The Interplay Between Articles 23, 33 And 296 Of The 1992 Constitution Of Ghana

Three constitutional provisions dominate the jurisprudence on administrative discretion and its judicial control in Ghana:

• Article 23 – the substantive right to administrative justice, imposing a duty on public decision-makers to act “fairly and reasonably and comply with the requirements imposed on them by law” and guaranteeing a right of redress.
• Article 33 – the procedural gateway empowering the High Court to issue orders, directions and prerogative writs for the “enforcing or securing the enforcement” of the fundamental rights and freedoms set out in Chapter 5, including Article 23.
• Article 296 – the interpretative code regulating the exercise of statutory or constitutional discretion, requiring that such power be exercised with fairness and candour and prohibiting action that is arbitrary, capricious or biased.

However, courts disagree on how Articles 23 and 296 relate to one another, with the central question being whether Article 296 simply supports Article 23, or whether it also limits the way Article 23 may be applied. A further point of contention is whether claims under Article 23 must be brought through Article 33. Some decisions hold that Article 23 must be read through Article 296, effectively merging the two provisions. Others insist they are separate: Article 23 governs administrative action independently, while Article 296 addresses the exercise of discretionary powers. This disagreement matters in practice, as it shapes both the procedural routes open to a claimant and the standard of review a court will apply.

This article reviews two significant cases on the subject, analyses areas of consensus and tension, critiques the emerging thinking, and finally advances the view that while the three provisions must be read harmoniously, they remain conceptually and functionally distinct.

Synopsis of the leading Supreme Court decisions

1. Awuni v West African Examinations Council

In the Awuni Case, the Supreme Court of Ghana held the cancellation of students’ examination results and imposition of a three-year ban by the West African Examinations Council (“WAEC”), without affording them a hearing, was unlawful and violated the principles of natural justice and the constitutional right to fair administrative action. The court declared Article 23 a “justiciable fundamental human right.”] Kpegah JSC stressed that the phrase “act fairly and reasonably” incorporates natural justice. Sophia Akuffo JSC (as she then was) broadened the concept, adding probity, transparency, objectivity, opportunity to be heard, absence of bias and absence of ill-will. Article 296 received scant mention; the Court treated Article 23 as complete without recourse to Article 296 and permitted enforcement through Article 33.

2. Stephen Kwaku Asare v Attorney-General & Anor

This case concerned a constitutional challenge to aspects of the admissions regime for the Ghana School of Law administered by the General Legal Council (“GLC”). The plaintiff, Prof. Stephen Kwaku Asare, contended that the introduction and operation of entrance examinations, post-exam interviews, intake restrictions and related admissions controls lacked a proper legal basis and were administered in a manner that contravened constitutional guarantees of fair administrative process and non-arbitrary exercise of discretion. The matter was brought as a constitutional enforcement action, invoking the Supreme Court’s powers to declare unconstitutional administrative practices and to order corrective relief. In contesting the General Legal Council’s entrance examination regime, the plaintiff relied on Article 23. The Supreme Court (per Gbadegbe JSC) held that “the provision in Article 23 … is regulated by Article 296." and that to succeed, an applicant must demonstrate violation of the Article 296 tests (lack of candour, fairness or presence of arbitrariness, caprice or bias).

This judgment thus expressly welded Article 23 to Article 296. Making the determination of a breach of Article 23 subject to the plaintiff showing a breach of the article 296 standard.

3. Nduom & Others v Bank of Ghana & Others

In this case, the Supreme Court overturned the Court of Appeal’s decision that under the Banking and Specialised Deposit-Taking Act, 2016 (Act 930) arbitration was the exclusive means of challenging the revocation of the Appellant’s licence by Bank of Ghana. Pwamang JSC reasoned that Article 33 provides an “over-arching means for redress.” In expounding Article 23, the judgment carefully compared the statutory standard in section 142 of Act 930 with Article 23 but did not repeat Asare’s dictum that Article 296 exhaustively governs Article 23.

4. Attorney-General & General Legal Council v Prince Ganaku & Others

This was a Court of Appeal decision. The respondents challenged the GLC’s policy requiring candidates for the Ghana School of Law entrance examination to undertake that the published results would be final, with no right to review or remarking. They invoked the High Court’s human rights jurisdiction under Article 33 (via Order 67), alleging a violation of their right to administrative justice under Article 23. The High Court agreed with the respondents and granted declaratory and mandatory reliefs. On appeal, the Court of Appeal allowed the appeal, set aside the High Court’s decision, and held that the respondents’ Article 23 right had not been breached.

