James Afedo Foundation & James Kofi Afedo Esq. v Attorney-General, Commissioner-General, Ghana Revenue Authority & Speaker of Parliament

Judgment

p. 1Source page 1IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - AD.2026

CORAM: PWAMANG JSC (PRESIDING)

LOVELACE-JOHNSON (MS.) JSC

PROF. MENSA-BONSU (MRS.) JSC

ASIEDU JSC

GAEWU JSC 12 - 06-2026 KWOFIE JSC

ACKAAH-BOAFO JSC

WRIT NO. J1/17/2023

3RD JUNE, 2026

1. JAMES AFEDO FOUNDATION PLAINTIFFS

2. JAMES KOFI AFEDO ESQ.

VRS

1. ATTORNEY-GENERAL 2. COMMISSIONER GENERAL, DEFENDANTS

GHANA REVENUE AUTHORITY

3. THE SPEAKER

JUDGMENT

"Sometimes the remedy is worse than the disease". -Sir Francis Bacon

PROF. MENSA-BONSU (MRS) JSC:

1425401 12-06-2026

p. 2Source page 2The plaintiffs, a corporate citizen of Ghana and a natural person, a private legal practitioner, filed this Writ seeking to invoke the original jurisdiction of the Supreme Court under Article 2(1) and Article 130 of the Constitution, 1992. By this action, they seek the following reliefs :

a. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana, 1992, Section 1 of the Excise Duty Act 2014(Act 878) as amended by Excise Duty (Amendment) (No. 2) Act 2015 (Act 903) which imposes 20% Excise Duty on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

b. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana 1992, the imposition of 20% Excise Duty on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons by the Defendants under Section 1 of the Excise Duty Act 2014( Act 878) as amended by Excise Duty(Amendment)(No. 2) Act 2015(Act 903) is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

c. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana 1992, the imposition of 20% Excise Duty on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons by the Defendants under Section 1 of the Excise Duty Act 2014( Act 878) as amended by Excise Duty (Amendment)(No. 2) Act 2015(Act 903) is discriminatory on the ground of sex or gender, violates the economic, educational and human rights of females, and

p. 3Source page 3therefore unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

d. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana1992, the collection of the said 20% Excise Duty on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons by the 1st Defendant under the authority of the said Section 1 of the Excise Duty Act 2014( Act 878) as amended by Excise Duty(Amendment)(No. 2) Act 2015(Act 903) is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

e. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana1992, the exclusion or omission or failure by the Defendants to include menstrual hygiene products such as sanitary pads, sanitary towels, menstrual cups and tampons in the list of products exempted by Section 2 of the Excise Duty Act 2014( Act 878) as amended by Excise Duty(Amendment)(No. 2) Act 2015 (Act 903) from the 20% Excise Duty is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

f. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana1992, the exclusion or omission or failure by the Defendants to include menstrual hygiene products such as sanitary pads, sanitary towels, menstrual cups and tampons in the list of pharmaceutical products subject to zero per centum Excise Duty in the First Schedule of the Excise Duty(Amendment)(No. 2) Act 2015 (Act 903) is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

p. 4Source page 4g. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana1992, Section 1 of the Value Added Tax Act, 2013(Act 870) and the Value Added Tax Regulations, 2016(LI 2243) which imposes 17.5% Value Added Tax(VAT) on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

h. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana 1992, the imposition of 17.5% Value Added Tax(VAT) on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons by the Defendants under Section 1 of the Value Added Tax Act, 2013(Act 870) and the Value Added Tax Regulations, 2016( LI 2243) is discriminatory on the ground of sex or gender, violates the economic, educational and health rights of females, and therefore unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

i. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana1992, the collection of 17.5% Value Added Tax(VAT) on menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons by the 2nd Defendants under the authority of Section 1 of the Value Added Tax Act, 2013 Act 870) and the Value Added Tax Regulations, 2016( LI 2243) is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

j. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 24(1), 25(1) and 33(5) of the Constitution of

p. 5Source page 5Ghana1992, the exclusion or omission or failure by the Defendants to include menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons on the list of the products exempted from VAT in the first Schedule pursuant to Section 35(1) of the Value Added Tax Act, 2013(Act 870) is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

k. A declaration that upon a true and proper interpretation of the provisions of Articles 17(1), 17(2), 17(3), 24(1), 24(1), 25(1) and 33(5) of the Constitution of Ghana1992, the exclusion or omission or failure by the Defendants to include menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons on the list of zero-rated taxable products in the Second Schedule pursuant to Section 35(1) of the Value Added Tax Act, 2013(Act 870) is unconstitutional, null and void; same being inconsistent with, and in contravention of the above-stated provisions of the Constitution of Ghana, 1992.

1. An order directed at the 1st and 2nd Defendants to refund all Excise Duties and Value Added Taxes collected from the date of enforcement of both taxes to the date of this Court's judgment, to be paid into a Menstrual Justice Trust Fund to be established and managed by the Menstrual Health Coalition, the proceeds of which shall be used to procure and distribute menstrual hygiene products to all girls in all Junior and Senior High Schools under the supervision of the Parents-Facilitators Association of Ghana across all regions of the country.

m. An order directed at the 1st and 2na Defendants to pay interest on the said refund sum at the commercial bank lending rate from the date of effectiveness of the taxes until the date of final payment.

p. 6Source page 6n. An order of injunction restraining the Defendants from further collecting the 20% Excise Duty and 17.5% Value Added Tax on menstrual hygiene products until the final determination of this suit.

o. An order of prohibition, perpetually preventing the Defendants from ever proposing, discussing, considering, and imposing any discriminatory taxes on menstrual hygiene related products.

p. An order for the payment of the Plaintiffs' legal fees and costs of the instant enforcement action.

q. Any other order(s) as this Honorable Court may deem fit and just in the circumstances."

