GHANA Trends and Developments Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
defendants filed their Statement of Case in answer. The parties jointly filed a memorandum of issues to be determined by the court in the resolution of the matter. A summary review of the case The following three issues were set down for determi - nation by the Supreme Court: • whether or not the jurisdiction of the Supreme Court has been properly invoked; • whether or not clause 3.2.10 of the Guidelines for the Advertisement of Foods issued by the first defendant is inconsistent with or in contravention of Article 17 (1) and (2) of the 1992 Constitution and hence void; and • whether or not Guideline 3.2.10 issued by the first defendant on 1 February 2016 is justifiable under Article 12 (1) of the 1992 Constitution. The plaintiff’s main argument on which his case rested was that there was a principle of equality before the law; he also advocated for the right to be free from discrimination on the grounds of socio-economic sta - tus or occupation. He argued that Guideline 3.2.10 had the effect of preventing people who had worked hard to build a strong reputation from making money or earning an income from said good will through the advertisement of alcoholic products. The plaintiff said this Guideline was in effect contrary to the provisions and intent of Chapter 6 of the 1992 Constitution, which enjoined the state to provide ample opportunity to individuals to be inventive and creative in economic activities, in order to promote an environment that highlights the role of the private sec - tor in Ghana’s economy. He also argued that Article 36 (2)(b) should be read together with Article 17 of the 1992 Constitution to fully appreciate the effect of the provisions in relation to this issue. The plaintiff further argued that people acting under authority provided by an Act of Parliament cannot on that basis take away a citizen’s right to be treated equally before the law and the right against discrimina - tion on socio-economic grounds, except when done in exceptional cases. In support of his argument, the plaintiff relied on the decision of the court in Repub‑ lic v Eugene Baffoe-Bonnie and Others [2018-2019]
1GLR 42. He also submitted that such limitation of a constitutional right by a statute must be reason - able, necessary and proportional in order for it to be successful. He argued that, in this instance, the first defendant did not provide any scientific or empirical basis for the restriction it placed on well-known per - sons being featured in advertising for alcoholic prod - ucts. Therefore, the limitation was not reasonable, necessary or proportional. The first defendant (ie, the FDA), on the other hand, argued that the Guidelines in question were issued based on detailed research, best international prac - tices and its statutory duty to protect the health and safety of the public. The FDA further argued that the Guidelines were issued pursuant to the powers pro - vided to it by statute in respect of its duties to pro - tect public health, and the plaintiff did not raise any issues for invocation of the original jurisdiction of the Supreme Court. The second defendant (ie, the Attorney General) aligned with the arguments put forth by the FDA and further argued that the Guideline contained in para - graph 3.2.10 as published by the FDA was not dis - criminatory nor inconsistent with the 1992 Constitu - tion, and therefore did not contravene Article 17 (1) and (2) of the 1992 Constitution. The second defendant also argued that the Guidelines were issued by the FDA to eliminate the use of the personality and influence of these well-known persons in advertising and promoting alcoholic beverages, due to the influence such well-known persons and professionals have on society. The second defend - ant further argued that the FDA had the legal right to issue guidelines for regulating the advertisement of alcoholic beverages. Supreme Court decision After listening to the arguments of both sides, a deci - sion was handed down on 19 June 2024 by Justice Asiedu of the Supreme Court. In its judgment, the court resolved the issue of the interpretation and/or enforcement of the constitution as follows: “It is the view of this court that once a provision of the Constitution had received interpretation by the
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