SC affirms judgement denying licence to cultivate cannabis… but A-G seeks review

The Supreme Court (SC) yesterday affirmed its earlier judgement to declare as unconstitutional a section of the Narcotic Control Commission Act, 2020 (Act 1019) which allows  a licence to be granted to an entity to cultivate a small quantity of cannabis in Ghana for industrial and medicinal purposes.

Five out of the nine judges presided over by Justice Jones Dotse reasoned that the Attorney-General (A-G) has not met the threshold that required the apex court to reverse its earlier decisions.

Justices Dotse, Mariama Owusu, Prof. Nii Ashie Kotey, Prof. Henrietta Mensa-Bonsu and Yonny Kulendi affirmed the ordinary panel’s decision, while Justices Lovelace Avril Johnson, Amadu Imoro Tanko Amadu, Samuel Asiedu and George Kingsley Koomson dissented.

 Last year, the SC in a 4-3 majority decision, held that Section 43 of Act 1019 violated Article 106 of the 1992 Constitution, which details the processes a bill must go through before it is passed into law by Parliament, and was therefore null and void.

The apex court held that it struck out the law on licence to grow cannabis, popularly known as “wee” because Parliament was not transparent in its passage.

The apex court also held that there was no debate in Parliament on it before its passage into law as stipulated by Articles 106 (5) (6) of the 1992 Constitution.

It was of the considered opinion of the SC that the explanatory memorandum attached to the bill placed before Parliament did not set out in details the policy change, the defects in the existing law and the necessity to introduce a law to licence the cultivation of cannabis.

The SC said “the mode of introduction of Section 43 of Act 1019 violates the letter and spirit of the Constitution. Accordingly, Section 43 is hereby struck out as unconstitutional.

Dissatisfied with the judgement, the Attorney-General filed a review application, urging the apex court to reverse its earlier decision, which has occasioned a miscarriage of justice.

Moving the application for review yesterday, the Attorney General and Minister of Justice, Godfred Yeboah Dame, argued that, there was no requirement for a memorandum to further accompany any amendment made by Parliament.

According to him, such reading of the law imposes further burden on Parliament and curtails its autonomy on passing law.

While making reference to Article 93(2), the A-G argued that the legislative powers of Parliament is only subject to the Constitution, but unless the constitution has curtailed Parliament’s powers specifically to amend laws, the courts cannot interfere with that.

Mr Dame said the memorandum anticipated a situation where Parliament could make exceptions to laws allowing such cultivation.

He contended that, the apex court should be very concerned about the undue curtailment of Parliament’s legislative powers and that, Separation of powers is at the bedrock of the country’s constitution.

Mr Dame argued that, on account of these fundamental errors not supported any specific provision and with the potential of a possible conflict between Parliament and the Judiciary, a miscarriage of justice has been occasioned, and urged the court to review its decision.

Counsel for the respondent, (Erzuane Mannan), lawyer Effibah Amihere, opposed to the request and contended that, no miscarriage of Justice has been occasioned by the decisions of the court in July last year.

She argued that, the said Section 43 as amended was sneaked into the law as of the time it has been completed.

This she contended that it was a clear departure from how events of national policies were handled.

She intimated that, at the time the memorandum was being tabled before parliament, that amendment was not added to the law that the cultivation was going to be allowed.

On the A-G’s position that, the court was interfering with mandate of the legislature, the lawyer said the power granted Parliament to make law is not absolute but is subject to the constitution and can be corrected when it violates it.



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