The cannabis case: an unnecessary intrusion into parliament’s legislative powers

Legislatures have been recognised as the sanctum sanctorum of the democratic edifice in view of the fact that Legislatures occupy a very special place within the governance system of a country. Our Parliament reflects the above attributes.

As observed by the Right Honourable Alban Sumana Bagbin, the Speaker of the 8th Parliament shares similar thoughts about the Parliament of Ghana when he observed that: “The Parliament of Ghana is the nerve centre of Ghana’s democracy. Over the years, it has come to be recognised as the symbol of the nation’s hopes and aspirations and the fountainhead of policy and decision-making in the Republic.”

The 1992 Republican Constitution establishes three arms of government, namely, the Executive, the Legislature and the Judiciary in accordance with the concept of separation of powers. Despite their distinctive powers, these arms of government continue to work harmoniously to entrench democracy and rule of law.

Of particular mention is the relationship between Parliament and the Judiciary. The constitutional regime of checks and balances between the two arms of government remain clear and unambiguous. Parliament enacts most of the laws applied and interpreted by the Judiciary which determines disputes that go before them. Parliament approves the annual budgets for the Judiciary and approves the nomination of the Chief Justice and other Justices of the Supreme Court. The Judiciary, on the other hand, is vested with the power to determine the validity of laws passed by Parliament or under the authority of Parliament and other actions of the august House.

The Supreme Court has had the occasion to review the law-making powers of Parliament in both substantive and procedural respects. One of the latest of such cases is Ezuame Mannan v Attorney General and Speaker of Parliament (J1/11/2021) (The Cannabis Case) which was delivered on July 27, 2022. This judicial decision has been received with mixed reactions. While some have hailed it as another bold decision by the Supreme Court to entrench its review powers and ensure constitutionalism, others took the view that the decision unnecessary interferes with the legislative powers of Parliament. The writers subscribed to the latter view.

The writers seek, in this article, to share their views on the Cannabis Case as well as the implications of the decision on the legislative power of Parliament.
Legislative Powers of Parliament

The legislative power of the State is vested in Parliament to be exercised in accordance with the 1992 Constitution. Article 93(2) of the 1992 Constitution states that “Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.” Parliament exercises its legislative power by passing bills into law subject to Presidential assent. Article 106(1) of the 1992 Constitution stipulates that “The power of Parliament to make laws shall be exercised by bills passed by Parliament and assented to by the President.”

There are two types of bills that may be introduced in Parliament. The first is a Private Member’s Bill and a Public Bill introduced by Parliament by Sector Ministers. Irrespective of the source, after a bill is laid in Parliament, it becomes the property of the House and it is the House that moulds the bill into law. As observed by K. C Wheare in his seminal book titled Legislatures, the learned author has posited that “the last word about what the law shall rest with [Parliament].”

Parliament’s legislative procedure

The legislative power of Ghana is vested in Parliament and exercisable in the manner and within the limits set by the Constitution (Article 93(2) of the 1992 Constitution quoted supra). The law-making power of Parliament is exercised by way of bills passed by the House and assented to by the President. The procedure for passing bills by Parliament is governed by Article 106 of the 1992 Constitution and the Standing Orders of Parliament.

With the exception of financial bills and bills determined by appropriate Committees of Parliament to be of urgent nature, all other bills must satisfy two essential requirements before introduction in Parliament. These essential requirements are the accompaniment of explanatory memoranda and Gazette publication for at least 14 days. Article 106(2) states as follows:

“No bill, other than such as bill as is referred to in paragraph (a) of article 108 of this Constitution, shall be introduced in Parliament unless-

(a) it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defect of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction; and

(b) it has been published in the Gazette at least fourteen days before the date of its introduction in Parliament.”

The usual legislative procedure of Parliament may be adumbrated as follows:
First Reading of bills

A bill containing an explanatory memorandum are sent to the Table Office which notifies the Business Committee. The Committee determines that the bill be presented to the House on a particular day and the title of bill is so printed on the Order Paper.

