THE CONSTITUTIONAL EVOLUTION OF THE LEGISLATURE, EXECUTIVE AND JUDICIARY FROM 1850 – 1992. (PART ONE)
From 1820 to her independence in 1957, Ghana was colonized by Europeans (Netherlands, Denmark, and United Kingdom). The Europeans exerted their influence on the indigenous people and their institutions when they arrived at the Gold Coast. The interest was commerce, when the Europeans first arrived. As a result, traditional institutions which were guarded by chiefs and priests were not affected. This however changed over time, beginning 1843, when the Crown took over the castle and the fortes from the merchants, and needed legislative instruments to establish its rule. Two important laws were made in 1843: the British Settlement Act, which enabled laws to be made to govern the colonies, and Foreign Jurisdiction Act, which authorized political powers to be exercised by agreement with the indigenous people. In 1844 a bond was signed, with the consent of the indigenous people along the coast, giving the British the authority to rule over them. When exercising jurisdiction, the traditional authorities were required to ensure that the local customs conformed to the principles of the law of England. Where variances exist, the British laws overrode the local laws.
By 1850, an ordinance that empowered and enjoined a legislative council to make and establish laws, as well as constitute a legislative council came into being. This was followed by a constitution that gave the colonial legislature full power to alter the constitution of the legislature and to establish, reconstitute and abolish courts of justice. This was followed by ordinances and constitutions, laws and acts until 1957 when the nation became independent. The ordinances included the petitions of rights ordinance of 1877, which made provisions for appeals to the supreme courts; and the native jurisdiction ordinance of 1927, which made provision for electing and destoolment of chiefs. The post independent Ghana witnessed periods of democracy and military takeovers. A few constitutions were drafted during the democratic regimes, the latest being the 1992 constitution. This essay will analyse the evolution of the arms of government, that is, executive, legislature and judiciary from 1850 to 1992.
In 1821, the British Crown passed the West African Act of 1821 due to the inability of the Committee of Merchants to manage the forts and castles. The Act declared that the Crown has taken over British possessions along the West African coast. In 1828, the Crown handed over the management of the forts and castles to a Committee of Merchants appointed by the British government.
In 1830, Captain George Maclean reputed to have judicial and administrative abilities was appointed President of the Committee of Merchants. The Crown passed the British Settlement Act and Foreign Jurisdiction Act in 1843 giving the Committee of Merchants power to make laws and set up institutions.
In 1844, a bond was signed between the British and coastal chiefs. In the Bond, the Chiefs acknowledged the power and jurisdiction of the British. At this stage, the powers of the executive, legislature and judiciary laid with the Committee of Merchants.
As far back as 1850, Ghana, then the Gold Coast, ceased to become a dependency of Sierra Leone and was given its own Legislative Council to advise the colonial Governor in enacting legislation mainly in the form of Ordinances “for peace, order and good government of the subject.” The Legislative Council was purely advisory as the Governor exercised all legislative and executive powers.
In 1853, the Supreme Court Ordinance of 1853 was passed. It established the Supreme Court of Her Majesty’s Forts and Settlements on the Gold Coast. It was to be presided over by a Chief Justice; it was given civil and criminal jurisdiction equivalent to the Courts of the Queens Bench, Common Pleas and Exchequer at Westminster. J.C. Fitzpatrick, the Judicial Assessor, was appointed by this Ordinance as the first Chief Justice. Provision was made for an appeal to the Governor and Legislative Council from decisions of the Judicial Assessor.
By a Commission dated 19th February, 1866, the Charter of 1850 was revoked and the Gold Coast, together with Sierra Leone, Lagos and the Gambia were united under “the Governor of our West Africa Settlements”. But the existing Gold Coast Ordinance was preserved and also was the Legislative Council although the Executive Council ceased to exist. The Supreme Court was also abolished in 1866 and replaced by “the Court of Civil and Criminal Justice presided over by a chief magistrate. The order in Council of 1866 remained unrevoked and the Judicial Assessor and other magistrates continued to exercise jurisdiction outside the forts.
