Statutory Interpretation PDF

8.1 INTERPRETATION OF STATUTES The primary function of a judge in interpreting a statute is to ascertain the intention of the lawmaker, that is Parliament. What constitutes the "intention of Parliament" is not easy to define. The phrase is said not to make any sense unless it is recognised that it...

8.1 INTERPRETATION OF STATUTES The primary function of a judge in interpreting a statute is to ascertain the intention of the lawmaker, that is Parliament. What constitutes the "intention of Parliament" is not easy to define. The phrase is said not to make any sense unless it is recognised that it is used by way of an analogy and is in no way synonymous with the intention of an individual concerning the general or particular effects of a document he prepares or signs. In the words of Lord Watson in the English case of Salomon v Salomon & Co Ltd " 'Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." In other words, the intention to be given to Parliament is to be determined from the objective words used rather than from any subjective intention, which were not expressed. As one learned writer put it, the question of legislative intention is not about the historical or hypothetical views of legislators, but rather concerns the meaning of words used in a particular context. The objective is not to reconstruct a psychological model of Parliament or the promoters of a bill, or even the draftsman, and then to use it to determine what was meant by them when they used certain words. or what would have been provided had a particular eventuality been envisaged at the time of the drafting or enactment. Because of the difficulty of ascertaining the intention of Parliament, the courts have evolved, over the years, rules of interpretation to help them to determine it. These rules, which will be discussed below are supplemented by the provisions of the Interpretation Act, 2009 as well as the definition sections of statutes, which define certain words and phrases used in the said statutes. 8.2 MAIN GUIDING RULES OF INTERPRETATION AND CONSTRUCTION OF GENERAL STATUTES There are three main guiding rules which the courts use in interpreting and construing statutes. These are the literal rule, the golden rule and the mischief rule. Before these are discussed, a note of warning must be sounded to the effect that these rules are not binding precedents properly so called, but serve as aids, ground rules, guide posts, or a road map to the art and science of interpretation. As put by Date-Bah JSC in Asare v Attorney-General: '"Rules' of interpretation are not to be understood as binding courts in the same way as the ratio decidendi of a case is binding on subsequent courts. The so-called 'rules' of interpretation are merely guides or aids to judges in deciphering the meaning of words they are required to interpret. As Lord Reid said in Maunsell v Olins 1 All ER16 at 18, HL: 'They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction: presumptions or pointers. Not infrequently, one "rule” points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to be attached to any particular "rule."' Thus, the application of these general rules of interpretation will depend on a variety of factors usually involving the balancing of competing interests, the culminate object being to ascertain the intention of the legislature in using a particular word(s) in the overall context of the statute under scrutiny. 8.2.1 The Literal Rule The court usually starts its interpretation of a statute by applying the literal rule. This rule is to the effect that the intention of Parliament must be found in the plain, ordinary or grammatical meaning of the words used in the statute regardless of whether the result is sensible or not. The meaning of what is meant by giving a word its ordinary meaning was explained by Brobbey JSC in Republic v Fast Track Court, Accra; Ex parte CHRAJ (Anane, Interested Party) as follows: "It is not the meaning that a person will find by a research into technical books or arcane sources. That will be far beyond the comprehension of the ordinary man. The ordinary meaning will be the meaning which any ordinary man on the street will understand by that word or the sense which he/she will attribute to that word which is the sense in which it will be used by that ordinary man. In the normal run of affairs, the ordinary man will approach the dictionary for the meaning if he has any doubt about the meaning of the word." The court is not concerned with the propriety of the legislation; its duty is to administer and interpret and give effect to the statute even if the terms appear unpalatable. In this regard, the maxim judicis est jus dicere sed non dare (it is the function of the judge to apply the law, not to make it) applies. As put by Kludze JSC in Republic v Fast Track High Court, Accra; Ex parte Daniel: "Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the lawgiver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution." Words should be construed in the same literal sense wherever they appear in the statute. The court will rely on standard dictionaries to help it in finding the literal meaning of a word. The literal rule of interpretation is paramount, and all other rules, principles or presumptions are subordinate to it. An example of the use of the literal rule can be seen in Tuff our v Attorney- General. The Supreme Court in that case had to decide the meaning of the phrase "shall be deemed" in article 127(8) of the 1979 Constitution in relation to the appointment of Justice Apaloo as the Chief Justice. In construing the phrase, the court opted for the natural meaning of the words in the phrase and held that it meant a thing that is said to be something else with its attendant consequences when in fact it was not. In order to reach this conclusion, the court referred to the use of the phrase in other contexts of the Constitution. For example, in section 1(1) of the transitional provisions to the 1979 Constitution the word "deemed" had been used to mean that although the first President had not been appointed under the Constitution, he should for all purposes exercise all the functions of the President as if he had been so appointed. Also the same phrase had been used in section 2(1) of the transitional provisions to the 1979 Constitution in relation to the election of members of Parliament. They were considered to have been elected under the Constitution even though they had not been so elected. Consequently, the court held that the phrase "shall be deemed" in article 127(8) of the 1979 Constitution should have the same meaning as those attributed to the phrase in sections 1(1) and 2(1) of the transitional provisions of the 1979 Constitution. That being the case, article 127(8) of the 1979 Constitution should mean that a justice of the superior court of judicature holding office immediately before the coming into force of the Constitution should continue in office as if he had been so appointed. It follows from this that Justice Apaloo, being the head of the superior court of judicature before the coming into effect of the 1979 Constitution became the Chief Justice by virtue of article 127(8) of the 1979 Constitution and there was no need for him to have been vetted by parliament for the purpose of approving him as the Chief Justice. In Kwakye v Attorney-General a majority of the Supreme Court held that the phrase "judicial action taken or purported to have been taken" in section 15(2) of the transitional provision to the 1979 Constitution, must be given its ordinary, literal dictionary meaning. The court construed the phrase to mean an action which was not a judicial action properly so-called but which looked like, was intended to be, or which had the outward appearance of a judicial action. Another example can be seen from the South African case of Ebrahim v Minister of Interior. Section 15 of that country's Citizenship Act, 1949 provided that a South African national would lose his nationality if he acquired a foreign nationality "whilst outside the Union." The appellant, a South African seaman, applied for British citizenship in order to secure better employment. He falsely claimed to be ordinarily resident in the United Kingdom when in fact he was living in Durban. British nationality was formally conferred upon him when he was on his ship, which was within South African territorial waters. The appellate division held that he did not lose his South African citizenship because the foreign nationality was acquired when he was in South Africa (the country's territorial waters being part of the country). The