The bill is presented by the sponsor of the bill. The Clerk reads the long title of the bill aloud to signify the First Reading of the bill. The Speaker refers the bill to an appropriate Committee of the House for consideration and report.

The Committee considers the bill including obtaining written memoranda and holding public engagement through stakeholder’s fora.

Second reading of bills

The Committee submits its report to the plenary and the Speaker causes same to be distributed to all Hon. Members of Parliament. The sponsor of the bill then moves a motion for the Second Reading of the bill. The House debates the motion based on the Committee’s report and the explanatory memorandum accompanying the bill. If the motion is disagreed to, the bill is rejected. If the House adopts the motion, the bill goes through the rest of the stages for passage.

Consideration stage

The amendments proposed by the Committee or Hon. Members of the House are moved and debated by the House. The amendments agreed to by the House become part of the bill and those negatived stand rejected. The House votes on each clause of the bill to stand part of the bill.

Third Reading of bills

The motion is moved by the sponsor of the bill for the Third Reading. If the motion is adopted by the House, the Clerk reads out the long title of the bill to signify the Third Reading.

Presidential assent

Where a bill is passed by Parliament, the bill is taken through a marking up process to incorporate amendments adopted by the House during the Consideration Stage.

The Bill is thereafter presented to the President for assent. At this stage, the President may assent to the Bill within seven (7) days after the presentation or he may inform the Speaker that he refuses to assent to the Bill. If the President chooses the latter option, he has to subsequently submit a memorandum to the Speaker stating the specific provisions of the bill which in his opinion needs to be reconsidered by Parliament with recommendations.

The President may subsequently submit his memorandum to the Speaker, for Parliament to reconsider the Bill or inform the Speaker that he has referred the bill to the Council of State for consideration and comment.

Parliament will then be required to reconsider the bill taking into account the memorandum of the President or the comments of the Council of State.

Parliament is required to pass the bill as reviewed by the President by a resolution supported by two-thirds of all Members of Parliament.

A bill passed by Parliament and assented to by the President must be published in the Gazette before it becomes operational unless Parliament postpones the date of operation of the Bill.

The Cannabis Case and the decision

Facts

The Hon. Minister for the Interior presented the Narcotics Control Commission Bill, 2019 to Parliament on October 30, 2019. The bill was read the first time and referred to the Committee on Defence and Interior. The Committee considered the Bill and submitted its report to Parliament. The Bill contained an explanatory memorandum which captured the purpose of the Bill which was to establish a Narcotics Control Commission and to provide for offences related to narcotic drugs and plants cultivated for narcotic purposes and for related matters.

The objects of the Commission were to ensure public safety by controlling and eliminating traffic in prohibited narcotic drugs and by taking measures to prevent the illicit use of precursors, collaborate with the relevant bodies to develop measures for the treatment and rehabilitation of the persons suffering from substance use disorders and to develop, in consultation with other public agencies and civil society organisations, alternative means of livelihood for farmers who cultivate illicit drugs.

During the Consideration Stage of the Bill, Parliament adopted an amendment which introduced a new clause with the headnote ‘Special Provision Relating to Cannabis’. This provision became section 43 of the ensuing enactment, the Narcotics Control Commission Act, 2020 (Act 1019). The said Section 43 of the Act empowered the Hon. Minister for the Interior, the power to grant licence for the cultivation of cannabis which has not more than 0.3% THC content on a dry weight basis for industrial purposes for obtaining fibre or seed or for medicinal purposes.

The Plaintiff contended that the said Section 43 of the Act has occasioned a change in the policy of the law and consequently, the failure to include an explanatory memorandum to articulate the proposed policy change in the law for the consideration of the public and Parliament to inform the passage or otherwise of the said Section 43 as part of Act 1019. He argued that such a measure amounted to a violation of the clear terms of Article 106(2)(a) and (b) of the 1992 Constitution.

