Theories Of the Constitution Flashcards
(19 cards)
Laws being subject to the Constitution (substantive limitation)
Article 1(2)
Legislature can’t create a one party state (substantive limitation)
Article 3(1)
President’s power being capped by the Constitution (substantive limitation)
Article 58(1)
Lesgislature’s power being capped (substantive limitation)
Article 93(2)
Which article gets the judicial power and the others can’t interfere (substantive limitation)
125(3)
Ways the executive checks the legislature (institutional limitation)
- Assent of bills- Article 106 (7) , lgbtq case
- How legislature gets paid -Article 71, Emmanuel Nobel Kor v. AG
- Fiscal policy must be submitted before parliament can approve financial budget- Article 108, 179
Ways executive checks the judiciary
- Executive chooses supreme Court judges - Article 144(1) (2)
- Sets up the process for the removal of the CJ or Superior Court Judge
3.Controls the purse of the judiciary- Article 127
How the legislature limits the executive
- Approval of budget - 179
- Approves taxes - 174
- Approves ministerial appointment- Article 78, J.H. Mensah v. AG
- Approves salary of the executive & Article 71
- Approves supreme cour appointments of the president -Article 144(1) - GBA v. Justice I. K Abban and AG
How the legislature limits the judiciary
1.Approves the justices of the supreme Court -Article 144(1)
2. Approves the budget of the judiciary
How the judiciary checks the other arms of government
- Through judicial review- Article 2, 130, Afenyo Markin v. AG.
The Executive (procedural)
Article 78 (ministerial appointment steps) Asare v. Doe Ajaho
144 Justices of the superior court
146 Removal of justices of the superior Court
According to the procedural limitations of Article 146, the president could just remove a superior Court Judge but would have to look at the prima facie when removing the CJ
False. The reverse is true
See Frank Agyei-Twum v. AG and Bright Akwety
Parliament’s procedural limitations
- Article 69 (how to remove the president)
2.Article 106( how Parliament can make a law)
What are the objects of separation of powers?
- Prevent arbitrariness (Montesquieu)
- Promote efficiency in government
- Ensure that good and just laws are made and enforced
The concept of SOP
John locke [the second treaties on civil government]- for him, the 3 arms of government shouldn’t be in one hand. It’s based on functional separation and personnel separation
Montesquieu [The spirit of Laws]- concentrated powers is dangerous and leads to despotism to avoid this, separate roles and ome acts as a balance on the other (he adds institutional)
So his submissions: 1. Don’t form more than one part of government 2. Don’t interfere with the other
Types of SOP
Flexible v. Strict
The institution separation
Executive chapter 8
Legislature chapter 10
Judiciary chapter 11
What are the features of Constitutionalism
-
Supremacy of the Constitution:
- Article 1(2) states that the Constitution is the supreme law of Ghana. [cite: 268, 269]
-
Limited Government:
- This principle is woven throughout the Constitution by the specific grants of power to different branches and the limitations placed on those powers. [cite: 268, 269, 302, 303] For example, the legislative power of Ghana is vested in Parliament “subject to the provisions of this Constitution” (Article 93(2)). [cite: 302]
-
Separation of Powers:
- The Constitution establishes the three branches of government (legislative, executive, and judicial) in separate chapters and articles, outlining their distinct functions and powers.
-
Rule of Law:
- This principle is upheld by various articles that emphasize equality before the law, due process, and the idea that no one is above the law. [cite: 207, 208, 293, 294] Articles 2(1) and 130(1) also support this principle by giving the Supreme Court the authority to ensure that all actions comply with the Constitution. [cite: 207, 208]
-
Protection of Fundamental Rights:
- Chapter 5 of the Constitution (Articles 12-33) details the Fundamental Human Rights and Freedoms of individuals.
-
Judicial Review:
- Articles 2(1) and 130(1) give the Supreme Court the authority to interpret the Constitution and to review the constitutionality of laws and actions. [cite: 236, 237]
-
Accountability:
- The Constitution provides mechanisms for accountability, such as elections, impeachment processes, and the right of citizens to take action against unconstitutional acts. [cite: 270, 271]
-
Popular Sovereignty:
- Article 1(1) declares that the sovereignty of Ghana resides in the people of Ghana. [cite: 285, 286]
What are the features of Rule of Law?
- Supremacy of the Law: The law is supreme, not individuals or the government. Everyone is subject to the law, regardless of their position or power. Article
- Equality Before the Law: The law is applied equally and fairly to all individuals. There should be no discrimination or preferential treatment.
- Accountability to the Law: The government and its officials are accountable for their actions and must operate within the framework of the law.
- Clarity, Certainty, and Predictability of the Law: Laws should be clear, accessible, and predictable, so that individuals know their rights and obligations.
- Fairness in the Application of the Law: Legal processes should be fair, impartial, and respect due process rights.
- Separation of Powers: An independent judiciary is crucial to uphold the rule of law by checking the powers of the other branches of government.
- Protection of Fundamental Rights: The rule of law protects fundamental rights and freedoms, ensuring that laws respect and uphold these rights. [cite: 111, 55, 63, 64, 65, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 2, 278]
