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Parliament, Supreme Court wrangle over ‘wee’ law

BY: Nana Konadu Agyeman & Emmanuel Ebo Hawkson
The cannabis plant, popularly known as ‘wee’
The cannabis plant, popularly known as ‘wee’

The Supreme Court has held that it struck out the law on granting licence to grow cannabis, popularly known as ‘wee’, because there was no debate in Parliament on it before its passage into law, as stipulated by Article 106 (5) (6) of the 1992 Constitution.

Again, the apex court was of the considered opinion 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 license the cultivation of cannabis.

Such an omission, it held, was a violation of Article 106 (2) of the 1992 Constitution.

In view of the said violations, the court held that Section 43 of the Narcotics Control Commission Act 2020 (Act 1019) was unconstitutional.

“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,” it held.

Section 43 of Act 1019 allows the Minister of the Interior, upon the recommendation of the Narcotics Control Commission (NACOC), to grant an entity the licence to cultivate cannabis of not more than 0.3 Tetrahydrocannabinol (THC) content for industrial and medicinal purposes.

Strange ruling

However, in a swift reaction, the First Deputy Speaker of Parliament, Joseph Osei-Owusu, has expressed surprise that the Supreme Court had questioned Parliament’s failure to debate Section 43 of the Narcotic Control Commission Bill, 2020 as basis for striking out the law on licence to grow cannabis.

He said if, indeed, the judgment, as reported in the media, was true, he would find it very strange how the apex court came to the conclusion that Parliament did not debate the bill prior to its passage.

“Because, if I recall correctly, I was presiding when these particular clauses of the bill were considered clause by clause at the consideration stage and there was substantial debate back and forth,” Mr Osei-Owusu said.

Majority decision

On July 27, this year, a seven-member panel of the highest court of the land, in a 4-3 majority decision, declared as unconstitutional Section 43 of Act 1019.

The court, however, did not give the full reasons for its decision read in court but said they would be available in the full decision in the judgement filed with the court’s registry.

The case which culminated in the judgment was filed by one Ezuame Mannan against the Attorney-General.

The plaintiff had argued that Section 43 of Act 1019 was unconstitutional on the basis that it was not passed in accordance with Article 106 and was also a breach of the country’s obligation under international convention to curb hard drugs, such as cannabis.

The justices on the majority side were Jones Dotse, Agnes Dordzie, Professor Henrietta Mensa-Bonsu and Emmanuel Yonny Kulendi.

Justices Nene Amegatcher, Prof. Nii Ashie Kotey and Issifu Omoro Tanko Amadu dissented.

Justice Kulendi authored the majority decision, while Justices Amadu and Nene Amegatcher authored separate dissenting opinions.

No debate

It was the considered view of the court that there was no debate on Section 43 of Act 1019 in Parliament.

According to the court, the available evidence showed that the amendment to Act 1019, which introduced Section 43, was placed before Parliament about 5:50 p.m., and by 6:02 p.m. Act 1019 had been passed by Parliament into law, with no debate on such a crucial piece of legislation.

“The lack of debate on Section 43 of Act 1019 amounts to not only a direct violation of the letter of Article 106 of the Constitution but also a violation of the spirit of the law.

“There was, conspicuously, no debate over such a critical shift in policy by Parliament. Needless to say, this conduct and mode of law making defeat the transparency and accountability enjoined by the Constitution,” it held.

Explanatory note

With regard to the lack of detailed explanatory notes, as stipulated by Article 106 (2) of the Constitution, the court held that such a violation meant that the people of Ghana were deprived any notice of such an important legislation.

“Was the public, the sovereign, given notice of this impending radical policy decision and the opportunity to relay comments, concerns, even queries to their members of Parliament on the provision?

“Did the Ghanaian people know that they were being ushered by their elected representatives into a narcotic control regime that will license the commercial cultivation of cannabis? Can the mode of passage resorted to by Parliament be said to be in accordance with the letter and the spirit of the Constitution? We think not,” it explained.

In the dissenting opinion, the minority was of the considered view that upholding the suit would amount to the Supreme Court interfering in the legislative functions of Parliament.

“For this court to attempt to embark on any such enquiry under the guise of purposive interpretation of the Constitution, it will be provoking a tall and difficult, yet unanswerable political question.

“To actualise it will be tantamount to an avoidable interference with the legislative function of Parliament in a manner not contemplated by the framers of the Constitution,” Justice Amadu held.

In an interview with the Daily Graphic yesterday in reaction to the judgement by the Supreme Court that Parliament was not transparent in its passage of the bill, Mr Osei-Owusu said: “I will be very surprised to hear anybody say that Parliament did not debate the bill, and this is not the correct position.

“The reported judgement does not appear fair and reflect what happened in Parliament. If I recall correctly, that particular clause was the clause about which there were arguments back and forth and a decision on the matter was deferred for quite later in the evening around 7 p.m.

“We suspended consideration and we brought in the NACOC representatives to come and explain the circumstances of what it meant by 0.3 THC and so on before we continued and took a decision on that.”

Mr Osei-Owusu, who is the MP for Bekwai, said the officials explained that the 0.3 THC per se could not get a person “high” but it was the lowest level “you can get and it is for medicinal purposes”.

What informed Supreme Court decision?

The First Deputy Speaker indicated that before he could take any firm position on the Supreme Court ruling, he would request for the full judgement to read it to know what had informed the decision.

“I would want to know what the issue was, the matter that went to court and how what happened in Parliament became an issue for the consideration by the court,” he said.

Mr Osei-Owusu said he did not know what Parliament did that defeated the letter and spirit of Article 106 (5) (6) of the 1992 Constitution.

“I would love to read the judgement myself and evaluate it because most likely the Supreme Court would have done some analysis; when it comes to law, it is a matter of opinion.

“So if even you do not agree with the person, you would want to see how the person came to the conclusion and whether there was any misinformation sent to the court,” he added.

He indicated also that he would obtain a copy of the Hansard which captured the verbatim reports of Parliament’s debate on the clauses of Section 43 of the Narcotic Control Commission Bill.

Memorandum isn’t law

Mr Osei-Owusu also responded to the apex court’s ruling that the explanatory memorandum attached to the bill did not set out in detail the policy change, the defects in the existing law and the necessity to introduce a law to license the cultivation of cannabis.

“The explanatory memorandum is a guide but it is not the law; it is to explain to Parliament why are we bringing this law, what the defect in the existing law is, what the policy consideration is, what new change we want; but none of them is part of the law,” he said.

“Indeed, even in the debate, we are not supposed to refer to the memorandum; so this is just the report and I would like to see the judgement itself,” he added.

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