DAFEAMEKPOR ROCKSON-NELSON vs. ATTORNEY-GENERAL [2023]DLSC15105

Date	2023-05-03
Suit No.	WRIT NO. J1/19/2023
Citation No.	[2023]DLSC15105

DOTSE JSC (PRESIDING)

AMEGATCHER JSC

PROF. KOTEY JSC.

OWUSU (MS.) JSC.

LOVELACE-JOHNSON (MS.) JSC.

TORKORNOO (MRS.) JSC.

PROF. MENSA-BONSU (MRS.) JSC

NII KPAKPO SAMOA ESQ. FOR THE PLAINTIFF

SYLVIA ADUSU (CHIEF STATE ATTORNEY) FOR THE DEFENDANT

[2023]DLSC15105
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													<main id="main" class="content" style="min-height: 60rem" >DAFEAMEKPOR ROCKSON-NELSON<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ATTORNEY-GENERAL<o:p></o:p>(DEFENDANT)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

</div>CORAM<o:p></o:p>DOTSE JSC (PRESIDING), AMEGATCHER JSC, PROF.
KOTEY JSC., OWUSU (MS.) JSC., LOVELACE-JOHNSON (MS.) JSC., TORKORNOO (MRS.)
JSC., PROF. MENSA-BONSU (MRS.) JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:107%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AMEGATCHER JSC:-<o:p></o:p>The facts
culminating in the plaintiff's current action are straightforward,
uncomplicated, and agreed upon. They are that on 11th January 2021,
the President issued a directive with reference SCR/DA39/314/401 to all
Metropolitan, Municipal and District Chief Executives (MMDCEs) who were in
office before the presidential inauguration on 7th January 2021 to
remain at post until further notice. The directive also prohibited the MMDCEs
from making policy-related decisions in line with Section 14(5) of Act 843.<o:p></o:p>The Plaintiff,
claiming that the directive breaches the fundamental law of the land, issued
this writ invoking the Original Jurisdiction of this Court in accordance with
Articles 2(1)(b) and 130(1)(a) of the Constitution, 1992, seeking an
interpretation and enforcement of Articles 243(1) and 246(2) of the
Constitution. <o:p></o:p>&nbsp;Summary of Plaintiff’s Case<o:p></o:p>The plaintiff’s
case is that the directive issued by the President of the Republic of Ghana,
under article 243 (3), directing all MMDCEs to continue in office is
unconstitutional. The plaintiff asserts that, since the said directive was
issued under article 243 (3), it can be reasonably inferred that the President
purported to exercise his power under article 243(3) (b) to remove from office
all MMDCEs who were at post immediately before the issuance of the said
directive. Having removed them, they were, per the directive, to remain in
office until further notice. The plaintiff argues that the office of MMDCEs is
specifically provided for under Chapter 20 of the 1992 Constitution of Ghana.
As such, matters regarding the appointments, tenure, emoluments and removal
from office must comply with the constitutional provisions to be valid. The
plaintiff also argues that article 243 (1) provides that the President shall
appoint the District Chief Executives (DCEs) with the prior approval of not
less than two thirds majority of members of the Assembly present and voting at
the meeting. The plaintiff further argues that article 246 (2) provides that
unless the MMDCE resigns or dies or ceases to hold office under clause (3) of
article 243, the term of office is four years and shall not hold office for
more than two consecutive terms.&nbsp; <o:p></o:p>&nbsp;The plaintiff
again asserts that the concept of acting MMDCEs is alien to the 1992
Constitution and must not be countenanced by this Court. Article 243 (1) of the
constitution makes the prior approval by members of the Assembly a condition
precedent to the appointments of MMDCEs. Consequently, no person can purport to
act or hold himself out as MMDCE when that person has not received prior
approval from the members of the Assembly. Additionally, the plaintiff argues
that the wording of article 243 (1) is similar to that of article 78 (1), which
requires parliamentary prior approval to appoint a Minister of State. And
Articles 243(1) and 78 (1) of the 1992 Constitution puts fetters on the appointing
powers of the President. Again, the plaintiff argues that the President cannot
purport to remove a Minister of State from office and then subsequently
re-appoint the same minister back into the same office in an acting capacity
without parliamentary prior approval. In the same vein, the President cannot
remove MMDCEs from office and then purport to re-appoint them into office in
acting capacities without the prior approval of members of the Assembly. <o:p></o:p>&nbsp;The plaintiff
further argues that the power to suo motu
appoint MMDCEs has not been expressly granted to the President, nor can it be
implied under article 243 (1). Thus, the concept of acting MMDCEs is not only
foreign to the constitution but also dangerous in that it allows the President
to circumvent the laid down procedure under article 243 (1) to impose any
person he desires on the District Assemblies against the law, which intend
defeats the whole concept of participatory democracy as envisioned under
chapter 20 of the Constitution. <o:p></o:p>