invoke to his cause. This position is also reiterated in Kwabena Bomfeh v Attorney-General [2019-2020] 1 SCLRG 137 per Sophia Adinyira JSC at pp151-152 as follows: “The real test as to whether there is an issue of constitutional interpretation is whether the words in the constitutional provisions the court is invited to interpret are ambiguous, imprecise, and unclear and cannot be applied unless interpreted. If it were otherwise, every conceivable case may originate in the Supreme Court by the stretch of human ingenuity and the manipulation of language to raise a tangible constitutional question. Practically, every justifiable issue can be spun in such a Page 29 of 97 way as to embrace some tangible constitutional implication. The Constitution may be the foundation of the right asserted by the plaintiff, but that does not necessarily provide the jurisdictional predicate for an action invoking the original jurisdiction of the Supreme Court.” (emphasis supplied). This is a danger of which Sophia Akuffo JSC (as she then was) had already warned in Bimpong-Buta v Attorney-General, supra. Plaintiff’s Reliefs The reliefs the plaintiff seeks do not even arise. Even so, it is of moment to comment on three of them. “e. An order restraining the Speaker of Parliament and the Clerk of Parliament from presenting “The Human Sexual Rights and Family Values Bill,2024” to the President for his assent. f. An order restraining the President of the Republic from assenting to “The Human and Sexual Values Bill ,2024” as such action will directly contravene the Constitutional safeguards of liberties and rights of Ghanaians. g. An injunction barring any attempts to enforce the provisions of “The Human Sexual Rights and Family Values Bill,2024” particularly those criminalizing same- sex relationships and related advocacy efforts.” Relief (e) seeks an order to restrain the Speaker and Clerk of Parliament from presenting the Bill to Parliament. Since article 106 (7) prescribes that a bill passed by Parliament be presented to the President for assent, how could the Supreme Court validly make such Page 30 of 97 an order? The constitutional provision does not end there. It has, in anticipation of occasions when the President might disagree with Parliament on any bill, made provision as to procedures to follow should the President refuse to assent to a bill. With such clearly stated options for the President, how could the Supreme Court issue an order restraining him from assenting to the bill, without violating the Constitution? Therefore, plaintiff’s relief (f) is also impracticable. Relief (g) is superfluous as there is no legally-binding instrument yet, that anybody could seek to enforce. Article 106 (11) is clear as to when a bill shall become law, and when it shall come into force. Therefore, no one has legal authority to enforce a Bill when it is an “unborn enactment”, with no legal force. CONCLUSION The plaintiff has been unable to satisfy the first requirement of any party seeking to invoke the original jurisdiction of the Supreme Court: jurisdiction under article 2 and article 130(1). The invocation of the interpretative jurisdiction is based upon an “enactment” or any act done under the authority of an enactment. In the instant case, there is not, as yet, an “enactment” properly so-called, since the legislative process which would transform a Bill into an Act with the force of law has not yet terminated. The action, if at all based on the supposed interpretative jurisdiction of the Supreme Court, is as yet premature as there is nothing on which to hang the exercise of the judicial review jurisdiction of the Supreme Court. The Constitution itself has prescribed the mode by which an “enactment”, properly so- called, can come into being after Parliament has exercised its powers to make legislation. Page 31 of 97 By the principle of Separation of Powers, those processes must be exhausted to produce a tangible product that can be assented to by the President, the head of the Executive, to give it legal effect, the judicial power cannot intrude at this time . Until there is presidential assent, there is no Act of Parliament over which the Supreme Court can exercise its original jurisdiction to strike down, if found to be inconsistent with the Constitution, 1992. The plaintiff’s action is dismissed. (SGD.) PROF. H. J. A. N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) (SGD.) