AN INTELLECTUAL ENQUIRY OF THE 1992 CONSTITUTION AND ITS RELATION TO THE LAWS OF THE AFRICAN UNION.
BY MICHAEL BOATENG YEBOAH , LLB (KNUST) mikeyeblaw@gmail.com INTRODUCTION AND BACKROUND TO THE AFRICAN UNION
The African Union (A.U) is a geo-political entity which is carved out of the Union of African States and the Organization of African Unity (O.A.U).
The Organization of African Unity was established on 25 May 1963 in Addis Ababa, Ethiopia by representatives of 32 governments on the Charter of O.A.U.
Upon the dawn of modern political challenges, the charter of the Organization of African Unity was branded African Union (A.U) at Durban on 9 July 2002 by President Thabo Mbeki.
The African Union as of now boasts of 53 African States as its members with the exception of Morocco. The withdrawal of Morocco from O.A.U. was primarily due to the massive support Sahrawi nationalists received from the Union.
Currently, the headquarters of the African Union is situated at Addis Ababa, Ethiopia. The primary cause for the paradigm shift from O.A.U to A.U was that; The O.A.U was politically mandated to see to the emancipation of the colonized African States however upon the emancipation of the entire African states from foreign rule; the need arose for the unification of the balkanized African States. The O.A.U as a result was re-branded A.U. to see to the unification of the entire African states after it adopted the Sirte Declaration at Libya.
The A.U has the following administrative structures:
The Assembly
The Executive Council
The Commission
The Permanent Representatives’ Committee
Peace and Security Council
Pan-African Parliament
Economic, Social and Cultural Council (ECOSOCC)
The Court of Justice
Specialized Technical Committee
Financial Institutions These administrative structures are meant to facilitate the effective running of the organisation. The argument is rife on the real impact of the laws of the African union on the laws of Ghana and on the members of the union in general, to gain a deeper insight into this discourse there is the need to look at the following:
1. the constitutive act of the African union
2. International laws
3. the laws of Ghana and the domestication of international laws THE CONSTITUTIVE ACT OF THE AFRICAN UNION
The Constitutive Act of the African Union (A.U) hereinafter referred to as the act was adopted by 53 member states of the Union at the Lomѐ summit on July 11 2000.
The preamble of the act outlines the goals of the union as follows; “Promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law” (emphasis mine) The Act which is made-up of 33 Articles can wholly be said to be the current constitutional bedrock of the A.U .It regulates the internal and external affairs of the A.U and its members.
The Act can be said to be a non-federal constitution because the individual states which form the constituent units of the A.U wield more autonomy as compared to the administrative core of the A.U. As a result of the non-federal nature of the A.U ; the spirit and letter of the Act has little or no legal impact on the members of states who are signatory to the Act. Nevertheless, the aforesaid Act when incorporated into the domestic or national laws becomes binding in regions that practice the monist concept of legal system as in the case of Netherlands jurisprudence.
INTERNATIONAL LAWS
These are laws that are made by the international community or organisations to govern member states, example of such organisations is the African Union, and these laws are normally in the form of treaties signed by member states. Ghana is a signatory to many treaties, including the constitutive act of the AU and The African charter on human and people's rights.
Article 27 of the Vienna convention on the law of treaties states that a party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty. This implies that where international law and internal law conflict, the international law must prevail. But the question is to what extent has this been adhered to and what law gives the Vienna convention a binding force?
THE LAWS OF GHANA AND THE DOMESTICATION OF INTERNATIONAL LAWS The 1992 constitution of Ghana is the main document that governs the country, it contains the sovereign will of the people of Ghana and puts the sovereignty of Ghana into the hands of the people as stated in article 1(1) of the constitution.
Article 11(1) outlines the laws of Ghana as follows: (a)The constitution
(b) Enactments made by or under the authority of parliament established by the constitution
(c) Orders, Rules and Regulations made by any person or authority under a power conferred by the constitution
(d) The existing laws
(e) The common law. Certain people have based on the above to conclude that the laws of the African Union and for that matter international laws are of no significance on the laws of Ghana, but is that truly the case?
Article 40(d) of the 1992 constitution mandates the government to ensure adherence to the principles, aims and ideals of international organisations, particularly 40(d)(ii) calls for adherence to the principles and ideals of the African Union. Under Article 75 (1) of the 1992 constitution the president is mandated to execute or cause treaties to be executed. However, before such treaties can have effect in Ghana it must be incorporated into the internal laws a process referred to as domestication of international laws.
