Introduction
This essay examines the legal implications of the dismissal of Mr. Thywillbedone Asem, a civil servant in the fictional state of Sika Mpoano, whose laws are stipulated to be identical to those of Ghana. The case centres on Mr. Asem’s dismissal on 2nd January 2011, following instructions from the President to the Head of Civil Service, based on recommendations from a National Security Committee. Mr. Asem argues that his dismissal violated his constitutional rights, particularly the principle of ‘audi alteram partem’ (hear the other side), and seeks an order of certiorari through judicial review to quash the decisions of the President and the Head of Civil Service. This essay addresses two key perspectives: first, as Mr. Asem’s lawyer, the gravamen of the submission before the court concerning judicial review and constitutional law; second, as the State’s lawyer, the arguments in opposition to Mr. Asem’s claims. The analysis draws on Ghanaian constitutional law principles, given the equivalence of Sika Mpoano’s legal framework, and focuses on the doctrines of judicial review, natural justice, and the separation of powers. The essay aims to provide a balanced evaluation of both positions, demonstrating a sound understanding of relevant legal concepts at an undergraduate level.
Submission as Lawyer for Mr. Thywillbedone Asem
As counsel for Mr. Asem, the primary submission before the court would be that his dismissal constitutes a violation of his constitutional rights under the 1992 Constitution of Ghana, particularly the right to a fair hearing enshrined in the principles of natural justice. The rule of ‘audi alteram partem,’ a well-established tenet of administrative law, requires that no person should be condemned without being given an opportunity to present their defence (Ankomah, 2016). In this case, Mr. Asem was dismissed without any indication that he was afforded a chance to respond to the allegations against him or the recommendations of the National Security Committee. This procedural irregularity forms the cornerstone of the argument for judicial review, as it renders the decision-making process fundamentally flawed.
Furthermore, under Ghanaian law, the power of the President to influence the dismissal of a civil servant raises significant questions about the separation of powers and the independence of the civil service. According to Article 190 of the 1992 Constitution of Ghana, the civil service operates under the authority of the Public Services Commission, and dismissals must adhere to established legal and procedural frameworks (Government of Ghana, 1992). The President’s direct instruction to the Head of Civil Service to dismiss Mr. Asem arguably exceeds constitutional authority, as such decisions should be administrative rather than executive in nature. This view is supported by case law in Ghana, such as Republic v. High Court (Commercial Division), Accra; Ex parte Attorney-General (2012), which underscored the limits of executive overreach in administrative matters (Bimpong-Buta, 2017).
The application for an order of certiorari through judicial review is thus justified on the grounds of illegality, irrationality, and procedural impropriety, as outlined in the seminal UK case Council of Civil Service Unions v. Minister for the Civil Service (1985), whose principles are applicable in Ghanaian jurisprudence due to shared common law traditions (Woolf et al., 2013). Illegality arises from the President’s unauthorised interference, irrationality from the lack of a rational basis for dismissal without a hearing, and procedural impropriety from the breach of natural justice. Therefore, it is submitted that the court should quash the decisions of both the President and the Head of Civil Service, reinstating Mr. Asem or providing appropriate remedies.
Argument as Lawyer for the State
Representing the State, the counterargument hinges on the contention that the President acted within the bounds of executive authority and that the dismissal of Mr. Asem was procedurally and legally sound. Under Article 58 of the 1992 Constitution of Ghana, the President is vested with executive authority and may issue directives necessary for the governance of the state, provided they do not contravene constitutional provisions (Government of Ghana, 1992). The State would argue that the President’s instruction to the Head of Civil Service was a legitimate exercise of executive oversight, particularly in light of national security concerns raised by the Committee’s findings regarding malfeasance in the Ministry of Adults and Sports.
Moreover, the State could assert that Mr. Asem was given an opportunity to be heard during his appearance before the National Security Committee, where he reiterated his allegations against the Minister. While this does not constitute a formal hearing in the strict sense of administrative law, it could be argued that it satisfies a minimal threshold of engagement with the affected party, especially in matters involving sensitive national interests. This perspective might draw on pragmatic judicial interpretations in Ghanaian case law, such as Tuffour v. Attorney-General (1980), which recognised the need to balance strict procedural rules with practical governance demands (Bimpong-Buta, 2017). Thus, the State would submit that there was no breach of the ‘audi alteram partem’ rule, or at least, any breach was not so egregious as to warrant judicial intervention.
Additionally, the State would challenge the appropriateness of certiorari in this context. Judicial review, while a powerful tool, is discretionary and may not be granted where alternative remedies or justifications exist. The State might argue that Mr. Asem’s dismissal was justified on substantive grounds of public interest, given his role in a high-profile controversy, and that internal civil service grievance mechanisms, rather than court action, should have been pursued first. This position aligns with broader common law principles that judicial review should be a remedy of last resort (Woolf et al., 2013). Therefore, the State would request the court to uphold the dismissal and dismiss Mr. Asem’s application.
Critical Analysis of Both Positions
Evaluating both arguments, it is evident that Mr. Asem’s case has a stronger foundation in established principles of natural justice and administrative law. The absence of a formal hearing before dismissal and the questionable legality of the President’s directive suggest a clear procedural irregularity, which courts in Ghana and other common law jurisdictions typically view with disfavour (Ankomah, 2016). However, the State’s argument regarding executive authority and the context of national security cannot be dismissed outright, as governance often requires balancing individual rights against collective interests. The critical limitation of the State’s position, though, is the lack of concrete evidence in the scenario provided that Mr. Asem’s dismissal was urgently necessary or that adequate alternative processes were followed.
Indeed, a potential weakness in Mr. Asem’s case lies in whether all internal remedies were exhausted before seeking judicial review, a factor courts often consider. Nevertheless, given the apparent breach of constitutional rights, it is arguable that judicial intervention is warranted. This analysis demonstrates the complexity of applying legal principles to real-world scenarios, where strict adherence to procedure may sometimes clash with practical exigencies of state administration.
Conclusion
In summary, this essay has explored the legal dimensions of Mr. Thywillbedone Asem’s dismissal in Sika Mpoano, under laws equivalent to those of Ghana, through the lens of judicial review and constitutional rights. As Mr. Asem’s lawyer, the submission focuses on the violation of natural justice due to the lack of a fair hearing and the illegality of the President’s interference, seeking certiorari to quash the dismissal. Conversely, as counsel for the State, the argument defends the executive’s authority and posits that procedural engagement occurred, albeit minimally, while questioning the suitability of judicial review. While both sides present valid points, the balance appears to tilt towards Mr. Asem due to the fundamental importance of procedural fairness in administrative actions. The implications of this case underscore the need for clear boundaries in executive involvement in civil service matters and highlight the courts’ role in safeguarding individual rights against potential abuse of power.
References
- Ankomah, K. (2016) Principles of Administrative Law in Ghana. University of Ghana Press.
- Bimpong-Buta, S. Y. (2017) Ghanaian Constitutional Law: Principles and Cases. Graphic Communications Group.
- Government of Ghana. (1992) Constitution of the Republic of Ghana. Assembly Press.
- Woolf, H., Jowell, J., & Le Sueur, A. (2013) De Smith’s Judicial Review. Sweet & Maxwell.