On 4th November, 2024, the parties filed a Joint Memorandum of Issues for the determination of this honourable court thus:

(a) Whether the Plaintiffs have properly invoked the original jurisdiction of the Supreme Court?

(b) Whether or not Section 1 of the Excise Duty Act 2014( Act 878) as amended by Act 903 which imposed Excise Duty on menstrual hygiene products is inconsistent with and in contravention of Articles 17(1), 17(2), 17(3), 24(1), 25(1), 33(5), (37(1) and 40(c) and (d) of the Constitution 1992.

(c) Whether or not Section 1 of the Value Added Tax Act, 2013(Act 870) which imposed VAT on menstrual hygiene products is inconsistent with, and in contravention of Articles 17(1), 17(2), 17(3), 24(1), 25(1), 33(5), (37(1) and 40(c) and (d) of the Constitution 1992?

p. 7Source page 7(d) Whether or not the Defendants' exclusion or failure or omission to include menstrual hygiene products under Section 2 of Act 878 and the First Schedule of Act 878 as exempted from Excise Duty or as zero-rated products, is inconsistent with, and in contravention of Articles 17(1), 17(2), 17(3), 24(1), 25(1), 33(5), (37(1) and 40(c) and (d) of the Constitution 1992.

(e) Whether or not the Defendants' exclusion from or failure or omission to include menstrual hygiene products under Sections 35(1), 36(1) and 37 of Act 870 and the First Schedule and Second Schedules of that Act as exempted from VAT or as zero-rated tax products, is inconsistent with, and in contravention of Articles 17(1), 17(2), 17(3), 24(1), 25(1), 33(5), (37(1) and 40(c) and (d) of the Constitution 1992?

(f) Whether or not the Defendants' classification of menstrual hygiene products under band 4 of the ECOWAS Common External Tariffs as finished (non-essential) consumer goods and the collection of Excise Duty and VAT under the authority of Act 878 and Act 870 is inconsistent with, and in contravention of Articles 17(1), 17(2), 17(3), 24(1), 25(1), 33(5), (37(1) and 40(c) and (d) of the Constitution 1992?

(g) Whether or not by imposition of tax on menstrual hygiene, any of the charging provisions of the VAT Act, 2013 (Act 870) that imposed the tax was in breach of article 174 or any other provision in the 1992 Constitution?

(h) Whether or not by imposition of tax on menstrual hygiene, any of the charging provisions of the Excise Duty Act, 2014 (Act 878) that imposed the tax was in breach of article 174 or any other provision in the 1992 Constitution?

p. 8Source page 8(i) Whether or not utilization of products of menstrual hygiene is a direct function of purchases such that utilization economically diminishes only the female user population?"

Before any shots are fired in this action which has all the makings of a made-up and contrived constitutional dispute, it would be appropriate to reproduce the provisions that the plaintiffs rely on in this matter.

Article 17(1) (2) and (3)

"(1) All persons shall be equal before the law.

(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.

(3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description."

Article 24(1)

"(1) Every person has the right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without distinction of any kind."

Article 25(1)

"(1) All persons shall have the right to equal educational opportunities

p. 9Source page 9and facilities and with a view to achieving the full realisation of that

right - (a) basic education shall be free, compulsory and available to all; (b) secondary education in its different forms, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education; (C) higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education; (d) functional literacy shall be encouraged or intensified as far as possible; (e) the development of a system of schools with adequate facilities at all levels shall be actively pursued."

Article 33(5)

"(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man."

Article 174 (1) (1) No taxation shall be imposed otherwise than by or under the authority of an Act of Parliament.

PLAINTIFFS' CASE

A summary of the facts are that the plaintiffs say that Section 1 and 2 of the Excise Duty Act, 2014 (Act 878) as amended by the Excise Duty (Amendment) (No. 2) Act 2015(Act 903) and Section 35(1) of the Value Added Tax Act, 2013 (Act 870) and the Value Added

p. 10Source page 10Tax Regulations, 2016(L.I 2243) are inconsistent with and in contravention of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the 1992 Constitution.

According to the plaintiffs, the alleged omission or failure by the defendants to exclude menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons under the specified sections of those enactments is equally inconsistent with and in contravention of the relevant provisions of the 1992 Constitution.

The plaintiffs thus claim that on a true and proper interpretation of the relevant provisions cited in the Statement of Case, the 2nd defendant should exempt menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups, and tampons from Value Added Tax and be classified under the list of zero-rated taxable products.

The core of the plaintiffs' case is that the combined effect of the constitutional provisions cited in the plaintiffs' Statement of Case reveal that menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups, and tampons should be exempted from Value Added Tax and categorized under the list of zero-rated taxable products.

The plaintiffs further allege that the defendants failed to make menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons an exempt import under the ECOWAS External Customs Tariff Schedule also known as the "Harmonized System"

The plaintiffs state that the relevant constitutional provisions cited lead to the irresistible conclusion that the defendants' actions are inconsistent with Articles 17(1), 17(2), 17(3) and 17(4), 24(1), 25(1) and 33(5) of the 1992 Constitution.

