Chief Justice and Members of the Supreme Court
Government lawyers appeared before the Supreme Court this week to defend the Minister of Finance and Economic Affairs, along with other senior officials, against a lawsuit challenging the delayed tabling of the 2025 national budget.
The case, brought by civil society figures Sait Matty Jaw, Madi Jobarteh, Coach-Pasamba Jow, and Baboucarr Sufism Nyang, accuses the Clerk of the National Assembly, the Minister of Finance, and the Attorney General of violating the Constitution by allowing the 2025 budget estimates to be tabled beyond the timeline stipulated in Section 152.
The plaintiffs are seeking a declaration from the Court that the late submission is unconstitutional and, as such, null and void. They also argue that any subsequent actions taken by the National Assembly concerning the 2025 budget are legally invalid.
In response, State Counsel Oketa, representing the defendants, urged the Court to dismiss the case. Appearing before a five-member panel of justices, Oketa contested the Court’s jurisdiction, citing the independence of the National Assembly in procedural matters.
He further argued that the Speaker of the Assembly acted within the rules when allowing the late submission, relying on Order 8 of the Assembly’s Standing Orders. That provision, he noted, gives the Speaker the authority to address procedural gaps using relevant laws, precedents, customs, and comparative parliamentary practices.
State Counsel Okete highlights Section 108(2) of the Constitution, which asserts that: “Notwithstanding anything to the contrary in this Constitution or any other law, no decision, order, or direction of the National Assembly…or any act done by the National Assembly or the Speaker under any Standing Orders, shall be enquired into by any court.”
He contends that the provision explicitly removes the jurisdiction of any court to scrutinize actions taken by the National Assembly or the Speaker under its Standing Orders, including the decision to permit the late submission of the budget. He further asserts that Section 108(2) takes precedence over any conflicting constitutional provisions, including Section 152.
In support of his argument, Counsel Okete cites international legal precedents from jurisdictions such as the United States Supreme Court and Ghana, asserting that missing a deadline does not automatically nullify the subsequent action unless explicitly stated in the applicable law.
He cites the case of Dolan v. United States, 560 U.S. 605 (2010), where the U.S. Supreme Court held: “The fact that a statute sets a deadline does not, by itself, preclude further action after the deadline passes. The critical question is whether the deadline carries substantive consequences or whether it is merely procedural.”He also cited Brock v. Pierce County, 476 U.S. 253 (1986), where the U.S. Supreme Court ruled that the Secretary of Labor retained the authority to recover misused federal funds, despite missing the statutory deadline for conducting an investigation. He emphasized that the key takeaway from such cases is that unless the law explicitly states that missing a deadline invalidates the authority to act, the power to proceed remains intact.
Counsel Okete further argued that Section 152 (as amended) does not specify that failing to meet the deadline for submitting the budget to the National Assembly invalidates the Assembly’s power to review and approve it.
Furthermore, he cites United States v. Montalvo-Murillo, 495 U.S. 711 (1990), where the U.S. Supreme Court stated:
“A provision that sets a deadline should not be presumed to strip authority absent clear evidence of congressional intent.”
State Counsel Okete argue that the amendment to Section 152 of the Constitution in 2001, which added subsection (1A) stating, “‘The National Assembly shall, within fourteen days of the estimates being laid before it give consideration to and approve the estimate,”‘ does not indicate an intent to strip the Assembly of its power to review the budget if the initial laying is delayed.Counsel Okete emphasizes the importance of public interest and principles of constitutional interpretation, asserting that the Clerk acted in the public interest by allowing the budget process to continue. He argues that rejecting the budget due to a delay would result in a shutdown of government services, which would harm the public.
He advocates for a purposive approach to constitutional interpretation, as outlined by Chief Justice Hassan B. Jallow in Ya Kumba Jaiteh vs. The Clerk of the National Assembly and 3 Others (SC Civil Suit No. 001/2019). The court stated that when interpreting statutes, including the Constitution, the primary task of the court is to ascertain and give effect to the plain and ordinary meaning of the language, unless doing so leads to an absurdity. The court further emphasized that every enactment has a purpose, and the court must seek to promote the object and purpose of the enactment. It noted that words and provisions should not be read in isolation, as there are often linkages between different provisions that need to be considered together and holistically.
Counsel Okete further argues that a purely literal interpretation of the deadline in Section 152, without regard for the broader purpose of ensuring government functionality, would result in an absurd outcome.
He contends that the plaintiffs’ case centers more on a procedural issue within the National Assembly rather than a substantive constitutional matter. Citing the Ghanaian Supreme Court case of Dr. Prince Ohiri Korang v. Attorney General (2024) SC, which held that allegations of unconstitutional enactments must be genuine and not frivolous, he argues that the current case falls into the latter category. He points out that the National Assembly has relied on its Standing Orders, further weakening the plaintiffs’ argument.
Additionally, Counsel Okete refers to Richard Sky v. Parliament of Ghana & AG (2024) SC, highlighting that courts will not issue orders they cannot enforce. He suggests that nullifying a budget already in the process of implementation would be impractical.
In conclusion, Counsel Okete asserts that the National Assembly’s decision to proceed with the budget was in the public interest to avoid a government shutdown. He argues that the budget’s importance outweighs strict adherence to procedural deadlines in this case and that the plaintiffs’ claims lack merit and should be dismissed.