Demystifying the “Exclusive Jurisdiction” to Interpret the Constitution

In the wake of recent events in the Parliament of Ghana, the exclusive jurisdiction of Supreme Court to interpret the Constitution has been bandied about a lot. It has been said that the Speaker of Parliament’s ruling that declared four seats vacant usurped the Supreme Court’s jurisdiction. Effectively, it is being suggested that the Speaker should have referred the matter to the Supreme Court or waited for the action that had been filed in the Supreme Court (even before he made his ruling) to be decided and then been guided by it.

I do not share that view. The Constitution creates three co-equal branches of government, with each assigned specific functions under the Constitution. In performing their functions, they’re each supposed to apply the provisions of the Constitution that are relevant to their mandates. This necessarily involves having to decide what, in their opinion, the particular provisions mean and what they require of them in every instance of executing their mandate. It follows that, in performing their day-to-day functions, the political branches have to interpret the Constitution. Indeed, various officers within the judiciary, including the Chief Justice, when acting in their administrative roles, including at the Judicial Council, also interpret and apply provisions of the Constitution in the execution of those administrative functions.

A fetish must, therefore,  not be made of the idea of interpreting the Constitution, and the impression should not be wrongly created that the Supreme Court is an oracle that must be consulted every time a person or authority has to make a decision that has constitutional implications. This is because the Court is a judicial body that decides constitutional disputes as and when they arise and its jurisdiction has been properly invoked. It is not a constitutional advisory council mandated to give legal advice or opinions on matters before any branch or agency of government takes a decision.

What then is this idea of the Supreme Court’s exclusive jurisdiction to interpret the Constitution and what does it actually mean?

The idea of the exclusive original jurisdiction of the Supreme Court to interpret and enforce the Constitution is grounded in Article 130, which defines the mandate of the Supreme Court as “the constitutional court.” A careful reading of that provision shows, however, that the concept of exclusive original jurisdiction is used to define the relationship between the Supreme Court and other courts within the judicial system. It basically means that within the judicial structure, it is only the Supreme Court that may decide constitutional questions or controversies and it is the Court within which cases concerning such questions must be “originated”. This is why Article 130(2) reinforces the point that whenever a constitutional issue arises in “any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”

Article 130(2) is directed at courts lower than the Supreme Court within the judicial system, not the political branches or their agencies. Therefore, there is no requirement for Parliament, the Executive, or any of their agencies to refer constitutional questions to the Supreme Court for interpretation before making decisions they must take. Each of those branches or agencies can form their own view of what provisions of the Constitution relevant to their functions mean and go ahead to make decisions based on it. If someone disagrees, they’re of course entitled to challenge it judicially. It is only then that the exclusive original jurisdiction of the Supreme Court kicks in relative to other courts within the judicial system. The decision of the Supreme Court on what the particular provision of the Constitution means becomes the authoritative and binding legal position which every person or authority must comply with.

But it is important to have a proper understanding that the exclusive original jurisdiction of the Supreme Court is not usurped merely by the fact that a co-equal branch of government takes a particular view of a provision of the Constitution and acts based on that understanding.

By Chris Nyinevi