Afedo v. Attorney-General, GRA & Ors (2026)
James Afedo Foundation & James Kofi Afedo Esq. v. Attorney-General; Commissioner-General, Ghana Revenue Authority; & The Speaker
Ghana’s Supreme Court has dismissed the high-profile constitutional challenge to the taxation of menstrual hygiene products (the so-called “tampon tax” case) on a preliminary objection. The Court held that the plaintiffs had not properly invoked its original jurisdiction, and did not finally decide whether such a tax is discriminatory. Here is what the judgment actually decides, and why it matters for tax-equality litigation in Ghana.
The case in brief
Ghana’s Supreme Court dismissed the constitutional challenge to the taxation of menstrual hygiene products without deciding whether such a tax is discriminatory, holding instead that the plaintiffs had not properly invoked its original jurisdiction.
- Dismissed on jurisdiction, not the merits. The Court found no genuine issue of interpretation or enforcement. The dispute was, in substance, a question of tax policy, which the Constitution reserves to Parliament under Article 174.
- The tax position was disputed. The alleged 20% excise duty and 17.5% VAT were the plaintiffs’ figures. The Ghana Revenue Authority contested the excise claim and stated that locally produced sanitary products were not being taxed at the time.
- The reliefs proved decisive. A refund routed to a private trust fund, an injunction on collection, a perpetual prohibition binding Parliament, and a claim for the plaintiffs’ own costs were all considered constitutionally problematic against Articles 174, 176 and 178.
- The question remains open. A better particularised and better evidenced claim, with constitutionally orthodox reliefs, could return, potentially in the High Court under Article 33. Reform, meanwhile, sits with Parliament, as the VAT (Amendment) Act 2023 (Act 1107) already shows.
On 3 June 2026, a seven-member panel of the Supreme Court of Ghana delivered judgment in James Afedo Foundation & Anor v. Attorney-General & Ors. The plaintiffs, a foundation and a private legal practitioner, had invoked the Court’s original jurisdiction under Articles 2(1) and 130 of the 1992 Constitution, seeking to have the excise duty and VAT they said burdened menstrual hygiene products declared unconstitutional and discriminatory against women, together with a series of far-reaching consequential orders.
Delivering the judgment, Prof. Mensa-Bonsu (Mrs.) JSC opened with a line attributed to Sir Francis Bacon: “Sometimes the remedy is worse than the disease.” The Court upheld the State’s preliminary objection and dismissed the action. Crucially, it did so on jurisdictional grounds, without finally determining whether a properly framed and evidenced tax on menstrual products would in fact violate the Constitution. This case review sets out the decision, the reasoning, and its implications for practitioners and policymakers.
- Case
- James Afedo Foundation & James Kofi Afedo Esq. v. Attorney-General; Commissioner-General, Ghana Revenue Authority; & The Speaker
- Court
- Supreme Court of Ghana (seven-member panel)
- Coram
- Pwamang JSC (presiding); judgment delivered by Prof. Mensa-Bonsu (Mrs.) JSC
- Writ No.
- J1/17/2023
- Judgment
- 3 June 2026 · signed by all seven Justices
- Subject
- Whether excise duty and VAT on menstrual hygiene products are unconstitutional and discriminatory
- Key instruments
- Excise Duty Act 2014 (Act 878); VAT Act 2013 (Act 870); VAT Regulations 2016 (LI 2243)
- Basis of decision
- Jurisdiction. The original jurisdiction under Articles 2(1) and 130 was not properly invoked
- Result
- Preliminary objection upheld; suit dismissed; no order as to costs
In this case review
Click any section to jump straight to it.
- 01The dispute in brief
- 02The contested tax position
- 03What the plaintiffs asked for
- 04The issues before the Court
- 05The arguments
- 06The threshold: original jurisdiction
- 07Why no genuine issue arose
- 08Observations on the merits
- 09The reliefs problem
- 10The authorities
- 11Analysis and significance
- 12Conclusion
The dispute in brief
The plaintiffs invoked the Supreme Court’s original jurisdiction to have what they alleged to be a 20% Excise Duty and 17.5% VAT on menstrual hygiene products declared unconstitutional, discriminatory against women, null and void, and to obtain sweeping consequential orders, including a refund mechanism routed through a privately managed trust fund, a perpetual prohibition on ever taxing such products, interest, and costs.
