Following the President’s instruction for the commencement of processes to revoke the legislative instrument, Environmental Protection (Mining in Forest Reserves) Regulations, 2023 (L. I. 2462); as one of the steps at stopping illegal mining in forest reserves and waterbodies, the Minister of Lands and Natural Resources has stated in an interview with the Daily Graphic that:
“…Those matters in (sic) the revocation of the L.I. are within the bosom of Parliament, but the government will discharge its commitment by triggering the process of revocation, and thereafter it will be within the remit of Parliament to deal with it,”
This article aims to examine the role of Parliament, if any, in the revocation processes of an L.I. The author argues that Parliament has a very limited role in the revocation process, which role is just a matter of courtesy extended to the house by the Minister responsible for the Environment. The arguments of the author are anchored firmly on the Supreme Court decision in the case of Opremreh v Electoral Commission and Another
Insights from Opremreh
The case of Opremreh v Electoral Commission and Another addressed a critical constitutional question regarding the powers of Parliament in relation to subsidiary legislation, specifically Legislative Instruments (L.I.s). In the case, Parliament sought to make some amendments to the L.I laid before it. The changes introduced varied the original number of electoral areas. The key constitutional provision in the case was Article 11(7) of the 1992 Constitution of Ghana, which states:
“Any Orders, Rules or Regulations made by a person or authority under a power conferred by this Constitution or any other law shall,
(a) be laid before Parliament;
(b) be published in the Gazette on the day it is laid before Parliament; and
(c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Orders, Rules or Regulations by the votes of not less than two-thirds of all the members of Parliament.”
This provision clearly establishes a constrained role for Parliament in the L.I. making process, by limiting its options to either passive acceptance or outright annulment. The Supreme Court emphasized that Article 11(7) provides Parliament with only two options in the L.I making process: allow the L.I. to come into force after 21 days or annul it by a two-thirds majority vote. The author relies on statements by Justice Brobbey JSC, in an earlier decision of the Supreme Court in Stephen Okane & others v Electoral Commission and another, where he stated unequivocally as follows:
“There is no provision in article 11(7) quoted above for Parliament to amend the Regulation as laid before it. Parliament is authorized to annul the Regulations.”
The Supreme Court drew a clear distinction between annulment and amendment, emphasizing that Parliament’s power is limited to the former. This interpretation strictly confines Parliament’s role to an “all or nothing” approach with L.I.s.
Further, and more instructively, the Supreme Court in reference to Article 297(d) of the Constitution, interpreted this provision as conferring the power to amend on the original makers of the regulation, not on Parliament.
Brobbey JSC, again, in Stephen Okane & others v Electoral Commission and another goes further to now delineate the role of the makers of regulations and that of Parliament as follows:
“The question to be considered is “Who is making the Regulation or who are the makers of the Regulation?” The makers of the Regulation are those who initiated the Regulation and actually drew up its terms. They are the source from where the Regulation was made. They comprise people on the ground who are conversant with the issues, facts and circumstances which informed the making of the Regulation. If suggestions, comments or memoranda are made, it is the makers who are in the best position to appreciate and consider them, their implications and ramifications before coming to the final determination on the form and content that the Regulation should take when it becomes law. That is why article 297(d), gives the power to the makers to make amendments to the Regulation. The makers are different and distinct from Parliament. While article 297(d) empowers the makers to make amendments, article 11(7) empowers Parliament to annul Regulations.
Based on the above, it stands to reason that maker (s) of the L.I on mining in forest reserves is the Minister of Environment, Science, Technology and Innovation and the Ministry since the L.I 2462 was made pursuant to a so-called power granted under section 62 (1) of the Environmental Protection Agency Act, 1994 (Act 490) that empowers the Minister responsible for the Environment to make regulations generally for, among other things to give effect to the Environmental Protection Agency Act, 1994 (Act 490).
Getting L.I 2462 off our statute books
While in the case of its exercise of legislative power under Articles 106-108, Parliament is engaged in an activity that is reserved for it by the Constitution as the legislative authority, in matters that come before it pursuant to Article 11(7) of the 1992 Constitution, Parliament as an institution of state is only being used as the medium to enable the power conferred on persons or authorities other than Parliament to make “any Orders, Rules and Regulations” as provided for in Article 11.1(c) to conform to the requirements of the law.
There is a school of thought that Parliament ought to play a significant role in the revocation process of an L.I. They argue that a similar procedure for the passage of L.I which involves laying the draft L.I in parliament for 21 days to mature must be employed to revoke an L.I.
This view is hamstrung by procedural challenges – the main one being whether or not Parliament, while this revocation is waiting to mature in 21 days, can use two thirds majority to annul the revocation? This is not practical since Parliament will then be telling the makers of the L.I to go ahead and implement an L.I they want to revoke for various reasons. If it is an amendment of an L.I, Parliament can exercise its annulment authority before the amendment matures in 21-days. This is a revocation of the entire L.I and not an amendment of parts of the L.I.
Others are of the view that an Amendment Act may be introduced to revoke the L.I. While this is possible, this process will also be caught in the procedural challenges, where Parliament will have to refer the Bill for the revocation of the L.I to the appropriate committee and the committee may decide that they disagree with the revocation.
This will bring us back to square one, where a maker of an L.I will be forced by Parliament to implement and operationalize an L.I it considers not fit for purpose. Remember, Brobbey JSC in Stephen Okane states with clarity that:
“The makers of the Regulation are those who initiated the Regulation and actually drew up its terms. They are the source from where the Regulation was made. They comprise people on the ground who are conversant with the issues, facts and circumstances which informed the making of the Regulation”
Why should Parliament have a significant role in the revocation of an L.I when it has a very limited “conveyor-belt” role with the power to stop the conveyor-belt by annulment?
There are clear constitutional limits on the role of the Parliament in the making of L.Is. The limitation in the view of the author also applies when “unmaking” the L.I. Therefore, if Parliament has a limited role in the making of L.Is, then its role in revoking or cessation of implementation of an L.I cannot but be limited.
It is the reasoned view of the author that in the revocation of an L.I a notification in a statement to the house by the maker(s) of the L.I of its revocation or cessation of implementation should be enough to remove the L.I from our statute books. It is the considered view of the author that once the statement is made in the house, the house stands notified of the said revocation or cessation of implementation.
Subsequently, a notice of the revocation or the cessation of implementation may be published in the gazette to that effect. This procedure obviates all the procedural bottlenecks and gives makers of L.Is the power conferred on them by law to revoke.
Conclusion
The authority to revoke L.I 2462 lies with the Minister of Environment Science, Technology and Innovation. A simple procedure of notifying Parliament through a statement on the floor of the house should be enough to revoke the L.I. Any fanciful procedural niceties of laying a Revocation L.I will lead to absurdities. c
The statement notifying Parliament of the revocation must also contain information on the consequential and interim measures. In the case of L.I 2462, the effect of any conditions in licenses that have been issued pursuant to the L.I.
We may require legislation in the future to clarify the procedure for revoking L.Is. Kenya in 2013 to address similar concerns passed the Statutory Instruments Act, 2013 (No. 23) to clarify the procedure for the making, annulment, revocation and repeal of statutory instruments.
Under the Kenyan Act, there is automatic revocation of statutory instruments 10 years after passage, unless repealed or its life span is extended. We may need to bring clarity on the procedures concerning the making and unmaking of statutory instruments. #STOPGalamasey!
Clement Akapame
The writer, is a lawyer in private practice and a senior lecturer at the GIMPA Law School