court said that if the words of a statute are clear and unambiguous, then effect should be given to their ordinary, literal and grammatical meaning. In technical statutes, words will be read in their technical and not in their ordinary meaning. An example of the application of this principle is the English case of Fisher v Bell where the expression "offer for sale" in section 1(1) of the Restriction of Offensive Weapons Act 1959 was held to apply to the placing of a flick-knife in a shop window. The court had a choice between the technical meaning of that term as used in the law of contract (invitation to treat) and the popular meaning according to which goods placed in a shop window are offered for sale. The court chose the former meaning of an invitation to treat, that is an invitation to the public to make offers for the goods displayed. Where the statute is not dealing with a particular science or art it will prima facie be presumed to use words in their popular sense as they are understood in common language. As Pollock B pointed out in the English case of Grenfell v Inland Revenue Commissioner if a statute contains language which is capable of being construed in a popular sense, such "...a statute is not to be construed according to the strict or technical meaning of the language contained in it, but that it is to be construed in its popular sense..." The plain meaning approach to interpretation of statutes was criticized in Asare v Attorney-General where Date-Bah JSC said: "What interpretation is to be given the words should depend upon the court's perception of the purpose of the provision and the context of the words, rather than on their dictionary meaning. The 'plain meaning' approach to judicial interpretation is not necessarily the most apposite. In my view, words hardly ever have a meaning in vacuo. Words take on meaning in association with the other words in whose context they are used. Therefore the interpretation of words almost invariably means doing more than finding their mere dictionary (or 'literal' or 'plain') meaning." The plaintiff brought an action seeking (1) a declaration that upon a true and proper interpretation of article 60(11) of the 1992 Constitution, the purported swearing-in of the Speaker as President of Ghana, on or about Monday, 24 February 2002, is inconsistent with, or is in contravention of the said provision of the Constitution and is therefore unconstitutional, void and of no effect; and (2) a perpetual injunction to restrain the Speaker of Parliament and any other person succeeding to the Office of Speaker of Parliament, from performing the functions of President of the Republic of Ghana except in the event of the President and the Vice-President being unable to perform the functions of the President. Article 60(11) of the 1992 Constitution provides that: "(1 l)Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be." In interpreting the phrase "unable to perform the functions of the President" in the above article, the court held that a purposive interpretation was to be given to article 60(11) of the 1992 Constitution and that where both the President and the Vice-President were absent from Ghana, they were to be regarded as "unable to perform the functions of the President" and thus the Speaker was obliged to perform those functions. As the Court put it: "...The purpose of the framers of the Constitution was to ensure that whoever exercises the functions of the President is physically present in Ghana. This has to do with the framers' assessment of the empirical conditions in Ghana and the efficacy with which executive power may be exercised in Ghana from abroad. There are insufficient counterbalancing considerations from the core values and underlying scheme of the Constitution to justify interpreting the words of article 60(11) in a way which overrides this framers' purpose. The framers' assumption that the President or, in his absence the Vice-President, needs to be — present in Ghana in order to perform the functions of the President effectively has not been rebutted." 8.2.2 The Golden Rule As seen from the discussion of the literal rule, that rule deals with cases where the language of a statute is free from equivocation or ambiguity. But language is rarely as free from ambiguity as to be incapable of being used in more than one sense. Consequently, strict adherence to the literal rule of construction would in many cases miss the real meaning of the words in a statute. Where the language of a statute is ambiguous, the golden rule may be used to interpret it in order to ascertain the intention of the legislature. The golden rule allows for a departure from the literal rule when the application of the statutory words in their ordinary sense would be repugnant to or inconsistent with some other provision in the statute, or will lead to an absurdity so glaring that it could never have been contemplated by the legislature, or where it would lead to a result contrary to the intention of the legislature as shown by the context or by some other considerations as the court is justified in taking into account. The usual consequence of applying the golden rule is that words, which are in the statute, are ignored or words, which are not there, are read into it. Thus, in Ababio v The Republic the court was to interpret paragraph 5A of the Chieftaincy (Amendment) (No 3) Decree, 1967 (NLCD 203). The said paragraph provided, inter alia, that: "(1) Any person who contravenes any provision of this Decree shall be guilty of an offence. (2) Without prejudice to the generality of the foregoing...a person shall be deemed to have contravened the provisions of this Decree if (a) he refuses or fails to recognize the relationship referred to in paragraph 2 of this Decree or refuses or fails to pay such allegiance as flows from the existence of such relationship; (b) without reasonable excuse (the proof of which shall be on him) he fails to attend meetings of the Traditional Council..." The court in interpreting "any person" in the above paragraph held that the phrase cannot bear its ordinary literal meaning as person in general because such a meaning would create an absurd situation where any person, not necessarily a chief, could be prosecuted under the Decree if he failed, for example, to honour an invitation to attend a meeting of a traditional council. The court interpreted the phrase to mean persons who had been demoted as paramount chiefs and whose stools had been specified in the schedule to the Decree. This meaning was to aid the cure of the mischief, ie the displacement of customary allegiance to traditional paramount chiefs which earlier legislation had given rise to, which the amendment Decree was enacted to deal with. In CFAO v Zacca the Court of Appeal had to interpret the words "shall be deemed to be an appeal pending before the Supreme Court" as set out in section 13(2) of the transitional provisions to the 1969 Constitution. The ordinary meaning of "pending" in relation to a cause or matter connotes such cause or matter having been physically filed before the court. The majority of the court, however, held that in the context of the section, "review pending" must be benevolently construed to mean all pending applications for review whether filed or not. In the English case of Re Sigsworth the golden rule was used to deny a murderer from inheriting on the intestacy of his victim although he was, as her son, her "sole issue" on the literal interpretation of section 46 of the Administration of Estates Act 1925. There are two possible approaches to the use of the golden rule. The first, a narrow approach, provides that only where the language of the statute is ambiguous can the court construe it so as to avoid an absurd result. The Zimbabwean appellate division reiterated this approach in State v Robinson as follows: "Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient; words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to leave the remedy (if one be resolved upon) to others." In General Cold Industry Ltd v Standard Bank Ghana Ltd, the plaintiff company was registered under the Companies Code, 1963 as "General Cold Industry Ltd." A bank account of a company called "General Cold Co Ltd" was frozen by the State under the schedule to the Assets and Bank Accounts Decree, 1972, as amended by the Assets and Bank Accounts (Schedule) (Amendment) (No 15) Instrument, 1979. In addition to this, shares of the same company "General Cold Co Ltd" were confiscated and transferred to the State under the Transfer of Shares and Other Proprietary Interests Decree, 1979. The court had to decide