Constitutional lawyer and governance expert Professor Stephen Kwaku Asare, widely known as Kwaku Azar, has raised concerns about two new cases asking the Supreme Court to interpret Article 66(2) of the 1992 Constitution.
He questioned whether the lawsuits properly fall within the court’s original jurisdiction.
Prof. Asare explained that although every citizen has the right to bring a case before the Supreme Court, the Constitution does not allow the court to give advisory opinions on issues that are only hypothetical.
His remarks follow two separate lawsuits seeking the court’s interpretation of whether President John Mahama can legally contest another presidential election.
Prof. Asare said the first case, Alhassan v Attorney-General, asks for “a declaration that a person who has served two separate and distinct, non-consecutive terms as President remains eligible to contest again.”
He said the second suit, 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.”
According to Prof. Asare, this is “remarkably, the third time Mr. Kuranchie has invited the Supreme Court to answer essentially the same constitutional question.”
He argued that Articles 2(1) and 130 give the Supreme Court the power to settle real constitutional disputes, not to answer legal questions based on events that have not happened.
Referring to the court’s ruling in Ex parte Akosah, he said constitutional interpretation only becomes necessary when “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 believes no such dispute exists at the moment.
“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.”
“It exists to resolve live constitutional disputes, not to issue advisory opinions or answer speculative questions,” he stressed.
