Law of Interpretation









8. INTERPRETATION OF A NATIONAL CONSTITUTION (SUCH AS THE 1992 CONSTITUTION OF GHANA) RECOMMENDED TEXTBOOKS All Pages Meaning / Object of Interpretation Object of Interpretation and the intentions of author(s) of document ,Statute or National Constitution How intention is ascertained unilateral, bilateral and multilateral Non- statutory Documents: Statutes ; and National Constitution .

When to resort to Interpretation Difficulties of Interpretation/ Conditions of doubt which necessitate Interpretation Canons / Rules of Interpretations Basic rules, Aids, Presumptions and Special binding statutory rules (e.g. in CA4). Validity in interpretation of (i) Objectivity, Justification and Evaluative standards in interpretation. Interpretation of (i) Non Statutory Documents (ii) Statutes and (iii) National Constitutions compared/ contrasted. Some definitional and terminological issues of interpretation Legal basis for interpretation in Ghana.

I . Definition / Types of Documents Object of interpretation of non statutory Documents. intention or purpose or author(s) and the object of Interpretation of non statutory documents under the Modern Purposive Approach including unilateral non- statutory documents (e.g. a Will) and bilateral /multilateral non statutory Documents (e.g. contracts) Basic rules under the Modern Purposive Approach to interpretation of non statutory documents including unilateral non- statutory documents (e.g. a Will and bilateral /multilateral non statutory Documents (e.g. contracts) Interpretation must be as near to the intention or purpose of author (s) as the law would permit. Interpretation of document or particular part of its/intention or purpose of author s) to be sought for in the document itself or in elements of its proper context. Document to be construed as a whole Ordinary or plain meaning rule : words of phrases etc to be taken at first instance in their ordinary or plain meaning context. Technical words to have their technical meaning. Ordinary or plain meaning may be modified in favour of some secondary or less usual meaning so as to avoid absurdity and inconsistency e.t.c with the intention or purpose of the author (s). Courts have power in appropriate circumstances to correct mistakes (i) by construction or (ii) Rectification.

(i) Objects of Interpretation of statutes ; intention or purpose of Legislature and object of Interpretation of statutes under the Modern Purposive Approach

(ii) Historical introduction to be basic approaches to the Interpretation of Statutes.

(III) Basic rules under the Modern Purposive Approach to Interpretation of Statutes: Interpretation must be as near possible to the intention or purpose of framer (s) as the law would permit. Interpretation of statutes or particular part of it /Intention or purpose of framer (s) ordinarily to be sought for in the statutes itself or in elements of its proper context. Statute to be construed as a whole . Ordinary or plain meaning rule. Words ,phrase or sentences etc to be taken at first instance in their ordinary meaning or where appropriate their technical meaning in context. Secondary meaning rule Necessarily implied rule /Powers of court to correct errors in statutes (I0 Construction and (ii) by Rectification. Introduction to Aids Interpretation. Internal and External Aids Internal Aids. Parts of document (e.g. a traditional conveyance ) as aids to Interpretation. Legal effect of non operative parts : e.g., recitals punctuation, marginal notes, heading and titles etc Legal effect of operative parts : e.g. parcels, habendum, schedules, provisions ,definition/ interpretation sections. Parts of Statute as aids to Interpretation of Statutes

(I) Legal effect of non- enacting or descriptive parts of Statute e.g. long title ,short title , preamble ,heading marginal notes ,footnote etc. (ii) Legal effect of enacting or operative parts of Statute eg. Section, schedules, provisions, saving, interpretation section. ( c) Rules of language or linguistic canons of construction applicable to both Non- statutory Documents and Statutes.) (i)Expressio unius est excusio alterius rule (ii) Ejusdem generis rule (iii) Noscitur a sociis rule III External aids External aids applicable exclusively or largely to construction of Non statutory Documents (i) contra proferentem rule (ii) falsa demonstration rule (iii) expresso eorum quae tacite insunt nihil operator maxim Some External Aids applicable expressively or largely to construction of statutes : (i) Textbooks (ii) Dictionaries (iii) Practice (iv) Historical setting (v) Contemporanea esposito (vi) Ut res magis valet quam perat (vii) Common sense guide