Article 75(2), outlines the process of domestication of international laws:
'a treaty, agreement or convention executed by or under the authority of the president shall be subject to ratification by -
a. Act of parliament; or
b. A resolution of parliament supported by the votes of more than one -half of all the members of parliament'. The effect of Article 75(2) (a) is that once a treaty is ratified, it falls under Article (11) which makes it a law of Ghana and therefore shall be accorded the same value as domestic law.
Therefore, any argument which tends to propagate that; International law, in this context the laws of the A.U has no significance on the constitution /law of Ghana is erroneous, lame and frivolous. The stand of the court in the case of NPP v IGP gives this provision enough teeth, it was held that the fact that Ghana had not passed specific legislation to give effect to ACHPR did not mean it could not be relied upon.
THE IMPACT OF THE AU LAWS ON GHANAIAN LAWS
Before examining the impact of the law of the A.U on the law/constitution of Ghana, it is crucial to first visit the two eminent positivist concepts which govern international law vis-à-vis domestic law.
These concepts are * The monist theory * The dualist theory
According to Brundusa Marian , the monist concept which is sustained by most eminent scholars of law such as ; Decenciѐre, Ferrandiere , A.Verdross et al hold the view that; every state is sovereign and as a result sets the limitations for which adopted International law influence its domestic law.
The monist concept treats International law as “foreign state law” as in the words of Brundusa. This is in the sense that, the monist treats International Law and domestic law as a single legal system with International Law superseding domestic law. However, In cases where attempts are made to sacrifice domestic law in favour of International law, the states hide under its sovereignty to propel the wings of its domestic law to supersede the International law in question. For instance, G. Jellineck remarks:
“[T]he International law exists for the states and not states for International law”
The aforesaid quote highlights the high esteem accorded by the monist concept to domestic law vis-à-vis International law when domestic laws are push to the extreme. The dualist concept or pluralist concept, on the other hand treats International law and municipal law as separate legal systems with the domestic courts applying the international law when the International law has been incorporated into the domestic law of a state.
In some circumstance, the courts fuse the International law with the domestic law with their own discretion.
The doctrine of dualism admits that; International law and municipal law are not rigorously separated and as a result, its application in a municipal court of law can only be done if the International law has been incorporated into the municipal law. In reconciling articles 40 and 75(2), we can conclude that Ghana falls under the dualist states. In pursuance of this, Article 2(1) of the 1992 constitution makes the constitution of Ghana supreme; it also gives the sovereignty of Ghana the people of Ghana.
If an International law has not been incorporated into a municipal law in a state that practice dualism, the discretion lies for the court to apply the International law in question if it does not conflict with the state’s domestic laws.
Per Article 6(2) of the United States constitution, though all ratified treaties are binding on the United States government, it is the discretion of the state or an executory clause to either incorporate the ratified clause or not.
It is therefore submitted that technically, the AU laws and for that matter international laws have impact on internal laws as advanced earlier using article 27 of the Vienna convention on the laws of treaty, article 11,40 and 75 0f the 1992 constitution. However, practically they are of no force in Ghana due to the reasons advanced below:
Ghana’s legal system which is an imitation of most legal system in Common law strictly adheres to the concept of dualism.
Regardless of the Ghana’s adoption of the Bangalore Principle of Domestic Application of International Human Rights and Norms, the laws of the African Union are stifled by the doctrine of dualism to make it possible to supersede the laws of Ghana.
Secondly, the “claw-back clauses” contained in the laws of the African Union makes it optional for the members who are signatories to the Charter to enforce the laws contained in the charter.
As result of the insertion of the “claw back clauses” the discretion lies within the ambit of the municipal courts to apply the laws of the A.U. even when the laws of the A.U have been incorporated into a state’s constitution.
