Ghana lotto operators association v national lottery association PDF

Preview

Summary

A case instituted in the Supreme Court to prove that Act 722 was in contravention of Chapter 6 of the Constitution. Specifically Article 36(2)....

Description

UNREPORTED CASES OF THE SUPREME COURT OF GHANA 2004

IN THE SUPERIOR COURT OF JUDICATURE THE SUPRME COURT ACCRA A.D. 2008 -------------------------------------------------------------

CORAM:

BROBBEY, J.S.C. (PRESIDING)

DR. DATE-BAH, J.S.C. ANSAH, J.S.C. ANIN-YEBOAH, J.S.C. BAFFOE-BONNIE

REF. NO. J6/1/2008

23RD JULY 2008.

1. GHANA LOTTO OPERATORS ASSOCIATION 2. OBIRI ASARE & SON LTD. 3. RAMBEL ENT. LTD. 4. AGROP ASSOCIATION LTD. 5. STAR LOTTO LTD. 6. FROM-HOME ENTERPRISES (PER JOE JUSTICE AYIVOR)

VRS. NATIONAL LOTTERY AUTHORITY ----------------------------------------------------------------

R U LI N G ---------------------------------------------------------------

DR. DATE-BAH, J.S.C.:

The original jurisdiction of the Supreme Court has been invoked in this case by a reference made by His Lordship Justice Abada from the High Court, Accra. The issue referred to us for determination i “whether Act 722 violates Articles 33(5), 35(1) and 36(2) of the 1992 Constitution”. The reference i clearly made in accordance with article 130 (2) of the Constitution, which provides that, where an issue that relates to the enforcement or interpretation of the Constitution or to matters arising as to whether an enactment has been made in excess of the powers conferred on Parliament or any other authority by law or under the Constitution arises in any proceedings in a court other than the Suprem Court, the court is obliged to stay proceedings and refer the question of law concerned to the Suprem Court for determination.

The background to this reference is that on 27th December, 2006, the President gave his assent to The National Lotto Act, 2006. This Act established the National Lotto. The National Lottery Authority was established under Part II of the Act to conduct the National Lotto. Section 4 of the Act prohibits any person other than the National Lottery Authority from operating any form of lottery. The second to seventh plaintiffs are companies established under the laws of Ghana to operate private lotto business. The first plaintiff is also a company established under the laws of Ghana whose object is t foster a cordial relationship among private lotto operators and to assist distressed lotto operators.

The plaintiffs’ complaint is that after the establishment of the defendant, it caused newspaper announcements to be issued in July 2007 about its establishment. These announcements publicised the statutory provision that a person other than the National Lottery Authority (which will be referre to subsequently in this opinion as “the Authority”) shall not operate any form of lottery in Ghana. The announcements also stated that: “In view of the establishment of the Board, all persons who before the commencement of this Act, possesses or own a machine or equipment used for the operation of lottery of any kind, shall within fourteen days after the commencement of this Act surrender the machine or equipment to the Director-General by 14th August, 2007. Section 58(4)”. The plaintiffs were aggrieved by the contents of these announcements and therefore issued a writ of summons against the Authority on 13th August 2007, claiming the following remedies:

1. “A declaration that the directive from the Defendant to private lotto operators to surrender machines or equipment used for the operation of lottery to the Director-General of the Defendant by the 14th August 2007 is unconstitutional, illegal and unreasonable.

2. An order setting aside the directive referred to in relief (1) above. 3. An order restraining the Defendant itself, its agent(s), servant(s) or any person(s) howsoever described acting for or purporting to act for the Defendant from unlawfully, unconstitutionally or unreasonably interfering with the property rights of the Plaintiffs.

4. An order restraining the Defendant itself, its agent(s), servant(s) or any person(s) howsoever described acting for or purporting to act for the Defendant from interfering with the private lotto operating business of the Plaintiffs.

5. A declaration that the National Lotto Act, 2006 (Act 722) to the extent that it outlaws the operation of lotto business by private lotto operators, infringes the constitutionally guaranteed right o the private lotto operators to free economic activity.

6. A declaration that the creation of the National Lottery Authority to take over and monopolise the operation of the lotto business in Ghana infringes the Constitutional injunction to the government to

ensure a pronounced role of the private sector in the economy.

7. Any further order(s) as the court may deem fit.”

After filing their writ and statement of case, the plaintiffs applied for an interlocutory injunction to restrain the defendant from interfering with their property rights or lotto business pending the final determination of the matters raised in their writ. It was in the ruling of Abada J on this application that he decided to make the present reference to the Supreme Court.

The reference

First Issue: Does Act 722 violate Article 33(5)?

Article 33(5) provides that: “The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure th freedom and dignity of man.”