whether the plaintiff company, "General Cold Industry Ltd" was the same as "General Cold Co Ltd", the subject of the frozen bank account and the confiscation of shares. It was argued that on the proper construction of the enactments, there seemed to have been a mistake on the part of the draftsman who omitted the word "industry" thereby not correctly identifying the plaintiff company as the company the enactments referred to. The court was therefore urged to delete the word "company" and substitute the word "industry" in order to avoid an absurdity of the two enactments freezing and confiscating the assets of a non-existing company. The court rejected this argument holding that the enactments could not be construed to affect the plaintiff company as it was no where mentioned in them. In the court's view, even if there was an omission, this could not be corrected by the court. The remedy lie, not with the court, but with the legislature which was at liberty to amend the enactments to reflect its intention. As matters stood, the court's duty was to ascertain the intention of the legislature from the words of the statute and on that basis the words did apply to the plaintiff company. The second, a wider approach, permits a departure from the clear, unambiguous language of a statute, if to do otherwise would lead to a glaring absurdity obviously never contemplated by the legislature. This approach is represented by the dictum of Denning L J (as he then was) in the English case of Francis Jackson Developments Ltd v Hall. He said: "If the literal interpretation of a statute leads to a result which Parliament can never have intended, the courts must reject that interpretation and seek for some other interpretation, which does give effect to the intention of Parliament." A similar view was expressed in the South African case of New Rietfontein Estate Gold Mines Ltd v Misnum where Innes ACJ said: "The fact, however, that a particular construction of a statute would have the effect of crippling its operation, or would result in inconvenience or absurdity, is not in itself a sufficient reason for refusing to give effect to such construction if it follows inevitably from the language used. But if such language an be fairly and properly read so as to lead to a conclusion which is not inconvenient, inept, or absurd, then that reading is the one which a court should adopt, even though it may not at first sight appear to be the obvious one." In Sasu v Amua-Sekyi the Court of Appeal had to construe section 3(2) of the then Courts Act, 1971, as inserted by the Courts (Amendment) Law, 1987. The section provides as follows: "Where a decision of the Court of Appeal confirms the decision appealed against from a lower court, an appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral application made by the aggrieved party decide whether or not to grant such leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such leave." This provision was examined in the light of other provisions of the amendment Act and the court came to a conclusion that there was an obvious omission of the words "with the leave of the Court of Appeal." In the court's view, without these words the subsection would be rendered unintelligible and as such they should be inserted immediately after the words "an appeal shall lie against such decision of the Court of Appeal." The insertion of those words may not only make the subsection intelligible but would also give effect to the intention of the legislature. The absurdities for which the golden rule can be used to avoid are illustrated by the following cases. In the English case of R v Allen the court was called upon to interpret section 57 of the Offences Against the Person Act 1861. That section provides that "whosoever, being married, shall marry any other person during the life of the former husband or wife, shall be guilty of an offence of bigamy." The word "marry" permits of alternative meanings. It may be construed to mean "contracts a valid marriage" or "goes through a ceremony of marriage." Since the former meaning would produce an absurd result the court adopted the latter meaning. In the Zimbabwean case of R v Takawira, the statute concerned made it an offence to be in possession of subversive material. It made no qualification or exception. If the statute is interpreted literally this would mean that the policeman who took possession of the subversive statement, the public prosecutor who tendered it as evidence, the judicial officer who examined it at the trial would all be guilty of offences. The result of this literal interpretation would be that it would be impossible to secure a conviction under the statute. Consequently, the intention of the legislature would be completely frustrated. The court, therefore, qualified the literal meaning of the clause by reading into it the words "without lawful authority" so that officials who came to be in possession of the material in the course of their work would not infringe the statute. 8.2.3 The Mischief Rule This rule is also known as the rule in Heydon's case or the "purposive rule of interpretation."46 It enables the court to adopt an interpretation which is likely to give effect to the purpose or reform, which the statute is intended to achieve. In Heydon's case, it was said that four things must be considered before the rule is applied. These are: (a) What was the common law before the making of the Act? (b) What was the mischief and defect for which the common law did not provide? (c) What remedy has Parliament prescribed to remedy the defect? (d) The true reason of the remedy. Having considered the above, the court is enjoined to construe the statute so as to suppress the mischief, advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief. These four things were reformulated by Lord Diplock in the English case of Jones v Wrotham Park Settled Estates as follows: a. It must be possible to determine from the consideration of the Act as a whole precisely the mischief that it was the purpose of the Act to remedy. b. It must be apparent that the draftsman and Parliament had inadvertently overlooked, and so omitted to deal with the mischief, an eventuality that required to be dealt with if the purpose of the Act was to be achieved.  c. It must be possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had the omission been drawn to their attention. Bennion has also reformulated the rule as follows: "A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this code called purposive -and- literal construction) or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in this code called a purposive - and -strained construction)." This rule is usually used to resolve ambiguities in cases in which the literal rule cannot be applied. In the Ghanaian context, it has gained prominence in the interpretation of the provisions of the Constitution. Thus, in Republic v Fast Track Court, Accra; Ex parte CHRAJ (Anane, Interested Party) Wood CJ said: "In my respectful view, in any constitutional interpretative dispute, involving the use of ordinary words or expressions, where no technical words or expressions of art have been employed, and where the Constitution is completely silent on the meaning to be assigned to those words or expressions, the first rule that should be invoked is the ordinary or plain meaning rule. Legitimate questions that must necessarily follow its application include the following: does it" the ordinary meaning" advance or defeat the purpose of the legislation or does it lead to a result at variance with the main purpose of the provision, or to some unjust, scandalous, incongruous, absurd, strange or extraordinary results...If the interpretation substantially advances the legislative purpose, the matter ought to end there. Certainly, where the modern purely 'strained' purpose-oriented approach (subjective approach) would rather work injustice or lead to absurd, weird or extraordinary results, the rule must altogether be avoided. The established principle, quite understandably, is that if there are two competing interpretations, one promoting injustice and the other not, we must favour the construction that advances the cause of justice." Kludze JSC in Asare v The Attorney- General expressed the purposive construction rule as follows: "I agree that we' must adopt a purposive construction of the constitutional provisions. That means that we do not construe words in the abstract but within the context in which they are used. Language is a tool for expressing the wishes of the speaker, author or writer. Therefore, regardless of the theoretical classification of