For instance, in an attempt by the lead counsel for the plaintiff to invoke Article (3)(h) of the constitutive Act in the case of Federation of Youth Association of Ghana (FEDYAG) V Public Universities of Ghana, the Supreme Court by unanimous decision held;
Per Atugub (JSC) “[T]he sovereignty of Ghana’s constitution is supreme and the Courts of Ghana are not compelled to enforce international Law(s) on the mere fact that such laws have been ratified by The state” (Emphasis mine)
In the similar case of Genral Sani Abacha v Chief Gani Fawahinimi wherein the status of the charter of the A.U on Human and Peoples’ Rights (Ratification and Enforcement ) Act 1983 vis-à-vis the constitution of Nigeria was raised;
The Nigeria Supreme Court by a three to one decision had this to say Ogundare (JSC):
“The African Charter on Human and People’s Rights (Ratification and Enforcement) Act 1983, incorporating the Charter into Nigerian law, was in full force at the time of the applicant arrest. Section 1 of that Act provided that the provisions of the Charter had the full force of law in Nigeria, were to be given full recognition and effect and were to be applied by all authorities and persons exercising legislative, executive and judicial powers in Nigeria. It followed that the High Court had ample jurisdiction to apply it. Where a treaty had been incorporated into national law, it became binding and the courts were to give it like effect as all other laws enacted by the National Assembly…As an international treaty, the Charter possessed greater vigour and strength than other domestic statutes: however, that was not to say that the Charter was to be considered as superior to the Constitution On his part, Uwaifo (JSC) had this to say: “Under the 1983 Act, individual rights protected by the Charter were justiciable in Nigerian courts. A statute would not be declared ultra-vires for contravention of a treaty or international law, for a treaty was not superior to national law, but the courts were to desist from giving statutes an interpretation that led to breach of an accepted international law. National law would therefore prevail only if the 1983 Act were to be repealed. The 1993 Decree suspending the Constitution merely served to reinforce the continued applicability of the 1983 Act by preserving it.
It followed that at the time of the applicant’s arrest, the 1983 Act was in full force. The fact that the arrest and detention had occurred during military regime did not come into consideration’’.
Dissenting in part, Belgore (JSC) was of the view that: ‘’Before the Charter was adopted as domestic law by the 1983 Act, the fundamental rights provisions in the Constitution gave in more explicit protection to human rights than the Charter, and when after the military coup of 1983, the Constitution (Suspension and Modification) Decree 1984 then the Charter was also, by implication, suspended, albeit in breach of treaty obligations. Section 1 (2) (i) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 12 of 1994 ousted the jurisdiction of the court in respect of things done under any Decree or edict, including the adopted Charter, which was applied by existing law. It followed that the detention of the applicant…, could not be challenged by any court of law’’.
The learned Judge was of the view that the difference between the Act and Fundamental rights in the constitution is that no method was prescribed for enforcing the rights there under. There is a provision in the Charter for a Commission to be set up, but since January 1981 when the Charter was made in Banjul, no Commission has been set up, but since January 1981 when the Charter was made in Banjul, no Commission has been set up. The Commission itself by the nature of the articles is a monitoring and research body rather than a judicial body with enforcement powers

CONCLUSION AND RECOMMENDATION In order to make the law of AU to have a significant impact on the law of Ghana, an executory clause similar to the 1960 constitution should be entrenched in Ghana’s constitution in order for the municipal courts to apply the laws of the A.U without hesitation. In addition, the A.U. should review its laws by repealing the”Claw-back Clauses” within it. This will give the laws of the AU coercive force over the laws of Ghana.
Lastly the African court of justice must not only be established but be given enough powers, this will ensure the proper adjudication of the union’s laws.
It is apparent from the discourse above that, technically the A.U laws should have impact on Ghanaian laws however practically it does not have any significant impact on it.

REFERENCES
1992 Constitution
Maxwell Agyemang Opoku -
Michael Kirby – “International Law-The Impact on National Constitutions” American University International Law Review 21, no.3 (2006)

--------------------------------------------
[ 2 ]. Established by Dr. Kwame Nkrumah in 1960s
[ 3 ]. Former South African President
[ 4 ]. Morocco departed from O.A.U in 1984
[ 5 ]. 9 September 1999
[ 6 ]. The advisory arm of A.U
[ 7 ]. The Court is currently not effective
[ 8 ]. 1992 constitution of the Republic of Ghana
[ 9 ]. PhD. Candidate, Associate Professor, ”petro maior” university, Romania
[ 10 ]. G.Jellineck,L Etat moderne et bon droit, Paris Vol. 1,1911 p 562
[ 11 ]. A provision which enforces a clause without further action
[ 12 ]. Nigeria has incorporated the AU laws into its constitution.(Cap 10 Laws of Federation of Nigeria1990)
[ 13 ]. Supreme court, 2011 ( Not reported)
[ 14 ]. 2000] 6 NWLR;[2003]3LRC293].