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) Page 32 of 97 LOVELACE-JOHNSON JSC: I have read the Judgment of my sister Mensa-Bonsu JSC and agree that the Plaintiff’s action be dismissed. (SGD.) A LOVELACE – JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION ACKAH-YENSU, JSC I have had the advantage of reading in draft the lead judgment of my worthy sister, Prof. Mensa-Bonsu, JSC and express my agreement with her on the conclusion reached in the matter herein. I do, however wish to write my concurring opinion in my own words. INTRODUCTION My Lords, in the recent case of Mark Darlington Osae v. Food and Drugs Authority & Attorney General, Writ No. J1/05/2023 Dated 19th June 2024, I observed the essence of constitutionalism as follows: “[Constitutionalism is one of the principles and concepts upon which our legal system and nation is founded. This is a concept which advances against limitlessness in the exercise of governmental powers and functions. By its practice, the Government, and indeed its agencies including the 1st Defendant, are placed within constitutional constraints regarding how the powers vested in them by the people are exercised. Contextually, the Page 33 of 97 facts that undergird the present suit call in question both the procedural and substantive limitations on the 1st Defendant in the exercise of its powers under its enabling legislation to make guidelines in furtherance of its objectives. It cannot be overemphasized that any law, conduct, or activity which is pursued under the authority of a statute will only be valid if it passes the test of constitutionality. That is, to the extent that any such conduct, law, or activity operates inconsistently with the 1992 Constitution, then, same ceases to be valid as same is unconstitutional.” This present action seeks to test whether the concept, as applicable in our legal system, has been upheld by the law-making body, the Legislature. The present action invokes our interpretative and enforcement jurisdictions to consider a situation where a Bill ( The Human Sexual Rights and Family Values Bill, 2024), yet to be crystalised into a statute, is being impeached for not being compliant with the provisions of the 1992 Constitution, especially Article 108 thereof. In our Constitutional Law jurisprudence, our courts have been confronted with several situations where relief is sought to pronounce legislation as invalid for noncompliance with the constitutional processes. A typical instance occurred in the case of Ware v. Ofori- Atta & Ors [1959] GLR 181 which is very familiar to every Constitutional Law student in the Republic. In that case, an Act affecting the institution of chieftaincy was pronounced to be invalid as its Bill was not first referred to the National House of Chiefs before it was passed into law. This invalidation was grounded on the fact that under section 35 of the hitherto The Ghana (Constitution) Order-in-Council, 1957, the Speaker was mandated to, upon the introduction of a Bill affecting the institution of chieftaincy, forthwith refer the same to the House of Chiefs of the Region in which the Chief concerned exercised his functions, and where the Bill affected all chiefs the requirement was that the same be Page 34 of 97 referred to all the Houses of Chiefs. A similar provision is contained in our present 1992 Constitution under Article 106(3). See also this Court’s recent decision in Ezuame Mannan v. Attorney-General & Speaker of Parliament, Writ No. J1/11/2021 Dated 27th July, 2022 (Unreported). What however distinguishes the peculiarity of this case from previous cases is that this Court has not been invited to examine a piece of legislation in the proper sense of it having been passed by Parliament and assented to by the President, and thus a fully- fledged statute. In the context of the instant case even before the Bill is assented to as law, this Court’s jurisdiction has been invoked to pronounce the Bill as unconstitutional. My Lords, in the making of laws the Legislature is constrained by constitutional procedures. The law-making power, albeit vested in the Legislature, does not imply that it can make any law it deems fit. More fundamentally and within the present peculiar facts, the legislative process cannot be side-stepped and must at all times be strictly adhered to lest the actions and inactions deviating from that process become susceptible to constitutional sanction. The resultant legislation also may be pronounced unconstitutional. In admonishing against the supposition that the Legislature can make any law it likes, the Supreme Court held in the celebrated New Patriotic Party v. Attorney-General [1993- 94] 2 GLR 35 (The 31st December Case) that: “Although Parliament had the right to legislate, every such legislation had to be within the parameters of the powers conferred on the legislature by the Constitution, 1992 because under article 1(2) of the Constitution, any law found to be inconsistent with any provision of the Constitution should, to