11 Sep Food Sovereignty Ghana Vrs The Attorney General Writ No. J1/02/2022 Judgment Delivered On 31st May, 2023
‘’Article 2 (1) of the Constitution empowers this Court to monitor and ensure compliance with the Constitution and for that matter, a person who alleges non-compliance and invokes the said Article 2 (1) must demonstrate clearly that the acts or omission complained of are inconsistent with particular provisions of the Constitution. In other words, the inconsistency of the act or omission must be plain and clear from the constitutional provisions.”
Food Sovereignty Ghana (Plaintiff) argued that the Plant Variety Protection Act, 2020 (Act 1050) was unconstitutional and should be declared null and void. The legal basis for this claim was Section 61 of Act 1050, which the plaintiff argued, subjected the Act to conformity with the International Convention for the Protection of New Varieties of Plants of 1961 (UPOV Convention). The plaintiff asserted that, as Ghana was not a state party to the UPOV Convention at the time of Act 1050’s enactment, Section 61 effectively amounted to the ratification and domestication of the Convention, violating Article 75 of the 1992 Constitution.
The plaintiff alleged procedural irregularities in the enactment of Act 1050, citing violations of specific articles; namely, 1(2), 11, and 75 of the 1992 Constitution. The plaintiff argued that the case invoked the Supreme Court’s original jurisdiction as it raised a genuine issue requiring the interpretation of Article 75 in light of Section 61 of Act 1050 and sought enforcement of the Constitution.
On the contrary, the Attorney General (Defendant) defended the enactment of Act 1050, arguing that Section 61, was not in violation of Article 75 of the 1992 Constitution. The defendant’s position was based on the obligations of UPOV and the TRIPS Agreement. In particular, under the UPOV arrangement, a nation seeking to join must first demonstrate the existence of a domestic law addressing the tenets and obligations of the UPOV regime. Additionally, under the TRIPS Agreement, Ghana was bound to provide national regimes for the protection of intellectual property rights, including plant breeder rights. Despite existing legislations for various intellectual property rights, Ghana lacked a regime for the protection of plant breeder rights, a requirement under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.
To meet its obligations under the TRIPS Agreement, Ghana enacted the Plant Variety Protection Act, 2020 (Act 1050), establishing a system for safeguarding plant varieties. The defendant contended that Section 61 of Act 1050 demonstrated Ghana’s commitment to taking the necessary steps to join the UPOV regime, a prerequisite for executing and ratifying the UPOV Convention, and not a direct violation of the Constitution. The Defendant emphasized that Sections 61 and 63 did not violate Article 75 of the 1992 constitution, as they signified Ghana’s commitment rather than an actual ratification. Furthermore, the defendant argued that the specific provisions of Act 1050 challenged by the plaintiff aligned with the Constitution’s express provisions and were consistent with its letter and spirit.
The issues for determination by the Apex court were:
- Whether or not the plaintiff properly invoked the original jurisdiction of the Supreme Court.
- Whether or not the enactment of Act 1050 contravened Article 75(2) of the 1992 Constitution of the Republic of Ghana.
The court underscored that the mere existence of rival meanings placed on a constitutional provision did not automatically trigger the interpretative jurisdiction. The provision had to exhibit ambiguity or lack of clarity, and the court had to ensure that parties genuinely presented conflicting interpretations. The court also considered whether the interpretation was relevant to resolving the legal dispute at hand.
In applying these principles to the case at hand, involving the challenge to the Plant Variety Protection Act 2020 (Act 1050), the court examined Article 75 of the Constitution, which outlined the President’s authority to execute treaties subject to parliamentary ratification. The court assessed the language of Act 1050, specifically Sections 61 and 63, and concluded that the plaintiff had not demonstrated any imprecision or ambiguity in the constitutional provisions. It noted that the plaintiff’s concerns appeared to center on desirability rather than constitutionality.
The Supreme Court distinguished the present case from Margaret Banful & Anor. v Attorney-General & Anor., highlighting that that case involved the challenge of an enacted law rather than an agreement requiring ratification. The Supreme Court concluded that the plaintiff had not shown any violation of the unambiguous provisions of the Constitution, and therefore, the interpretative jurisdiction of the Supreme Court had not been appropriately invoked.
The Supreme Court in its conclusion emphasized the importance of constitutional provisions exhibiting ambiguity or lack of clarity for the Supreme Court to exercise its interpretative jurisdiction. The Supreme Court asserted Parliament’s broad legislative powers, limited only by explicit or implied constitutional prohibitions.
Insight: The Supreme Court may decline jurisdiction to interpret a constitutional provision when there is no genuine issue of interpretation. This can occur in various circumstances:
(a) When the meaning of the provision is clear and unambiguous, leaving no room for doubt or different interpretations.
(b) When the parties involved do not present conflicting interpretations or fail to provide alternative meanings.
(c) When the interpretation of the constitutional provision is not relevant to the resolution of the legal dispute at hand, as the court focuses on directly relevant and necessary provisions.
(d) When the sought interpretation has already been established by previous court decisions or settled legal principles, making it unnecessary to revisit or re-analyze.
(e) When the interpretation sought is frivolous, lacks substance, or does not raise a genuine issue requiring judicial intervention, being trivial or immaterial to the case.
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AUTHOR:
ERNEST KOFI BOATENG
(2023 Trainee Legal Associate)