RESEARCH REVIEW NS VOL.6 NO.2 1990

ON THE CONSTITUTIONALITY  OF NKRUMAH'S

SPECIAL COURT

Kwadwo Afari-Gyan

Introduction

On 21 November,  1961 the  Ghana National  Assembly  amended  the  Criminal  Procedure
Code, 1960 in order to provide for a new procedure to be followed in certain criminal cases. The
new law, The Criminal Procedure (Amendment) Act, 1961, set up a Special Criminal Division
of the High Court, which came to be popularly known as the Special Court.

During the debate on the amending bill, virulent exchanges took place between its supporters
and its opponents; first, over the need for the court and, secondly, about whether Parliament had
the power to pass the bill at all. In this essay I review the reasons for setting up the court and
assess the constitutional issue. It needs to be pointed out that the argument made here concerns
the  original  act  which  set up  the Special  Court  Whatever constitutional  issues  might  have
cropped  up  on  the  occasions  during  which  the  court  was  invoked,  or  upon  subsequent
emendations of the original act, are not considered here.l  I take it that the constitutional debate
in Parliament precedent to the enactment of the act is of more than passing significance  in the
extent to which it related to a clarification  of the relationship between the High Court and die
Supreme Court.

The  Court

Whenever the need for it arose, the Special Court would be constituted by the Chief Justice
"in  accordance  with  a request  made  to him  by  the President"^  and  would be made up of  a
presiding judge plus two other judges. It was to try offences  taken from  the country's Criminal
Code and specified in the Act, as well as offences which would, from time to time, be  "specified
by the President by legislative instrument."^ In general the offences were classified as:  "offences
against the state, such as treason and sedition; and offences  against the peace, such as rioting,
unlawful assembly and other serious breaches of the peace."4

Offenders were to be brought directly before the Special Court by the Attorney General, who
also had power  to  transfer  cases from  other courts to it  There would be no trial  by jury  or
assessors. Generally, the procedure to be followed by the court was to be "in accordance with
that applicable to the summary trial of an offence  by the High Court "5 The court's decision
would be by a majority of the three judges, and any dissenting opinion was not to be disclosed.
The decision would be final and subject only to the President's prerogative of mercy.

Reasons  for  creating  the  Court

Some members of Parliament interpreted Clause 6(2) of the Bill, which sought to empower
the President to specify  offences  by legislative instrument, as empowering him to create new
criminal offences.  On the other hand, the Minister of Justice, E.A. Ofori-Atta, explained  that
"offence"  in that clause meant an offence  under the existing Criminal Code. As Harvey points
out, the Minister's explanation  in Parliament could not be taken to "resolve the ambiguity on
the face of the statute."6 That aside, on the Minister's own explanation  the new law would not
create  any new  offences,  meaning  that  all  the offences  triable by  the court  fell  within  the
jurisdicu'onal competence of the existing courts system. For this reason the opponents argued

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that there was no need whatsoever for the proposed court. Instead, they recommended  that to
expedite trials the number of judges might be increased to ease their workload.

The  supporters, of  the  bill  were  impervious  to  any  arguments  or  suggestions  by  their
opponents. They sought to justify  the setting up of the Special Court not only on the grounds
of expediting trials but also of eliminating technicalities in the law. Ofori-Atta described the bill
as essentially a procedural one, "a Bill brought forward  to shorten trials."''' Kwaku  Boateng,
Minister of Interior and Local Government, contended that it was time for the country to "cease
to rely on ancient and archaic procedures." Accordingly, he said the bill sought "to design  a
procedure  for  the  effective,  speedy  and  expeditious  trial  of  criminals."** On the  subject  of
technicalities Tawia Adamafio, Minister of Information and Broadcasting, said:

We know that people in this country sometimes believe that because there are
technicalities in the law they can do what they like and go free  ... In the courts
we do not get justice,  we get law. It  is justice  that we want and that is what  is
going to be created?

The  opponents of the bill did not believe that this was the real intent of its supporters. In
opposing the Bill, K.A. Gbedema, who had then fallen out with the ruling Convention People's
Party (CPP), recalled that back in 1958 the Prevention Detention Act (PDA) had been passed in
good  faith  as a measure to safeguard  freedom;  but that it had been used  as an  instrument of
terrorism by which many people had been sent to jaiL He feared that the proposed Special Court
might turn out to be a similar instrument by which "We may be pulled out of bed to face the
firing squad after a summary trial and convktion."10

It would appear  that the  Special Court was being set up to try  what may be  described  as
'offences  against the President1 Twenty days before  the enactment of the Criminal Procedure
(Amendment) Act, 1961 the Assembly had duly amended the Criminal Code, 1960 by inserting
Article 183A as follows:

Any person  who with  intent  to  bring  the President  into hatred  or  contempt
publishes any defamatory or insulting matter whether by writing, print, word of
mouth or in any other manner whatsoever concerning the President commits an
offence and shall be liable on summary conviction to a fine  not exceeding five
hundred pounds or to imprisonment for  a term not exceeding three years or to
both such fine and imprisonment.^ 1

During the debate on the amendment several members emphasized the need to protect the
person and dignity of the President, Dr. Kwame Nkrumah, in view of his singular importance to
the country. Kofi Baako, Minister of Defence and Leader of the House, explained that:
The Government is not the President but he tithe  rock on which the Government is
built.  The  President  is  the  Head  of  the  Party,  that  is.  the  rock  on  which  the
government  is  built. He forms  the  Government and  his spirit  runs  through  the
Government^}-

In the view of W\K. Aduhene, Deputy Ministry of Defence,  "Kwame Nkrumah is associated
with  this State as Jesus Christ is with Christianity."^  in  similar vein, Kwaku Boateng  also
said as follows:

Osagyefo Dr. Kwame Nkrumah...  by his own lofty deeds and achievements has
provided a real justification for  this Amendment. There is positive evidence that
everywhere in this country and elsewhere Osagyefo the President is acclaimed the
hero, the founder  and the fans  et origo of the State of Ghana. Everywhere  he
is loved by his people and praised by them because of his magnificent devotion
to the affairs of his country and also  to the cause of African  redemption and

unity. Does it not stand to reason, therefore, that any act by any unscrupulous
person  to bring his honour and dignity into contempt and ridicule should be
made an offence?14

There was yet another reason for setting up the Special Court In the wards of Harvey, its
creation "was part of the aftetmath of the political strike* originating in Sekondi-Takoradi and
the readjustment of the leadership within the CPP, incident to the expulsion of Mr. Gbedema
and Mr. Botsio."15 More generally, by 1961 the government was heading toward a crisis of
legitimacy. The country was racing serious economic problems, and the accompanying hardships
gave rise to widespread discontent and a pronounced tendency toward strike action. A serious rift
had opened within the leadership of the ruling party, which had resulted in die displacement of
some of the former party leaders. And the opposition, muzzled and driven underground, was
perceived to be hatching plots within and without the country to overthrow the government In
these circumstances, the Special Court was no doubt conceived as a handy weapon to deal
speedily with any form of dissidence.

Indeed, evidence to that effect was easily forthcoming during the debate on the bill.  Kofi
Baako explained that the Special Court was intended to deal only with cases that were so special
that "they (had) to be dealt with expedittously by special procedure." 16 similarly,  Ofori-Atta
emphasized that the court was not an ordinary one "but a court which (had) become necessary in
the circumstances we find ourselves in today."!? More explicitly, Kwaku Boateng said that
recent events in the country had clearly demonstrated the need for the government to take prompt
and vigorous action "against criminals, saboteurs and elements engaged in subversive activities
tending  to  overthrow  the lawfully  constituted  Government of  the country." 18 And Tawia
Adamafio summed it all up when he said that the Special Court was for "procuring the stability
ofthestate."19

The  Constitutional  Issue

During the debate on the Criminal Procedure (Amendment)  Bill,  1961 Abayifaa Karbo,
member for Lawra Nandom, raised an objection to it on constitutional grounds. He argued that
Article 42 of the 1960 Republican Constitution made the Supreme Court the only court of the
land whose decision was not subject to appeal, and so it would be ultra vires for the Assembly
to establish a court whose decision would not be subject to appeal to the Supreme Court He
also argued mat while the Constitution made the decisions of the Supreme Court binding on the
High Court and the lower courts, the Special Court would not be bound to follow  judicial
precedent He concluded that,  m effect the bill amounted to amending the Constitution.^O

Perhaps the conception of constitutionality implicit in Karbo's objection and upon which
mis paper is based needs to be made more explicit It may be summarized as follows: The 1960
Constitution would prevail over a later Act if:

a)  the Act did not duly amend the Constitution but contained a provision which,
expressly or by implication, conflicted with a provision of the Constitution.
b)  the  Constitution did  not expressly  contemplate  that such a provision  as

is contained in the Act might be  made2l

In the course of the debate two supporters of the bill addressed the constitutional issue. Kofi
Baako contended that Article 42 of the 1960 Constitution meant no more than that "when an
appeal is allowed at the Supreme Court and it is disposed of there can be no further appeal."22
Concerning the same article, Ofori-Atta argued as follows:

// is only when the law provides the Supreme Court with such a jurisdiction that
it  becomes  the final  court of Appeal in  that instance. Therefore, if  this law

47

definitely says  that the Supreme Court shall  not have junsmcnon  over  the
special court, then of course U is within the constitution."

It should be clear that in die view of Ofari-Atta me Constitution contemplated changes in die
country's courts system of die kind being made by die bill. He would appear to have based his
interpretation on die fact that even though Article 42(1) said dot "The Supreme Court shall be
die final court of appeal," it also said dot die appellate and odier jurisdiction of dtat court would
be "as may be provided for by law." A similar interpretation could also have been engendered by
42(3)  which  said  that,  subject  to die  original jurisdiction  given  to die  Supreme Court  to
determine whether die legislature had exceeded its powers in making an enactment, "die High
Court shall have such original and appellate jurisdiction as may be provided for by law." On die
basis of the interpretation placed on such provisions, die view that it was within die power of
die Assembly, as die supreme lawmaking  body, to provide for die jurisdiction of die Special
Court in die manner it sought to do may not be entirely surprising.

However, UK issue of tne constitutionality of the Special Court could not be rested solely on
die provisions of Article 42 of die  1960 Constitution. In fact, of seminal importance to die
issue were die provisions of Article 41 on superior and inferior courts, which read in  full as
follows:

41.  (1)  There shall be a Supreme Court and a High Court, which shall be the

superior courts of Ghana.

(2)  Subject to the provisions of the Constitution, the judicial power  of the
State is conferred on the Supreme Court and the High Court, and on
such inferior courts as may be provided for by law.

(3)  The power to repeal or alter this Article is reserved to the people.

It is important to note that, being entrenched, die provisions had been placed beyond die
power of die legislature to alter diem at will, by itself. Their alteration required die approval of
die President, die people and die National Assembly. It is equally important to note that section
(1) of die Article established only one Supreme Court and only one High Court as die superior
courts of die land; and section (2) made it abundantly clear that only inferior courts might be
created by die legislature. To my mind, die implicationof niese provisions was that, irrespective
of die power of die legislature to spell out die appellate jurisdiction of die Supreme Court, and,
indeed, the responsibilities of die superior courts established by die Constitution, without duly
amending die Constitution die Assembly had no power to set up what amounted to a different
High Court; that is to say, a High Court which differed in its relationship with die Supreme
Court from die one established by die Constitution.

The architects  of  die  Act  appear to  have been  mindful  of  these provisions;  hence  the
presentation of  die Special Court not as another High Court, but as only a  division  of  the
existing and only legitimate High Court; and, correlatively, die presentation of the Act as an act
to amend an earlier one. Thus what made dw Special Court different from die ordinary High
Court was achieved by making certain provisions of  die Courts Act,  1960(C.A.9)  and die
Criminal  Procedure  Code,  1960  not  applicable  to  me  Special  Court  But  did  this  legal
manoeuvre succeed in getting around die issue of die constitutionality of die Special Court?

In my view, in the form of die Special Court, what Die Criminal Procedure (Amendment)
Act, 1961 produced was die curious spectacle of a High Court bereft tf its constitution-based
relationship with die  Supreme Court. As Amissan  has pointed out, on Ghana becoming  a
Republic in 1960 a new Supreme Court come into being "separate and distinct from die High
Court, hearing appeals from flat coort"24

This relationship derived in part fiera die entrenched provision ofartkfe 41 aodm part from

Article 42(4) which said that the High Court was "bound to follow the previous decisions of the
Supreme Court" on questions of law. This meant that when the Supreme Court had  made a
determination on a proposition of law, "that proposition (was) binding without modification  in
the High Court ..."25 where the need arose, this would obviously make the Supreme Court the
final and logical authority to determine whether its decisions had been faithfully  followed.

In this connection Antissah has written that:

A loophole not commonly noticed was left for  bringing the legal aspect of
the (Special) Court's work before the Supreme Court. Under the Courts Act
1960, and the Criminal Procedure Code 1960, the High Court could reserve
any question of law for  the consideration of the Supreme Court. This was in
addition  and  without prejudice  to  the  right of  appeal. Although  the Act
setting up the Special Division excluded the right of appeal it said nothing
about the power to reserve questions of law for  the decision of the Supreme
Court, which presumably remained untouched?**

That may well have been so. But it is at least implied by Amissah's observation that it was not
intended by the creators of the Special Court to reserve questions of law for the decision of the
Supreme Court. In any case, to say that the High Court could reserve questions of law for the
decision of the Supreme Court is not quite the same as saying mat the High Court was bound to
follow the decisions of the Supreme Court on questions of law. The difference here is between
discretionary and binding authority.

The question could be raised here as to whether, with regard to judicial review, the ouster of
the Supreme Court in the case of the decisions of the Special Court could not be dealt with by
prerogative writs or orders.2? In the Republic vrs. Military Tribunal: Exparte Ofosu-Amaah?&
Justice Abban held that even though the decree setting up the tribunal made its decision  final,
the tribunal was an inferior court and therefore fell under the general supervisory jurisdiction of
the superior courts. Since the Special Court was itself a superior court, it is doubtful  whether
such a decision would have applied to it  In any case, to argue that deviations from  established
questions of law could be dealt with by prerogative writs or orders would be to argue that the
Special Court fell under the supervisory jurisdiction of the Supreme Court, in contradiction of
the intention of the creators of that court

In the context of die argument of mis paper, Ammissah's statement that "There is no right of
appeal  except  as  conferred  by  statute  ..."29  can  be  misleading.  True  enough,  it  was  the
responsibility  of the legislature to specify by statute where in the myriad of cases an  appeal
would lie, and the manner and procedure for it - as was done by the Criminal Procedure Code,
1960 and the Courts Act,  1960. But, without prejudice to the legislature's responsibility to so
confer and detail out the right of appeal or to the power of a trial judge or a higher court to
disallow an appeal, the bare right of appeal was, in my view, a necessary implication of the fact
mat the 1960 Constitution set up a hierarchy of courts and made the Supreme Court the final
court  of  appeal.  To  that  extent  the  right  was  constitution-based.  Of  course,  like  many  a
constitutional right - such as freedom  of assembly, free  speech, and press freedom  - and as a
general  principle of law, the right of appeal was to be conferred and detailed out by statute.

With regard to appeals, in the context of the 1960 Constitution, the right of appeal and the
principle of stare decisis were intricately bound together. Both derived their basic authority from
that Constitution, and not from  the Courts Act,  1960 or the Criminal Procedure Code, 1960.
Neither  could,  therefore,  be  abolished  by  altering  those  enactments.  Nor  did  the  1960
Constitution  expressly  contemplate that a High Court such as the Special Court might be set
up. Under that Constitution there simply could not be two kinds of High Court - one with and

one without  the right of appeal from its decisions  to the Supreme Court  So it was an error to
view  the  extant  relationship  between  the  High  Court  and  the  Supreme  Court  as  merely
procedural.

Conclusion

In the Foreword  to Peter Omari's book  on Nkrumah, Justice OHennu wrote that the  most
subtle and dangerous instrument used by Nkrumah was to make "each important step he took
appear to be in strict conformity with the letter of the law of the land."30 In my view the setting
up  of  the  Special  Court  was  one  such  step.  It  was  a  feat  of  legal  craftsmanship  which
constitutionally did not come off too well.

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NUB.  Unless otherwise stated, all references to pages are to the Parliamentary  Debates,

Vol.25,1961.

1)  The  Special  Court was  invoked in  March and August,  1963. Regulations  governing
proceedings in the court were issued in  1963; and in February,  1964 the President
assented to an amenement of the original Act giving him power to nullify  a decision
of the court

2)  The Criminal Procedure (Amendment) Act, 1961,1(3).
3)  Ibid., 6(2).
4)  Daily Graphic, Accra, 17 October, 1961.
5)  The Criminal Procedure (Amendment) Act, 1961,3(2).
6)  William  Burnett  Harvey,  Law  and  Social  Change  in  Ghana,  Princeton;  Princeton

University Press, 1966, p.231.

7)  p. 74.
8)  pp. 37 and 79.
9)  p. 66.
10)  pp. 42 and 43.
11)  The Criminal Code (Amendment) Act, 1961. Assented  1 November, 1961.
12)  p. 91.
13)  p. 66.
14)  p. 23.
15)  William Burnett Harvey, op. cit., p. 232.
16)  p. 61.
17)  p. 74.
18)  p. 79.
19)  p. 65.
20)  pp. 52, 108 - 111.
21)  What a  constitution  expressly  contemplates  may be  done can  easily be judged  by  its
language. For example, in part  Article 6 of  the  1960 Constitution  said as  follows:
"Until otherwise provided by law, Ghana shall be divided into the following Regions,
which shall reespectively comprise such4erritones as may be provided for by law ..."
Clearly, this meant that the legislature did not require constitutional amendment but an
ordinary  act  to  create  additional  regions, or  abolish  existing  ones  or  alter  their
boundaries.

22)  p.  112.
23)  p. 74.
24)  A.RE. Amissah, Criminal Procedure in Ghana, Accra: Sedco Publishing Ltd., 1982. p.9.
25)  F.AJI. Bennion, The Constitutional Law of Ghana, London: Butterworth, 1962, p. 173.
26)  A.NJS. Amissah,  The Contribution of the Courts to Government: A  West African  View,

Oxford: Clarendon Press, 1981, p. 181.

27)  Such as certiorari, mandamus, prohibition, quo warranto, and habeas corpus.
28)  Ghana Law Renew,  Vol.2,1973. p.227.
29)  A.N.E Amissah, The Contribution of the Courts to Government: A West African  View. p.

275.

30)  T. Peter  Oman, Kwame  Nkrumah:  The  Anatomy  of  an  African  Dictatorship.  Accra:

Moxon Paperbacks. 1970.  xi.