Publication

Policy Directives: Administrative Fiats or Disguised Legislation?

Introduction

Legislation sometimes gives Ministers authority to perform certain acts or introduce subsidiary legislation. Issuing policy directives, typically intended to align the conduct of public institutions with national policy objectives, is an example of such authority.

Despite common use, the legal status of policy directives is not clearly understood. Do policy directives bind public authorities? Are they mere administrative instructions or do they have the force of law? This article addresses these questions and considers how our courts have interpreted the use of policy directives, arguing that while they carry weight, they remain subordinate to the statutes under which they are issued.

What is a Policy Directive?

Ghanaian law does not contain a general definition of ‘policy directives’; therefore, this article provides a working definition.

A policy is ‘a standard course of action that has been officially established by an organisation, business, political party, etc, or a ‘a plan of action usually based on certain principles on which to base decisions.’ A ‘directive’ is ‘an official instruction issued by a higher authority.’

Therefore, a policy directive is a formal instruction issued under the authority of a statute, usually by a Minister to guide the conduct and policy orientation of a public body. Though often binding on recipients, a policy directive cannot override statutory limits; it must conform to the enabling law.

**Are Policy Directives ‘Orders, Rules and Regulations’?**

Ghana’s legal system operates under a strict hierarchy, established under articles 1(2) and 11 of the Constitution. The sources of law, in order of gravity, are:

the Constitution;
enactments made by or under the authority of Parliament;
orders, regulations and rules made under constitutional authority;
existing law; and
the common law.

It may be contended that policy directives fall under category (iii) above, as ‘orders, rules or regulations,’ and must therefore be laid before Parliament in accordance with article 11(7) of the Constitution. However, this view was definitively rejected by the Supreme Court in Association of Finance Houses v Bank of Ghana & Another, where Kulendi JSC stated that directives constitute administrative acts and were not legislative instruments that needed to be laid before Parliament in the manner stated in article 11(7). Requiring parliamentary approval, he argued, would unnecessarily constrain administrative independence of a regulatory institution such as the Bank of Ghana. By parity of reasoning, this would also apply to policy directives issued by Ministers.

Constitutional and Statutory Examples of Policy Directives

The Constitution

A further example of policy directives in the Constitution is found in the provisions governing the Lands Commission. While the Constitution provides for the independence of the Lands Commission, it also seeks to ensure that its activities are aligned with national policies and that there is better coordination among all agencies involved in land management. Accordingly, the Constitution explicitly empowers the Minister for Lands and Natural Resources to issue policy directives to the Lands Commission. Specifically, article 258(2) provides:

‘The Minister responsible for Lands and Natural Resources may, with the approval of the President, give general directions in writing to the Lands Commission on matters of policy in respect of the functions of the Commission and the Commission shall comply with the directions.’

This provision indicates that even a constitutionally independent body may be bound by general policy directives, provided such directives are lawfully issued.

Statutory Provisions

A number of statutes mimic this constitutional model by allowing Ministers to issue directives that are expressed to be binding, with words such as ‘to be followed’ by the recipient, or that the recipient ‘shall comply’ with them. These words are, however, not used in other statutes, leaving open the question whether policy directives issued under those other statutes are similarly binding on the recipients. The following are examples:

Statutes Requiring Compliance

The Cybersecurity Act, 2020 (Act 1038) explicitly makes compliance with policy directives mandatory. It provides that ‘the Minister may give directives in writing on matters of policy to the Board and the Board shall comply in order to achieve the object of the Cybersecurity Act.

Statutes Unclear on Binding Effect

The Data Protection Act, 2012 (Act 843) states that ‘the Minister may give directives to the Board on matters of policy,’ but is unclear the binding effect of these policy directives.

Statute Allowing for Objections or Recommendations

In the unique case of the Students Loan Trust Fund Act, 2011 (Act 820) (“SLTF Act”), the Minister for Education is empowered to issue general policy directives to the Board of Trustees established for the Students Loan Trust Fund (“SLTF Board”). The SLTF Act does not appear to require compliance. Instead, the SLTF Board may raise objections or make recommendations to the Minister for Education.