In its decision, the Court of Appeal canvassed the same themes as the earlier cases: the court invoked the Asare decision to insist that Article 23 breaches must be tested against Article 296 criteria. Initially, the court expressed misgivings about the suggestion in Asare that every case invoking Article 23 must be measured against Article 296. To the Court of Appeal, such an approach could have the unintended consequence of restricting the reach of Article 23 (especially of text which uses concepts of fairness, reasonableness, and compliance with law, words that are absent from Article 296). Thus, to wiggle out of an awkward position of disagreeing with a court higher than it, the Court of Appeal chose to read the Asare judgment in a way that harmonises Article 23 and 296. The Court of Appeal appeared to rather prefer the analysis in the Awuni decision that gave a broad interpretation to Article’s 23’s fairness and reasonableness to include concepts of “probity, transparency, objectivity, opportunity to be heard, legal competence and absence of bias, caprice or ill-will. Way.” Ultimately, the Court of Appeal ended its analysis by suggesting that a consistent reading of the Asare and Awuni decisions would be to “…understand and apply the benchmarks in article 296 (a) and (b) as coterminous with those in article 23”.

Critical evaluation of the Jurisprudence

1. Conceptual conflation – The Asare decision unfortunately collapsed Article 23 into Article 296, suggesting the latter “regulates” the former. This stands in tension with Awuni, which treated Article 23 as an autonomous right drawing content from common-law fairness rather than from Article 296. The more recent Nduom judgment silently declined to reaffirm Asare’s fusion, instead analysing Article 23 directly. The Prince Ganaku decision also attempts to correct the obvious challenge with the Asare case by attempting to interpret it in a manner that takes away its restrictive interpretation of Article 23.
2. Textual anchoring – Article 23 is situated in Chapter 5 (entrenched rights), whereas Article 296 sits in Chapter 25 (miscellaneous). The framers placed the obligation of fairness toward all administrative acts inside the Bill of Rights, signalling its self-executing character. It is therefore not entirely accurate to suggest that a Bill of Rights’ provision only acquires meaning through Chapter 5 (which is a miscellaneous provision). Rather, it may be more accurate to say that the Bill of Rights provisions is self-applying, while the miscellaneous provision deals with the exercise of all other discretionary powers that may not be covered under Article 23. Thus, the two streams are distinct, and one does not need the other to flow.
3. Overlap, not subordination – The fairness/candour and anti-arbitrariness clauses of Article 296 undoubtedly replicate parts of Article 23, but they are not co-extensive. Article 23 also requires reasonableness and compliance with all applicable law, concepts that are broader than Article 296. Conversely, Article 296(b) expressly references “due process of law,” a phrase absent from Article 23. The provisions intersect but neither subsumes the other. This was pointed out by the Court of Appeal in the Prince Ganaku

What then should be the true position?

1. Independence with harmony

Article 23 stipulates a substantive constitutional duty; Article 296 lays down interpretative conditions for discretionary power generally; Article 33 creates the procedural toolbox for redress. These provisions are complementary but autonomous. Collapsing them into one overarching concept risks the following:

• Dilution of rights. Article 23’s content is said to be entirely derivative of Article 296, elements unique to Article 23 (e.g., reasonableness) may be eclipsed.
• Confusion in court claims. Litigants and courts may mis-frame claims, arguing Article 296 where the gravamen is Article 23 (or vice versa), leading to technical dismissals.
• Hierarchical distortion. A Bill of Rights norm (Article 23) should not be subjected to a general administrative clause (Article 296). It should have its independent pride of place.

2. The true role of Article 296

Article 296 should be viewed as an additional lens, not the master key. It supplies minimum standards whenever a discretion exists but does not exhaust the constitutional analysis. Where a claimant pleads Article 23, a court may draw on Article 296 for guidance but must still test the impugned act against the broader criteria in Article 23.

3. Enforcement through only Article 33?

Article 33 is clearly designed for Chapter 5 rights; Article 23 is in Chapter 5. Therefore, Article 33 is a constitutionally ordained, and usually the most direct, enforcement mechanism. However, nothing in Article 33 states that it is exclusive. Indeed, its own wording suggests that it has, or should have, alternatives. Judicial review, statutory tribunals and alternative remedies may co-exist. The touchstone is effectiveness, not exclusivity.

Conclusion

The Supreme Court’s jurisprudence oscillates between two poles: the Awuni line, which treats Article 23 as a freestanding right enforced through Article 33, and the Asare line, which interposes Article 296 as an interpretive gatekeeper. The recent Nduom decision and the carefully worded Prince Ganaku decision cautiously lean back toward the Awuni model, implicitly affirming the autonomous force of Article 23.

A balanced approach is possible:

1. Article 23 is the primary constitutional guarantee of administrative justice.
2. Article 296 provides supplementary, but not exhaustive, standards for the exercise of discretion. It assists in interpreting the fairness and non-arbitrariness limbs of Article 23 without eclipsing them.
3. Article 33 is the natural procedural path for enforcement, but its availability does not negate alternative remedies.

Thus, the three provisions should be read harmoniously yet independently, each playing a distinct role in the architecture of constitutional governance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.