the methodology of construction, the fundamental rule is for the court to construe every enactment with the purpose of effectuating the true intent of the law-maker, in this case the intent of the framers of the 1992 Constitution. All other canons of construction have the ultimate purpose of achieving this goal. I do not think the mere recourse to dictionaries of the English language will resolve the issues which confront us or render any easier the task we are called upon to perform." Examples of the use of the mischief rule can be seen from the following cases: In Smith v Hughes section 1 of the English Street Offences Act 1959 provided as follows. "It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution." The appellant solicited men from a balcony by lapping on the balcony railing with some metal object and by hissing to them as they passed in I he street beneath her. She was convicted for contravention of the above section i f the Act. In dismissing her appeal. Lord Parker C J said: "... I approach the matter be considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window...in each case her solicitation is projected to and addressed to somebody. For my part, I am content to base my decision on that ground and that ground alone." The other two judges of the court agreed with the Lord Chief Justice. Similarly, in Gardiner v Sevenoaks RDC the Celluloid and Cinematograph Film Act l922 provided for the safe storage of inflammable cinematograph film wherever it might be stored on "premises." A notice was served on the plaintiff, who stored film in a cave, requiring him to comply with the safety rules. The plaintiff argued that "premises" did not include a cave and so the Act had no application to his case. The court held that the purpose of the Act was to protect the safety of persons working in all places where film was stored. In so far as the film was stored in a cave, the word "premises" included the cave. In the South African case of Harris v Minister of Interior Centlivres CJ quoted the rule in Heydon's case and said: "Prior to the Statute of Westminster the 'mischief', as is clearly shown by the reports of the Imperial Conferences of 1920 and 1930, was that the Dominions were not in the eye of the law 'autonomous communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or external affairs.' In law the Parliament of the United Kingdom was still supreme. The suppression of the 'mischief of the supremacy of that Parliament was the prime object of the Statute of Westminster; another "mischief" was that ii was not considered that a Dominion Parliament had any power to make laws having extra-territorial operation. Both these 'mischiefs' were removed by the Statute of Westminster." The question at issue in the case was whether what were known as the entrenched clauses of the South Africa Act 1909 were, in view of the passing of the Statute of Westminster 1931, still entrenched or whether Parliament sitting as a bicameral legislature was free by a bare majority in each house to amend any section of the Constitution even though such a section may originally have been entrenched. The appellate division was of the view that to answer the question it was legitimate to refer to the legal position before the enactment of the Statute of Westminster. It must be emphasized that the mischief rule is not a cane blanche for rewriting legislation and should never be used as a ruse, a cloak or guise to do so. 8.3 INTERNAL AIDS TO INTERPRETATION OF GENERAL STATUTES There are two types of material aids to the interpretation and construction of statutes, namely internal and external aids. The internal aids relate largely to the use of parts of a statute as aids, as well as the rules of language or the linguistic canons of construction. 8.3.1 Parts of a statute A statute may be divided into various pans some of which may or may not be useful in interpreting the statute. The following parts may be identified: 8.3.1.1 The title All statutes have a long title and a short title. The long title is set out at the head of the statute and gives a fairly full description of the general purpose of the Act. For example, the long title of the Courts Act, 1993 is: "An Act to incorporate into the law relating to the courts, the provisions of chapter eleven of the Constitution; to provide for the jurisdiction of Regional Tribunals; to establish lower courts and tribunals, provide for their composition and jurisdiction to consolidate and re-enact the Courts Act, 1971 and to provide for connected purposes." The long title is an important part of the statute and may be referred to for the purposes of ascertaining its general scope and to throw light upon its construction. An illustration of how a long title of an Act may be used for interpretational purpose can be seen from the English case of Brown v Brown. The point at issue in that case was the meaning of section 2(1) of the Matrimonial Causes Act, 1963. That subsection provides as follows: "Adultery...shall not be deemed to have been condoned by reason only of a continuation or resumption of cohabitation between the parties for one period not exceeding three months...if it is proved that cohabitation was continued or resumed, as the case may be, with a view to effecting a reconciliation." The issue the court had to resolve was whether this provision covered cases where the continuation or resumption of cohabitation was in consequence of reconciliation or whether it only covered cases where the continuation or resumption of cohabitation was with a view to reconciliation? The court referred to the long title of the statute, which showed that the purpose of the statute was to facilitate reconciliation of married couples and held that to adopt the first view "would be withdrawing the sanction and support of the law from reconciliation."60 Consequently, the court adopted the second meaning as this was in accord with the intendment of the long title. The court expressed the view that the statute did not create a three months' period during which a spouse who has been reconciled with his partner could renege on his decision. The short title is usually given for easy reference. For example the Courts Act, 1993 is the short title of that Act. It is, so to speak, the nickname of the statute. It is not to be considered when a statute is being interpreted. 8.3.1.2 Marginal Notes These are notes often found printed at the side of sections in a statute. They purport to indicate the effect of the particular section. They were not considered to be part of the statute under section 4 of the Interpretation Act, 1960 and therefore they were of no use as an aid to the interpretation of the statute. However, in light of section 15 of the Interpretation Act, 2009, which is said to be the comparative section to section 4 of the 1960 Act, these may be used as an interpretation aid. Thus, decisions such as Smith v Smith, where the High Court held that the marginal note attached to section 2 of the Married Women's Property Ordinance should be disregarded in interpreting the section in line with the provisions of section 4 of the Interpretation Act, 1960, which provides that such notes are intended for ease of reference and do not form part of an enactment, will not now be followed. However, decisions such as Osei v Siribuor II where the Supreme Court relied on the marginal notes to section 15(1) of the Chieftaincy Act, 1970 in holding that the National House of Chiefs erred in coming to a conclusion that a suit for a declaration that the plaintiff was a royal of the Juaben stool of Ashanti was "a cause or matter affecting chieftaincy" and could be maintained at any time irrespective of whether the stool is vacant or not and Republic v High Court, Accra; Ex parte Adjei where Taylor JSC in his dissenting opinion relied on the marginal note to section 19 of the PNDC (Establishment) Proclamation Law, 1982 which dealt with the composition and exercise of jurisdiction by the Supreme Court will be consistent with the spirit of section 15 of Act 792." 