The plaintiffs are not altogether explicit about how Act 722 violates Article 33(5). Clarity requires that the plaintiffs specify what rights of theirs have been infringed by Act 722 and which are not mentioned in Chapter 5 of the Constitution, but which should nevertheless be regarded as fundamental human rights or freedoms. Evidence of such rights can be obtained either from the provisions of international human rights instruments (and practice under them) or from the national human rights legislation and practice of other states. No such clear evidence is provided in the Statement of Case of the plaintiffs. There is some resort to the provisions of some international human rights instruments on the right to work. (These include Art. 23(1) of the Universal Declaratio of Human Rights; the International Covenant on Economic, Social and Cultural Rights, which the plaintiffs claim Ghana has signed and ratified; and the African Charter on Human and Peoples’

Rights..) The argument does not appear, however, to be made that the right to work is what is being asserted under article 33(5) and that Act 722 is in breach of such an imported human right which is inherent in a democracy. The core of the plaintiffs’ complaint, rather, it seems to us, relates to the allegation that Act 722 stifles private initiative. This has more to do with article 36, whose justiciability we will be examining below. We do not consider that the plaintiffs have made out any legitimate case that Act 722 violates article 33(5) of the Constitution.

The right to work may be a human right that international human right instruments recognize. For instance, Article 6 of the International Covenant on Economic, Social and Cultural Rights, 1966 provides that:

“(1) The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

(2) The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”

However, the plaintiffs do not show with any clarity the extent to which such a right should be imported into Ghanaian law. But even assuming that a right to work should be imported into Ghanaian law under article 33(5), would such a right include a right to engage in the gambling business? The business of gambling is regulated in almost all jurisdictions. Accordingly, it would b unreasonable to construe a right to work as including a right to engage in the private lottery business with an unregulated right to enter the business. Governments have to be given some space to determine how to realize the right to work under their national conditions.

Second issue: Is Act 722 in breach of Article 35(1)?

Article 35(1) provides as follows: “Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.”

This is a general provision which vests sovereignty in the people of Ghana. We do not see how Act 722 could possibly be in breach of it. The plaintiff’s statement of case does not spell out how Act 72 breaches Article 35(1). Accordingly, we have no hesitation in arriving at the opinion that Act 722 does not breach Article 35(1), even if it is justiciable, which is an issue that we will consider next in connection with the third issue set out below.

Third Issue: Is Act 722 in breach of article 36(2)(b)?

To determine this issue, it is necessary first to establish whether the provisions in article 36(2)(b) are justiciable. Article 36 is contained in Chapter 6 of the Constitution which has the title: “The Directive Principles of State Policy.” The text of article 36(2) (b) reads as follows:

“The State shall, in particular, take all necessary steps to establish a sound and healthy economy whose underlying principles shall include

(a)… (b) affording ample opportunity for individual initiative and creativity in economic activities and fostering an enabling environment for a pronounced role of the private sector in the economy;”…

By way of context, it should be mentioned that the title of article 36 is: “economic objectives” and

the first paragraph of article 36 provides that:

“The State shall take all necessary action to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and to secure the maximum welfare, freedom and happiness of every person in Ghana and to provide adequate means of livelihood and suitable employment and public assistance to the needy.”

The justiciability of article 36(2)(b) An issue is justiciable if it is capable of being settled by a court. Prima facie, one would have thought that everything in a Constitution should be justiciable. The Constitution is a legal document containing the most important rules on political governance. The courts have the responsibility of ensuring that these rules are complied with. To my mind, therefore, the starting point of analysis should be that all the provisions in the Constitution are justiciable, unless there are strong indication to the contrary in the text or context of the Constitution. We therefore have much sympathy with the position of Adade JSC, as he then was, in New Patriotic Party v Attorney-General (The 31st December case) [1993-94] 2GLR 35 at pp. 65-66 when he said:

“As stated earlier, the plaintiff relies, inter alia, on articles 35 and 41 of the Constitution, 1992. Both these articles come under chapter 6 of the Constitution, 1992 titled: “The Directive Principles of Stat Policy.” It has been maintained in certain quarters that these directive principles are not justiciable, and therefore cannot avail the plaintiff. I am aware that this idea of the alleged non-justiciability of the directive principles is peddled very widely, but I have not found it convincingly substantiated anywhere. I have the uncomfortable feeling that this may be one of those cases where a falsehood, given sufficient currency, manages to pass for the truth. I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not justiciable: it is. First, the Constitution, 1992 as a whole is a justiciable document. If any part is to be non-justiciable, the Constitution, 1992 itself must say so. I have not seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me that chapter 6 is not justiciable. The evidence to establish the nonjusticiability must be internal to the Constitution, 1992, not otherwise, for the simple reason that if th proferred proof is external to the Constitution, 1992, it must of necessity conflict with it, and be void

and inadmissible: we cannot add words to the Constitution in order to change its meaning.”

