Nuggets and nuances of article 181 (5) of 1992 Constitution in relation to the Sputnik V vaccines contract

The alleged procurement infractions of the health minister in the procurement of some 300,000 Sputnik V Vaccines at a unit cost of $19 other than factory price of $10 has generated public outcry, constitutional controversy, and societal drama for some time now.

Whilst many a Ghanaian is concerned about value for money in the transaction, the said minister rather has a justification of being pressured by the abnormal times.

Well, this article articulates lucidly the constitutionality of the said transaction between the minister of health and Sheik Al Maktoum thorough perusal of the following issues:

1) The health minister’s conduct falls within article 181 (5) of Constitution 1992?

2) The appropriate forum for redress is the Ghanaian courts?

3) Breach of Article 181 (5) renders the contract void?

Relevant Legal Authorities and application

Article 185 (1) of Constitution 1992 as regards the Health Minister’s Conduct

Article 181 (5) states that international business transactions between:

a) Government of Ghana (GOG) and

b) Foreign nationals or multinational companies must be laid before parliament for approval to ensure the validity of such contracts.

What constitutes government and who is a foreigner within the scope of Article 181 (5) of Constitution 1992?

Government within the scope of Article 181 (5) refers to the central government comprising the legislature, executive, and the judiciary as well as their organs and departments and does not include autonomous government agencies with commercial functions (juristic state institutions with the power to contract).

This view was subscribed by the Supreme Court in the cases of Felix Klomega v. AG & Ghana Ports and Harbor Authority, as well as Mark Assibey v.AG.

Additionally, foreigner within the meaning of the said article 181 (5) also refers to a contractual relationship where there is a significant foreign element between the government of Ghana as one party and a national of a different country or a multinational firm or a domestic firm with foreign directors or ownership as another party.

These were the holdings of the Supreme Court in the cases of AG v. Balkan Energy Ghana Ltd and AG. Faroe Atlantic Co. Ltd

The law is that any international economic transaction between the government of Ghana and a foreigner or foreign firm requires parliamentary approval to be valid.

Article 130 of the 1992 Constitution with respect to the appropriate forum for redress of Sheik Al Maktoum grievance

Article 130 of Constitution 1992 stipulates that interpretation and enforcement of constitution 1992 shall be a preserve of the Supreme Court.

Accordingly, Sheik Al Maktoum can start an action at the Supreme Court for interpretation and enforcement of the true meaning of Article 181 (5) as well as his contractual rights. Should the Sheik take responsibility for the minister’s inability to seek parliamentary approval?

Implications of Breach of Article 181 (5) on contractual relations in Ghana?

The implication is that contractual international business transactions between the central government of Ghana and foreigners that do not pass through parliament for approval will be null and void. This is in line with the Supreme Court holding in Martin Alamisi Amidu (No.1) v. AG, Waterville Holdings, Woyome (No.1)

Conclusion

The contract between the health minister of Ghana and Sheik constitutes an international business transaction that required parliamentary approval within the meaning of Article 181 (1) of Constitution 1992 since Sheik Al Maktoum is an Emirati (foreigner).

The Supreme Court has the capacity to address the grievance of Sheik in Ghana in tandem with Article 130 of Constitution 1992

Breach of Article 181 (5) means that the contract between the health minister and Sheik Al Maktoum is void and of no effect.