8.3.1.3 Headings Headings are usually prefixed to group of sections in a statute. For example, sections 1-38 of Act, 459 are grouped under the heading "PART 1 SUPERIOR COURTS OF JUDICATURE." Headings do not form part of the statute and so cannot control the plain words of the statute. They are intended for convenience of reference only. 8.3.1.4 Schedule This is a statement detailing certain aspects of a statute and is found at the end of the statute. It is considered as part of the statute and may be referred to in the interpretation of the provisions contained in the body of the statute. Similarly, provisions contained in the schedule will be interpreted and construed in the light of what is provided in the sections of the Act in the Botswana case of State v Mosala, Gyeke-Dako J. adopted the following dictum of Lord Stendale MR in the English case of Inland Revenue Commissioners v Gittus vis an appropriate guide to the use of schedules as an interpretation tool: "It seems to me that there are two principles or rules of interpretation which ought to be applied to the combination of Act and schedule. If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act." Applying these principles to the facts of that case, Gyeke-Dako J held that although the specimen charge for burglary as framed in Form 9 of the third schedule to the Criminal Procedure and Evidence Act 1938 is inconsistent with section 129(2) of the Act, until the legislature amends the specimen charge, it shall, by virtue of section 131(iv) of the Act, not be open to objection on the grounds of duplicity. In Ababio v The Republic, in construing the word "person" in paragraph 5A of the Chieftaincy (Amendment) Decree, 1966, the court took into account the first schedule to the Decree and held that the word did not apply to all and sundry but was confined to a chief who had been reduced from his previous status as a paramount chief. Again in Kuenyehia v Archer the Supreme Court, relying on the wording in the forms of oaths dealing with oath of allegiance and the judicial oath as set out in the second schedule to the 1992 Constitution, held that the Chief Justice had validly sworn in the judges of the Supreme Court and the Court of Appeal as required by section 4(2) of the transitional provisions to the 1992 Constitution. 8.3.1.5 Punctuation Punctuation forms part of the statute and may be used as an aid to the construction of the statute. In the English case of Hanlon v Law Society the importance of punctuation in the interpretational process was put as follows: "I consider that not to take account of punctuation disregards the reality that literate people, such as Parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament?" 8.3.1.6 Interpretation section of statutes Statutes invariably contain an "interpretation section" which seeks to give meaning to certain words used in the statute. It is usually framed as follows: "In this Act, unless the context otherwise requires..." In such a section, certain words when found in the statute are to be understood in a certain sense, or are to include certain things which, but for the interpretation section, they would not include. When the word is said to "mean" so and so, the definition is explanatory and usually restricted to that meaning. For example, under section 117(1) of Act 459, "cause or matter affecting chieftaincy" is said to mean "any cause, matter, question or dispute relating to any of the following..." and it goes on to list a number of matters which the section restricts the meaning to. Where the word is said to "include" so and so, the definition is considered extensive but it does not exclude the ordinary meaning of the word. It merely permits it to be applied to some things to which it would not ordinarily be applicable, provided the context or subject matter does not provide anything to the contrary. Thus, in the English case of Dilworth v Stamps Commissioner it was said that: 'The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute;, and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include." Again, an example of this can be found in section 117(2) of Act 459 which provides that: "In this Act and in any other enactment a reference to an officer of a court shall, unless the contrary intention appears, include counsel in any proceedings and also any person required to assist in the initiation or conduct of any court proceedings or in the enforcement of any judgment or decree or order of a court but does not include the parties in the case." Whilst interpretation sections have become standard in legislative drafting, their utility have been criticized on the basis that they give a-non-natural sense to words which are afterwards used in a natural sense. Despite this criticism, interpretation sections have contributed a great deal to the economy of drafting. 8.3.1.7 Provisos Provisos are inserted in sections of a statute to create an exception or a qualification of something in the preceding portion of the section which but for the proviso would be within it. They are usually preceded by the words "Provided that." For example, section 51 of the Criminal Code provides as follows: "Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter. Provided that if the harm causing the death is caused by negligence he shall not be guilty of manslaughter unless the negligence amounts to a reckless disregard for human life." The proviso in this section is limiting the manner in which the offence of manslaughter may be committed by excluding the commission of the offence by negligence unless such negligence amounts to a reckless disregard for human life. The purpose of a proviso is to limit or qualify the enactment in which it appears. It cannot be construed to widen the scope of the enactment when it can be fairly and properly construed without giving to it that effect. Provisos may, however, contain matter which is in substance a new enactment, adding to and not merely qualifying what goes before it. 8.4 Rules of Language (Linguistic Canons of Construction) 8.4.1 Expressio unius exclusio alterius This maxim means to express one thing is by implication to exclude anything else. Thus, if one or more things in a particular class are mentioned in a statute, it may be regarded as impliedly excluding all other members of the same class. The rule is applied where a statutory preposition might have covered a number of matters but in fact mentions only some of them. Unless these are mentioned merely as examples or for some other sufficient reason the rest are taken to be excluded from the proposition. For example, if there is a bequest in a will to "the children of Asare", this will certainly include Asare's legitimate children and possibly illegitimate children as well. However, if the bequest was to "Kofi, Ama and Abena children of Asare" then all other children of Asare, whether legitimate or not, will be excluded from it. This maxim was discussed in the Botswana case of Attorney General v Unity Dow where section 15(3) of that country's Constitution was being interpreted. That subsection defines the word "discriminatory" to mean: "Affording different treatment to different persons, attributable wholly or mainly to their respective description by race, tribe, place of origin, political opinions, colour, or creed whereby persons of one such description are subject to disabilities or restrictions to which persons of another such description are not..." The State contended that the express mention of certain categories of factors in the definition, about which it is forbidden to make discriminatory laws, does exclude others like "sex", the factor against which, the respondent claims she was being discriminated. Amissah JP expressed the view that the categories stated in the subsection were by way of examples of what the framers of the Constitution thought worth mentioning as potential groups which may be discriminated against. Consequently, "sex" could not be said to have been excluded by the mere failure to mention it in the definition. The rule, however, is not omnipotent. It may not always solve problems of construction of statutes. As stated by Lopes LJ in the English case of Colquhoun v Brooks: "It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject- matter to which it is to be applied, leads to inconsistency or injustice." Thus, in Republic v Military Tribunal; Ex parte Ofosu-Amaah the applicant had been convicted, inter alia, of (a) conspiracy to commit subversion contrary to section 23(1) of the Criminal Offences Act, 1960 (formerly Criminal Code); and (b) of subversion contrary to section (a) of the Subversion Decree, 1972 which provided that a person shall be guilty of the offence if he "prepares or endeavours to overthrow the Government by unlawful means." The court had to decide whether the applicant could be charged with the offence of conspiracy to commit subversion when section 1(a) of NRCD 90 did not create such an offence. It was held that having regard to section 5 of the Criminal Offences Act which made the provisions of the Act applicable to any offence created by law, it was unnecessary for the legislature to incorporate the offence of conspiracy into section 1(a) of the NRCD 90. The court added that the fact that the legislature expressly mentioned the offence of conspiracy in section 1(f) of NRCD 90 did not evince an intention to exclude it from the offences created under other subsections of section 1 of the decree. The express reference to conspiracy in section 1(f) NRCD 90 must have been made ex abundanti cautela (from abundant caution) so as to emphasize the punishment for conspiracy under the subsection was death. The trial judge, Abban J (as he then was) said: "On the whole, it appears NRCD 90 was loosely and hurriedly drawn up with the result that some of its provisions seem to give room for all sorts of interpretations and the maxim that 'the expression of one thing is the exclusion of another' can hardly apply to such a loosely drawn up statute. 