[Edited version published in Daily Graphic, 15 January 2022, p 29]
A HANDBOOK OF THE CONSTITUTIONAL LAW OF GHANA AND ITS HISTORY
SIR PROFESSOR KOFI KUMADO
NUMBER OF CHAPTERS
TOTAL NUMBER OF PAGES
SIX HUNDRED AND FIFTY-FOUR (654)
BLACK MASK LIMITED, ACCRA, 2022
ACE ANAN ANKOMAH, SENIOR PARTNER & HEAD OF DISPUTES, BENTSI-ENCHILL, LETSA & ANKOMAH
To say I was humbled, honoured and flattered when Sir Professor Kofi Kumado asked me to review his book ‘A HANDBOOK OF THE CONSTITUTIONAL LAW OF GHANA AND ITS HISTORY,’ would be a gross understatement. I literally did cartwheels. Who? Me? How many times does a student get to review a book by his professor?
It was in Prof Kumado’s Constitutional Law class in 1987 that I learnt how to brief cases, starting from the classic American case on judicial review, MARBURY v MADISON. He reviewed each script in detail, and said of on one that had misspelled ‘Marbury’ as ‘Madbury’: ‘Marbury was possibly mad, but that did not change his name to Madbury.’
That was our introduction to Kofi-Kay, as we secretly called him, a brutal and merciless critic of legal material: no frills or fuss, ifs or buts. I started reading the book, wondering whether it would be one of those terribly obsequious, near-tepid and almost-insipid legal texts, where authors merely present the dry law, shying away from expressly disagreeing with judgments and other writings they apparently disagree with, or whether Prof Kumado would stick to his expected no-holds-barred approach. The answer did not take long in coming.
DIVING INTO THE BOOK
Chapter 1: THE NATURE, SOURCES AND SCOPE OF CONSTITUTIONAL LAW GENERALLY, does not replicate boring introductory law classes. In outlining the Basic Characteristics of a Constitution, the Author is, in one breath, unrestrained in endorsing the classic views of Sowah JSC (as he then was), in TUFUOR v ATTORNEY-GENERAL. But in the very next, he tears into the views of Archer JA (as he then was) in SALLAH v ATTORNEY-GENERAL. While agreeing with His Lordship that ‘predictability’ was one of the characteristics of a Constitution, Prof Kumado disagrees with His Lordship’s statement that the 1966 NLC Establishment Proclamation did not have predictability simply because it could be changed by one of its creatures. The Author says His Lordship’s ‘reasons for saying the Proclamation was not predictable undermine his [own] argument,’ because ‘amendments of constitutions are always done formally by a creature or creatures of the Constitution, for example, the legislature or the legislature acting together with the executive.’ Unassailable logic.
CONSTITUTIONAL LAW THEORIES
In Chapter 2: GENERAL PRINCIPLES AND THEORIES OF CONSTITUTIONAL LAW, the Author explains ‘Rule of Law’ as involving more than just having enacted laws. He advocates demarcating boundaries between good and bad laws, good and bad governance systems, and a totalitarian geographical space and one with prevailing political freedoms. Then he delivers the kicker: ‘anyone who lived in Ghana under the regime of the Provisional National Defence Council (PNDC) and continued to live there after the promulgation of the 1992 Constitution can appreciate the difference.’ Blindingly obvious?
Prof Kumado is in his elements when he discusses Separation of Powers, which he considers a concept, not a doctrine. He explains that qualifying it as a doctrine ‘gives rise to the erroneous and confusing impression that it is a single blueprint of governmental engineering which is either present or absent from a constitutional system.’ Rather, ‘properly understood, it is a concept which encapsulates a body of ideas for designing government so as to prevent a concentration of power in one person or body of persons leading to tyranny.’
Then, the Author sets the theoretical underpinnings from Locke and Montesquieu, ending with that magisterial statement by Justice Brandeis in MYERS v UNITED STATES, that separation of powers is not adopted ‘to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.’
MONISM, DUALISM & MINORITY SEXUAL RIGHTS
In the same chapter, Professor Kumado tackles the dichotomy between international law and municipal law, and the debate between the Dualist and Monist Schools of Thought on whether an international treaty that the executive signs, should have automatic force of law. In an authoritative exposition, he shows that Dualism prevails in Ghana through article 75(2) of the Constitution, which demands parliamentary ratification of treaties entered into in the name of the Republic. He refers to the Supreme Court in BANFUL v ATTORNEY-GENERAL (GITMO 2 case) in support.
But he is quick to refer to article 33(5), which states that the human rights provided in the Constitution are not exhaustive but include those that are inherent in a democracy and intended to secure human freedom and dignity. He refers to the Supreme Court in GHANA LOTTO OPERATORS v NATIONAL LOTTERY AUTHORITY in support. The Author however explains, convincingly, that this does not mean article 33(5) is Monist in nature: while article 75(2) requires legislative ratification, article 33(5) presupposes judicial ratification.
