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Published online by Cambridge University Press: 30 September 2019
Ghana's Supreme Court recently held that the regulator of the legal profession violated the country's constitution when it imposed extralegal admission requirements on LLB degree holders seeking entry to the School of Law. Nevertheless, the court relied on the prospective overruling doctrine to issue consequential orders that allowed the regulator to persist with its unconstitutional actions and left the constitutionally-injured students without a remedy. Judges employ the prospective overruling doctrine when they invalidate prior statutes or precedents while simultaneously limiting the effect of the new rule to future cases. Here, however, the court did not invalidate a statute or a precedent, mooting the issue of the temporal effect of a new rule. Rather, the court found that the regulator's actions had violated the constitution and it misapplied the prospective overruling doctrine to validate the violation. Consequently, the court's consequential orders undermined its declarations of unconstitutionality, rendering the latter inconsequential.
KPMG Professor, Fisher School of Accounting, University of Florida. PhD (University of Arizona), JD (University of Florida), MBA (Baylor University), BSc (University of Ghana). Member of the Florida Bar; CDD-Ghana Democracy and Development Fellow in Public Law and Justice.
1 Professor Stephen Kwaku Asare v Attorney General and General Legal Council [2017] suit no J1/1/2016 (Asare), judgment delivered 22 June 2017, Supreme Court, Ghana, unpublished opinion available at: <https://ghalii.org/gh/judgment/Supreme%20Court/2017/10/PROF.%20STEPHEN%20KWAKU%20ASARE%20%20VRS%20%20ATTORNEY%20GENERAL%20%26%20ANOR..pdf> (last accessed 23 August 2019).
2 Legal Profession Act, 1960 (Act 32). The GLC consists of the chief justice (chairperson), the Court's three most senior justices, the attorney general, the dean of the Faculty of Law at the University of Ghana, three persons nominated by the minister and four members of the Bar elected by the Ghana Bar Association. The four Court justices who serve on the GLC were not part of the panel that decided Asare.
3 Constitution of the Republic of Ghana [1992], art 2(1).
4 Professional Law Course Regulations [1984], LI 1296, reg 2. A person also had to be eligible under reg 3. Alternative paths were set for non-LLB degree holders and overseas students (see regs 16 and 24).
5 Curiously, Parliament (the body with oversight over the GLC), the Ghana Bar Association, the deans of the various law faculties and lecturers at the School largely stayed out of the pre-suit debate, suggesting either their satisfaction with, or indifference to, the new requirements. To date, none of these stakeholders has stated a position on the Court's resolution of the dispute.
6 Asare, above at note 1.
7 Id at 8–14.
8 Id at 28. The violated constitutional articles are listed in the Appendix to this note.
9 Ibid.
10 Ibid.
11 Id at 27–28.
12 The supremacy article (the Constitution, art 1(2)) provides: “The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”
13 A new regulation was eventually passed by a controversial voice vote in March 2018, raising further legal questions that are discussed below.
14 Asare, above at note 1.
15 The entrance process lacks memory, in that, if a candidate passes the entrance examination and fails the interview in a given year, they must take and pass both in the following year.
16 See Harvey, WB Law and Social Change in Ghana (1st ed, 1966, Princeton University Press)CrossRefGoogle Scholar.
17 Asare, above at note 1 at 8–11.
18 Ibid.
19 Id at 11–13.
20 Id at 13–14.
21 Id at 21.
22 The consequential orders are set out in full in light of their centrality to the theme of this note.
23 Asare, above at note 1 at 28.
24 Id at 24–25.
25 Id at 24–27.
26 National Westminster Bank Plc v Spectrum Plus [2005] UKHL 41, para 40.
27 Asare, above at note 1 at 25. The domestic precedents are: Martin Kpebu v Attorney General suit no J1/13/2015, judgment delivered 5 May 2016, Supreme Court, Ghana; and Abu Ramadan (No 2) v Electoral Commissioner and Another suit no J1/14/2016, judgment delivered 5 May 2016, Supreme Court, Ghana.
28 The cited Canadian cases are: Schachter v Canada [1992] 2 SCR 679; and Carter v Canada (A-G) [2016] 1 SCR 679 (SCC). The cited Irish cases are: de Búrca v Attorney-General [1976] IR 38 (IESC); and The State (Byrne) v Frawley [1978] IR 326 (IESC).
29 This asymmetrical focus is both alarming and curious, as the writ and the related pleadings were entirely focused on the excluded students and explicitly noted that admitted students were properly admitted.
30 Awuni v West African Examination Council [2003–04] 1 SCGLR 471.
31 For instance, in Benjamin Ayi Mensah v Attorney General and the Electoral Commission writ no J1/11/2015, Supreme Court, unreported judgment, the Court's declaration of unconstitutionality halted planned district elections even though the Electoral Commission had spent GH¢317 million (approximately US$83 million at the then exchange rate) on the project. See MA Vinokor “Botched assembly polls cost GH¢317 million; EC asks for GH¢90 million more” (March 2015), available at: <https://www.graphic.com.gh/news/general-news/ec-spends-ghc317m-on-cancelled-assembly-elections.html> (last accessed 23 August 2019).