Are All Policy Directives Binding?

These statutory variations raise questions of interpretation; are all policy directives binding, or only those directives that statutes expressly state are binding?

Determining whether a policy directive is binding depends on the wording of the enabling law. As noted above, the laws (i) state that the policy directives issued are binding, (ii) are unclear as to their binding effect or (iii) make them subject to discussion. It could be argued, following the maxim expressio unius est exclusio alterius (the mentioning of one thing implies the exclusion of what is not mentioned),[11] that only those laws expressly stating that policy directives are binding should be read as giving the directives binding force; so that where such wording is absent, the directives should not be considered binding.

However, as Aikins JSC cautioned in Ghana Ports & Harbours Authority v Isoufou, this maxim must be applied:

‘… with caution because the omission to mention things which appear to be excluded may be due to inadvertence or accident or because it never occurred to the draftsman that they needed specific mention. The maxim is no more than an aid to construction …’

Thus, a law’s silence or ambiguity on whether a policy directive is binding may simply be due to inadvertence or inelegant drafting. The modern purposive approach to statutory interpretation, which ‘looks to the apparent purpose of the statute instead of its literal meaning,’ would suggest that the directive should still be treated as binding, unless the enabling law expressly provides otherwise. Essentially, a directive instructs, orders or commands the recipient to either do or refrain from doing an act. Inherently, a policy directive is intended to provide administrative guidance and presumes compliance by the recipient. Thus, a modern purposive interpretation should be preferred, so that even in cases of silence or ambiguity, a policy directive would be treated as binding, to ensure that the objectives of the enabling law are effectively carried out.

Judicial Treatment of Policy Directives

Judicial decisions offer some clarity on the legal effect of policy directives. In Kwapong & Others v Ghana Cocoa Marketing Board & Others; Amoh v Ghana Cocoa Marketing Board & Others (Consolidated), the Court held that a government White Paper, which ordinarily lacked legal effect, became a binding policy directive due to the statutory mandate under the Ghana Cocoa Marketing Board Instrument, 1970 (LI 660) (“LI 660”). Osei-Hwere JA (as he then was) stated:

‘Counsel for the defendants has argued that the white paper is a policy directive which has no executive force and creates no rights enforceable by the court. According to him, it may only give cause to administrative sanctions which can be directed against the executive body in accordance with the policy. It must be conceded that this white paper is a policy directive of the government with which, by virtue of section 26 of LI 660, the defendants were bound to comply. If they misapplied the directions contained in the white paper and thereby injured the legally protected rights of another person nothing stopped him from coming to court to have those rights vindicated.’

However, a policy directive by itself is not law. Thus, in Johnny Bavor v Valco Aluminium Co Ltd, the Court of Appeal rejected the argument of an appellant who claimed that he was entitled to remain in occupation of disputed premises, relying on a document that he described as a ‘circular. He argued that the circular had the force of law and had been saved by the 1979 Constitution. Marful Sau JA (as he then was) said:

‘I find it difficult to comprehend the reasoning of the appellant. How the circular took the form of law, the appellant has failed to demonstrate in this appeal. The said circular to my mind was at best a policy directive which could not have metamorphosed into a law by itself.

Thus, as creatures of legislation, policy directives do not exist either in a vacuum or on their own. Further, authority derived from statute does not override or take precedence over the provisions of the statute that create or authorise the policy directive. They do not qualify as ‘orders, rules and regulations,’ but are subject to the law creating them.

Conclusion

Policy directives are administrative fiats given under the authority of statute to guide implementation of the enabling law. They are not laws within the meaning of article 11 of the Constitution and do not qualify as ‘orders, rules or regulations.’ While some statutes expressly make policy directives binding, others leave the question open. Where ambiguity exists, the recommendation is that the modern purposive interpretation that considers the apparent purpose of the statute instead of its literal meaning, should guide the court’s analysis.

Ultimately, a policy directive, though powerful in practice: