Anti-gay bill: Dr. Srem-Sai tackles Akufo-Addo’s decision to wait for SC

A constitutional lawyer, Justice Srem Sai has said that no law allows the president to voluntarily defer his constitutional duty in wait for the outcome of a case that one citizen has filed in court.

On February 28, Parliament passed the Proper Human Sexual Rights and Ghanaian Family Values Bill, otherwise known as the anti-gay Bill.

Subsequently, a private citizen Richard Sky, filed a writ asking the Supreme Court to restrain the Speaker and Clerk of Parliament from sending the recently passed Human Sexual Rights and Family Values Bill to President Akufo-Addo for assent.

This is among other reliefs that Mr Richard Dela Sky is seeking from the apex court in a writ dated March 5.

Mr Sky petitioned the court in his capacity as a citizen of Ghana, acting pursuant to Article 2 of the 1992 Constitution of the Republic of Ghana and asserting his right to challenge acts he deems unconstitutional.

He contends that “upon the true and proper interpretation of Article 33(5) of the Constitution of 1992, in light of article 12 (1) and (2), 15 (1) , 17(1)and (2) , 18(2), and 21(1) (a)(b)(d) and (e) of the Constitution, the passage of the “The Human Sexual Rights and Family Values Bill, 2024 by Parliament on 28th February 2024 contravened the Constitution and is to that extent null, void and of no effect”.

He also wants the Supreme Court to restrain, “the President of the Republic from assenting to “The Human and Sexual Values Bill, 2024,” as such action will directly contravene the Constitutional safeguards of liberties and rights of Ghanaians”.

President Akufo-Akufo-Addo urged all stakeholders to await the outcome of the case that has been filed in the Supreme Court by a concerned citizen with regard to the bill before any further action is taken.

The President said with this new development, it would be proper to wait for the ruling of the Supreme Court.

“… I have learnt that, today, a challenge has been mounted at the Supreme Court by a concerned citizen to the constitutionality of the proposed legislation. In the circumstances, it would be, as well, for all of us to hold our hands, and await the decision of the Court before any action is taken,” the President wrote in a statement posted on Facebook by Director of Communication at the presidency, Eugene Arhin on March 4.

But Justice Srem-Sai in article published on his X platform said “As for the President, he should stop the distin – no law allows him to voluntarily defer his constitutional duty in wait for the outcome of a case which one citizen has filed in court.”

Find the full article here

The prevailing legal authorities tell us that the constitutionality of a bill (which is yet to become a law) may not be challenged. So, in such cases, the Supreme Court has declined jurisdiction, usually, on grounds that the case is not “ripe” for determination.

However, there’s a significant difference between (1) a bill, per se, and (2) a bill-related matter. A bill controversy entails matters on the substance of the bill – that is to say, the things that the principles in the bill intend to allow, command, or prohibit.

A bill-related controversy, on the other hand, includes a controversy which relates to the processes or procedures which a bill passes through before becoming a law. For example, a quorum requirement.

There’s a legal basis for challenging the constitutionality of a bill-related matter, even though the bill itself is yet to become a law. The basis is found in the fact that the Constitution allows conducts and omissions to be challenged as unconstitutional.

So, technically speaking, the Supreme Court may, midway through the legislative process, assume jurisdiction over an allegation that a conduct or an omission in relation to the legislative process is inconsistent with a provision of the Constitution.

And, that such a conduct (or an omission), for many reasons, needs not be allowed to crystallise into law before it is challenged. After all, the Court has, in a couple of cases, held that waiting should be ended when the result of the wait is obviously fruitless.

Therefore, the question facing the Supreme Court, really, is one of policy (not law). It is straightforward – should bill-related controversies be lumped together with bill per se controversies and allowed to wait to be determined only after the bill has become law?

If their Lordships answer the question in the affirmative – that is to say if they say ‘yes’, the two should be lumped together – they would be saying at least 4 things:

(1) That no one – and it is materially true that no one – suffers a harm from a breach of a bill-related process or procedure until the bill becomes law. The harm materialises only when the bill becomes enforceable.

(2) That the Court needs not meddle in the politics of the House of Parliament. That is to say that they respect the essence of the doctrine of separation of powers, and are willing to exercise judicial restraint.

(3) That the floodgate to the myriads of controversies which regularly attend Parliamentary proceedings and politics will not be opened right into the Court’s throat. Here, the Court has, in recent times, had a cause to lament over the weight of their caseload.

(4) That they are a court of law (not of politics). They see law only. They do not see politics. They do not see bills.

If, on the other hand, their Lordships answer the question in the negative – that is to say if they say that they won’t lump the bill-related controversies together with bill controversies – the Justices would be saying that none of the 4 points above matters.

Indeed, it is a policy (rather than legal) decision. The decision will be in the category of those cases which lawyers call “hard cases”.

As for the President, he should stop the distin – no law allows him to voluntarily defer his constitutional duty in wait for the outcome of a case which one citizen has filed in court.