The impression that some (including Bamford-Addo JSC (infra) have that Chapter 6 is not justiciabl is probably attributable to the fact that it deals with directive principles of state policy. These principles have been treated in India as not being in and of themselves justiciable. However, there is a good reason for this position in Indian law. Article 37 of the Indian Constitution says, in relation to the directive principles of state policy, that: “The provisions contained in this Part shall not be enforceable by any court, but the principles therei laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” Thus, it contains an explicit non-justiciability provision, in contrast to the Ghanaian Constitution, where, in the absence of such express exclusion of the courts, any non-justiciability conclusion has t be reached by interpretation and implication. Any such interpretation requires an assessment and determination of the purpose of Chapter 6.

The relevant provision of the 1992 Constitution on which a presumption of justiciability could, with some justification, be based is Article 34(1), which is in the following terms: “The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.” Is this is a sufficient basis for asserting the enforceability in the courts of the principles? The courts have to accept the obligation of being guided by the principles “in applying or interpreting” the Constitution. Is this equivalent to a call on them to enforce the principles? If one is guided by the principles in applying the Constitution, is that not equivalent to enforcing the principles? There is need to refer for guidance to the Proposals for a Draft Constitution of Ghana of the Committee of Experts who formulated the draft provisions on the basis of which the Consultative Assembly formulated the 1992 Constitution. In paragraphs 94 to 96, the Committee explains its position on th directive principles as follows:

94.“The NCD report speaks of the need to include in the new Constitution “core principles aroun which national political, social and economic life will revolve.” This is precisely what the Directive Principles of State Policy seeks to do. Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a peopl the Principles attempt to set the stage for the enunciation of political, civil, economic and soci rights of our people. They may thus be regarded as spelling out in broad strokes the spirit or conscience of the constitution. The Committee used Chapter Four of the 1979 Constitution as a basis for its deliberations on this subject.

95.By tradition Directive Principles are not justiciable; even so, there are at least two good reason for including them in a constitution. First, Directive Principles enunciate a set of fundamental objectives which a people expect all bodies and persons that make or execute public policy to strive to achieve. In the present proposals, one novelty is the explicit inclusion of political parties among the bodies expected to observe the principles. The reason for this is that politic parties significantly influence government policy. A second justification for including Directive Principles in a constitution is that, taken together, they constitute, in the long run, a sort of barometer by which the people could measure the performance of their government. In effect they provide goals for legislative programmes and a guide for judicial interpretation.

96.On the basis of the foregoing considerations, the Committee proposes as follows: The Directive Principles of State Policy are for the guidance of Parliament, the President, the Council of Ministers, Political Parties and other bodies and persons in making and applying public policy for the establishment of a just and free society. The Principles should not of and by themselves be legally enforceable by any court. The Courts should, however, have regard t the said Principles in interpreting any laws based on them.” It is important to note that an important element in the Committee’s recommendation was omitted from the provisions in the Constitution on the directive principles as ultimately adopted. There is no language in the Constitution stating that the principles are not of and by themselves legally enforceable by any court. The Committee put forward in Appendix D of its report specific language on the Directive Principles of State Policy which included clause 1(2) (at p. 224 of the Report) whic provided as follows:

“The principles shall not of and by themselves be legally enforceable by any court.”

This language does not, however, appear in the final version of the 1992 Constitution. With languag such as that set out above, the Committee could legitimately assume that the principles would not be enforceable. However, with the omission of that language in the Constitution, we do not think that i is necessarily to be assumed that the provisions in Chapter 6 are not intended to be justiciable. Ther is a significant departure from the original proposal by the Committee.

Furthermore, even if the original intent of the Committee was that the principles should not be justiciable, that intent, though important, is not necessarily determinative of the outcome of the interpretation of article 34 by this Court. We would here like to recall an argument that was made in Asare v Attorney-General [2002-2004] SCGLR 823 (at p. 834-5) in the following passage:

“The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the framers of the constitution or the legislature, respectively, had at the time of the making of the constitution or the statute.

The objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values etc. of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realisation, through the given legal text, of the fundamental or core values of the legal system. A poignant illustration of objective purpose is to be found in the Australian case of Theophenous v Herald Weekly Time Ltd. (1994) 182 CLR 104. In this case, the High Court of Australia was faced with the issue of whether the court could construe an implied Bill of Rights into the Australian Constitution, the Constitution being silent on a Bill of Rights. Was the intention of th original framers of the Australian Constitution to be conclusive on the determination of this issue? Justice Deane observed in the Theophenous v Herald Weekly Time Ltd. case (supra) (at p 106) that:

“The present legitimacy of the Constitut...