The Royal Charter of 1874, issued on the 24th July under the British Settlements Act, revoked the Commission of 19th February, 1866 so far as it applied to the Gold Coast and Lagos, and constituted these territories into a separate colony under the title of the Gold Coast Colony. In providing for a Governor, Legislative and Executive Councils the Charter repeated with little variation the terms of the Charter of 1850. On 19th March 1877 the seat of Government was moved from Cape Coast to Accra.
The Supreme Court Ordinance, 1876 re-established the Supreme Court after its abolition in 1866. It constituted it into “the Supreme Court of Judicature for the Gold Coast Colony and for the territories thereto near or adjacent where Her Majesty may -at any time before or after have acquired powers and jurisdiction”. The Court constituted of the Chief Justice and not more than four judges and it was provided that the Full Court (consisting of the Chief Justice and one or two judges should be a Court of Appeal Judge with sittings in Accra and Lagos. The Supreme Court was given the same jurisdiction, except for Admiralty jurisdiction, as the recently-created High Court of Justice in England. The ordinance further provided that district commissioners should be ex-officio Commissioners of the Supreme Court exercising the powers of a judge of the Supreme Court within their own districts as well, as those of a bench of magistrates. The Ordinance abolished the post of a Judicial Assessor and transferred to the Supreme Court the jurisdiction formerly exercised by him on the Protectorate. The Petitions of Right Ordinance, 1877 (No.12) enabled claims against the Government to be pursued in the Supreme Court. Provisions for appeals from the Supreme Court to the Privy Council were contained in an Order in Council made in 1877.
On 27th December 1887 an Order in Council was made under the Foreign Jurisdiction Act empowering the Gold Coast Legislative Council to legislate for territories adjoining the Colony which had been brought under British protection. The first African member of the Legislative Council, John Sarbah, was appointed in 1888.
In March, 1895 it was provided that apart from the Governor, the Executive Council should consist of the Lieutenant-Governor of the Colony, the senior officer in command of regular troops in the Colony and the Colonial Secretary, Attorney-General and Treasurer together with such additional persons as might be appointed by royal authority. The ex-officio members of the Legislative Council were the same as for the Executive Council, with the addition of the Chief Justice, who ceased to be a member in 1911.
In 1901, the Gold Coast Order in Council, for the first time laid down geographical boundaries of the Colony and annexed other territories in the Colony which did not already form part of Her Majesty’s dominions. The annexed territories formed part and parcel of the Colony and all existing laws were applied to them. The Order came into force on 1st January, 1902 but amended by substitution of more precise boundaries by the Gold Coast Boundaries Order in Council, 1906. Ashanti was annexed with the status of a Crown colony. The administration was entrusted to the Chief Commissioner acting under the direction of the Governor of the Gold Coast who could make Ordinances for Ashanti without the advice of the Gold Coast Legislative Council and such Ordinances were to be submitted to Royal Assent in London. The Ashanti Order in Council came into force on 1st January, 1902. The first Ordinance was the Ashanti Administration Ordinance, 1902 which divided Ashanti into four districts, set up a Chief Commissioner’s Court and district courts, regulated functions of native courts and applied a number of Gold Coast Ordinances to Ashanti.
Sir Hugh Clifford was appointed Governor of the Colony in December 1912 and endeavoured to enlarge the Legislative Council, which then consisted of 5 official and 4 unofficial members two of whom were Africans one being T. Hutton-Mills and the other E. Mate Kole, Konor of Manya Krobo. On 25th September, 1916 the 1886 Constitution was revoked. The 1916 Constitution effected little alteration except the enlargement of the Legislative Council. Membership of the Legislative Council was increased from nine to ten. The official members added included the Secretary for Native Affairs, the Controller of Customs, the Director of Public Works and the General Manager of Railways and the three Provincial Commissioners. The unofficial members included 3 paramount chiefs; Nana Ofori Atta 1, (Akim Abuakwa), Nana Amonoo V (Anomabu) and Awame Sri II (Awunaga). E.J.P. Brown and J.E. Casely-Hayford were also added as unofficial members.