Justice Jones Dotse
The Supreme Court has reaffirmed its decision to declare as unconstitutional, a section of the Narcotic Control Commission Act, 2020 (Act 1019) which permitted the issuance of licence to an institution to cultivate a small amount of cannabis, (‘wee’) in Ghana for industrial and medicinal use.
This was after the court, presided over by Justice Jones Dotse, in a 5:4 majority dismissed a motion for review filed by the Attorney General challenging the court’s original decision that the law was unconstitutionally passed by Parliament.
The Supreme Court in July 2022, in its decision on a case filed by a private citizen, Ezuame Mannan, against the Attorney General held that Section 43 of the Narcotics Control Commission Act, 2020 (Act 1019) which permitted the issuance of the special licence contravened Article 106 (2) (a) (b), (5) and (6) thereof, of the 19992 Constitution which stipulate the processes a bill must go through before it is passed into law by Parliament.
Section 43 of Act 1019 states that the “Minister on the recommendation of the Commission, may grant a licence for the cultivation of cannabis popularly referred to as “wee” in Ghana, which is not more than 0.3 % THC content on a dry weight basis for industrial purposes for obtaining fibre or seed for medicinal purposes.”
The court consequently, declared Section 43 of the Narcotics Control Commission Act, 2020 (Act 1019) null, void and of no effect and subsequently struck it out as unconstitutional because it is a violation of Article 106 of the 1992 Constitution.
Article 106 states that “No bill, other than such a bill as is referred to in paragraph (a) of Article 108 of this Constitution, shall be introduced in Parliament unless-
- it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction; and
- it has been published in the Gazette at least fourteen days before the date of its introduction in Parliament.”
Parliament passed the the Narcotics Control Commission Act, 2020 (Act 1019), on March 20, 2020 and assented to by the President on May 11, 2020, allowing Ghana to join a number of other African countries that have passed laws to explore the commercial prospects of the growing, sale and use of cannabis.
The Attorney General, Godfred Yeboah Dame, in a review motion argued that the original seven-member panel committed an error of law resulting in a substantial miscarriage of justice.
He said it is only at the beginning of the process that there must be a memorandum.
Mr. Dame argued that the memorandum anticipated a situation where Parliament could make exceptions to laws allowing such cultivation.
He, therefore, urged the court to be very concerned about the undue curtailment of Parliament’s legislative powers, adding that at the bedrock of the country’s constitution is the concept of separation of powers.
The motion was opposed by Effibah Amihere, counsel for Mr. Mannan, who argued that no miscarriage of justice had been occasioned by the court’s original decision to warrant a review which ultimately overturns it.
She added that at the time the memorandum was being tabled before Parliament, the amendment complained of was not added to the law that the cultivation of wee was going to be allowed.
The court, in a 5:4 majority decision, ruled that the review threshold of the court was not met, and the motion was subsequently dismissed.
Justice Jones Dotse and Justices Prof. Nii Ashie Kotey, Mariama Owusu, Prof. Henrietta Mensah-Bonsu, and Yonny Kulendi formed the majority while Justices Avril Lovelace Johnson, Amadu Tanko, Samuel Asiedu and George Koomson formed the minority.
BY Gibril Abdul Razak