Supreme Court insists law on licence to grow cannabis in Ghana is unconstitutional

The Apex Court, in a majority 5-4 decision indicated that the law was unlawfully passed by parliament.

Majority was made up of Justices Jones Dotse, Prof Kotey, Mariama Owusu, Prof Henrietta Mensah Bonsu, and Emmanuel Kulendi while Justices Lovelace Johnson, Amadu Tanko, Samuel Asiedu and George Koomson formed the minority.

Justice Dotse, Presiding Judge on the case indicated that the requirements needed to be met for a party to review its own judgement has not been met.

This follows an earlier decision by the Supreme Court in July 2022, to strike out Section 43 of the Narcotics Control Commission Act.

The Apex Court held that the section of the Act which stated; [he 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], 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 therefore it was null and void.

According to a myjoyonline report, Private Citizen; Ezuame Mannan who filed the case against the Attorney-General however argued that the explanatory memorandum that was laid in parliament did not adequately lay out the policy change that was being brought by the law.

He further noted that the policy change was not debated enough before passed into law by parliament, a position which the Supreme Court agreed with.

The Attorney General, represented by Godfred Dame however filed processes asking for a review of the court’s decision, suggesting that the original panel of judges committed an error of the law by siding with the complainant.

“Fundamental and grave errors have occasioned a substantial miscarriage of justice. It is only at the beginning of the process that there must be a memorandum.

“There is no requirement for a memorandum to further accompany any amendment made by Parliament. Such a reading of the law imposes a further burden on Parliament and curtails its autonomy in passing laws, Mr Dame stated.

After, lawyer for Ezuame Mannan disagreed and argued that it was the contrary.
Effiba Amihere who represented the private citizen’s argument was that;
“No miscarriage of justice has been occasioned by the decision of the court. We will respectfully talk about the amendment which is section 43, that was sneaked in at the time that the full debate had concluded.

“That it was contrary to the Constitution. The AG has said that in amending the law, there is no need for the memorandum, the issues as well as the departure from the national policy, the position do the plaintiff is that, at the time of the debate, this particular amendment that was sneaked in, was not part. The nation was not made aware of the clear change in the policy.” Myjoyonline quoted her as having stated.

Following this, presiding Judge, Justice Jones Dotse, ruled that the review threshold of the court had not been met and it therefore upholds its former decision that the law remains unconstitutional.

What the law says

Section 43 of Act 1019 stipulates 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.”

Article 106 of the 1992 Constitution which is titled “Mode of Exercising Legislative Powers” deals with the processes a bill must go through before it can be passed into law by Parliament.

Article 106 (2) 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 –

“(a) 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,

“(b) it has been published in the Gazette at least fourteen days before the date of its introduction in Parliament”

Article 106(5) of the 1992 Constitution states that “where a bill has been deliberated upon by the appropriate committee, it shall be reported to Parliament, while Article 106 (6) stipulates that “the report of the committee, together with the explanatory memorandum to the bill, shall form the basis for a full debate on the bill for its passage, with or without amendments, or its rejection, by Parliament.”