A review panel of the Supreme Court has, in a 5:4 majority decision, affirmed its earlier judgement to declare as unconstitutional a section of the Narcotic Control Commission Act, 2020 (Act 1019), which allows a licence to be granted to an entity to cultivate a small quantity of cannabis, popularly referred to as 'wee' in Ghana for industrial and medicinal purposes.

The enhanced panel of nine chaired by Justice Jones Victor Dotse, in their majority decision, said the Attorney General had not met the threshold that required the apex court to reverse its earlier decisions.

According to EIB Network's Legal Affairs Correspondent, Murtala Inusah, who is at the Supreme Court, Justice Lovelace Avril Johnson, Justice Amadu Omoro Tanko Amadu, Justice Samuel Asiedu and Justice George Kingsley Koomson all dissented.

While the majority judges were Justice Dotse, Justice Mariama Owusu, Justice Prof. Nii Ashie Kotey, Justice Prof. Henrietta Mensa-Bonsu, and Justice Yonny Kulendi affirmed the ordinary panel's decision.

On July 28, last year, the apex court, in a 4-3 majority decision, held that Section 43 of Act 1019 violated Article 106 of the 1992 Constitution, which details the processes a bill must go through before it is passed into law by Parliament and was therefore null and void.

The Supreme Court held that it struck out the law on licences to grow cannabis, popularly known as "wee", because Parliament was not transparent in its passage.

The apex court also held that there was no debate in Parliament on it before its passage into law as stipulated by Articles 106 (5) (6) of the 1992 Constitution. The apex court was of the considered opinion that the explanatory memorandum attached to the bill placed before Parliament did not set out in detail the policy change, the defects in the existing law, and the necessity to introduce a law to licence the cultivation of cannabis.

It said such an omission was a violation of Article 106 (2) of the 1992 Constitution, and in view of the said violations, the Court held that Section 43 of the Narcotic Control Commission Act 2020 (Act 1019) was unconstitutional.

"The mode of introduction of Section 43 of Act 1019 violates the letter and spirit of the Constitution. Accordingly, Section 43 is hereby struck out as unconstitutional.

"The lack of debate on Section 43 of Act 1019 amounts to not only a direct violation of the letter of Article 106 of the Constitution but also a violation of the spirit of the law," the apex court held in July.

Review motion

Dissatisfied with the judgement, the AG filed a review application urging the apex court to reverse their earlier decision which has occasioned a miscarriage of justice.

Moving the application for review on Wednesday, May 24, the Attorney General (AG), Godfred Yeboah Dame, argued that there is no requirement for a memorandum to further accompany any amendment made by Parliament.

According to him, such a reading of the law imposes a further burden on Parliament and curtails its autonomy in passing laws.

While making reference to Article 93(2), the AG argued that the legislative powers of Parliament is only subject to the Constitution, but unless the Constitution has curtailed Parliament's powers specifically to amend laws, the courts cannot interfere with that.

The AG said, clearly, the memorandum anticipated a situation where Parliament could make exceptions to laws allowing such cultivation.

He contended that the apex court should be very concerned about the undue curtailment of Parliament's legislative powers and that, Separation of powers is at the bedrock of the country's Constitution.

The AG argued that on account of these fundamental errors not supporting any specific provision and with the potential of a possible conflict between Parliament and the Judiciary, a miscarriage of justice has been occasioned and urged the Court to review its decision.

Opposition

Counsel for the Respondent (Erzuane Mannan), Lawyer Effibah Amihere, opposed the request and contended that no miscarriage of justice has been occasioned by the decisions of the Court in July last year.

She argued that the said Section 43, as amended was sneaked into the law as of the time it has been completed.

She contended that it was a clear departure from how events of national police's are handled.

She intimated that, at the time the memorandum was being tabled before Parliament, that amendment was not added to the law that the cultivation was going to be allowed.

On the AG's position that, that the Court was interfering with the mandate of the legislature, she said the power granted Parliament to make law is not absolute but is subject to the Constitution and can be corrected when it violates it.

Reliefs

This writ invokes the exclusive original jurisdiction of this Court pursuant to Articles 2(1) and 130(1)(a) of the Constitution. The Plaintiff brings this action seeking the following relieves;

A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, Is null and void on account of having been passed in a manner that is inconsistent with, in excess of, and in contravention of the powers conferred on Parliament under Articles 100(2)(a), (D), 106(5), (6)of the 1992 Constitution.

A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, is null and void on account of being inconsistent with and in contravention of Ghana's obligations under Article 40(c) of the 1992 constitution.

A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, Is null and void on account of being inconsistent with and in contravention of the intent, purpose and directions of the Directive Principles of State Policy as provided for in Article 35(2), Article 36(9) and Article 30(10).

A declaration that Section 43 of the Narcotics Control Commission Act, Act 1019, Is null and void on account of being inconsistent with the letter, intent and purpose of all other provisions of Act 1019 and especially, Sections 2(C), 3, 38, 39, 41, 42, 42(4), 45, 48, 53, 54, 55, 93 and the sixth schedule.

Such further or other orders as the Honorable Supreme Court will deem fit to make.