PLAINTIFFS' LEGAL ARGUMENTS

The core of the plaintiffs' case is that first, certain provisions contained in the Excise Duty Act 2014(Act 878) as amended by the Excise Duty (Amendment) (No. 2) Act 2015(Act 903); as well as the Value Added Tax Act, 2013(Act 870) and the Value Added Tax Regulations, 2016(L.I 2243) sin against fundamental provisions of the Constitution, 1992 and are therefore null and void to the extent of the inconsistency.

p. 11Source page 11Second, that the actions of the defendants under the authority of those enactments are equally inconsistent with and in contravention of the fundamental provisions of the Constitution 1992, and therefore void ab initio. Third, that the acts or omission of the defendants in excluding menstrual hygiene products from the application of the Excise Duty and Value Added taxes was equally inconsistent with, and in contravention of the fundamental provisions of the Constitution 1992 and therefore void ab initio.

The plaintiffs state also that their complaints are in two parts: first, that the provisions in the above referenced legislation violate the fundamental provisions of the Constitution; and second, that the conduct (acts or omissions) of the defendants under the authority of those pieces of legislation equally violate key provisions of the Constitution, 1992 and same ought to be declared void and of no effect. It is the plaintiffs' further submission that Section 1 of Act 878 and Section 1 of Act 870 fall short of the constitutional standard required for their respective validity. According to the plaintiffs' aside from the two provisions imposing a 20% and a 17.5% VAT respectively on menstrual hygiene products, further data confirms that the full breakdown of the taxes imposed on these products are up to 15 in number, totaling 66.85%. It is the plaintiffs concern that when a woman goes to the retail shop to buy 1 packet of sanitary pad to manage her menstrual flow, she would be automatically slapped with a tax bill of not less than 66.85% to be paid on that pad to the defendants. In the view of the plaintiffs, although these laws do not seem to target women specifically, the direct effect of these laws is that they are taxes imposed on women and girls. Menstruation being a fundamental part of the female biological system, it is unjust to burden them with taxes according to the submission of the plaintiffs.

The plaintiffs submit that the two provisions of the tax law violate the established constitutional standard and are inconsistent with Articles 17(1), 17(2), and 17(3), 24(1), 25(1), 33(5), 37(1) and 40(c) and (d) of the Constitution, 1992 which provide that all persons shall be equal before the law without discrimination.

p. 12Source page 12The plaintiffs made supporting arguments based on Article 24 (Economic Rights); Article 25(Educational Rights); Article 33(5) on inherent rights; Article 37 on the social objectives of the Directive Principles of State Policy and concluded by submitting that the provisions in Act 878 and Act 870 violate Ghana's international commitments under Article 40(c) and (d) of the Constitution.

The plaintiffs argue that the provisions of Article 37(3) impose on the state a duty to be guided by International human rights instruments which recognize and apply particular categories of basic human rights to development process. Some international laws mentioned in that regard were: the Universal Declaration of Human Rights (UDHR.-Article 7), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The plaintiffs say that the impugned tax legislation violates provisions of CEDAW and UDHR.

The plaintiffs further make the argument that Article 2(1)(b) of the Constitution 1992 empowers the Court to assess the conduct of the defendants against the constitutional benchmark to confirm whether such conduct is in accord with the letter and spirit of the Constitution or not. To this end, the plaintiffs say that the act or omissions of the defendants to not to exempt the menstrual hygiene products from the payment of the 20% Excise Duty and 17.5% Value Added Taxes, or classifying them as zero-rated taxable products is inconsistent with and in contravention of the said provisions of the Constitution, 1992. The plaintiffs further adds that the collection of the 20% Excise Duty and 17% VAT under the authority of both Act 878 and Act 870 is inconsistent with and in contravention of the above-cited provisions of the Constitution, 1992.

The plaintiffs contend that the defendants also had the power to classify certain products (goods and services) as liable for zero-rated VAT and thereby include them in the Second Schedule which was enacted pursuant to Section 36(1) of that Act.

They further contend that the power to decide which band of the ECOWAS Common External Tariff classification to place a product into for the purposes of the application of the Excise Duty and VAT at the ports of import lies in the domain of the Defendants.

p. 13Source page 13Finally, the plaintiffs submit that the defendants' decision to classify menstrual hygiene products as "finished consumer goods" and placing them in band four (4) of the ECOWAS Customs External Tariff classification was arbitrary, capricious and not based on any rational justification.

1ST AND 3RD DEFENDANTS' CASE

Preliminary Objection on Jurisdiction

The 1st and 3rd defendants have raised a preliminary objection to the suit on grounds of jurisdiction. The 1st and 3ra defendants submit that the plaintiffs have not properly invoked the original jurisdiction of this Honourable Court on the basis of the oft-cited requirements grounding the jurisdiction of the Supreme Court in Republic v. Special Tribunal; Ex Parte Akosah [1980] GLR 592. They contend that the provisions that the plaintiffs are inviting the apex Court to interpret are clear and unambiguous and that in the context of this case articles 17, 24(1) and 33(5) are clear and precise and do not have double meanings; neither are they obscure and said to have meanings different from what the texts say. According to the 1st and 3rd defendants, there is thus no genuine issue for interpretation in the constitutional provisions relied on for the institution of this present action under Article 2(1) and Articles 130(1) of the 1992 Constitution of Ghana.

It is their further submission that the nature of the plaintiffs' claims show that the plaintiffs are incorrectly basing their claims on article 2(1) and Articles 130(1) of the 1992 Constitution of Ghana instead of under article 33 on the enforcement of a human rights action, thereby confusing the exclusive jurisdiction for the enforcement of human rights by the High Court with the interpretative and enforcement jurisdiction of the Supreme Court under article 2 and article 130 of the 1992 Constitution.

