President John Dramani Mahama faces a critical constitutional decision later this month as the Human Sexual Rights and Family Values Bill, 2025, passed by Parliament on May 29, awaits his assent. While public discourse has centered on the bill’s moral and human rights implications, the President’s strongest legal recourse may lie not in its substance, but in procedural constitutional questions concerning Articles 106 and 108 of Ghana’s 1992 Constitution.
Understanding the Legislative Framework
Article 106 of the Constitution outlines the legislative process, empowering the President to return a bill to Parliament with stated objections. Parliament can then reconsider the bill, potentially repassing it with a two-thirds majority.
Concerns about procedural irregularities during the bill’s passage have already been voiced, notably by Speaker Alban Bagbin. President Mahama has echoed these concerns, although they remain contested by Majority Chief Whip Rockson-Nelson Dafeamekpor, who asserts all parliamentary procedures were followed.
Article 108: The Unresolved Constitutional Question
Article 108, derived from the Westminster tradition of the “financial initiative of the Crown,” presents a more significant constitutional challenge. It stipulates that Parliament cannot proceed with a bill imposing charges on public funds, increasing public expenditure, or creating state financial obligations unless introduced by or on behalf of the President.
Proponents of the bill interpret Article 108 narrowly, arguing it applies only to direct financial impositions like establishing new agencies. They view the bill’s fiscal effects as incidental, relying on existing institutions.
Critics, however, contend that the bill’s extensive provisions—including lengthy prison sentences (requiring public funds for inmate upkeep), mandatory public education, rehabilitation frameworks, and institutional monitoring—create substantial and structural financial obligations, thus triggering Article 108.
Supreme Court’s Position and Precedent
The Supreme Court has yet to provide a definitive ruling on Article 108’s application to this bill. In December 2024, the Court dismissed pre-enactment challenges, deeming judicial review premature before the legislative process concluded. Crucially, the Court did not rule on the bill’s compliance with Article 108 or endorse Parliament’s interpretation.
Recent executive practice under the Nana Addo administration highlights the significance of Article 108 for private members’ bills with fiscal implications. In 2023, President Akufo-Addo withheld assent from the Witchcraft Accusation Bill and the Armed Forces Amendment Bill, citing Article 108 due to their financial consequences.
Furthermore, Attorney General Godfred Dame flagged this very bill in 2023, noting its potential violation of Article 108 when presented as a private member’s bill. This indicates an evolving constitutional understanding that legislation with significant fiscal impacts requires executive sponsorship.
Mahama’s Position and Future Implications
By invoking Article 108, President Mahama would be reinforcing an existing constitutional precedent rather than introducing a novel argument. While the previous actions by President Akufo-Addo and Attorney General Dame do not definitively settle the meaning of Article 108, they strengthen the argument that Mahama’s objection would be constitutionally grounded.
The interplay between Articles 106 and 108 is critical. If Mahama returns the bill under Article 106 citing Article 108, Parliament’s attempt to repass it could face a further challenge: whether an Article 108 defect, present from the bill’s inception, can be cured through the reconsideration process.
This constitutional argument, rooted in Article 108, offers President Mahama a robust basis for returning the Human Sexual Rights and Family Values Bill, 2025, to Parliament. It presents a substantial, unsettled constitutional question distinct from procedural concerns.
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