Renowned legal practitioner and lecturer at the University of Ghana School of Law, Dr Justice Srem-Sai, has strongly criticised the recent Supreme Court ruling in the case of Afenyo Markin V. the Speaker of Parliament & A-G.
In a scathing critique, the legal scholar argued that the ruling departs from the established role of the Supreme Court by issuing what he described as a form of “advisory opinion”—a decision that, in his view, renders the judgment ineffective due to a lack of enforceable orders.
The ruling in question saw the Supreme Court majority granting a series of declaratory reliefs to the plaintiff. However, according to Srem-Sai, the judgement lacks any consequential or executable orders, effectively limiting its practical impact.
“An advisory opinion (sometimes referred to as ‘declaratory judgment’) is an opinion which merely declares the meaning or the position of law without giving any enforcement or executable orders. The Constitution does not allow the Supreme Court to give declarations without consequential orders or directions. That’s why it is said that the Court doesn’t give advisory opinions.”
Justice Srem-Sai, Legal Practitioner and Law lecturer at the University of Ghana School of Law
Article 2(20 of the 1992 Constitution
Justice Srem-Sai drew attention to Article 2(2) of the Ghanaian Constitution, which he contended explicitly mandates the Supreme Court to issue orders or directions that would “give effect, or enable effect to be given, to the declaration so made.”
He argued that the judgment, in this case, sidesteps this requirement by solely providing declarative statements without the necessary orders, effectively altering the Court’s long-standing precedent.
According to Srem-Sai, the core of the plaintiff’s case rested on three primary declaratory reliefs, along with two speculative and interlocutory requests, adding that while the court accepted the declaratory reliefs, it refrained from issuing consequential orders.
“Justice Darko Asare (supported by three other Justices) granted an additional relief which, though described as an ‘order’, is in substance, another declaration. This is what His Lordship stated – ‘an order DECLARING the interpretation placed on Article 97(1)(g) and (h) as inconsistent with the true meaning and import of Article 97(1)(g) and (h) of the 1992 Constitution”.
Justice Srem-Sai, Legal Practitioner and Law lecturer at the University of Ghana School of Law
Parties Without Mandate or Obligation to Act
Consequently, Justice Srem-Sai posited that this leaves all parties without any mandate or obligation to act. “In other words, we each have to decide what to do with the declarations,” he observed.
“Firstly, the Plaintiff and his followers have been saying all week that ‘the Speaker must comply’, ‘the Speaker must comply’. It appears they will be disappointed. Because there’s nothing in the judgement requiring the Speaker to comply with anything.”
Justice Srem-Sai, Legal Practitioner and Law lecturer at the University of Ghana School of Law
Additionally, Justice Srem-Sai argued that this judgment could have far-reaching implications for the judicial system. He pointed out that by issuing declaratory judgments without accompanying orders, the Supreme Court has set a precedent that could alter its role in Ghana’s constitutional framework, potentially diminishing its authoritative influence.
“The Supreme Court has now, contrary to longstanding precedent and the express provisions of the Constitution, accepted that it can declare the meaning of the law without making enforcement orders,” he stated. The ruling, according to Srem-Sai, stands as a potential watershed in Ghanaian legal interpretation.
He admonished that if this approach becomes normalized, it may open the door for future rulings that similarly lack enforceable orders, thereby placing the onus of compliance on the interpretative discretion of various stakeholders rather than ensuring a legally binding effect.
