University of Ghana School of Law: Administrative Law Lecture 15 - Remedies

Remedies

• Locus standi is concerned with whether a particular claimant is entitled to invoke the jurisdiction of the court.
• Locus standi is distinct from justiciability, which is a question of whether the judicial process is suitable for resolving the type of dispute, regardless of who brings the matter to court.

Judicial Review

• Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
• Judicial review is appropriate when the challenge is based on an allegation that the public body has taken an unlawful decision or action, and there is no adequate alternative remedy.
• Judicial review does not involve deciding whether the public body has made the 'right' or 'correct' decision, but whether the correct legal basis was used in reaching it.

Remedies Available in Judicial Review

• Certiorari (Quashing Orders): the original decision is struck down and the public body has to take the decision again lawfully.
• Prohibiting Orders (Prohibition): the public body is forbidden from doing something unlawful in the future.
• Mandamus (Mandatory Orders): the public body is ordered to do something specific which it has a duty to do.
• A declaration: for example, on the way to interpret the law in future, or a declaration that a legislative provision is incompatible with the Constitution.
• An injunction: a temporary remedy until the full application for judicial review is heard.
• Damages: rare, but may be available in some cases, particularly where there has been a breach of an individual's rights under the Constitution.

Judicial Review in Ghana

• Judicial review existed before independence in Ghana.
• The Privy Council exercised the power of judicial review in relation to the overseas empires.
• The Order-in-Council setting up the legislative bodies provided that they could pass laws only if they were reasonable and not contrary to the sovereign will of the English Parliament expressed in English enactments.
• Colonial laws equated with regulations passed by local government bodies, which could not stand if found inconsistent with the laws of England.

Judicial Review Cases in Ghana

• Numo v. Kofi (2 WACA): a provision in the West African Court of Appeal Ordinance was found inconsistent with a rule of court, which prevailed because the Order-in-Council had provided that the rules of court when made were to be incorporated into the Order-in-Council.

Judicial Review after Independence

• The British parliamentary system was adopted at independence, with legislative power vested in Parliament.
• The Constitution placed limitations on the power of Parliament, including:
  • No law could make persons of any racial community liable to disabilities to which persons of other such communities are not made liable.
  • No law could deprive any person of their freedom of conscience or the right freely to profess, practice, or propagate any religion.
  • The taking of private property was subject to a right of adequate compensation, to be judicially determined.
• Procedural limitations were also placed on the exercise of legislative power, including:
  • Enactments altering regional boundaries and names of regions.
  • Affecting the status and functions of chiefs.
  • Modifying the constitutional provisions of Ghana.

Judicial Review in Ghana's Constitutions

• The 1957 Constitution was silent on the judicial power of the State.
• The 1960 Constitution granted the power of judicial review to the Supreme Court under articles 41(2) and 42(2).
• Article 41(2) vested the judicial power of the State in the judiciary.
• Article 42(2) gave the Supreme Court original jurisdiction to determine questions of constitutionality.
• Article 55(4) extended the power of judicial review to legislative instruments made by the first President under article 55.
• In Re Akoto, the courts narrowed the scope of their power of judicial review, assigning a kind of mechanistic role to their exercise of the power.
• The 1969 Constitution established the supremacy of the Constitution over all other law, with relevant provisions including articles 1(2), 102(1) and (3), 106, and 126(5).