Decision

By a 5-4 majority decision, the Supreme Court declared unconstitutional and invalid Section 43 of the Narcotic Control Commission Act, 2020 (Act 1019) which empowered the Minister of the Interior to grant licences for industrial cultivation of cannabis. The Supreme Court reasoned that the impugned provision amounted to a direct violation of the letter of Article 106(2) of the 1992 Constitution, as well as a violation of the spirit of the law.

Critiques against the decision

The writers humbly disagree with the decision of the Supreme Court in the Cannabis Case supra based on the following six reasons.

Firstly, the procedural requirement under Article 106(2) applies only to substantive bills and same is required to be done before introduction in Parliament. It does not apply to an amendment made by Parliament at the Consideration Stage which is taken after a bill has been introduced in Parliament.

Secondly, though Parliament finds it desirable to always seek inputs from the public to enrich its law-making processes, the public does not play any legal role in the making of law, a breach of which must occasion invalidation of impugned provisions. Acts of Parliament are enacted by Parliament and the President (Article 106(1) of the 1992 Constitution).

Thirdly, though a clause of a bill is a necessary part of a Bill, the Constitution treats them differently. Under Article 108(a) where the Constitution intended exclusion of amendment to a bill, the Constitution expressly said so. Same cannot be said of Article 106(2) of the Constitution.

Fourthly, Parliament engages in debate only on a matter before the House if it is unable to reach a consensus on the matter. There is no legal requirement for the House to debate a matter before taking a decision on that matter.

Fifthly, the bill-making procedure under Article 106 contains a self-cleansing mechanism where amendments made by Parliament but which do not sit well with the President may be addressed. As earlier indicated, after Parliament has passed a bill and presented it to the President for assent, he may take certain steps to ensure that areas of disagreement are reconsidered by the House.

Sixthly, the Parliament of Ghana operates an open Parliament policy where it always opens its doors to all and sundry including foreign nationals to contribute to its law-making and other business. Almost every bill that is laid in Parliament is published in newspapers for the attention of the general public to solicit the views of the public as part of the efforts of Parliament to deepen openness and transparency in law-making. The House was recently ranked by the PNAfrica as the first Parliament in the Open Parliament Index published on July 20, 2022.

Finally, the purpose of Article 106 (2) of the 1992 Constitution is to give notice to the people of Ghana that a particular bill would be laid in Parliament and to alert those who may be interested to obtain copies and submit memoranda to an appropriate Committee or any member of the House for consideration.

However, the concerns submitted by the public are by law not binding on Parliament though the House is inclined to accept any relevant contribution to its law-making process. So, there is the possibility that even if the said Section 43 was part of the original bill that was laid in Parliament and memoranda sent to Parliament submitted for its deletion, it cannot be said with certainty that the situation could have been different.

Implications of the decision

Most of the bills which are introduced in Parliament emanate from the Executive and Parliament exercises its legislative power mainly through amendments effected during the Consideration Stage of such bills. The effect of the decision of the Supreme Court in the Cannabis Case supra would severely impair the ability of Parliament to exercise its legislative powers. Thus, Parliament cannot amend a bill if the amendment is not within the express scope of the memorandum accompanying the bill unless Parliament takes steps to cause the said amendment to be published in the Gazette for 14 days. This would definitely occasion prolonged delays in the passing of bills by Parliament.

Conclusion

The writers accept, without question, that the Supreme Court is clothed with sufficient power under Article 130(1)(b) of the 1992 Constitution to review the actions of the Legislature including the exercise of the latter’s law-making powers in both substantive and procedural respects. However, in the exercise of this constitutional power, the Court must be guided by the necessity for Parliament to be reserved a modicum of discretion to perform its high duty under the Constitution. Annulling provisions of laws on grounds such as those contained in the Cannabis Case will do us more harm than good. It would severely undermine the legislative powers of Parliament and impede the law-making process.