The 1st and 3rd defendants maintain that the tax was imposed after it went through the required law-making process and thus, passed in accordance with law. In their view, taxes are imposed in the public interest and as such rights such as those under Article 17

p. 14Source page 14are subservient to matters of public interest which inure to the interest of citizens as defined under article 295 of the Constitution, 1992. They further submit that, in consequence, the plaintiffs' reliefs together with the issues and facts as presented do not show that the defendants have breached any provision of the 1992 Constitution by the imposition of tax on the said products as allowed by the 1992 Constitution of Ghana. Therefore, this clearly demonstrates a failure by the plaintiffs to properly invoke the enforcement jurisdiction of the Supreme Court.

It is the position of the 1st and 3rd defendants that the Excise Duty Act 2014(Act 878) as amended as well as the provisions of the Value Added Tax Act, 2013 (Act 870) and the Value Added Tax Regulation, 2016(LI 2243) were passed in accordance with the power of Parliament to raise taxation and was thus not inconsistent with the 1992 Constitution. It is their further contention that taxation is a creation of statute and that a tax can be levied only if a statute lawfully enacted so provides, citing article 174(1) of the Constitution, 1992. They then indicate that the burden is rather on a person who attacks a statute to show that there is a clear violation of the Constitution and not by reason of any imagination or supposition. They therefore maintain that the provisions of Act 878, Act 870 and LI 2243 which impose 20% excise duty and 17% Value Added Tax respectively on menstrual hygiene products are not discriminatory, and are in consonance with the Constitution, 1992. Further, that the 1992 Constitution does not exempt menstrual hygiene products from imposition of taxes and that Parliament by not expressly excluding menstrual hygiene products (including sanitary pads, sanitary towels, menstrual cups and tampons) from the imposition of 20% excise duty and 17% Value Added Tax respectively under the relevant law in question does not make the imposition of that tax inconsistent with the 1992 Constitution.

In response to the plaintiffs' assertion that the provisions of Act 878 and Act 870 violate Ghana's International commitments under Article 40 (c) and (d) of the 1992 Constitution, the 1st and 3rd defendants state that the Supreme Court is not a forum for enforcing international treaties and conventions and any alleged breaches thereof.

The 1st and 3rd defendants therefore pray for the dismissal of the plaintiffs' action.

p. 15Source page 15THE 2ND DEFENDANT'S LEGAL ARGUMENT

It is the 2nd defendant's argument that the plaintiffs' have not properly invoked the jurisdiction of the Honourable Court. The 2nd defendant contends that plaintiffs' assertion that the omission or otherwise of the 2nd defendant not to include certain menstrual hygiene products among the list of items under the schedules of Act 878 does not in any way invoke the enforcement jurisdiction of the Supreme Court.

The 2nd defendant submits that mere imposition of taxes in the exercise of the powers conferred on Parliament does not in any way constitute a constitutional breach except where Parliament in undertaking that legislative mandate does so in contravention of Article 107 of the Constitution, 1992 on retroactive legislation. Further, that Act 878 as amended does not impose tax on menstrual hygiene products as falsely stated by the plaintiffs.

It is the further contention of the 2nd defendant that imposition of taxes does not constitute a constitutional aberration. Indeed, the imposition of taxes on goods such as menstrual hygiene products is not always intended to generate revenue but sometimes for other economic or social purposes, such as the protection of local industries, direct investment, etc. The 2nd defendant holds the view that imposition of taxes on menstrual products is not discriminatory against a particular gender when utilization does not necessarily translate to a financial burden on any particular gender. Thus, although females are largely the users of the products, same cannot be said about the purchasers of these menstrual hygiene products. To the 2nd defendant, though men normally do not use pads, it has not been established that men do not buy sanitary pads.

The 2nd defendant states that the plaintiffs' assertion that menstrual hygiene products attract 20% Excise Duty is inaccurate and untrue.

It asserts further that the 2n° defendant cannot be held liable for the collection of taxes on imports as it is bound to collect the taxes which Parliament, pursuant to its powers under Article 174 of the Constitution of Ghana, 1992 imposes on goods.

p. 16Source page 16The 2nd defendant concludes by noting that Parliament has recently enacted legislation, namely the Value Added Tax (Amendment) Act, 2023 (Act 1107), which introduced a zero-tax rate for locally manufactured sanitary towels. According to the 2nd defendant, this underscores the fact that the reliefs sought by the plaintiffs lie within the purview of Parliament's authority to impose taxes.

THE PRELIMINARY LEGAL OBJECTION

The submissions on both sides raise interesting questions of law, primary of which is the issue of jurisdiction. The parties in their Joint Memorandum of Issues for the determination correctly identified the major issue of contention as to whether the plaintiffs have properly invoked the original jurisdiction of the Supreme Court. The determination of this issue is crucial to every constitutional litigation for without properly invoking the exclusive jurisdiction of the Supreme Court, the court is bereft of authority to act.

JURISDICTION

Jurisdiction is cardinal to every litigation. In Ghana Bar Association v Attorney- General and Another (Abban case) [2003-2004] SCGLR 250 at 266 the Supreme Court stated the importance of jurisdiction per Edward Wiredu JSC thus:

Jurisdiction is simply the power of a court to hear and determine a cause or matter brought before it, lack of which would render any decision taken or order made null and void and of no effect. If jurisdiction is granted a court by a statute, then what is already specified therein determines the nature and extent of that jurisdiction so granted to that court which cannot be extended or modified. Where jurisdiction is wrongly assumed, however, all proceedings taken would be a nullity!'

