16 Jan Theophilus Donkor Vrs The Attorney General Writ No. J1/08/2017 Judgment Delivered On 12th June, 2019
“To the extent that section 14 of the Presidential (Transition) Act 2012, (Act 845) requires Chief Executives or Directors-General (howsoever described) of public boards or corporations to cease to hold office upon the assumption of office by a person elected as President of the Republic of Ghana, the same is hereby declared to be unconstitutional and void for being in contravention of articles 190 and 191 of the Constitution.”
Theophilus Donkor (the Plaintiff) invoked the original jurisdiction of the Supreme Court pursuant to Article 2(1) and 130 of the 1992 Constitution, seeking a declaration that the removal of Chief Executives, Chief Executive Officers (CEOs), Director-Generals, and members of governing boards of public corporations due to a change in the presidency was unconstitutional. The Plaintiff also sought a declaration that Section 14 of the Presidential (Transition) Act 2012 (Act 645), which requires these individuals to cease holding office upon a change in presidency, is also unconstitutional.
The issues set down for trial were;
- Whether or not the President of the republic of Ghana in line with Article 297(a) of the 1992 Constitution has the legal authority to remove from office members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without assigning any just cause.
- Whether or not Section 14 of the Presidential (Transition) Act 2012 (Act 845) is inconsistent with Articles 70(1)(d)(iii), 190 and/or 191(b) of the 1992 Constitution; and
- Whether or not Article 191(b) of the 1992 Constitution, also applies to the category of officers mentioned in Section 14 of Act 845.
Issue 1
On the first issue, the Plaintiff argued that public officers under the 1992 Constitution are categorized into various groups, with Article 297(a) applicable only to those who could be dismissed without just cause. The Plaintiff contended that this provision did not apply to heads and members of governing boards of public corporations established under Article 190 of the Constitution, who could be removed without just cause.
The Defendant countered that Article 295 of the Constitution defines public corporations broadly, including those established for commercial purposes, while Article 190(4) provides a narrower definition limited to public service. The Defendant maintained that the President has the authority to appoint and remove chairpersons and members of governing board of public corporations under Article 70(1)(d)(iii) of the Constitution but not the staff of such public corporations.
The Supreme Court ruled on the first issue that members of the governing bodies of statutory boards, corporations and authorities (however described) are not public officers by virtue of their membership on the governing body of such statutory board or corporation and are not governed by Article 191(b) of the Constitution. Therefore, they could be removed from office by the President without just cause. These members, appointed by the President in consultation with the Council of State, are distinct from staff employed under Article 190, who are public officers. Staff members must be appointed in accordance with Article 195 and are subject to Article 191(b) of the Constitution.
Issue 2
On the second issues, the Plaintiff argued that individuals specified in paragraph 6 of the Schedule to Section 14 of Act 845 are members of the public services under Article 190(b) and cannot be removed without just cause, as guaranteed by the Constitution. The Plaintiff maintained that heads and members of governing boards of public corporations have legal protections, including tenure, and cannot be dismissed solely due to a change in government, as public corporations operate independently of the President’s discretion.
The Defendant argued that Section 14 of Act 845 satisfies the “just cause” requirement of Articles 190(1)(b) and 191(b) and facilitates smooth democratic transitions. The Defendant emphasized the need for a purposive interpretation of relevant constitutional provisions and Act 845 to uphold its objectives, arguing that overriding Section 14 with Article 191(b) would cause confusion and undermine the Act.
The Supreme Court ruled on the second issue that Section 14 of Act 845 must be applied restrictively. It does not dissolve governing bodies of statutory boards and corporations upon the assumption of office by a new President. Instead, it applies specifically to individuals holding certain offices listed in its Schedule, with the impact on governing bodies depending on their composition and governing laws.
The Apex Court further held that paragraph 6 of the Schedule to Section 14 of Act 845 applies only to members of the governing bodies of statutory boards and corporations appointed by the President or a Minister of State and not to the permanent Staff of theses public corporations, who are public officers. Section 14 of Act 845 automatically removes from office all persons appointed by a pervious President or Minister of State as representatives of the President or Minister on the governing board upon the assumption of office of a new President, irrespective of the tenure provisions of the Act establishing the statutory board or corporation.
The Supreme Court was of the view that Section 14 of Act 845 does not affect representatives of constituent bodies and interests on the governing body, who can only be removed by the body or interest they represent and in accordance with the tenure and removal provisions of the Act establishing the statutory board or corporation. The Court also held that executive heads of statutory boards and corporations are public officers under Article 190 of the Constitution and, therefore, are not affected by Section 14 of Act 845. They can only be removed from office in accordance with the terms and conditions outlined in their letters of appointment.
The Supreme Court clarified that Section 14 does not apply to state-owned companies like Ghana Airports Company Ltd and GCB Bank Ltd, as these are governed by the Companies Act, 1963 (Act 179) and their articles of incorporation. Additionally, constitutional governing bodies, such as the Judicial Council, Police Council, and Public Services Commission, are not subject to Section 14 since they are established by the Constitution. Their dissolution upon a new President’s assumption of office is unnecessary for Act 845’s objectives.
The Supreme Court emphasized the importance of continuity in administrative functions during presidential transitions and urged prompt appointments to constitutional governing bodies to avoid operational paralysis. It concluded that Act 845 does not mandate the dissolution of all governing bodies.
Issue 3
On the third issue, the Plaintiff argued that Article 191(b) of the Constitution, which provides that a member of the public services shall not be removed from office without just cause, applies to members of Ghana’s public service, including heads and members of governing boards of public corporations and permanent staff. He contended that individuals listed in paragraphs 1–5 of the Schedule to Section 14 of Act 845 serve at the President’s pleasure and can be removed without cause. However, those listed under paragraph 6 are public service members protected by Article 191(b) and cannot be dismissed solely due to a change in government without violating their constitutional rights.
The Defendant countered that Act 845, interpreted purposively, aims to allow a new President to appoint individuals aligned with their policies, promoting efficient governance. The Defendant maintained that the Act satisfies the “just cause” requirement of Article 191(b) by enabling the removal of individuals who could hinder the new administration’s agenda.
The Court found the Plaintiff’s argument to be misconceived. It ruled on the third issue that, except for public officers appointed under Article 195(1), individuals listed under Section 14 of Act 845 are not members of the public service and are therefore not protected by Article 191(b) of the Constitution.
Conclusion
The Supreme Court concluded its judgment as follows:
- Members of the governing boards of statutory boards and corporations appointed under Article 70(1)(d)(iii) of the Constitution are not members of the Public Service. Their tenure is not governed by Articles 191 and 195 of the Constitution, and as such, they may be removed at will by the President.
- Public Service Officers appointed in accordance with Article 195 of the Constitution may only be removed in accordance with the terms and conditions of their employment contracts or, in the absence of such terms, for “just cause” pursuant to Articles 191 and 195 of the Constitution.
- To the extent that Section 14 of the Presidential (Transition) Act, 2012 (Act 845) mandates that Chief Executives or Directors-General of public boards or corporations must vacate their office upon the assumption of office by a new President, it is unconstitutional and void for contravening Articles 190 and 191 of the Constitution.
Insight: The Supreme Court’s decision highlights the constitutional limitations on presidential authority regarding the removal of public officials and dissolution of governing boards of public corporations. It declared Section 14 of the Presidential (Transition) Act, 2012 (Act 845) unconstitutional, reaffirming that while the President may remove board members appointed under Article 70 at will, public service officers under Article 195 are protected by constitutional provisions requiring “just cause” for dismissal, thereby ensuring the security of tenure and safeguarding administrative continuity during presidential transitions.
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