32 Adrian Kamotho Njenga v Kenya School of Law [2017] eKLR, available at: <http://kenyalaw.org/caselaw/cases/view/144068/> (last accessed 23 August 2019).
33 Another difference between the two courts is the efficiency with which the cases were disposed of. Asare was filed on 14 October 2015 and was decided after almost two years on 22 June 2017. Njenga was filed on 16 August 2017 and was decided in less than three months.
34 This construction creates a further absurd and unjust situation where the Court grants substantive relief based on doctrines and theories that have not been argued by the parties.
35 See, Murphy v Attorney General [1982] 1 IR 241 (IESC).
36 See also, the Constitution, art 126(4).
37 In other cases, the Court “has been careful not to impose itself on other institutions of state as to how they should perform their functions,” limiting its actions to bringing them “to order if they stray from the path of legality”: Ramadan (No 2), above at note 27 at 37.
38 The Constitution, art 11(7).
39 “Parliament withdraws instrument on legal education” (press release, 17 May 2017), available at: <http://www.parliament.gov.sl/dnn5/LinkClick.aspx?fileticket=Jg394ktyJAo%3D&tabid=92&mid=652> (last accessed 23 August 2019).
40 Legal Profession (Professional and Post Call Law Course) Regs [2018], LI 2235.
41 Asare, above at note 1 at 18.
42 See above at note 2.
43 See Njenga, above at note 32.
44 The Constitution, art 107.
45 Kay, RS “Retroactivity and prospectivity of judgments in American law” (2014) 62 (supplement) The American Journal of Comparative Law 37CrossRefGoogle Scholar.
46 Currier, TS “Time and change in judge-made law: Prospective overruling” (1965) 51/2 Virginia Law Review 201CrossRefGoogle Scholar.
47 There are at least three types of prospective overruling. In pure prospective overruling, the effect of the court's ruling applies exclusively to events that occur after the date of the decision. In selective prospective overruling, the ruling is generally prospective in its effect, but retrospective with respect to the parties to the current proceeding. In delayed prospective overruling, the ruling's effect is delayed to a future date. Often, this gives legislators the opportunity to cure the ailment in the overruled statute. See, Spectrum, above at note 26, Lord Nicholls, paras 9–11.
48 Currier “Time and change”, above at note 46 at 212.
49 Baburam v CC Jacob [1999] (5) SCC 362.
50 Levy, BH “Realist jurisprudence and prospective overruling” (1960) 109/1 University of Pennsylvania Law Review 1CrossRefGoogle Scholar.
51 Kay “Retroactivity and prospectivity”, above at note 45.
52 Spectrum, above at note 26, para 43.
53 Id, para 2.
54 Id, para 111.
55 Id, para 9.
56 Ibid.
57 Id, para 43.
58 de Búrca, above at note 28.
59 Id at 63.
60 State (Byrne), above at note 28.
61 Id at 341–50.
62 Murphy, above at note 35.
63 Schachter v Canada, above at note 28.
64 Id at 716.
65 Carter v Canada (A-G), above at note 28.
66 Id, para 95.
67 Schachter, above at note 28 at 719.
68 Smith, L “Canada: The rise of judgments with suspended effects” in Steiner, E (ed) Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (2015, Springer) 247Google Scholar.
69 Id at 254.
70 Ibid.
71 Ibid.
72 Kpebu, above at note 27 at 19.
73 See concurring opinions of Wood CJ (id at 20–37) and Akamba JSC (id at 69–74).
74 Id at 37.
75 See, Bilson v Attorney-General [1993–94] 1 GLR 104, holding that the Court had jurisdiction to interpret the Constitution in the context of disputes but not to tender advice to prospective litigants.
76 This point is highlighted by Wood CJ, who notes, “I have confidence that the full scope and applicability of the doctrine will be explored, developed and clarified through case law, as has been done in other jurisdictions”: Kpebu, above at note 27 at 37.
77 Above at note 27.
78 The Court had previously held that the use of National Health Insurance Identification Cards to establish qualification for registration as a voter was unconstitutional. However, the Electoral Commissioner had not taken any affirmative steps to purge the register of the ineligible voters. See Abu Ramadan and Another v The Electoral Commission and Another [2014]; and Kwasi Danso Acheampong v The Electoral Commission and Another [2014], consolidated suits no J1/11/2014 and J1/9/2014, judgment delivered 30 July 2014, Supreme Court, Ghana (unreported).
79 Ramadan (No 2), above at note 27 at 21–22.
80 The Constitution, art 1(2).
81 See, for instance, Great Northern Railway v Sunburst Oil & Refining Co 287 US 358 [1932], where Justice Cardozo in applying the doctrine asserted (at 364) that “the Federal Constitution has no voice upon the subject. A state, in defining the limits of adherence to precedent, may make a choice for itself between the principle of forward operation and that of relation backward.”
82 Currier “Time and change”, above at note 46.
83 The Constitution, art 2(2).
84 Ibid.
85 Ashby v White (1703) 92 ER 126.
86 The Constitution, art 1(2).
87 Report of the Committee on Legal Education for Students from Africa CMND No 1255 (1961) at 23: “In the future … the normal pattern of higher legal education in the African territories will be a degree in law at a university in Africa followed by one year's practical training at a School of Law in Africa.”
88 The Constitution, art 25(2).