Therefore, it is never to be assumed, but deliberately proved and established, especially in constitutional litigation.

p. 17Source page 17The original jurisdiction of the Supreme Court in respect of Interpretation and Enforcement of the Constitution has been expatiated upon on countless occasions. Acquah JSC (as he then was) in Adumoah Twum II v. Adu Twum II [2000] SCGLR 165 expounded on it thus:

"the original jurisdiction vested in the Supreme Court under Articles 2(1) and 130(1) to interpret and enforce the provisions of the Constitution is a special jurisdiction to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution; or enforcement of a provision of the Constitution; or a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the Constitution".

The original jurisdiction of the Supreme Court is thus to be invoked when there is a dispute as to the clear interpretation and enforcement of a provision of the Constitution in respect of constitutional Interpretation and Enforcement. Republic v Special Tribunal; ex parte Akosah [1980] GLR 592 at p. 605, establishes clear lines per Anin JA as to when a genuine occasion for constitutional interpretation arises.

"(a) Where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;

(b) Where rival meanings have been placed by the litigants or the words of any provision of the Constitution;

(c) Where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision shall prevail; (d) Where on the face of the provisions there is a conflict between the operation of particular institution set up under the Constitution, and thereby raising problems of enforcement and of interpretation,"

p. 18Source page 18These grounds have guided the courts in constitutional litigation for many years. On this score, the Supreme Court in Kwabena Bomfeh v Attorney-General [2019- 2020] 1 SCLRG (Adaare) 137 re-stated the position per Sophia Adinyira JSC at pp151- 152 thus:

"The real test as to whether there is an issue of constitutional interpretation is whether the words in the constitutional provisions the court is invited to interpret are ambiguous, imprecise, and unclear and cannot be applied unless interpreted. If it were otherwise, every conceivable case may originate in the Supreme Court by the stretch of human ingenuity and the manipulation. of language to raise a tangible constitutional question. Practically, every justifiable issue can be spun in such a way as to embrace some tangible constitutional implication. The Constitution may be the foundation of the right asserted by the plaintiff, but that does not necessarily provide the jurisdictional predicate for an action invoking the original jurisdiction of the Supreme Court." (emphasis added)

An attempt to stretch this language regarding "the words in the constitutional provisions" to "the spirit of the Constitution" was promptly shot down in Professor Stephen Kwaku Asare v. Attorney General, J1/01/2020; judgment dated 28th July 2020. (Unreported) where the court said:

"This Court has in several cases determined or defined the circumstances under which its original jurisdiction under articles 2(1) and 130(1) could be invoked. The Court has consistently held that where words or provisions of the Constitution are plain, clear and unambiguous and there is no genuine dispute as to their meaning, no constitutional interpretation arises and the Court would decline any invitation, however attractive, to embark upon any exercise of interpretation in the circumstances. In much the same way, article 2(1) of the Constitution empowers this Court to monitor and ensure compliance of the Constitution and for that matter a person who alleges non- compliance and invokes the said article 2(1) must demonstrate clearly that the acts or

p. 19Source page 19omission complained of are inconsistent with particular provisions of the Constitution. In other words, the inconsistency of the act or omission must be plain and clear from the constitutional provisions... The plaintiff's failure to refer to specific provisions of the Constitution, which has been breached by the defendants, clearly send his case outside cases which can be brought. The Plaintiff cannot also be seen as invoking the spirit of the Constitution in seeking the said reliefs as endorsed on his writ, for the simple reason that the spirit of the Constitution must follow the letter. Put differently, where there is no letter there can be no spirit. "

These cases and the many more, emphasize that there is no case of enforcement and/or interpretation where the language of the alleged infringed provisions of the Constitution is clear, precise and unambiguous. See also: Edusei v. AG & Anor [1996-97] SCGLR and Gbedemah v. Awoonor-Williams (1970) 2 Gyandoh & Griffiths 438 where it was held that the enforcement jurisdiction of the Supreme Court reiates to all the provisions of the Constitutions of 1992 and 1969 respectively. The exception was made for the Human rights provisions. It is, thus, clear that the exclusive original jurisdiction of the Supreme Court for the interpretation and enforcement of the Constitution relates to all provisions of the Constitution, 1992 except those relating to Fundamental Human Rights (in relation to individual rights) as provided for under Chapter 5 of the Constitution 1992. This enforcement jurisdiction has been given to the High Court under article 33 of the 1992 Constitution. See: Federation of Ghana Youth Associations of Ghana (FEYDYAG) v. Public Universities of Ghana & Others [2010] SCGLR 265. The Supreme Court in the case of Adjei Ampoo (No. 1) v. Accra Metropolitan Assembly (No 1) [2007-2008] SCGLR 611 at 622, explained the difference between the Supreme Court's original jurisdiction for the enforcement or interpretation of the human rights provisions of the Constitution, 1992 and that of the High Court for the enforcement of Fundamental Human Rights. Sophia Akuffo JSC (as she then was), speaking for the Court stated that,

p. 20Source page 20"the jurisdiction of the Supreme Court is not ousted simply because of the provision sought to be enforced. The Court's jurisdiction in such a case is determined by whether or not the plaintiff is pursuing a personal interest (as in Edusei v. A.G & Anor.[1997-1998] 2 GLR 1 and Bimpong-Buta v. GLC & Ors.[2003-2005] 1GLR 738 ... or the enforcement of a provision of the Constitution in the interest of the public good..." Accordingly, having made a finding that the plaintiff was "not seeking the enforcement of his individual rights or freedoms, but rather those of the persons affected by the practice complained of, in general"she held that "in those circumstances, [the] matter is properly before this Court under article 2(1) and within the jurisdiction of the court under article 130(1)."

