Secularism in Ghana "obviously" encourages state accommodation of religion and religious identity - Supreme Court

A major challenge to Ghana’s planned national cathedral, brought on the basis of a challenge to alleged infringements of the country’s “secular” constitution, has just been dismissed by the supreme court. Ghana’s highest court found that secularism in Ghana “obviously” allowed and encouraged recognition and accommodation of religion and religious identity by the state. But this does not necessarily mean criticism is over – plenty of critics say it will be wasteful and an unjustified expense.

Read the judgment

As part of Ghana’s 60th anniversary celebrations in 2017, the president, Nana Akufo-Addo, turned the first sod for a major national symbolic structure – the Ghana National Cathedral. To be funded by individuals and organisations within the Christian community, the cathedral is said by the government to be a priority project. But it is not without its critics.

In the two years since that inaugural ceremony the cost – and the principle – have been hotly debated in Ghana. Local poltician, James Bomfeh, has even gone to court, twice, to contest the constitutionality of government involvement in this and other religious projects.

His argument is that because Ghana is a secular country, the government cannot be seen to become involved in an “excessive entanglement” with any religious faith. Its backing for a national Christian cathedral and its help in setting up a Board that will facilitate arrangements for Muslims wanting to go on Hajj were both unconstitutional in that they infringed the secular nature of the constitution and the state.

Now, however, the highest court has found against him and his proposition that the state should stand above any kind of religious involvement.

The Supreme Court justices said Bomfeh’s argument was that providing land for a national cathedral to serve public purposes including state thanksgiving services, state funeral and so on, and the setting up of a Hajj Board, demonstrated “excessive entanglement” by the state in religion. In addition, it “amounted to unequal and unfair treatment of religions in Ghana”. Thus, these acts contravened “the constitutional principles of equality or neutrality of religion”.

According to the Attorney General, however, the state “had not engaged in acts that should lead (Bomfeh) to conclude that the state is excessively entangled with religion.”

The prime land that the government allocated for building the new cathedral was “already public lands vested in the President”, said the court. Without evidence to the contrary by Bomfeh, the judges “presume(d) everything was regularly done by the President, acting through the appropriate ministry to allocate the land … for the construction of the national cathedral, which when completed was to be used for public purposes by all denominations.”

The court therefore found no “legitimately raised” constitutional issue about the President’s authority to allocate land for the cathedral.

What about the acts themselves – were they constitutional?

In 1980 the court of appeal, sitting as the supreme court, had written that a national constitution “mirrors the history of the people”, and reflected “the basic aspirations of the people” for whom the constitution was enacted. Against this background, said the court, the 2010 census indicated that Christianity was the dominant faith with 71.2 % of the population, while Islam was the next most numerous at 17.6 % and traditional religions with 5.2 %. Other smaller religious groups made up the balance.

In the next few paragraphs the judges seek to explain their view that Bomfeh had no case. Historically, Ghana recognized how important religious identity was to the people of the country, and encouraged its “open and lawful expression”, even at national events. Collaboration between “the state and religion” had contributed significantly to the socio-economic growth of the country.

Then come the crucial two sentences, with their pivotal word “obviously”: “The constitution … while secular in nature, affirms and maintains the historical, cultural and religious or atheist character of Ghanaian society. Obviously, secularism in the context of the Ghana constitutional must be understood to allow, and even encourage, State recognition and accommodation of religion and religious identity.”

So what, you may ask, was implied by the idea that Ghana had a “secular” constitution?

According to the judges, the constitution did not specifically prohibit the government from “supporting, assisting or cooperating” with religious groups. Rather, it forbids the state hindering freedom of worship, religion and belief, as well as discrimination on grounds of religion. The constitution specifically prohibited any law “to impose on the people of Ghana a common programme or set of objectives of a religious or political nature.”

People were all guaranteed the right to “subscribe to the religious belief and faith of their own choosing without interference … by the state.”

These were the benchmarks for deciding whether any presidential actions infringed the constitution.

“It is our considered opinion that the acts complained of i.e. the construction of the national cathedral and the setting up of the Hajj Board does not contravene the guarantees of the freedom of religion and manifestation of beliefs of the people of Ghana. The state is free to lend support to a religious group” if it would be for the good of the nation.

Rather, according to the view of the court, the cathedral and the Hajj Board reflected the desire of the state to support social cohesion and unity.

Bomfeh also argued that the government was supposed to be neutral in relation to the country’s faiths, but that if it were to support any religious group that support should be available to all such groups. The judges, however, said this was an attempt to make a case for “minority” religions and their equal treatment, and dismissed Bomfeh’s application since none of the acts he complained about infringed the constitutional provisions that he cited.

But though this ends this particular challenge, the cathedral remains controversial.

Although the cathedral is to be built by individuals (and not government), taxpayers will inevitably carry considerable cost. This is because the prime area of Acra, marked out for the 5 000-seater cathedral and its grounds, includes a number of significant buildings that will have to be pulled down, with replacements being built elsewhere. Among these buildings are a number of homes for justices of the court of appeal that are barely five years old, as well as the Judicial Training Institute and the passport office.   

According to reports in the local media, the judges living in affected houses have already been given notice that they will have to leave.

One critic wrote, “Even with slave labour … Europe took at least 80 - 100 years to build most of their cathedrals. This … exceeds the years Ghana has been independent. Only a Martian doesn’t know that 61 years of being independent have been years of dependency on the financial charity of rich imperialist nations – a fact that morally disqualifies us from even thinking about such a project”.