(I) Introduction to Presumptions in Interpretation (II) Presumption applicable to interpretation of Non statutory document. Presumption as to the meaning or of specific expressions or provisions when used in some non-documents. Presumption of consistent expression Presumption against redundant words or surplusage( Presumption against tautology). Presumption against unreasonable results Presumption against impossibility (in the case of contracts) Presumptions as to the effect of erasures or alterations in non statutory presumption of non statutory presumption of non knowledge by an illiterate of contents of documents executed by him. (III) Presumption in the interpretation of Statutes Presumption of perfect knowledge and competence Presumption that legislature does not make mistakes Presumption against tautology(Presumption that the legislature does not speak in vain or presumption against surplusage) Presumption against of consistent expression (eg that same word or phrase bears same meaning) Presumption of coherence (or against internal conflict or inconsistencies). applicable in construction of parcels clauses (vii) Presumption of non knowledge by illiterate contents of document executed by him. Presumption of compliance with constitutional Law and values( presumption against violation of constitutional law and values. Constructions most agreeable to reason and justice. Genral presumption against absurd consequences Presumption against impairing obligations or permitting advantage from one own wrong. Presumption of evasion of enactment not to be allowed. Presumption against unclear changes in existing law. presumption against interference with vested rights Presumption regarding jurisdiction of the courts Presumption against ousting established jurisdiction Presumption against creating new or enlargening established jurisdiction. Presumption as to territorial extent of jurisdiction Presumption of compliance with International Law (presumption against violation of International Law) Presumption against retrospectively Presumption that ancillary rules of law apply Presumption that ancillary legal maxims apply Ouster clauses in non-statutory Documents Ouster Clause in Statutes Ouster Clause in National Constitutions e.g. the 1992 Constitution

Commencement Amendment Retrospective Legislation Defining retrospectivity Presumptions against retrospectivity Retrospectivity under 1992 Constitution Repeal Express or implied repeal Accrued rights Procedural changes and pending actions Substantive changes Introduction/ Definition of National Constitution key concept underlying 1992 Constitution e.g. Supremacy of the Constitution; separation of powers . Non justiciable political doctrine and mootness. Historical evolution / Approaches to interpretation of Constitutions in Ghana from Independence to date. The dominant Modern Purposive Approach to Constitutional Interpretation in Ghana. MOPA defined in relation to constitutional interpretation Other general principles of constitutional interpretation compatible with the MOPA Relevance of ordinary rules of Interpretation Directive Principles of the State Policy. Application of MOPA in specific problem cases: Organs of government separation of powers Citizenship Representation of people Electoral laws Political / civil liberties Social, Economic / Cultural rights Freedom / Independence of media Transitional provisions (eg. Ouster clauses)

How to do things with rules (3rd edition).W.Twining &D. Miers The Law of interpretation in Ghana (Exposition and Critique) Bimpong Buta,S.Y. Odgers Construction of Deeds and Statutes (5th ed)Gerald Dworkin The interpretation of Contracts (3rd ed.)Kim Lewinson Bell & Engle Cross on the Statutory Interpretation (3rd ed) Bennion F. Statutory Interpretation (4th ed.) P.St J Langan Maxwell on Interpretation of Statutes (12th ed) Driedger E. A Construction of Statutes (4th ed) Reed Dickerson, The interpretation and Application of Statutes. Interpreting the Constitution (Yale, 1991) -Harry Willington Interpreting Constitutions ( Oxford University Press) – Goldsworthy Active Liberty : Interpreting our Democratic Constitution (2006) – Stephen Breyer The role of the Supreme Court. In the development of Constittutional law in Ghana(2007) – S.Y. Bimpong Buta