Thus, Adjei-Ampofo(No.1 ), supra, held that the jurisdiction of the High Court under articles 33(1) and 140(2) to enforce the provisions of Chapter Five of the Constitution, 1992, "does not operate to fetter the civic-minded citizen who has embarked on a mission to enforce a right under the Article 2(1) provision of the Constitution(including any of those under Chapter 5 of the Constitution relating to fundamental human rights and freedoms) in the general interest of the public."

See also: Oppon v Attorney-General [2003-2004] 1 SCGLR 376

In a number of authorities the original jurisdiction of the Supreme Court on the interpretation has been successfully invoked although the words or text complained of were very clear. For instance, in the case of National Media Commission v. Attorney- General [2000] SCGLR 1 where the President of Ghana was alleged to have acted in excess of the powers conferred on him by the Constitution, 1992, the Supreme Court's enforcement jurisdiction was successfully invoked, even though the said provision was clear. Indeed, the Supreme Court has never hesitated to make pronouncement on public interest cases which seek to protect the political and social wellbeing of citizens where the provisions of the Constitution brought under challenge are clear, unambiguous and

p. 21Source page 21without conflicting meaning. In Ahumah-Ocansey v. Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v. Attorney-General & Electoral Commission (Consolidated) [2010] SCGLR 575, the plaintiffs had complained that the Electoral Commission of Ghana had refused to respect the voting rights of remand prisoners and prisoners in general. The plaintiffs per their Writ had challenged the specific provisions in the Representation of the People's Law 1992 (PNDCL 284) under which the Electoral Commission had refused to register people being held in Ghanaian prisons to enable them to vote. The Supreme Court, per Georgina Wood CJ, held that non- registration of prisoners for voting would contravene articles 42 and 45(a) of the 1992 Constitution of Ghana. The Court further held that by the express provisions of Article 42 of the Constitution, 1992 all Ghanaians have the right to vote, except those below eighteen years and persons of unsound mind. More important for our present purposes, the court held that even though the interpretative jurisdiction did not raise any real or genuine issues of constitutional interpretation, the enforcement jurisdiction would warrant such intervention since any enactment in conflict with these express provisions was unconstitutional.

In the instant case a careful study of the constitutional provisions of Articles 17(1), 17(2), 17(3), 24(1), 25(1) and 33(5) of the Constitution of Ghana, 1992, which plaintiffs have brought up for interpretation shows that the words are very clear and unambiguous and they do not lend themselves to any conflicting meanings. However, the Supreme Court could still intervene if a genuine case of enforcement of the Constitution were in issue.

For instance, in Federation of Youth Association of Ghana (FEYDAG) (No. 2) VS Public Universities of Ghana & Others (No.2) [2011] SCGLR 1081, the Supreme Court interpreted the extent of the right Ghanaians have to education, as embodied in Article 25 of the 1992 Constitution. The plaintiff in that case had brought an action invoking the original jurisdiction of the Supreme Court against all the public universities of Ghana, the Ministry of Education and the National Council for Tertiary Education and the Attorney-General. The plaintiff sought a declaration that the "full fee-paying policy" by which admission slots reserved for the admission of foreign students when not fully

p. 22Source page 22utilized, could be given to Ghanaians on the same terms by the various public universities, was inconsistent with Articles 17(2), (3) and 4(a),23,25(1)(c),34(1),38(1) and 3(a) and (C) and 41(b) and (d) of the Constitution, 1992. The plaintiff thus essentially sought from the Supreme Court an order prohibiting the further implementation of the "full-fee paying policy" and the striking down of the policy. The plaintiff further complained that instead of making the foreign students unutilised space available to all local students, the public universities had evolved a practice of giving the space only to local students who could pay the fees, and that the policy was unconstitutional. This was because the policy was claimed to have resulted in discrimination against some Ghanaian students since some Ghanaian citizens could gain access to the public universities without the payment of tuition fees, whilst others similarly situated could only do so through the payment of fees. The Supreme Court did not agree with them.

The Court speaking through Sophia Adinyira JSC said "the full fee-paying policy is not unprecedented in Africa. It is implemented worldwide. What is required is that the defendants, students, parents and all stakeholders should develop adequate support mechanisms such as scholarships, grants, insurance schemes and adequate student loan schemes to lessen the harsh effects of the cost sharing. Until the resources are available to the State to provide free education in Ghana, the full fee- paying option would have to continue to enable more qualified Ghanaians to access public universities".

The plaintiffs' claim in the instant case has a similar social policy basis, but rely heavily on the rhetoric of political figures, as per Exhibits supplied. The claims do not question the legislative process the law went through in Parliament. Taxation is an economic policy decision and no government will without wisdom impose taxation on a product unjustifiably. Taxation, though economically punitive in nature, is one of the fundamental ways for a country to raise revenue to fund the State's development agenda. Parliament is given the power to impose taxes under article 174 of the Constitution of Ghana, 1992, to enable the government machinery to obtain revenue to finance its policies and programmes. Taxes are imposed in the interest of the public and, as such, rights such as

p. 23Source page 23those under Article 17 are not usually among the required considerations. The laws were passed in accordance with Constitution and deemed to be in the public interest. Therefore, rights such as those under Article 17 are subservient to matters of public interest which inure to the interest of all citizens as defined under Article 295 of the Constitution. As the Supreme Court has pointed out in Asare Baah III and Others v The Attorney General and Electoral Commission [2010] SCGLR 463. Per Georgina Wood CJ at p.470

