16th July 2024

Justice Jones Dotse

Justice Dotse retires in June. He wrote a dissent in Asare (2015) that, in my opinion, will become the foundation for future court cases that examine the limits of executive power.

In that case, the President had appointed a Commission to review the Constitution pursuant to Article 278, which gives him the power to appoint such commissions whenever he is satisfied that it is in the public interest to do so.

Justice Dotse demurred and wrote that Article 278 is not an all-purpose commissioning power and is subject to the Constitution.

Thus, merely because the President has the power to appoint a Commission of Inquiry into any matter of public interest in which he is satisfied, does not mean he can set up a CRC to usurp the power of Parliament to amend the Constitution!

The learned Justice, espousing several constitutional principles including separation of powers, wrote that “an Act, amending the Constitution has been put a notch higher than the passage of an ordinary bill introduced into Parliament. The lesson here is clear. The power given by the people to their constitutional representatives, in Parliament cannot just be wished away by the controlling powers of the President. Once it has been established that the President’s role in the passage of an amendment bill is just peremptory, it means that, the powers of the people in article 1 (1) of the Constitution which have been delegated to the members of Parliament is not to be shared with the President in the way of ordinary bills of Parliament.”

He adds that “it is in this respect that I agree with the plaintiff when he states in his paragraph 25 of the statement of case that it is impermissible for the President to misapply his article 278 (1) powers to undo what the framers of the Constitution have taken so much skill to design.”

Justice Dotse reminds us that the President’s powers are not as unlimited as we normally assume. We must be more nuanced in our reading of the Constitution and not just read the provisions literally to conclude, as an example, that because it’s in the public interest to have a reliable voters’ register, then somehow the President can appoint a Commission to look into that.

Some dissents become very influential. Dotse’s dissent in Asare is one of them.

Enjoy your retirement and ex gratia, my learned brother.

Da Yie!

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