Passage of NCCA: Parliament acted contrary to due process, says Supreme Court

The Supreme Court by a 4:3 Majority decision, reached this conclusion in the case of Ezuame Mannan versus Attorney General and the Speaker of Parliament

The Supreme Court says Parliament acted contrary to the constitutional processes laid down for the passage of legislation when the Narcotic Control Commission Act (NCCA), 2020 (Act 1019), specifically, section 43, came up for consideration by the house.

The Court by a 4:3 Majority decision, reached this conclusion in the case of Ezuame Mannan versus Attorney General and the Speaker of Parliament. The applicant in his application, prayed the Apex Court of the land, to set aside section 43 of Act 1019, noting that the provision breached Article 106(2) of the 1992 Constitution of the Republic.

Legal provisions

Article 106 of the Constitution is titled mode of exercising legislative power. The article details the law-making procedure in Parliament. Paragraph (a) of Article 106(2) requires that when a Bill is being introduced in parliament, it must be accompanied by an explanatory memorandum (memo).

This memo must give details concerning the policy and principles of the Bill. If there is an existing law and the Bill is being introduced so that when it eventually becomes law, it will change that existing law, then the memo should explain the deficiencies in the existing law and how the new Bill being introduced or which has been introduced will cure the identified deficiencies.

The memo must also explain the need for introducing the Bill. This is the purpose of the memo in Article 106 of the Constitution.

Sections 43 of the Narcotic Control Commission Act was essentially introduced to allow the Minister for the Interior, to grant license for the cultivation of cannabis of a defined grade (not more than 0.3% THC) for industrial or medicinal purposes.

The Plaintiff’s application

The main complaint of the Plaintiff, Ezuame Mannan, concerning the Narcotic Control Commission Bill (the Bill) which became the Narcotic Control Commission Act (the Act) is that, contrary to Article 106 (2)(a) and (6) the memo that accompanied the Bill did not contain any particulars explaining the need for introducing section 43 to allow licensed cultivation of cannabis.

She complained further that there was nothing in the memo that explained the policy rationale for moving away from the prohibition of the cultivation of cannabis to allowing same.

The said section 43 of the Act was introduced into the bill by way of an amendment by Parliament during the second reading or consideration stage of the law-making process. Thus, the Plaintiff complained that since section 43 was not detailed and explained in the accompanied Bill, same was inconsistent with the letter and spirit Constitution.

Majority reasoning

The Supreme Court, after reviewing the law on constitutional interpretation and the procedure for law-making held that section 43 of the Act did not meet the constitutional checklist for law-making.

The court held that apart from the fact that section 43 was not contained in a memo and same gazetted detailing the rationale for the policy change, the said section 43 was not debated by Parliament contrary to Article 106(6) of the Constitution.

The majority speaking through Justice Yonni Kulendi, observed that “in particular, the lack of debate of section 43 of Act 1019 amounts to not only a direct violation of the letter of Article 106 of the Constitution, but also a violation of the spirit of the law”.

“The was conspicuously, no debate over such a critical shift in policy by Parliament. Needless to say, this conduct and mode of law-making defeats transparency and accountability enjoined by the Constitution.” Consequently, the Court struck out section 43 of the Act as unconstitutional.

Dissenting opinion

The minority, in their dissenting opinion, was of the view that, notwithstanding prior details in a memo and the publication of same in the gazette, Parliament has the power to make amendments to a bill in the course of its consideration.

Justice Tango Amadu, who delivered the lead opinion for the minority observed that “the provisions of Article 106 clause (2)(a) and (b) of the Constitution which require the Bill and its explanatory memorandum to be gazetted before introduction into Parliament must be read together with the provisions of Article 106 clause 6 of the very Article 106 and standing order 127 which permit Parliament in the course of the second reading of the Bill in Parliament to make amendments to the Bill taking into account not just the explanatory memorandum but also the report submitted to Parliament by the appropriate Committee on the Bill.”

On his part, Justice Nene Amegatcher, held that all though the Court is mandated to insist on due process laid down in the Constitution, doing so in the instant case would amount to judicial micro-management.

Wilberforce Asare

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