The State raised a threshold objection: the plaintiffs had not properly invoked the apex court’s interpretative and enforcement jurisdiction. The Court agreed. It held that the constitutional provisions relied on were plain and unambiguous, that there was no genuine issue of interpretation or enforcement, that the claim was in substance a contest of economic and tax policy reserved to Parliament and the Executive, and that several of the reliefs were considered constitutionally problematic in their reach. On that basis it upheld the objection and dismissed the suit.
The Court did not finally determine the substantive constitutional question (whether a properly pleaded and evidenced tax on menstrual hygiene products would violate Article 17), though it made extensive observations indicating why the plaintiffs’ case, as framed and evidenced, fell short. The Bacon epigraph is telling: the Court’s evident discomfort with the reliefs appears to colour the judgment as a whole.
The contested tax position
The plaintiffs challenged what they alleged to be the cumulative tax treatment of menstrual hygiene products (sanitary pads, sanitary towels, menstrual cups and tampons) under three instruments: the Excise Duty Act 2014 (Act 878), said to impose a 20% excise duty; and the VAT Act 2013 (Act 870) with the VAT Regulations 2016 (LI 2243), said to impose 17.5% VAT. On the plaintiffs’ case, the combined burden of these and other levies reaches as many as fifteen separate charges, aggregating to roughly 66.85% of the retail price.
Because menstruation is an immutable feature of female biology, the plaintiffs argued, the practical incidence of these facially neutral taxes falls on women and girls, rendering the measures discriminatory in effect even if not in form. They also complained of omission: the failure to place the products on the exemption or zero-rated schedules, and their classification under Band 4 of the ECOWAS Common External Tariff as “finished (non-essential) consumer goods.”
Important · The tax position was disputed
This tax position was itself contested. The 2nd defendant (the Ghana Revenue Authority) maintained that Act 878 as amended does not impose tax on menstrual hygiene products “as falsely stated,” and that the plaintiffs’ 20% excise assertion was inaccurate. The figures above therefore reflect the plaintiffs’ pleaded case rather than agreed or judicially determined facts. The GRA also noted that Parliament had since enacted the VAT (Amendment) Act 2023 (Act 1107), introducing a zero-rate for locally manufactured sanitary towels.
What the plaintiffs asked for
The writ sought seventeen reliefs (paragraphs a–q). They fall into two groups: a cluster of declarations, and a set of consequential orders. The declarations and the orders both turned on Articles 17(1)–(3), 24(1), 25(1) and 33(5) of the Constitution.
- Declarations (a–k). That the imposition and collection of the excise duty and VAT on menstrual hygiene products, and the failure to list the products as exempt or zero-rated under the schedules of Act 878 and Act 870, are unconstitutional, discriminatory on the ground of sex or gender, and null and void.
- Refund and trust fund (l). That the 1st and 2nd defendants refund all excise duties and VAT collected, paid into a “Menstrual Justice Trust Fund” to be established and managed by a “Menstrual Health Coalition” and used to distribute products to schoolgirls.
- Interest (m). Interest on the refund at the commercial bank lending rate.
- Injunction (n). An order restraining further collection pending determination.
- Perpetual prohibition (o). An order perpetually preventing the defendants from ever proposing, discussing, considering or imposing any discriminatory tax on menstrual-hygiene-related products.
- Costs (p–q). Payment of the plaintiffs’ legal fees and costs, and any other order the Court deemed fit.
As the analysis below shows, the consequential orders, particularly (l), (m), (n), (o) and (p), became central to the Court’s reasoning and, ultimately, to its disposition.
The issues before the Court
The parties filed a Joint Memorandum of Issues on 4 November 2024, framing nine issues. The first was dispositive.
- Threshold. Whether the plaintiffs had properly invoked the original jurisdiction of the Supreme Court.
