Constitutional lawyer and governance advocate Professor Stephen Kwaku Asare, popularly known as Kwaku Azar, has questioned whether two fresh suits asking the Supreme Court to interpret Article 66(2) of the 1992 Constitution have properly invoked the court’s original jurisdiction.
In a Facebook post, Prof. Asare argued that while every person has the right to invoke the Supreme Court’s jurisdiction, the Constitution does not allow the court to issue advisory opinions on hypothetical situations.
His comments come after two separate writs were filed at the Supreme Court seeking clarity on whether President John Mahama could lawfully contest for another presidential term.
According to him, the first suit, Alhassan v Attorney-General, seeks “a declaration that a person who has served two separate and distinct, non-consecutive terms as President remains eligible to contest again.”
The second action, filed by Ken Kuranchie, asks the court “to declare that President Mahama is eligible to contest for a third presidential term on the basis that Article 66(2) prohibits only a third consecutive term, not a third term in total.”
Prof. Asare noted that this is “remarkably, the third time Mr. Kuranchie has invited the Supreme Court to answer essentially the same constitutional question.”
He argued that under Articles 2(1) and 130 of the Constitution, the Supreme Court’s original jurisdiction is intended to resolve actual constitutional disputes rather than answer speculative legal questions.
Citing the court’s decision in Ex parte Akosah, he explained that constitutional interpretation is only required where “constitutional language is genuinely ambiguous, where rival interpretations are before the Court, where constitutional provisions conflict, or where the operation of constitutional institutions creates a real interpretive problem.”
“If the constitutional language is clear and no genuine controversy exists, there is no interpretation case,” he wrote.
Prof. Asare maintained that no such controversy currently exists.
He pointed out that the Electoral Commission “has not refused anyone’s nomination”, “no nomination has been accepted and challenged”, “no constitutional office-holder has acted inconsistently with Article 66(2)”, and that “President Mahama has publicly stated that he has no intention of seeking a third term.”
“What we have instead are invitations for the Court to pronounce on what Article 66(2) would mean if certain events were ever to occur,” he said.
“Those are subjects for classroom debates, television panels and social media banter. They are not, without more, constitutional controversies.”
Prof. Asare further relied on the Supreme Court’s decision in Bilson v Attorney-General saying the court has consistently held that its original jurisdiction “is not a constitutional advice bureau.”
“It exists to resolve live constitutional disputes, not to issue advisory opinions or answer speculative questions,” he stressed.
He argued that the central issue is not whether President Mahama is constitutionally eligible to seek another term, but whether the suits present a dispute that the Supreme Court is empowered to determine.
“Whether President Mahama is eligible or ineligible is therefore beside the point,” he wrote. “Before reaching the merits, the Court would first satisfy itself that these writs disclose a justiciable constitutional controversy.”
Prof. Asare also urged lawyers to exercise caution before filing constitutional actions, saying legal practitioners have a duty to advise clients not only on the strength of their arguments but also on whether the court’s jurisdiction has been properly invoked.
He suggested that the Supreme Court should consider awarding costs against litigants who file what are effectively requests for advisory opinions.
“The Supreme Court should not hesitate to award costs in such matters,” he wrote.
According to him, such costs “protect scarce judicial resources, discourage premature constitutional litigation, and remind litigants that the Supreme Court is a court of law, not a walk-in constitutional advice centre.”
Source: metrotvonline.com
