By Daniel Bampoe
In a bold and unprecedented critique during his vetting, Supreme Court nominee Justice Dennis Dominic Adjei has called for a reconsideration of Ghana’s constitutional interpretation that mandates the physical presence of the President within the country at all times.
Describing the current interpretation as “funny” in light of technological advancements, Justice Adjei argued that a modern, purposive reading of the Constitution is long overdue.
Appearing before Parliament’s Appointments Committee on June 16, 2025, Justice Adjei singled out the landmark cases of Asare v Attorney General and Attah-Mensah v Attorney General, in which the Supreme Court held that the President’s physical absence from Ghana triggers a constitutional requirement for the Speaker of Parliament to assume the role of Acting President.
Background of the Constitutional Dispute
The controversy stems from events in November 2014 when then-President John Dramani Mahama and Vice President Kwesi Amissah-Arthur were both outside Ghana on official duties.
At the time, Speaker of Parliament Edward Doe Adjaho declined to take the presidential oath under Article 60 of the Constitution, prompting legal challenges by broadcaster Samuel Attah-Mensah and legal academic Professor Stephen Kwaku Asare.
In a consolidated ruling delivered by Justice William Atuguba and read by Justice Paul Baffoe-Bonnie, the Supreme Court held that under Articles 60(8), 60(11), and 60(12), the absence of both the President and Vice-President—regardless of the reason—compels the Speaker to assume presidential duties after swearing an oath.
The Court firmly rejected the notion that advancements in communication technology could substitute for physical presence or nullify the need for an acting President on Ghanaian soil.
The Court stressed that this interpretation was based on the literal wording of the Constitution, emphasizing that failure to swear the oath invalidates any action by a Speaker purporting to act as President.
Justice Adjei’s Challenge to the Status Quo
Justice Adjei, an Appeal Court judge, argued before the committee that while the strict interpretation served its purpose during Ghana’s politically unstable past, it no longer suits contemporary governance.
“The rationale behind such a provision was tied to the country’s military past. The fear was that if both the President and Vice President were absent, a power vacuum might invite unconstitutional takeovers,” he explained.
“But today, technology allows a President to function effectively from anywhere in the world.”
He acknowledged that while the Constitution’s language hasn’t changed, its context has.
“The law must be interpreted in a way that reflects current realities. Otherwise, the Constitution becomes rigid and irrelevant,” he added, invoking the concept of living constitutionalism.
Justice Adjei noted that the rigid application of Article 60 could lead to absurd outcomes, such as having two Presidents—one acting from abroad via communication tools, and another acting domestically under legal mandate.
“Such situations are impractical and constitutionally awkward,” he said.
Calls for Purposive Interpretation
Throughout his testimony, Justice Adjei urged the need for purposive constitutional interpretation, which considers the intent behind legal provisions and adapts them to modern circumstances.
He highlighted that in its 2015 ruling, the Supreme Court had refused to adopt this approach, prioritizing textual fidelity over functionality.
“But if the Constitution is to remain a living organism, its interpretation must evolve,” Justice Adjei insisted.
He drew parallels with the foundational Tuffuor v Attorney General decision, which treated the Constitution as a unique legal instrument.
“Because of its sui generis nature, constitutional interpretation must be flexible. That doesn’t mean rewriting the law—it means understanding its purpose in changing times,” he emphasized.
Lingering Legal Tensions
Justice Adjei’s remarks revive ongoing tensions in the constitutional interpretation between literalism and purposive analysis.
The 2015 Supreme Court ruling firmly rejected purposive appeals, holding that the Speaker cannot exercise presidential functions unless formally sworn in, and that presence in Ghana is a prerequisite for the President to carry out duties.
Despite acknowledging that the ruling is binding unless overturned, Justice Adjei argued for legal evolution.
He maintained that new applications of the law could be brought before the Court, potentially paving the way for reinterpretation.
Implications for the Supreme Court
Justice Adjei’s nomination and potential confirmation could shift the judicial balance on constitutional interpretation.
His views reflect a willingness to challenge entrenched precedents and reinterpret the Constitution in light of societal and technological changes.
His testimony signals that should he be confirmed, the Court may revisit controversial precedents like Attah-Mensah and Asare, especially as Ghana continues to balance constitutional fidelity with the demands of effective governance in a digital age.