- Imposition. Whether the charging provisions of Act 878 (as amended) and Act 870, in taxing menstrual hygiene products, were inconsistent with Articles 17, 24(1), 25(1), 33(5), 37(1) and 40(c)–(d).
- Omission. Whether the failure to include the products in the exemption or zero-rated schedules of Act 878 and Act 870 was inconsistent with those provisions.
- Classification. Whether classifying the products under Band 4 of the ECOWAS Common External Tariff as finished, non-essential goods was inconsistent with those provisions.
- Taxing power. Whether the charging provisions breached Article 174 (no taxation save by or under an Act of Parliament) or any other provision.
- Incidence. Whether utilisation of the products is a direct function of purchase such that it economically diminishes only the female user population.
The arguments
The three sets of parties advanced distinct positions, but the defendants converged on a single threshold point: the Court had not been properly seised of the matter.
| Party | Core position |
|---|---|
| Plaintiffs | The tax laws are facially neutral but discriminatory in effect, because they tax a biological necessity borne by women and girls. They invoked Articles 17, 24, 25, 33(5) and 37, and Ghana’s commitments under CEDAW and the UDHR. They argued the defendants had power to zero-rate the products and to reclassify them under the ECOWAS tariff, and that the Band 4 classification was arbitrary. |
| 1st & 3rd Defendants (Attorney-General; Speaker) | A preliminary objection: the provisions relied on are clear and unambiguous, so no genuine issue of interpretation arises, and any human-rights complaint belongs in the High Court under Article 33. On the merits, the taxes were validly enacted under Parliament’s power (Article 174); the burden is on the challenger to show a clear breach; and the Supreme Court is not a forum for enforcing international treaties. |
| 2nd Defendant (Ghana Revenue Authority) | The jurisdiction was not properly invoked, and a mere omission to schedule a product does not engage the enforcement jurisdiction. Act 878 as amended does not impose tax on the products “as falsely stated”; the 20% assertion was inaccurate; users and purchasers are distinct; and Act 1107 (2023) already zero-rates locally manufactured sanitary towels, underscoring that the relief sought lies with Parliament. |
The threshold: invoking the Court’s original jurisdiction
Jurisdiction was, as the Court put it, cardinal: never to be assumed but deliberately proved, especially in constitutional litigation. The original jurisdiction under Articles 2(1) and 130(1) is a special one, invoked only where a suit raises a genuine issue of interpretation, or of enforcement, or whether an enactment was made ultra vires Parliament.
The interpretation limb
Drawing on the classic catalogue in Republic v. Special Tribunal; Ex parte Akosah, the Court restated when a genuine occasion for interpretation arises:
- Where the words are imprecise, unclear or ambiguous, or carry a double meaning, or mean something different from or more than they say;
- Where the litigants place rival meanings on the words of a provision;
- Where there is a conflict in the meaning and effect of two or more articles of the Constitution;
- Where, on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution.
Reinforced by Kwabena Bomfeh v. Attorney-General and Professor Stephen Kwaku Asare v. Attorney-General, the principle is that where the words are plain, no interpretation arises, and a litigant cannot leap from the “letter” to the “spirit” of the Constitution to manufacture a question. As the Court observed, where there is no letter there can be no spirit.
The enforcement limb and its public-interest exception
The Court did not stop there. It expressly recognised a separate enforcement jurisdiction that can be engaged even where the language is plain. On the authority of Edusei, Gbedemah, National Media Commission and Ahumah-Ocansey, the Supreme Court may intervene to enforce the Constitution in the public interest, and its jurisdiction is not ousted merely because the provision sits in Chapter 5. As Adjei Ampofo (No. 1) makes clear, the test is whether the plaintiff pursues a personal interest (High Court, under Article 33) or seeks enforcement in the general interest of the public (Supreme Court, under Articles 2(1) and 130(1)).