the extent of the inconsistency, be void. And once an Act was Page 35 of 97 null and void, the President or the executive could be restrained by injunction from enforcing or obeying it.” BACKGROUND On 28th February 2024, the Parliament of the Republic of Ghana passed a Bill known as “The Human Sexual Rights and Family Values Bill, 2024”. The Bill intends by its long title, upon receiving the Presidential Assent, to be “AN ACT to provide for human sexual rights and family values and related matters.” The Bill criminalises same sexual relationships and prescribes severe punishments against persons engaged in such conducts. The Plaintiff contends that this Bill does not only violate some sacrosanct rights of th e individual as guaranteed under the 1992 Constitution, but has also exceeded the legislative jurisdiction granted to Parliament under the Constitution, the same being a Private Member’s Bill yet imposing a financial burden on the State contrary to Article 108 of the 1992 Constitution. Further, that the Bill was passed without compliance with the required quorum for Parliamentary business. Anchored by these grounds, the Plaintiff filed a writ on the 5th of March 2024 claiming the following reliefs against the Defendants: “i. A declaration that upon the true and proper interpretation of Article 33(5) of the Constitution of 1992, in light of Articles 12(1) and (2), 15(1), 17(1) and (2), 18(2), and 21(1) (a) (b)(d) and (e) of the Constitution, the passage of “The Human Sexual Rights and Family Values Bill, 2024” by Parliament on 28 th February 2024 contravened the Constitution and is to that extent null, void and of no effect. Page 36 of 97 ii. A declaration that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution, in light of Article 296(a) (b) and (c), by admitting and allowing Parliament to proceed upon and pass “The Human Sexual Rights and Family Values Bill, 2024” into law as the same imposes a charge upon the Consolidated Fund or other public funds of Ghana. iii. A declaration that Parliament exceeded its authority under Articles 106(2) and 108(a)(ii) in passing “The Human Sexual Rights and Family Values Bill, 2024,” as the same imposes a charge upon the Consolidated Fund or other public funds of Ghana. iv. A declaration that, upon the true and proper interpretation of Articles 102 and 104(1) of the Constitution, Parliament lacked the requisite quorum to pass “The Human and Sexual Rights and Family Values Bill, 2024.” v. An order restraining the Speaker of Parliament and the Clerk to Parliament from presenting “The Human and Sexual Values Bill, 2024” to the President of the Republic for his assent. vi. An order restraining the President of the Republic from assenting to “The Human and Sexual Values Bill, 2024,” as such action will directly contravene the Constitutional safeguards of liberties and rights of Ghanaians. vii. An injunction barring any attempts to enforce the provision of “The Human Sexual Rights and Family Values Bill 2024,” particularly those criminalizing same-sex relationships and related advocacy efforts. Page 37 of 97 viii. Such further orders or directions as to this Honourable Court may seem meet”. In his Statement of Case, it was submitted on behalf of the Plaintiff by his Counsel that, first, the Bill violates the fundamental human rights of its targeted culprits, especially by Articles 12, 15, 17, 18, 21, 106, 108 and 33(5) of the 1992 Constitution. According to Counsel, a combined reading of Articles 33 and 106 of the 1992 Constitution establishes a robust framework for recognising and protecting human rights, including those not explicitly mentioned. For Plaintiff, viewing sexual orientation through the lens of human dignity and freedom places it squarely within the ambit of rights protected by the Constitution. As such, any legislative attempt to criminalise sexual relationships based on orientation starkly contravenes the constitutional principles which strike at the very core of our democracy and human dignity. It was further argued that the Bill’s provisions that seek to criminalise same-sex relationships, advocacy, support, or funding for LGBTTQAP+ rights, endanger Articles 12, 15, 17, 18, 21 and 35 of the 1992 Constitution. On the second plank of Plaintiff’s arguments, anchored on non-compliance of Article 108 of the 1992 Constitution, the Plaintiff’s main contention simply is that the Bill occasions a financial burden on the public purse and as such the same could not have been sanctioned through a private member. Counsel put it eloquently as follows: “My Lords, the constitution provides a safeguard in Article 108 against precipitous legislative excursions that might unduly encumber the state’s financial