Inconsequential Declarations of Unconstitutionality and Unconstitutional Consequential Orders: The Case ofProfessor Stephen Kwaku Asare v Attorney General and General Legal Council

Abstract

Ghana's Supreme Court recently held that the regulator of the legal profession violated the country's constitution when it imposed extralegal admission requirements on LLB degree holders seeking entry to the School of Law. Nevertheless, the court relied on the prospective overruling doctrine to issue consequential orders that allowed the regulator to persist with its unconstitutional actions and left the constitutionally-injured students without a remedy. Judges employ the prospective overruling doctrine when they invalidate prior statutes or precedents while simultaneously limiting the effect of the new rule to future cases. Here, however, the court did not invalidate a statute or a precedent, mooting the issue of the temporal effect of a new rule. Rather, the court found that the regulator's actions had violated the constitution and it misapplied the prospective overruling doctrine to validate the violation. Consequently, the court's consequential orders undermined its declarations of unconstitutionality, rendering the latter inconsequential.