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Rethinking Constitutional Reasoning in the 31st December Case

Life Pulse Daily | Constitutional Law Analysis

Introduction

On December 31, 1981, a significant political shift occurred in Ghana, marking the beginning of the Provisional National Defence Council (PNDC) era. For years following this event, the date was observed as a national public holiday. However, the legal status of this observance was eventually challenged, leading to a landmark Supreme Court ruling that declared the celebration unconstitutional. While the verdict is well-known, the specific constitutional reasoning behind it is often less scrutinized.

This article does not defend coups d’état, nor does it question Ghana’s commitment to democratic governance. Instead, it offers a pedagogical analysis of the legal logic employed by the Supreme Court in what is commonly known as the “31st December Case.” By examining the constitutional provenance, the use of public funds, and the principle of internal consistency, we ask a critical question: Was the reasoning applied in this case legally coherent in light of the Constitution’s own history?

Key Points

Background

The Rise of the PNDC and the Holiday

On December 31, 1981, Flight Lieutenant Jerry John Rawlings led a coup that overthrew the civilian government of Dr. Hilla Limann and the 1979 Constitution. This event ushered in the PNDC, a military-revolutionary regime that exercised combined legislative and executive powers. In the exercise of these powers, the PNDC declared December 31 a public holiday to commemorate what it described as a “Revolution Day.” The holiday was observed annually throughout the PNDC era.

The Return to Constitutional Rule

Following the transition to democratic rule in 1992, the holiday persisted, including during the early years of the Fourth Republic. It was within this context that the continued observance of December 31 as a public holiday was challenged before the Supreme Court. The core argument was that using public funds to celebrate the overthrow of a previous constitutional order was inconsistent with the spirit of the 1992 Constitution, which is fundamentally dedicated to constitutionalism and the rule of law.

Analysis

The Supreme Court’s Reasoning

The Supreme Court upheld the challenge, holding that the continued celebration of December 31 as a public holiday, funded by public resources, contravened the spirit of the Constitution. The Court declared the holiday unconstitutional. While the ethical impulse—rejecting unconstitutional changes of government—is understandable, constitutional adjudication requires more than value alignment; it demands analytical coherence.

The Overlooked Constitutional Provenance

A vital fact often omitted from discussions of this case is the origin of the 1992 Constitution itself. The Constitution is contained in the Schedule to PNDC Law 282 (PNDCL 282). It was promulgated under the authority of the PNDC and signed into law by Chairman Rawlings—the very person who led the 1981 coup. This historical and legal fact has never been treated as constitutionally problematic. On the contrary, the Constitution has been fully accepted, operationalized, and celebrated as the supreme law of the land.

This acceptance raises a logical query: If the Constitution’s PNDC provenance does not taint its legitimacy, why should the commemoration of a date associated with that very same historical transition be uniquely unconstitutional?

The Issue of Public Funds and Constitutional Acceptance

The issue becomes sharper when we analyze the use of public funds. Under the 1992 Constitution, all three arms of government—the Executive, Parliament, and the Judiciary—were established. These institutions, including the Supreme Court itself, are funded entirely by public funds appropriated under the Constitution. Judges, ministers, and public officials receive their emoluments from the Consolidated Fund.

If the use of public funds under a constitutional order emerging from a PNDC legal procedure is constitutionally acceptable for governance, adjudication, and the daily operation of the state, it becomes difficult to argue that the same public funds become constitutionally offensive solely because they support a commemorative holiday. Public funds are constitutionally neutral; what matters is authorization and legality, not symbolism alone.

Selective Symbolism

State practice since 1992 reinforces this point. January 7 is celebrated as Constitution Day, with public funds expended on official ceremonies. The Constitution celebrated on that day is the same Constitution scheduled to PNDCL 282. Furthermore, Ghana has conducted multiple presidential and parliamentary elections under the 1992 Constitution, all financed by substantial public expenditure. Elections are celebrated as the ultimate expression of constitutional democracy, despite the Constitution’s historic pathway. No one argues that these elections offend the spirit of the Constitution because of the PNDC provenance.

When placed side by side, a problem of selective symbolism emerges. Public funds are constitutionally valid when used to pay public officials, celebrate Constitution Day, and conduct national elections—all under a Constitution born via a PNDC enactment. Yet, the same funds were held to be constitutionally impermissible when used to commemorate December 31, based solely on its historical symbolism. This difference is not grounded in constitutional text or structure; it appears to be a symbolic judgment rather than a doctrinal one.

Practical Advice

Legislative Discretion vs. Constitutional Prohibition

It is important to clarify that this analysis does not imply December 31 had to remain a public holiday. Parliament was under no constitutional obligation to maintain it. As a matter of policy preference, Parliament could have repealed, replaced, or allowed the holiday to vanish into history. What is open to question is the elevation of that policy choice into a constitutional prohibition, based on reasoning that appears selective when the wider constitutional landscape is considered.

Understanding Constitutional Temporality

Another flaw in the reasoning lies in the temporal reach implicitly attributed to the Constitution. The 1992 Constitution is prospective in character. It seeks to regulate future behavior, entrench democratic governance going forward, and prevent the recurrence of unconstitutional changes of government. It does not purport to operate retrospectively to forbid the acknowledgment of historical events that predate its entry into force. Condemning unconstitutional takeovers as a matter of constitutional concept is not the same as constitutionally outlawing the remembrance of previous political ruptures.

In the case of Tuffour v Attorney-General, Justice Sowah observed that a constitution does not descend from the skies fully formed; it is rooted in, and shaped by, the history of the society that adopts it. The Constitution embodies that history even as it seeks to order the future.

FAQ

Conclusion

Courts are often called upon to speak in morally resonant terms, particularly in societies shaped by constitutional disruption. However, constitutional interpretation must remain internally consistent to prevent symbolism from eclipsing doctrine. Revisiting the reasoning in the 31st December Case is not an exercise in historical nostalgia, but an invitation to reflect on constitutional coherence. It asks that principles like “the spirit of the Constitution” be applied with restraint, consistency, and fidelity to the Constitution’s text, structure, and history. History may be contested, but constitutional reasoning must remain disciplined.