"A court's duty is to determine the real matters in controversy between parties effectually. It is therefore imperative in actions of this kind, as indeed, in other civil causes or matters, that all alleged acts of statutory and constitutional invalidity, breaches or violations, inconsistencies or non-compliance be identified with sufficient particularity, with nothing being left to chance or conjecture. It is equally crucial that the relevant constitutional requirement alleged by a party to have been violated, be sufficiently identified, to enable the court effectively measure the allegations against the confines of the relevant constitutional provisions. Therefore, unless the circumstances clearly warrant it, a general reference to an entire article or provision is insufficient. This just requirement of the law, which is based on plain good sense, serves the interests of justice well in all civil actions. It enables issues in controversy between parties to be clearly identified, so each side can adequately prepare to meet the case alleged against him or her, thereby enabling the court to firmly and effectually determine all disputed issues... •

Thus in constitutional litigation, two important principles make it imperative that particulars of invalidity or want of constitutionality be clearly stated: they are the presumption of validity or constitutionality in favour of legislation and the principle of severability of impugned legislation. The presumption is that every enactment by the legislature is presumed to be valid and constitutional, until the contrary is proven. A law would not be adjudged unconstitutional, unless the case is so clear as to be devoid of any doubts. The principle is so hallowed that it has been observed that to doubt the

p. 24Source page 24constitutional validity of a law, is to resolve it in favour of its validity. In other words, doubts are resolved in favour of constitutionality and not the person challenging it."

The Excise Duty Act 2014(Act 878) as amended as well as the afore-said provisions of the Value Added Tax Act,2013(Act 870) and the Value Added Tax Regulation 2016 (LI 2243) were passed in accordance with law and are not inconsistent with the 1992 Constitution.

Even though the taxes under scrutiny were imposed after due compliance with the law- making process, the complaint herein is that they are discriminatory in effect as the taxing of a commodity which, in the opinion of the plaintiffs, is used by women only, creates an undue burden on them. It must be stated from the onset that Tax policy is by its very nature discriminatory as it is usually a means of taking money from the rich to cushion the poor. It is true that the products taxed in this instant suit are generally used by females. However, the plaintiffs failed to provide further information on whether these sanitary products are locally manufactured or imported and whether by public institutions or by private business people. It could well be that private business people import these sanitary products to make profits whilst ignoring local sources of supply, and that these taxes may have been slapped on some of the products for that very reason. Again, the plaintiffs failed to make a distinction as to whether these sanitary products are in various grades which would inform different price categories. The 2nd defendant has provided some information that there is no taxation on locally-produced sanitary products at this time, and that the information provided by the plaintiffs is inaccurate. If that is so, then the availability of other standard quality products would defeat that argument and render the plaintiffs claim as an assertion that every woman has a right to the use of premium quality sanitary products. This cannot be a reflection of how market systems operate.

The attempt by the plaintiffs to seek exemption for menstrual hygiene products from being taxed and through the courts, if permitted or granted by this honourable court would be a difficult intrusion into the tax regime to justify. It would, in fact, affect the

p. 25Source page 25remit of Parliament. Article 174(1) (2) and (3) are clear on which organ has the power to impose, waive or vary tax, as follows: 174. (1) No taxation shall be imposed otherwise than by or under the authority of an Act of Parliament. (2) Where an Act, enacted in accordance with clause (1) of this article, confers power on any person or authority to waive or vary a tax imposed by that Act, the exercise of the power of waiver or variation, in favour of any person or authority, shall be subject to the prior approval of Parliament by resolution. (3) Parliament may be resolution, supported by the votes of not less than two-thirds of all members of Parliament, exempt the exercise of any power from the provisions of clause (2) of this article."

Some of the reliefs sought by the plaintiffs are also problematic, to say the least. Article 176(1)(a) of the Constitution, 1992, directs the destination to which all revenue collected must go when it provides thus: 176 (1) There shall be paid into the Consolidated Fund, subject to the provisions of this article - (a) all revenues or other moneys raised or received for the purposes of, or on behalf of, the Government;"

Article 178 is also clear as to which organ of government may direct the withdrawal of money from the Consolidated Fund thus: 178. (1) No moneys shall be withdrawn from the Consolidated Fund except - (a) to meet expenditure that is charged on that Fund by this Constitution or by an Act of Parliament

p. 26Source page 26It is clear from the provisions cited above, that the orders sought by the plaintiffs reliefs in paragraphs '", 'm' and 'n' would be unconstitutional in their reach. Again, the Supreme Court is not permitted by the Constitution, 1992 to dictate the direction of taxation policy, which is an Executive function, nor can it order tax exemptions without the input of Parliament by way of legislation ie an Act of Parliament. No court should appropriate the power to restrict the ability of the Executive and Legislature to raise revenue for the State in perpetuity as demanded under paragraph o of plaintiffs' reliefs. Everything has its time and place and that is why governments are elected periodically so that as times change, governments can respond swiftly and effectively as appropriate. By the way, women in the age of menarche have always passed menses, and women have found ways to deal with the associated issues of hygiene. This biological function and its management long pre-dated the invention of sanitary towels and tampons, menstrual cups etc. by commercial interests. Therefore, sanitary towels in the form which they now exist cannot be said to be the only means by which menstruation has been/can be managed. Such products may be more modern and more efficient but that does not put them in the category of life-essentials such that a failure to recognize their importance becomes a violation of the constitutional rights of women.