Why the Court found no genuine issue
Having opened that door, the Court closed it on the facts. It conceded that the relevant provisions (Articles 17(1)–(3), 24(1), 25(1) and 33(5)) are clear, but held that the matter disclosed no genuine issue of enforcement warranting intervention. The claim, it found, rested on a social-policy foundation, leaned heavily on the rhetoric of political figures, and did not question the legislative process by which the taxes were enacted. Taxation is an economic-policy decision, expressly committed to Parliament by Article 174.
The Court anchored its refusal in the twin principles from Asare Baah III: the presumption of constitutionality, and the requirement that alleged invalidity be pleaded with particularity. Every enactment is presumed valid until the contrary is proven; a law will not be struck down unless the case is so clear as to be devoid of doubt, with doubts resolved in favour of constitutionality. A general reference to an entire article is insufficient. The plaintiffs’ diffuse, rhetoric-driven framing fell short of that standard.
The Court’s observations on the merits
Although the action was dismissed on jurisdictional grounds, the Court made extensive observations on the substance of the plaintiffs’ case. They are worth setting out, because they signal how a differently framed claim might be received.
- Tax differentiates by nature. Tax policy inherently distinguishes between taxpayers, so the bare fact that a taxed commodity is used mainly by women does not, without more, establish unconstitutional discrimination.
- Evidential gaps. The plaintiffs did not show whether the products are locally made or imported, supplied by public or private actors, or graded into different price tiers. The Court noted the 2nd defendant’s information that locally produced sanitary products were not being taxed at the time, and treated this as further weakening the factual foundation of the plaintiffs’ case.
- The purchaser/user distinction advanced by the GRA went unanswered.
- Breadth of “gender.” Only women at the age of menarche use the products; the category pleaded swept in menopausal women and excluded males who might need similar materials on health grounds.
The Court also observed, more contestably, that menstruation was managed long before commercial products existed, and that such products (modern and efficient though they are) are not thereby life-essentials whose non-exemption violates constitutional rights. This observation does not form part of the narrow ratio, and is the most debatable strand of the reasoning.
The reliefs problem
If one theme animates the judgment, it is the Court’s difficulty with the orders sought. Several reliefs were considered constitutionally problematic in their reach, measured against the public-finance architecture of the Constitution.
| Order sought | The constitutional difficulty |
|---|---|
| Refund to a private trust fund (l, m) | Article 176 requires all revenue to be paid into the Consolidated Fund, and Article 178 forbids withdrawals save to meet expenditure charged by the Constitution or an Act of Parliament. Diverting collected taxes to a privately managed fund would require an Act of Parliament and raise unanswered questions of accountability and audit. |
| Injunction against collection (n) | Restraining lawful collection cuts across Parliament’s taxing power under Article 174. |
| Perpetual prohibition (o) | The Court described as untenable any order barring the Executive and Legislature from ever even discussing a future tax; elected branches are chosen periodically precisely to respond to changing times. |
| Costs to the plaintiffs (p) | A claim by public-interest litigants for their own costs was treated as inconsistent with the public character of the action; the Court has long resisted imposing costs on public-spirited litigants. |
The constitutional line
Articles 174, 176 and 178 allocate the power to impose, waive and vary tax to Parliament, channel all revenue into the Consolidated Fund, and control its withdrawal. The Court held that it could not direct taxation policy (an Executive function) nor order exemptions without an Act of Parliament. On its analysis, the reliefs would have required exactly that.
