Procedural Exclusivity in Ghana: The Legacy of O'Reilly v. Mackman

Abdul Baasit Aziz Bamba and Peter Atudiwe Atupare

Journal of Politics and Law, 2025, vol. 18, issue 3, 1

Abstract: This article critically re-evaluates the procedural exclusivity rule from O’Reilly v. Mackman in the context of Ghana’s post-colonial constitutional development, and examines its implications for access to justice and public accountability. It interrogates the issue of whether Ghanaian courts should rigidly require judicial review for all public law claims or adopt a more flexible approach suited to Ghana’s constitutional framework. Using a doctrinal-comparative method and drawing on Critical Legal Studies (CLS), the study analyzes English case law, Ghana’s 1992 Constitution, and the High Court Civil Procedure Rules (C.I. 47). It shows that Ghanaian courts have applied the exclusivity rule inconsistently—sometimes strictly, other times flexibly—raising concerns about access to justice and procedural fairness. The CLS lens reveals that rigid procedural rules can reinforce power structures and hinder public accountability. The article proposes reforms, including a four-category procedural framework, clearer judicial guidance, and a narrow “manifest injustice” exception to the procedural exclusivity rule to avoid unjust outcomes. The findings suggest that procedural exclusivity, if applied without sensitivity to Ghana’s legal context, risks undermining substantive justice. The article concludes that Ghanaian courts should balance adherence to rigid procedural requirements with access to justice, ensuring that public law claims can be heard without being derailed by overly rigid procedural rules.

Date: 2025
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