There are other categories of the vulnerable population who also require sanitary materials for purposes of hygiene. For instance, baby diapers and adult diapers affect young parents and elderly citizens in ways that the ordinary healthy citizen does not experience. Does this amount to a violation of the rights of young parents and of the elderly? If not, why not? If yes, why were they not included in the plaintiffs' areas of concern, if indeed rights violations were in issue? In any case, the 2nd defendant contests the figure of 20% Excise duty supplied by the plaintiffs. If not, why not? It is, thus, untrue that Parliament, by not expressly excluding menstrual hygiene products including sanitary pads, sanitary towels, menstrual cups and tampons) from the imposition of excise duty and 17.5% Value Added Tax respectively under the relevant law in question, renders the imposition of tax inconsistent with the 1992 Constitution.

p. 27Source page 27As the 1st and 3rd defendants contend, the imposition of taxes by governments may not always be intended to generate revenue but rather to protect local industries or direct investment or even to discourage life-style behaviours such as, alcohol consumption or excessive sugar-intake, etc. This is the realm of economic policy which this court cannot, without exceptionally good cause, seek to fetter or restrict.

The plaintiffs in their relief 'o', seek the following:

"An order of prohibition, perpetually preventing the Defendants from ever proposing, discussing, considering, and imposing any discriminatory taxes on menstrual hygiene related products."

How could any Supreme Court purport to cordon off an area of economic policy into which the Executive and Legislature is forbidden to venture, nay even to "discuss" or "consider"it, forever and ever? What purpose does it serve to impose such outrageous prohibitions on any government? Would the ordinary citizen be able to discuss or propose economic policy whose very discussion or consideration would be prohibited to the Executive and Legislature?

The plaintiffs provided no policy notes on the discussions that led to the passage of these taxes to support the claim that the tax imposed discriminate against a particular gender. One cannot operate only upon suppositions and conjecture in seeking to invoke the original jurisdiction of the Supreme Court. The 2nd defendant makes argument which is not answered by the plaintiffs, to the effect that there is a difference between purchasers and users, which means that other people may be responsible for the purchase and not the users themselves. Is this sound argument or one merely overlooked by the plaintiffs? Further, the plaintiffs fail to segment the female-gender categories, since only those at the age of menarche are involved, which group excludes menopausal women and even other categories of males who might require these materials or similar materials on health grounds. Is the category of "gender" covered in this suit overly broad for the plaintiffs" purposes?

p. 28Source page 28The plaintiffs seek reliefs in paragraphs "' and 'm' which would result in this honourable court making orders for public money to be transferred to the control of private organisations ie the Menstrual Health Coalition' to perform functions which are state- functions. What is the remit of this organization and under what rules does it operate? Who makes up this Coalition? Further, this Coalition plans (or hopes) to establish a Menstrual Justice Trust Fund into which monies from the Consolidated Fund would be paid "so that the proceeds of which shall be used to procure and distribute menstrual hygiene products to all girls in all Junior and Senior High Schools under the supervision of the Parents-Facilitators Association of Ghana across all regions of the country."

Not only would the establishment of such a Fund to receive public money require an Act of Parliament under article 176(1) but could only receive money from the Consolidated Fund under article 176(2). To whom would the Fund account, and by whom audited? Is this suit to achieve the private agenda of the plaintiffs at the expense of women, and/State? Perhaps the plaintiffs' lack of familiarity with the constitutional provisions on Finance under the Constitution is to blame for the wild reliefs being claimed. It is also regrettable that the plaintiffs who claim to be mounting a public interest action are also making claim of costs for their legal representation under their paragraph 'p'. This is alien to the practice of this honourable court, and portrays the plaintiffs in a poor light. It is for good reason that this honourable court has, over the years, resisted the temptation to impose costs on any public-spirited citizen interested in upholding the Constitution through litigation in the Supreme Court. How then, can the imposition of arrears of taxes from the Consolidated Fund to private individuals or the claims for costs for legal representation be countenanced and sanctioned by this court that has sworn to uphold the Constitution? The reliefs claimed in the instant case do no credit to the plaintiffs or to their cause.

The circumstances of this case show that there is no real issue of interpretation or enforcement. There are no good grounds to invoke the original jurisdiction of the Supreme Court, as prayed for by the plaintiffs.

p. 29Source page 29The preliminary objection is upheld. The case is dismissed. In line with established convention of the honourable Court, there will be no order as to costs.

(SGD.) PROF. H.J.A.N MENSA-BONSU (MRS) (JUSTICE OF THE SUPREME COURT)

(SGD.) G. PWAMANG (JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT)

(SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT)

(SGD.) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT)

12 - 06-2026 (SGD.) H. KWOFIE (JUSTICE OF THE SUPREME COURT)

p. 30Source page 30(SGD.) K. T. ACKAAH-BOAFO (JUSTICE OF THE SUPREME COURT)

COUNSEL

BELLAH DJIBRILLA FAISAL ESQ. FOR PLAINTIFFS WITH GENEVIEVE MERCY TAGOE ESQ., SAMUEL KOBINA ATOBRAH AND BELINDA MIRANDA ANANN ESQ.

PATRICK K. INTARMAH (ASSISTANT COMMISSIONER, INVESTIGATIONS) FOR THE 2ND DEFENDANT WITH REBECCA EDUAFO-ABRAHAM (REVENUE OFFICER AND CECILIA BONAH BOATENG (REVENUE OFFICER)

REGINALD NII ODOI (STATE ATTORNEY) FOR THE 1ST & 3RD DEFENDANTS LED BY JONATHAN ACQUAH (PRINCIPAL STATE ATTORNEY).

12-06-2026 JUDIC