GHANA Trends and Developments Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
Court, a person who claims that his rights under the said article have been violated need not seek a re- interpretation of the self-same provision but to apply to the appropriate court for the enforcement of his rights; unless, the person alleges a different interpre ‑ tation and therefore calls upon the court to exercise its powers under article 129 (3)of the Constitution to depart from its previous interpretation.” The court stated that: “…the Plaintiff seeks the enforcement of the human rights of a group of people described as ‘well-known personalities and or professionals’ who are affected by the provisions in guidelines 3.2.10 issued by the 1st Defendant on the 16th of February 2016. The enforce‑ ment aspect of the Plaintiff’s action is therefore prop ‑ erty before this court.” The issue of invoking the jurisdiction of the Supreme Court was resolved in favour of the plaintiff, as the court concluded that its jurisdiction had been properly invoked. This was based on the fact that the plaintiff was not seeking a different interpretation of Article 17 (1) and (2) of the 1992 Constitution, but rather sought the enforcement of the provisions of the Constitution. The Court proceeded to determine the other issues – ie, whether the Guidelines contravened the 1992 Constitution and whether this was justifiable under the Constitution. The court found that the first defendant (the FDA) had the authority under the Public Health Act, 2012 (Act 851) to issue guidelines in relation to foods and drugs, including alcoholic beverages, in its regulation of the production and consumption of the referenced item, which is aimed at protecting and promoting the health and general well-being of all persons in Ghana. The Court also found that Guideline 3.2.10 is not unrea - sonable or excessive, and that it was issued within the confines of the general powers conferred on the FDA by Act 851. In arriving at its decision regarding whether or not the guideline contravened the Constitution or was justifi - able under it, the Court stated that:
“The Plaintiff has not shown that the well-known per ‑ sonalities or professionals who have been prohibited by the 1st Defendant from indulging in the advertise‑ ment of alcoholic beverages have been so prohibited due to their race, place of origin, political opinions, colour, gender, occupation, religion or creed. Guide‑ line 3.2.10 is a prohibition against all well-known per‑ sonalities or professionals from engaging in the adver‑ tising of alcoholic beverages and the reasons behind this prohibition have not been proved, by the Plaintiff, to be due to any of the factors outlined in article 17 (3) of the Constitution.” In addition, the Court found that Guideline 3.2.10 was issued in the interest of the public health of people in Ghana and was not discriminatory, so was not incon - sistent with and did not contravene Articles 17 (1) and (2) of the 1992 Constitution. The plaintiff’s action failed in its entirety and was dismissed by the Court. Justice Sackey Torkornoo CJ in her concurring opin - ion found that the plaintiff’s case was not sustainable and agreed with the majority decision. She also found that the Guidelines introduced by the first defendant prohibiting well-known personalities and professionals from advertising alcoholic products were not incon - sistent with and not in contravention of Article 17 (1) and (2) of the 1992 Constitution. She gave a number of reasons, including that the act of the first defend - ant did not constitute discrimination under Article 17 of the 1992 Constitution, and nor was it arbitrary, excessive or unreasonable. She added that the FDA’s restriction was to ensure that advertisements are not misleading or confusing, and do not dilute the reputa - tion or goodwill of celebrities who are well known, as well as the value of taking alcoholic drinks, and this act was supported by statute. In summary, the Court in a five-to-two majority deci - sion found that the Guidelines issued by the FDA restricting celebrities and well-known persons from advertising alcoholic beverages in Ghana were con - stitutional. The Court was also of the opinion that the FDA was not being unreasonable or excessive with the introduction of the ban. It is important to add here that Justice Ackah-Yensu JSC in his dissenting judgment was not in agreement
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