[Opinion] The court’s disappearing original and exclusive jurisdiction

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1. Article 130 is the only path to defend the Constitution as mandated by Article 3.

2. Because the Supreme Court has original and exclusive jurisdiction in interpreting and enforcing the Constitution, the decision to decline jurisdiction MUST not be taken lightly.

3. Given the exclusivity of the Court’s jurisdiction as it pertains to safeguarding the rights, liberties and protections promised by the Constitution, the Court must operate on a presumption that it has jurisdiction to hear cases raising constitutional questions. This, of course, is rebuttable by the opposing parties.

4. Jurisdiction must be determined as a preliminary matter and MUST never come as a surprise to the parties or be the Court’s ultimate decision after hearing all the arguments and promising a decision in 6 weeks.

5. Where a Plaintiff demonstrates that there is a prima facie issue of interpretation, enforcement or an enactment being made ultra vires, the Court has a duty to hear the matter and decide it on its merits.

6. There is an emerging and worrying trend of the Court declining jurisdiction in matters relating to the enforcement of the Constitution. Recent examples include Mayor Agbleza, Bomfeh and now Asare.

7. In both Mayor Agbleza and Bomfeh, the Court conditions its enforcement jurisdiction on its interpretation jurisdiction even though Article 130 is clear that these jurisdictions are independent and even though several of the Court’s own cases have rejected this conjunctive interpretation.

8. A decline of jurisdiction imposes extraordinary burdens on litigants as they have no other forum to seek redress of their substantive claims.

9. Where the Court declines jurisdiction, it may be useful to direct the Plaintiffs to the proper forum.

10. If there is a prima facie claim of a constitutional violation, a decline of jurisdiction is tantamount to endorsing the alleged violation.

11. A pattern of inexplicable decline of jurisdiction can chill Private Attorney-Generals and render nurgatory the innovative standing rule provided in Article 2.

12. As problematic as 11. above is, it will be inexcusable if the Court cannot give a contemporaneous written decision to explain why it has decided so late in the game that it has no jurisdiction.

13. Thus, it is of utmost importance to subject any constitutional forum ousting to rigorous analysis.

14. I remain utterly convinced that the Court has the jurisdiction and a responsibility to say whether it is constitutional for the government to create a monopolist provider of legal education, given what Article 25(2) promises.

15. We must all remain committed to our motto, “Freedom and Justice”.
Da Yie!

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