The authorities relied upon
| Authority | Proposition |
|---|---|
| GBA v. AG (Abban case) [2003–2004] SCGLR 250 | Jurisdiction is cardinal; where it is wrongly assumed, all proceedings are a nullity. |
| Adumoah Twum II v. Adu Twum II [2000] SCGLR 165 | Scope of the Articles 2(1)/130(1) interpretative and enforcement jurisdiction. |
| Republic v. Special Tribunal; Ex parte Akosah [1980] GLR 592 | The four situations in which a genuine issue of interpretation arises. |
| Kwabena Bomfeh v. AG [2019–2020] 1 SCLRG 137 | The “real test”: ambiguity is required; courts guard against manufactured constitutional questions. |
| Prof. Stephen Kwaku Asare v. AG (J1/01/2020, unreported) | The “spirit” cannot be invoked where the “letter” is plain. |
| Edusei v. AG; Gbedemah v. Awoonor-Williams | Enforcement jurisdiction covers all provisions save individual Chapter-5 rights. |
| FEYDAG v. Public Universities [2010] SCGLR 265 | The High Court’s Article 33 jurisdiction over fundamental human-rights enforcement. |
| Adjei Ampofo (No. 1) v. AMA [2007–2008] SCGLR 611 | Personal interest (High Court) versus public-good enforcement (Supreme Court). |
| National Media Commission v. AG [2000] SCGLR 1 | Enforcement jurisdiction may be invoked even where the text is clear. |
| Ahumah-Ocansey; CHURCIL v. AG & EC [2010] SCGLR 575 | Enforcement is warranted where an enactment conflicts with express provisions. |
| FEYDAG (No. 2) v. Public Universities [2011] SCGLR 1081 | Social-policy claims; courts defer to legislative cost-sharing choices. |
| Asare Baah III v. AG & EC [2010] SCGLR 463 | Presumption of constitutionality; particularity of pleading; severability. |
Analysis and significance
The most striking feature of the judgment is the distance between the framework the Court built and the conclusion it reached. Through several pages the Court established that the enforcement jurisdiction can be invoked even where the constitutional language is clear, provided a public-interest litigant seeks enforcement in the general interest. On that framework, plaintiffs pleading the rights of women and girls generally look like paradigm public-interest enforcers, and the clarity of Article 17 is no bar. Yet the Court found no genuine issue of enforcement, and the work that closes the gate is done largely by the weakness of the merits: the absence of evidence of discriminatory effect, the unanswered purchaser/user distinction, and the presumption of constitutionality.
The case was lost less on the merits of the tax than on the shape of the claim and the reach of the reliefs.
By folding the merits into the jurisdictional question, the Court arrived at a defensible result by a route that is open to question and, significantly, left the substantive “tampon tax” question formally undetermined. On the core separation-of-powers point, however, the Court is on firm ground: Article 174 commits taxation to Parliament, the presumption of constitutionality is weighty, and the material before the Court, including the GRA’s position that locally produced products were not being taxed and the reference to Act 1107 (2023), suggested the plaintiffs were, in part, pushing against an open and legislatively moving door.
What it means for future litigation
The substantive question survives. A future claimant could return, better framed and better evidenced. The steps below capture what the judgment implies a stronger challenge would require.
Choose the right forum
A claim focused on individual rights belongs in the High Court under Article 33. A public-interest enforcement action can still go to the Supreme Court, but only if it is genuinely framed as enforcement in the general interest.
Plead with particularity
Identify the precise charging provision and the precise constitutional clause it is said to offend. A general reference to an entire article will not survive Asare Baah III.
Build the evidential record
Address incidence, product grades, local versus imported supply, and the purchaser/user distinction (the very gaps the Court identified) to displace the presumption of constitutionality.
Frame constitutionally orthodox reliefs
Seek declarations and leave the remedy to Parliament. Avoid orders that divert Consolidated-Fund monies, restrain lawful collection, or purport to bind the elected branches in perpetuity.
Conclusion
The Afedo decision is, at heart, a judgment about institutional competence: who decides tax policy, on what record, and through which door of the court. The Supreme Court declined to convert a distributional consequence of a neutral tax into a justiciable constitutional violation on the pleadings and evidence before it, and it treated the extravagance of the reliefs as confirmation that the suit was not a genuine enforcement action.
For practitioners, the lesson is concrete. The route to relief from a tax on menstrual products, if one is sought, runs first through Parliament, as Act 1107 (2023) already illustrates, and, if through the courts, through a tightly particularised and well-evidenced claim with remedies that respect the fiscal provisions of the Constitution. The substantive equality question has not been answered. It has been left for another day, and a better-framed case.
Key points to remember
- Dismissed on jurisdiction, not merits. The Court upheld a preliminary objection and did not finally decide whether the tax is discriminatory.