8.4.2 Ejusdem generis rule Where a statute lists a number of specific things and ends the list with more general words, the general words are to be limited in their meaning to other things of the same kind (ejusdem generis) as the specific items, which precede them. In the English case of Powell v Kempton Park Racecourse Co, section 1 of the Betting Act 1853 prohibited the keeping of a "house, office, room, or other place" for betting. The point at issue was whether a tattersal's ring (the area of a racecourse where betting takes place) was an "other place" within the meaning of the section. The House of Lords held that it was not since the words "house, office, room" created a genus of indoor places within which a racecourse, being outdoors, did not fall. Similarly, in Evans v Crossthe appellant was charged with driving his car in such a way as to "ignore a traffic sign" contrary to section 49 of the Road Traffic Act 1930. He had undoubtedly crossed to the wrong side of a white line painted down the middle of the road. "Traffic sign" was defined by section 48(9) of the Act as "all signals, warning signposts, direction posts, signs or other devices." The question at issue was whether a white line in the middle of a road was "other device" within the meaning of the subsection. The English divisional court held that "other devices" must be limited in their meaning to a category of signs in the list, which preceded them. Thus restricted, they did not include a painted line, which was quite different from that category. In Jebelle v Norwich Union Fire Insurance Society Ltd an ice cream manufacturing company took out two different insurance policies against business losses. Under the second policy, described as the "Miscellaneous Expenses" policy, the company insured property valued at £800. The property was described as "contents, consisting of stocks of sugar, milk powder, syrup, essence and the like." The factory was destroyed by fire and the company claimed under the second policy property such as bicycles and stock of ice cream. The trial court allowed the claim but on appeal, it was held that the claim for the value of the bicycles should be disallowed as bicycles were not of the same genus as the property described in the second policy. Apaloo JSC (as he then was) said: "The property insured under this item was described as 'contents consisting of stocks of sugar, milk powder, syrup, essence and the like.' Bicycles cannot be the like of sugar, milk powder, etc. True, bicycles may be used with advantage in the ice cream trade but to say that it is of the same genus as sugar, milk powder and essence, would be doing too much violence to language. I think the two bicycles were not insured and ought to be held excluded from the property insured... by the rule of construction known as the ejusdem generis rule." As seen from the case of Jebeile (supra), for the rule to apply, it must be possible to create a genus out of the specific words to delimit what is to be considered as "of the same kind." Where this is not possible, the rule is inapplicable. Thus, in the English case of Quazi v Quazi section 2 of the Recognition of Divorces and Legal Separation Act 1971 requires recognition to be given to foreign divorces and legal separations obtained by means of "judicial or other proceedings." The House of Lords held that "other proceedings" was not limited to procedure resembling a judicial proceeding but could apply to "talag" divorces, which are essentially religious ceremonies. This was because the purpose of the statute is to recognise in Britain divorces validly obtained abroad and the English court is not concerned with the method adopted by the foreign court to grant the divorce. In Republic v Ghana Cargo Handling Co Ltd; Ex parte Moses an employee has been dismissed from the company for alleged insulting conduct. The court had to interpret the terms and conditions of service of the company which provided as follows: "An officer who commits an offence necessitating his dismissal such as stealing, embezzlement of funds or other serious offences shall be made to appear before a...committee of enquiry." In challenging the validity of a report of a disciplinary inquiry, it was submitted on behalf of the employee that the specific words "stealing, embezzlement of funds" involve acts causing financial loss to the employer and therefore the meaning of the general words "other serious offences" must be restricted to offences causing financial loss. When so construed, the alleged insulting conduct of the employee, not being an act likely to cause financial loss, could not fall within the ambit of the general words "other serious offences" and hence not a proper subject matter for inquiry under the stated terms and conditions of the company Mensa-Boison J (as he then was) held that: "What this submission comes to is that the words 'other serious offences' are to mean offences of the same kind as stealing and embezzlement. I think the class or category of offences mentioned do not sufficiently form a genus to admit of 'and other serious offences' being read ejusdem generis" It must also be noted that generally, a genus is created when more than a single specie is followed by general words.104 However, the decision in Quazi v Quazi (supra) and other authorities do not support this assertion.105 8.4.3 Noscitur a sociis rule This Latin term literally means, "a thing is known from its associates." Where words or phrases capable of different meanings are associated together they take their meaning from each other and this may exclude meanings which would be possible, if the words or phrases stood alone. In the English case of Attorney- General v Prince Ernest Augustus of Hanover, Viscount Simonds put the rule thus: "...words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context." Similarly, Stamp J said in Bourne v Norwich Crematorium Ltd that: "English words derive colour from those which surround them. Sentences are not mere collection of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words..." An example of the application of this rule can be found in Republic v Minister for the Interior; Ex parte Bombelli The applicant was an Italian citizen who was ordered to be deported under an executive instrument issued under section 12(1) (f) of the Aliens Act, 1963. In his challenge of the deportation order, he argued that it contravened article 4(7) of the 1979 Constitution because it was not laid before Parliament for the required 21 days. The court applied the noscitur a sociis rule and held that the word "orders" in article 4(7) meant orders in the nature of rules and regulations and not a command such as the order issued by the Minister of the Interior. Furthermore, it was held that the rule or regulation in the said article connoted legislative order, not an executive order as the one issued by the Minister. Another example of the use of this rule can be seen from the English case of R v Harris.112 In that case, the Offences Against the Person Act 1861 made it an offence to shoot at or "stab, cut, or wound" any person. The word "wound" was held to be restricted in meaning by the words which preceded it to injuries inflicted by an instrument. Therefore, a bite of a finger or a nose or to burn the face with vitriol was not wound within the meaning of the Act. It must be noted that this rule may be displaced by other considerations. For example, the draftsman may have specified certain terms not so as to give colour to a general phrase but to prevent any doubt as to whether they are included. Consequently, when a statute defines a thing as including specified matters, it is not always appropriate to interpret the general words in the light of the particular instances given. 