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The constitutionality of private bills seeking to create offenses

Parliament House Parliament of Ghana

Tue, 3 Aug 2021 Source: Dawda Eric

Before I begin to proffer my harmless opinion on the above caption, let me for the purpose of clarity and emphasis state in no uncertain terms that, the object and purpose of this article is to examine the Constitutionality of Private Members Bill seeking to create an offense when passed into law by Parliament.

It must be emphasized that in democratic states, the powers of government are often distributed among the executive, the judiciary, and the legislature. Those powers are subject to checks and balances for the supreme interest of its citizens.

Ghana’s governance architecture reflects this governance model.

Like other parliaments, our Parliament mimics the diverse interests of the population through a number of mechanisms including law-making.

What must be noted is the fact that, until December 2020, the Executive Arm introduced all bills passed by the House. In fact, the first Private Members Bill which was introduced in Parliament was sponsored by the likes of Hon. Alexander Kwamena Afenyo-Markin, Ras Mubaraq, and few others.

The said bill was submitted to Parliament as a form of an amendment to existing legislation. The law amended the Road Traffic Act, 2004 (Act 683) to proscribe punishment for acts that constitute dangerous driving that result in the injury or death to the human foetus.

What must also be noted further is the fact that that bill which has since been passed into law never created a new offenses regime but sought to amend already existing law.

The old law which set up a new offenses regime emanated from an Executive( ie The Executive Arm of Government) was passed in accordance with Article 106(2) (a) of the 1992 Constitution of the Republic of Ghana.

A private Member's Bill is proposed legislation introduced by Private persons, which is clearly distinct from a Public Bill introduced by a Minister of state on behalf of the Executive. The "word persons" could either be a natural person(s)[ Humans created by God] or artificial person(s)[ Humans created by law]

The issue of the distinction between Public Bills and Private Bills cannot be limited only to how they are called. My humble opinion is that the distinct features must cover their definitions for the sake of proper understanding.

In the case of Ghana, It must be argued that any Private Bill that seeks to carry any form of unadulterated semblance of a Public Bill will suffer serious deformity.

Public bills pertain to matters that affect the general public or classes of citizens, while private bills affect just certain individuals and organizations. A private bill provides benefits to specified individuals (including corporate bodies).

It is for this simple definitive distinction that is why as we speak, Bills passed into law by Parliament which has become part of our criminal statutes emanated from the Executive domain.

Those laws are to protect the public interest and safeguard the public good. Ghana as a country inherited most of its laws from common law which originated from England after William the Conqueror codified various customs of the people of England for the purposes of settling community disputes.

In those days, acts of people were classified as offensive merely because they were considered a threat to the King's peace. The King was vested with the power to determine what must be classified as an offense against his peace.

It is instructive to note further that, as a result of vested authority, he was the only person who had the absolute power to grant pardon or remission to convicted individuals through the exercise of His Prerogative of Mercy/Clemency.

The historical development of the above theory underscores the main reason why in most common law jurisdictions, criminal offenses clearly proscribed by the law are prosecuted in the name of the Crown or the Republic/ State. This is because they are deemed to be offenses against the Republic/ State or the Crown.

In Ghana, the President exercises his prerogative of clemency under Article 72 of the Constitution of the Republic of Ghana in consultation with the Council of State.

Again, what must also be noted is that the effect of the decision in Richard Dela Sky & Others v Attorney General[ consolidated Writ] is that, the President enjoys absolute power in the exercise of his prerogative of Mercy because, when he consults the Council of State, he is not bound by their advice.

In fact in Elikplem Agbemava & Others v Attorney General, the court held that, since all criminal offenses are prosecuted in the Republic, the President being the head of state is the only one who has the power to grant a pardon or remit sentences of convicted individuals including matters of criminal contempt committed ex facie.

The Supreme Court in Elikplem Agbemava's case took the parties to the history behind the exercise of the prerogative of Mercy under common law. The chilling effect of that decision is that the very person(The President) whose domain determines what should be classified as a crime is the only one who could grant a pardon or remission.

For this reason, it is my considered opinion that it is only a Public Bill that can set up a new offenses regime prosecutable in the name of the Republic.

Columnist: Dawda Eric
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