- The tax position was contested. The 20% excise and 17.5% VAT figures were the plaintiffs’ allegations; the GRA disputed the excise position.
- The reliefs were central. Refunds to a private trust fund, an injunction on collection, a perpetual prohibition, and a costs claim were all considered constitutionally problematic.
- Tax is Parliament’s domain. Articles 174, 176 and 178 reserve the power to tax, and to direct public revenue, to the legislature and Executive.
- The substantive question survives. A properly pleaded and evidenced challenge, with orthodox reliefs, remains open, potentially in the High Court under Article 33.
- Legislation is already moving. Act 1107 (2023) zero-rates locally manufactured sanitary towels, underscoring that reform sits with Parliament.
Frequently asked questions
Did the Supreme Court declare the tax on menstrual products unconstitutional?
No. The Court dismissed the action on a preliminary objection, holding that its original jurisdiction had not been properly invoked. It did not finally decide whether a tax on menstrual hygiene products is discriminatory or unconstitutional.
Why was the case dismissed?
The Court found that the constitutional provisions relied on were clear and unambiguous, that the claim was in substance a challenge to economic and tax policy reserved to Parliament, and that several reliefs were constitutionally problematic. On that basis it held there was no genuine issue of interpretation or enforcement.
Were the products actually taxed at 20% and 17.5%?
Those figures were the plaintiffs’ allegations. The Ghana Revenue Authority disputed the excise-duty assertion as inaccurate and stated that locally produced sanitary products were not being taxed at the time. The figures were not judicially determined facts.
Can the issue be litigated again?
Yes. Because the dismissal was jurisdictional, the substantive equality question remains open. A future claim (better particularised and evidenced, with constitutionally orthodox reliefs) could be brought, potentially in the High Court under Article 33 or as a properly framed public-interest action.
What was wrong with the reliefs sought?
The Court considered several orders constitutionally problematic: a refund routed to a privately managed trust fund and an injunction on collection cut across Articles 174, 176 and 178; a perpetual prohibition on Parliament even discussing a future tax was untenable; and a costs claim by public-interest litigants was inconsistent with the public character of the action.
What is the significance of the VAT (Amendment) Act 2023 (Act 1107)?
Act 1107 introduced a zero-rate for locally manufactured sanitary towels. The Court treated this as showing that the subject-matter sits squarely within Parliament’s domain and that reform was already under way through the legislative process.
Was the decision unanimous?
The judgment, delivered by Prof. Mensa-Bonsu (Mrs.) JSC, was signed by all seven members of the panel.
Key terms
- Original jurisdiction
- The Supreme Court’s power under Articles 2(1) and 130 to interpret and enforce the Constitution, distinct from its appellate jurisdiction.
- Interpretative jurisdiction
- The limb engaged only where constitutional words are genuinely ambiguous, imprecise or in conflict and cannot be applied without interpretation.
- Enforcement jurisdiction
- The limb allowing the Court to enforce the Constitution in the public interest, even where the relevant words are clear, subject to the High Court’s role over individual human-rights claims.
- Preliminary objection
- A threshold challenge that, if upheld, disposes of a suit before the merits are reached, here on the ground that jurisdiction was not properly invoked.
- Ratio decidendi
- The binding legal reason for a decision. Here, the ratio is jurisdictional.
- Obiter dictum
- A judicial observation that is not essential to the decision and is therefore persuasive rather than binding, as with much of the Court’s commentary on the merits.
- Presumption of constitutionality
- The principle that every enactment is presumed valid until clearly proven otherwise, with doubts resolved in favour of validity.
- Consolidated Fund
- The central state account into which Article 176 directs all public revenue, and from which Article 178 controls withdrawals.
Based on the judgment of the Supreme Court of Ghana in James Afedo Foundation & Anor v. Attorney-General; Commissioner-General, Ghana Revenue Authority; & The Speaker (Writ No. J1/17/2023, judgment dated 3 June 2026). Case references follow the citations in the judgment. This case review is provided for educational and informational purposes only and is not legal advice; readers should consult the full judgment and a qualified practitioner before acting.