resources. It is a provision that echoes the constitutional forebears’ wisdom, stipulating that bills imposing a charge upon the Consolidated Fund or other public funds can only emanate from the Executive arm of government. This, in essence, is not a mere procedural formality but a substantive bulwark against fiscal imprudence.” Page 38 of 97 Counsel then submits that the Bill under scrutiny, originating from the benches of Private Members of Parliament rather than the Executive, presents a clear deviation from the established constitutional protocol. For Counsel, the nature of the Bill clearly falls under those envisaged under Article 108 of the 1992 Constitution. Finally, it was submitted on behalf of the Plaintiff that in passing the Bill, the quorum requirements under Article 104(1) of the 1992 Constitution was not complied with. Relying on the case of Justice Abdulai v. Attorney-General, Writ No. J1/07/2022 Dated 9th March 2022, Plaintiff argued that there ought to have been a minimum of one-third of all members of Parliament present before the Bill could have been passed. In support, the Plaintiff relies on a video footage to contend that the members present were not even up to fifty (50). SUMMARY OF THE 1ST DEFENDANT’S ARGUMENTS The 1st Defendant first takes issue with the invocation of the jurisdiction of the Court by the Plaintiff to interpret the referred to provisions of the Constitution. In his submissions, Counsel argued that the Plaintiff merely camouflages his case as one requiring interpretation when in essence there is nothing to interpret. Counsel observes that the Plaintiff, in his Statement of Case, actually alludes to an understanding of the constitutional provisions he relies on, and that the necessary test to trigger the proper invocation of the Court’s jurisdiction has not been met. Counsel also took his time to point out to the Court that it has made pronouncements and delivered judgements on several of the provisions which the Plaintiff is seeking interpretation of. Regarding compliance with Article 108 of the 1992 Constitution, Counsel for the 1 st Defendant points out that certain facts were undisputed, being that: Page 39 of 97 i. The Bill was presented to Parliament on 29 th June 2021 as a Private Members’ Bill. ii. 1st Defendant nonetheless referred the Bill to Parliament’s Committee on Constitutional, Legal and Parliamentary Affairs for deliberations without an opinion, as to whether or not the Bill imposes a financial burden on the State. iii. The Committee’s Chairman wrote a letter to the 2 nd Defendant [the Attorney General] to request his opinion on the Bill. iv. The 2nd Defendant responded to the Committee’s letter and opined that the Bill “may hold financial implications for the state” and that a determination of the financial implications be made in accordance with the provisions of Article 108 of the Constitution. (Exhibit 1D1). v. The Committee presented its report in which the Committee made it clear that it had taken the 2nd Defendant’s advice and made amendments to the Bill. (Exhibit 1D2). Flowing from the above, it was submitted on behalf of the 1 st Defendant by learned Counsel that: a. Article 108 of the Constitution places it exclusively in the 1st Defendant’s Page 40 of 97 constitutional province as the person presiding over Parliament at the time a Bill is first introduced by a person other than the President in Parliament, to determine whether in the 1st Defendant’s opinion the Bill makes provisions for any of the matters stated in Article 108 of the Constitution. b. That, a plain reading of the constitutional provisions of Article 108 of the Constitution will leave the Court in no doubt whatsoever that the said constitutional provision does not provide for, imply, nor even hint at any requirement that any Bill laid in Parliament must be accompanied by a fiscal impact analysis or a document detailing the financial implications in respect of public funds, at the time it is first laid in Parliament. c. The requirement to conduct a fiscal impact analysis is the prescription of Act 921 and L.I. 2378, but not Article 108 of the Constitution. d. The Plaintiff’s case before the Court, like in the Amanda Odoi Case, is grounded on the provision of Act 921 L.I. 2378. e. The Committee has considered the 2nd Defendant’s advice on the Bill and made necessary amendments to the same. f. Contrary to the case of the Plaintiff, it is rather legislations submitted by covered entities that require compliance with Act 921 and LI 2378. g. Not only does Article 108 of the Constitution make no mention of a fiscal impact analysis report, but also that the provisions of Act 921 and L.I. 2378 do not arise in the instant matter.