8.5.1 EXTERNAL AIDS TO INTERPRETATION OF GENERAL STATUTES An external aid is one which is not found in the Government Printer's copy of the statute. Section 10 of Act 792 permits the use of external aids such as a report of a commission, committee or any other body appointed by government or authorized by Parliament; treaties, agreements, conventions or other international instruments which have been ratified by Parliament or is referred to in the enactment of which copies have been presented to Parliament or where government is a signatory to a treaty or international agreement. The court may also take cognizance of legislative antecedents of enactments; explanatory memorandum; textbooks and any other work of reference; and the parliamentary debates prior to the passing of the bill in Parliament in resolving ambiguity in the language of the enactment. Any item outside these external aids is not permissible to be used. Thus, under section 19 of CA 4, the court in In re West Coast Dyeing Industry Ltd; Adams v Tandoh rejected a suggestion that it should consider the view of Professor Gower on section 186(1) (c) of the Companies Code, 1963 as expressed in his Final Report on the Commission of Enquiry into the Working and Administration of the Present Company Law of Ghana. The court held that the views of Professor Gower, the draftsman of the Code, could not be taken as the expression of the legislature's intention. In terms of section 10(1) (b) of Act 792, this holding may now be incorrect. The Report was commissioned by the government and hence the court may now refer to it. In New Patriotic Party v Attorney-General (31st December case) Adade JSC, while conceding that debates in the Consultative Assembly were not permissible to be used as an interpretation tool for deciding whether the directive principles of state policy was justiciable, however relied on the parliamentary history of chapter 6 of the 1992 Constitution as traced to chapter 4 of the 1979 Constitution. His lordship came to the conclusion that given its history, chapter 6 of the 1992 Constitution, particularly articles 35(l) and 41 which were relied upon by the plaintiffs were justiciable. Again, in the light of section 10 of Act 792, the matters rejected in this case may now be accepted as legitimate aids to the construction of a statute. 8.5.1:1 Judicial precedent The application of judicial precedent as an aid to the interpretation of a statute was explained by the Privy Council in Ogden Industries Ltd v Lucas as follows: "It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself. No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts, but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty in exercising an independent judgment." Thus, judicial precedent is of limited help in interpreting or construing a statute. However, as stated in the above dictum, it may be that when a higher court has interpreted particular words, phrases or expressions, etc subordinate courts will have no option but to adopt the meaning given to them by the higher court. In Republic v Yebbi & Avalifo for example, the Supreme Court interpreted the phrase "offences against State and public interest" as provided for under article 295(1) of the 1992 Constitution to include theft of property belonging to a political party even though political parties are not state institutions. This interpretation will have to be followed by lower courts. 8.6 PRESUMPTIONS IN THE INTERPRETATION OF STATUTES In the interpretation of statutes the courts assume, in the absence of anything in the statute to the contrary, the existence of certain rebuttable presumptions which relate to the intention of the legislature and apply them in interpreting the statute in question. Some of such presumptions are as follows: 8.6.1 Presumption against alteration of existing law Parliament is presumed to know the law; therefore if a statute does not expressly alter the existing law it will be presumed that Parliament did not intend to alter the law beyond that which was expressly stated in, or follows by necessary implication from, the language of the statute in question. This presumption was stated in the English case of National Assistance Board v Wilkinson as follows: "...a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses that which point unmistakably to that conclusion." In Ohene-Mensah v Subin Timbers Ltd the plaintiff brought an action for damages against the defendants for negligence arising out of a road accident caused by the defendants' servant. Subsequent to the action, the defendants' assets and bank accounts were vested in the State by virtue of the Forfeiture of Assets and Transfer of Shares and Other Proprietary Interests (Subin Timbers Co Ltd and Central Logging and Sawmills Ltd) Law, 1982 "free of all encumbrances whatsoever". The defendants raised a preliminary objection to the effect that the law must be construed as repudiating their common law liability in tort and thus they could not be sued in negligence. The court overruled this objection holding that the effect of the law was that the State became the sole owner of the defendants' assets free from encumbrances, that is free from all liabilities with regard to property but not to the person owning the property. The court concluded that there was nothing in the law that pointed to the legislature intending to change existing common law that the defendants, as a limited liability company, cannot be liable for the tortuous actions of its servants. Relying on the English case of National Assistance Board v Wilkinson, the court upheld the presumption against a change in the law in the absence of a clear and unambiguous expression to that effect. In Leach v R The provision in section 4(1) of the English Criminal Evidence Act 1898 was in issue. The subsection provided that a spouse of a person charged with an offence under any enactment mentioned in the schedule to the Act may be called as a witness either for the prosecution or for the defence. This provision was held by the House of Lords to make a wife a competent but not a compellable witness against her husband. Lord Atkinson said: 'The principle that a wife is not to be compelled to give evidence against her husband is deep seated in the common law of this country, and I think if it is to be overturned it must be overturned by a clear, definite, and positive enactment, not by an ambiguous one such as the section relied upon in this case." 8.6.2 Presumption in favour of mens rea In interpreting penal statutes there is a presumption that there must exist on the part of the accused some blameworthy mental condition (mens rea) whether constituted by knowledge or intention or otherwise, before he can be found guilty. In the English case of Brend v Woods Lord Goddard CJ said: "It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind." Aguda CJ (as he then was) approved this dictum in the Botswana case of State v Mosinyi in construing section 7(1) of the Fauna Conservation Proclamation 1961. The accused persons were charged with hunting in a game reserve contrary to the said section. The question was raised whether if they did not know that they were in a game reserve that will be a good defence to.the charge. The learned Chief Justice referred to the long title of the Act and; adopted the dictum of Bresler J A in the South African case of R v Van der Lin to the effect that: "If one takes this fact in conjunction with the ease with which the beneficial provisions could he evaded, it does not seem that the legislature intended mens rea as this might easily lead to large scale frustration of the object of the ordinance." He further referred to the Privy Council decision in Lim Chin Aik v R to the effect that where an Act deals with regulatory activity for the public welfare, it can be and frequently had been inferred that the legislature intended such activity should be carried out under conditions of strict liability. Consequently, he held that the offence created by section 7(1) of the Fauna Conservation Proclamation 1961 is one of strict liability not requiring mens rea on the part of the offender. 8.6.3 Presumption against violation of International Law Every statute is interpreted, so far as its language will permit, so that it will not be inconsistent with recognised international law and obligations. In the Botswana case of Attorney-General v Unity Dowx33 Amissah JP stated the presumption as follows: "I am in agreement that Botswana is a member of the community of civilised states which have undertaken to abide by certain standards of conduct and unless it is impossible to do otherwise, it would be wrong for its courts to interpret its legislation in a manner which conflicts with the international obligations Botswana has undertaken." This dictum was made in a case in which the provisions of section 15, in particular subsection (3), of the Botswana Constitution was in issue. Section 15 of the Constitution provides that: Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect. Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. In this section, the expression "discriminatory" means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description." The respondent applied for an order declaring sections 4 and 5 of the Citizenship Act 1982 as amended by the Citizenship (Amendment) Act 1984 ultra vires the Botswana Constitution. The said sections provided that: "(4) (1) A person born in Botswana shall be a citizen of Botswana by birth and descent if, at the time of his birth" a. his father was a citizen of Botswana; or b. in the case of a person born out of wedlock, his mother was a citizen of Botswana. (2) A person born before the commencement of this Act shall not be a citizen by virtue of this section unless he was a citizen at the time of such commencement. (5) (1) A person born outside Botswana shall be a citizen of Botswana by descent if, at the time of his birth" (a) his father was a citizen of Botswana; or (b) in the case of a person born out of wedlock, his mother was a citizen of Botswana. (2) A person born before the commencement of this Act shall not be a citizen by virtue of this section unless he was a citizen at the time of such commencement." The respondent, a citizen of Botswana, was married to a citizen of the United States of America. Prior to their marriage in 1984, a child was born to them in 1979, and during the marriage two more children were born in 1985 and 1987, respectively. In terms of the law in force prior to the Citizenship Act, the child born before the marriage was a Botswana citizen, whereas in terms of the Act the children born during the marriage were not citizens of Botswana and therefore aliens in the land of their birth. The respondent contended that she was prejudiced by section 4 (1) of the Citizenship Act by reason of her being female from passing citizenship to two of her children; that the law in question had discriminatory effect in that her two children were aliens in her own land and the land of their birth, and they thus enjoyed limited rights and legal protections therein, that she believed that the discriminatory effect of specified sections of the Citizenship Act offended against section 3(a) of the Constitution, and that she believed that the provisions of section 3 of the Constitution had been contravened in relation to herself.135 The High Court granted the application and declared the said sections of the Citizenship Act ultra vires the Constitution.,36 In the course of his judgment, Horwitz Ag J said: "I am strengthened in my view by the fact that Botswana is a signatory to the O.A.U. Convention on Non-Discrimination. I bear in mind that signing the Convention does not give it the power of law in Botswana but the effect of the adherence by Botswana to the Convention must show that a construction of the section which does not do violence to the language but is consistent with and in harmony with the Convention must be preferable to a 'narrow construction' which results in a finding that section 15 of the Constitution permits unrestricted discrimination on the basis of sex." One of the main issues for determination of the appeal was whether section 15 of the Constitution allowed discrimination on the ground of sex. The State argued that section 15 of the Constitution permitted the enactment of legislation which was discriminatory on grounds of sex and that the trial court erred in holding that the omission of the word "sex" from the definition of the word "discriminatory" in section 15(3) of the Constitution was neither intentional nor made with the object of excluding sex-based discrimination. It was also contended that the omission of sex was intentional and was made in order to permit legislation in Botswana which was discriminatory on grounds of sex and that discrimination on grounds of sex was permissible in Botswana society as the society was patrilineal, and therefore, male oriented. Consequently, it was argued that the trial court erred in holding that sections 4 and 5 of the Citizenship Act were discriminatory in their effect or contravened section 15 of the Constitution. The State objected to the reliance by the trial court on international treaties and conventions as an aid to the interpretation of section 15, especially where these treaties and conventions have not been incorporated into domestic legislation. The majority of the court upheld the High Court decision.138 Amissah JP approved Horwitz J's reliance on international treaties and conventions as seen from the above-quoted dictum by saying: "The learned judge said that we should so far as is possible so interpret domestic legislation so as not to conflict with Botswana's obligations under the Charter or other international obligations." 8.6.4 Presumption against retrospectivity of a statute No statute shall be construed to have a retrospective effect unless such a construction appears very clearly in terms of the statute or arises by necessary implication.140 In the English case of Re Athlumney Wright J stated the presumption in the following words: "Perhaps no rule of construction is more firmly established than this " that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." There are exceptions to this presumption. Thus, where there is an express provision in the Act that it should apply retrospectively, the presumption will not apply. In Togbe Konda v Togbe Dompre V the provisions in sections 4(1) and (2) of the Stool Lands Boundaries Settlement Decree, 1973 was in issue. The former section vested exclusive jurisdiction in matters pertaining to boundaries of stool lands in the Stool Lands Boundaries Settlement Commission and the latter section provided that all pending actions relating to stool lands boundaries before any court were to abate and the court was to decline jurisdiction in the matter. The matter before the court was adjourned for the court to render its judgment. The 1973 Decree was enacted before judgment could be delivered but the court nevertheless rendered its judgment in the case. On appeal, the Court of Appeal held that the trial judge had no jurisdiction to proceed with the case as the effect of the 1973 Decree was to retrospectively terminate the proceedings pending before the trial court on the Decree coming into effect. The language of section 4(2) of NRCD 172 was explicit. Again where the statute deals with procedural matters no presumption against retrospectivity apply. Thus, in Abdulai III v The Republic the appellants were tried and convicted in a circuit court. They appealed to the High Court where their appeal was dismissed. Under section 10(3) of Act 372 they could appeal as of right to the court of Appeal within 30 days of the High Court decision. The Courts (Amendment) Law, 1987 came into force on 26 October 1987 and the appellants filed their appeal in the Court of Appeal on 10 November 1987. Section 2 of the 1987 amendment Law inserted a new section 10(3) (b) into Act 372. The new section provided that: "where a decision of the High Court confirms the decision appealed against from a lower court, an appeal from the High Court may lie to the Court of Appeal with the leave of the High Court... and where the High Court refuses to grant the leave to appeal the aggrieved party may apply to the Court of Appeal for such leave." At the hearing of the appeal, the State raised a preliminary objection on the ground that the appellants had not complied with the provisions of the new section 10(3) (b) of Act 372 and hence the appeal had not been properly filed. The appellants contended that their right to appeal without leave had accrued by virtue of section 8(1) (c) of CA 4 and was not affected by the new procedure. The preliminary objection was upheld and the appeal dismissed on the ground of non-compliance with the new procedure. The court held that the 1987 amendment Act, being a procedural Act, must be given a retrospective effect to affect all pending actions unless there is an express provision to the contrary or by necessary implication it could be said that it did not have that effect. The court added that although the appellants' right to appeal to the Court of Appeal without leave had accrued, it had not been exercised before the amendment Act came into effect; consequently, the right could only be exercised in terms of the new enactment.