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She has, accordingly, prayed the Supreme Court to dismiss the suit challenging Mr Amidu’s legibility, saying it is born “out of a narrow, inadequate and literal construction of the scope of application of Chapter 24 of the Constitution”.
A former Deputy Attorney-General, Dr Dominic Ayine, is praying the Supreme Court to annul Mr Amidu’s appointment as Special Prosecutor on grounds that he is above the retirement age of 60 years.
However, in a statement of defence filed on Mr Amidu’s behalf, the A-G said all public servants were public officers, but not all public officers were public servants.
The statement, signed on behalf of the A-G by her deputy, Mr Godred Yeboah Dame, said public servants compulsorily retired at the age of 60, with a further possibility of extension of their years of service under Article 199 (4) and that not all public officials were caught by the compulsory retirement age of 60.
The state is, therefore, praying the court to hold that the position of Special Prosecutor is a public office (organ) like the Statute Law Revision Commissioner, not caught by the retiring age prescriptions in Article 199.
“It is submitted that to place the constraints of age on a person who exercises prosecutorial powers when the Constitution has not specifically provided for same is plainly untenable,” the statement said.
The A-G further submitted that by the combined effect of articles 88 (4) and 298 of the 1992 Constitution, the enactment of Act 959 to provide for the appointment of a Special Prosecutor on a non-renewable seven-year tenure and the subsequent appointment of Mr Amidu to that office were within the rightful legislative competence of Parliament.
She prayed the court to give full force and effect to the powers of Parliament, as the legislative body of Ghana, to provide for all matters, except as are not in contravention of, or inconsistent with, the 1992 Constitution.
Person to sue
The A-G argued that Mr Amidu, who has been attached to the suit as second defendant, was not a proper party to the suit.
“The instant action seeks to challenge the decision of the A-G in nominating Mr Amidu as Special Prosecutor, as well as the subsequent presentation by His Excellency the President of the nomination to Parliament for approval. These are decisions taken in the course of official duties by the A-G and the President,” the statement said, adding: “Article 88 (5) of the Constitution enjoins the A-G to be the defendant in all civil proceedings against the State.”
The A-G, who is the first defendant in the suit, said Dr Ayine clearly misapprehended the nature of his own case with the argument that “the profoundly absurd effects of his arguments are lost on him”.
“We will, in the course of the arguments, refer to various paragraphs in plaintiff’s statement of case to show, clearly, that plaintiff has misconceived both the effect of his own case, as well as the substance of the relevant constitutional provisions and the laws of Ghana generally regarding the subject,” the statement said.
According to the A-G, the approach to the interpretation of Article 199 adopted by Dr Ayine could only be “the plain, non-purposive and narrow one. Before commencing our legal arguments in opposition to the case of the plaintiff, we will respectfully urge the court to reject, as grossly unhelpful, this literal and narrow approach to the interpretation of our Constitution being urged by the plaintiff”.
Mechanistic interpretation
In the light of the foregoing, she argued, it was accurate to say that the mechanistic, literal way of interpreting the Constitution was now completely out of date and unhelpful to the realisation of the objects of the nation as enshrined in the Constitution.
“In contrast to the blindly literal approach, the modern purposive approach adopted by the courts invites judges to interpret and apply the Constitution in a way that brings to life and gives meaning to the core values, objects and history that underpin its text.
“This approach also cautions against judges deeming themselves impotent or incapacitated when faced with obvious lacunae or gaps in the law and, instead, admonishes them to fill such gaps or omissions in appropriate cases, being mindful to do so in a way that harmonises with the values and goals of the nation as enshrined in the Constitution,” the statement said.
The A-G argued further that “the underlying rationale of this modern approach to constitutional interpretation is to avoid a blindly ‘strict construction’ that will give rise to profound absurdity, manifest injustice and social retrogression”.
Legal arguments
In arguing against the case of the plaintiff, the A-G respectfully urged the court to take account of the relevant constitutional provisions regarding the meaning of the terms “public office” and “public service” as used in the Constitution.
The statement also prayed the court to note particularly the fact of the existence of different categories of “public offices” and, for that matter, of “public officers”.
“In particular, we invite the court to note the multiple and diverse ways or routes by which different classes of ‘public officers’ lawfully (enter and) exit public office,” it said.
It prayed the court to take particular note of the formulation of Article 199 (1) and hold that it validated and reinforced the distinction between a public office and the public service.
According to the statement, its submission was sound and unavoidable upon a careful consideration of the relevant provisions of the Constitution.
“Without this distinction, we will have the effect where all public officers will have to retire at the age of 60 and persons aged over 60 cannot be appointed or elected to any public office at all, whether or not the person has previously served in a public office. The result of such a literal interpretation or application of these constitutional provisions will lead to absurdity, and it is for this reason that the court has to consider a modern purposive approach in determining the matter,” it added.
Erroneous conclusion
The A-G argued that the plaintiff failed to appreciate the distinction between “public office” and “public service”.
“It is our submission, respectfully, that the second defendant, while a ‘public officer’ by virtue of having been appointed to a public office, is not a public servant because he is not a public officer appointed to the ‘public service’ in terms of Article 295 and Chapter 14 of the Constitution. Chapter 14, including, notably, articles 195 and 199, is totally inapplicable to the position and status of the second defendant,” she said.
She said the plaintiff contradicted himself, in his statement of case, when he seemed to acknowledge that a public officer might not necessarily be a public servant.
The statement said it was because of the different modes of appointment of public officers under the laws of Ghana that the Constitution did not concern itself to define how appointments for a person to hold “public office” generally might be made, thus further buttressing the contention that Chapter 14 should be understood to be regulating the appointment of a specific category of public officers.
“We have shown above that the framers of the Constitution, in their wisdom, did not stipulate that all public officers or public officers, simplicita, should retire at the age of 60 years,” it argued.
No retirement age
According to the statement, there was no retirement age stipulated for public officers, generally, in any part of the Constitution.
That, it said, was in recognition of the fact that there was a wide variety of public officers employed in the service of Ghana and that, unlike public servants, all of whom were subject to the provisions of Chapter 14, there was not be one legal regime regulating all public officers.
“Further, a corollary to the plaintiff’s submission is that every holder of a public office must owe his or her appointment to Article 195 (1) of the Constitution. To accept this proposition will wreak havoc, disrupt the efficient running of public administration and result in manifest absurdity.
“It is submitted, respectfully, that apart from the public services specifically provided for by Chapter 14 of the Constitution and other public officers such as the members of the Electoral Commission, the Judiciary and Speakers and Members of Parliament, all other public officers duly appointed exit or cease to be public officers pursuant to the statute under which they are appointed,” the statement noted.
The defendant further submitted that the failure of the Constitution to provide specifically how a public officer (apart from the class of officers working in the public service under Chapter 14) might generally be appointed did not mean that any appointment of a person as a public officer pursuant to an Act of Parliament was unlawful.
That, the A-G said, was because Article 298 of the Constitution itself had vested in Parliament the power to deal with any matter where no provision, express or by necessary implication, had been made by the Constitution.
The A-G further contended that by virtue of the residual powers of Parliament, enshrined in Article 298, it could not be unconstitutional for Parliament to have enacted Act 959 to create an entity called the Office of the Special Prosecutor and provide for the appointment of its head, namely, the Special Prosecutor, on a non-renewable seven-year tenure.
“This is because the Constitution does not legislate how all manner of public officers, as opposed to public servants, ought to be appointed. Neither does it specify a retirement age for all public officers,” the statement of case said.