Never one to shy away from controversy, the Author takes a shot at one of the most topical and potentially explosive issues in Ghana today, minority sexual rights. He ponders over whether such rights secured in an international treaty to which Ghana is a party, automatically apply in Ghana. In Thomas Campbell’s poem, LOCHIEL’S WARNING, the Wizard said:
“Lochiel, Lochiel, beware of the day!
For, dark and despairing, my sight I may seal,
But man cannot cover what God would reveal:
‘Tis the sunset of life gives me mystical lore,
And coming events cast their shadow before.”
So, to all sides in the shadows cast by coming events, may you look deeply into Kofi-Kay’s book, because in it, he probably provides the constitutional underpinnings for the expected fierce parliamentary debates, intense Supreme Court submissions, and maybe court judgment that will impossibly and unfeasibly, put this matter to rest.
CONSTITUTIONAL EVOLUTION & BOND OF 1844
In Chapter 3 to 6, the Author traces the development of our constitutions (a term he uses in the broad and narrow senses) from 1800 to date. These chapters are not just informative but cerebrally engaging beyond measure.
One example: Professor Kumado tackles the vexed question of the ‘Bond of 1844’ with the logical historicity of a chronicler: from the 7th May 1821 Instrument whereby the British purported to assume direct rule of its settlements, through the 1824 Battle of Nsamankow where the Asante killed Governor MacCarthy, the British revenge against the Asante in the 1826 Battle of Dodowa, Maclean’s shenanigans and clashes with the chiefs over, among others, the insultingly asinine and inane claim by some British merchants that they had acquired the allodial title to Gold Coast lands through the Battle of Dodowa, the intervention of the British Parliament and appointment of Commander Hill as Lieutenant-Governor, the 1843—1844 signing of eleven ‘Friendship Treaties’ between Commander Hill and the coastal states, and finally the consolidation of those treaties into one on 6 March 1844, essentially to regularise the illegal extension of British jurisdiction.
Prof Kumado provides the actual text of the Bond and shows that ‘read carefully, the Bond itself neither conferred any territorial or political jurisdiction on the British beyond their forts and settlements’ nor ‘permit British interference in the traditional government outside the sphere of the administration of criminal justice.’ Yet, in retrospect, ‘the reality and strictly legal position did not matter to the British,’ and they got away with it for 133 years!
In the end, the critical reader does not miss the inherent wit in the detailed narrative: the chiefs were swindled with their eye widely shut.
In Chapters 7 to 9, the Author dissects the three branches of government. Under ‘Parliament’s Oversight Responsibilities’ in Chapter 8, he points to the current Parliament’s inexplicable failure to pass certain laws in compliance with articles 22(2), 28 and 181(5) of the Constitution. On the latter, relating to guidelines on international business or economic transactions to which the government is a party, this reviewer was gratified to see that a case he conducted (albeit on the losing side), ATTORNEY-GENERAL v BALKAN, came up for mention, and to show that even ‘the promptings of the Supreme Court have not kicked Parliament into action.’ Maybe this book will embarrass our hopefully already-embarrassed, punch-throwing and fisticuff-obsessed Parliament into proper action. But I am not holding my breath – death by asphyxiation is very painful, I hear.
Professor Kumado maintains exemplary fidelity to his sources. His clear attributions make it easy to distinguish between sourced material and his own, forceful opinions. However, the book is not overrun with authorities, cases and citations, which might have spun it out to uncontrollable lengths. Even then, no relevant topics, subjects or prominent authorities escape Professor Kumado’s intellectual scalpel and surgical precision.
An ancient Jewish writer, Habakkuk, says a vision is for an appointed time, and must be ‘recorded [and] inscribed on tablets,’ so that ‘the one who reads it may run.’ So buy the book (tablet), read it and run with knowledge.
Prof Kumado exhaustively captures and records both the law and the history behind it in 562 pages, excluding the helpful tables, indices and appendices. He is not given to prolixity. He gets to the point, quickly. The font is easy on the eye and makes the book generally readable. The physical quality is good, careful glue binding, and in hard cover to protect it from the expected over-reading and predictable over-carrying to court. And it even comes with a page marker so you do not get lost in reading.
Overall, this Habakkuk-timely book will be intellectually stimulating and instructive for students, practitioners, judges and general readers in Ghana and the commonwealth. It is an unvarnished projection of Ghana’s constitutional law and history, in all of their glory and gore, including the parts with darts and warts that some would rather ignore, setting up examples to follow or avoid, for all who chart the same democratic path. In this one-stop book, Prof Kumado pulls no punches, takes no prisoners, and bars no holds. Two thumbs up, Prof, way up.