Legal scholar Kwaku Azar Asare has questioned whether the New Patriotic Party’s (NPP) suit at the Supreme Court seeking an interpretation of presidential term limits presents a justiciable constitutional dispute or amounts to a request for an advisory opinion.
The NPP has asked the Supreme Court to interpret Article 66(2) of the 1992 Constitution, which provides for a four-year presidential term and limits an individual 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 case has drawn public attention amid discussions about presidential eligibility ahead of the 2028 general election. However, the filing of the suit does not establish that President John Dramani Mahama intends to seek another term.
In a Facebook post, Mr Asare argued that the current action differed from previous constitutional cases pursued by the NPP, 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 violate the Constitution, rather than an abstract disagreement over the meaning of a constitutional provision.
“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.
No identifiable constitutional violation, Azar argues
Mr Asare contended that the NPP’s writ had not identified a specific enactment, act or omission alleged to be unconstitutional and 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 argued that disagreement over the interpretation of a constitutional provision does not, by itself, establish a justiciable controversy that warrants the Supreme Court’s intervention.
Bilson v Attorney-General cited
To support his position, Mr Asare cited Bilson v Attorney-General [1993–94] 1 GLR 104, a Supreme Court decision concerning the limits of the Court’s 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 decision illustrated the distinction between resolving a genuine constitutional dispute and providing judicial guidance on a hypothetical question.
He argued that this distinction was central to determining whether the NPP’s action met the threshold for judicial consideration.
Azar cautions against broad reading of Ex parte Akosah
Mr Asare also referred to Ex parte Akosah, a case associated with the principles governing when constitutional interpretation questions arise and should be referred to the Supreme Court.
He cautioned against interpreting the decision to mean that every disagreement over the meaning of the Constitution automatically requires 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 maintained that competing opinions expressed by lawyers, academics and political commentators do 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.
Supreme Court urged to exercise restraint
Mr Asare urged the Supreme Court to exercise restraint when determining which constitutional questions warrant 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 limited judicial resources should be directed towards resolving genuine disputes rather than providing what he described as constitutional consultations.
Mr Asare suggested that if the NPP’s 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 an actual justiciable controversy.
The Supreme Court’s determination of the matter will establish whether the action meets the legal requirements for judicial consideration. Mr Asare’s comments represent his legal analysis and do not constitute a ruling by the Court.
