Supreme Court won’t settle a debate through constitutional interpretation – Kwaku Azar on NPP presidential term limit suit

Legal scholar Kwaku Azar Asare has questioned whether the New Patriotic Party’s (NPP) suit at the Supreme Court seeking an interpretation of the presidential term limit presents a justiciable constitutional dispute or amounts to a request for an advisory opinion.

The NPP has filed a suit at the Supreme Court seeking an interpretation of Article 66(2) of the 1992 Constitution, which provides for a presidential term of four years and limits a person to two terms in office.

The party is seeking a declaration that the two-term limit applies whether the terms are consecutive or non-consecutive.

The action has drawn attention to the constitutional implications of presidential term limits ahead of the 2028 general election. However, the filing of the suit does not, in itself, establish that President John Dramani Mahama intends to seek another term.

In a Facebook post, Mr Asare argued that the party’s action appeared to differ from previous constitutional cases it pursued, including the 31st December Case and a challenge to police permit requirements for public demonstrations.

He said those cases involved identifiable government actions or existing laws alleged to be inconsistent with the Constitution, rather than disagreements over constitutional interpretation in the abstract.

“Notice something important about these cases. The NPP of yore challenged identifiable governmental actions and existing laws that allegedly violated the Constitution. The Court was not being invited merely to settle an interesting public debate,” he wrote.

Mr Asare argued that the current writ had not identified an allegedly unconstitutional enactment, act or omission requiring judicial intervention.

“What enactment is being challenged? What unconstitutional act or omission is alleged? Nobody has filed to contest a third presidential election. No electoral authority has determined that a person who has already been elected President twice is eligible for a third election,” he stated.

“At best, on the facts reported, there is a public debate over what the Constitution permits.”

He maintained that disagreement over the meaning of a constitutional provision does not, by itself, establish a justiciable controversy.

To support his argument, Mr Asare cited Bilson v Attorney-General [1993-94] 1 GLR 104, a Supreme Court decision concerning the limits of its jurisdiction to interpret constitutional provisions in the absence of an actual dispute.

“The Court held that it had jurisdiction to interpret constitutional provisions in the context of disputes, but no jurisdiction to tender advice to prospective litigants,” he wrote.

Mr Asare said the case illustrated the distinction between resolving a genuine constitutional dispute and providing judicial guidance on a hypothetical question.

He argued that the distinction was important in determining whether the NPP’s action met the threshold for judicial consideration.

Mr Asare also referred to Ex parte Akosah, a case associated with the principles governing when questions of constitutional interpretation arise and should be referred to the Supreme Court.

He cautioned against relying on the decision to suggest that every disagreement over constitutional meaning automatically warrants the Court’s intervention.

“But an important qualification is often overlooked. Ex parte Akosah arose in the context of determining when a lower court should refer a constitutional interpretation question to the Supreme Court. It was not an invitation to citizens to manufacture competing interpretations and demand that the Supreme Court resolve them,” he argued.

He added that competing views expressed by lawyers, academics and political commentators did not automatically create a justiciable constitutional controversy.

“Citizens, lawyers, academics, and political parties are free to express different views about the meaning of constitutional provisions. That is healthy constitutional discourse. But merely because someone advances a different interpretation does not mean the Supreme Court must be invited to settle the disagreement,” he wrote.

Mr Asare urged the Supreme Court to exercise restraint in determining which constitutional questions require judicial intervention.

“The Supreme Court is a court of law, not a constitutional advice centre. And the Court itself must remain disciplined, resisting the temptation to wade into every constitutional controversy merely because the question is politically important, intellectually interesting, or generating considerable public attention,” he stated.

He argued that scarce judicial resources should be directed towards resolving genuine disputes rather than providing what he described as constitutional consultations.

Mr Asare suggested that if the writ failed to disclose a justiciable cause of action, the Court should dismiss it at the earliest procedurally appropriate stage.

He proposed a brief ruling dismissing the action for want of jurisdiction, without prejudice to a properly constituted case arising from a justiciable controversy.