Presidential term limits under the 1992 constitution: the case of John Dramani Mahama

This article examines the 1992 Constitution of Ghana with a view to determining whether John Dramani Mahama is barred from contesting again for the office of President.

The discussion begins with the relevant constitutional provisions on presidential tenure, proceeds to an analysis of the nature and function of the Constitution as a legal instrument, and then applies those principles to Mahama’s presidency.

THE TERM OF OFFICE OF THE PRESIDENT

Article 66 governs the term of the President. For present purposes, clauses (1) and (2) are reproduced.

Article 66(1) provides:

“A person elected as President shall, subject to clause (3) of this article, hold office for a term of four years beginning from the date on which he is sworn in as President.”

Article 66(2) states:

“A person shall not be elected to hold office as President of Ghana for more than two terms.”

WHAT ARTICLE 66(2) SAYS — AND WHAT IT DOES NOT SAY

Article 66(2) clearly limits presidential tenure to two terms. However, it does not state whether those two terms must be consecutive or whether any two terms, whether consecutive or non-consecutive, suffice to trigger the constitutional bar. Put differently, Article 66(2) is silent on the issue of consecutiveness. What does that mean in our constitutional jurisprudence?

JOHN MAHAMA’S PRESIDENCY

John Dramani Mahama is the President of Ghana. He was first sworn into office in 2012 and served until 2016. Unlike some of his predecessors, he failed in his bid for a second consecutive term. He subsequently contested again and won the 2024 elections, returning to office in 2025.

He is therefore serving a second term as President, but not consecutively.

The legal question that has occupied the minds of lawyers and political commentators is whether this non-consecutive second term bars him, under Article 66(2), from contesting again in the future.

To answer this, one must first understand the jurisprudence on the nature and function of a constitution.

THE JURISPRUDENCE ON THE NATURE AND FUNCTION OF THE CONSTITUTION

With respect to the nature and function of a constitution, one can hardly improve upon the statement of Chief Justice Marshal in the case of Culloch v Maryland 17 US 316 (1819) where he said as follows:

“A constitution, to contain an accurate detail of all sub-divisions of which its great will power admits, and of all the means by which they must be carried into execution would partake of a prolixity of a legal quote and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

In sum, Chief Justice Marshal says in effect that:

• The Constitution marks its great outlines.
• It designates its important objects.
• The minor ingredients which compose of the important objects are left to be deduced.

The background to this case and the decision of the court are invaluable to help drum home the point even more clearly.

In 1816, the United States Congress established the Second Bank of the United States, a Federal Chartered bank. The bank opened a branch in Baltimore, Maryland. The State of Maryland enacted a law imposing a tax on all banks operating in the State that were not chartered by Maryland. The Federal bank fell squarely within this category.

James McCulloch, the cashier of the Baltimore branch refused to pay the tax. Maryland sued him in State courts. The courts upheld the tax on the ground that Congress did not have any express constitutional power to create a bank, and that even if it had, the State of Maryland could tax it.

McCulloch appealed to the Supreme Court of the United States with two issues for determination:

1. Did Congress have a constitutional authority to establish the Bank of the United States?
2. If the Bank was constitutionally established, could a State tax it?

On whether or not Congress had the constitutional authority to establish the Bank of United States, the Court held as follows:

Although the Constitution does not expressly mention the power to create a bank, Congress had implied powers to do so. Under the necessary and proper clause, Congress may choose appropriate means to carry out its expressly enumerated powers. The Constitution is intended to endure and must be interpreted with sufficient breadth to allow government to function. Congress may exercise implied powers so long as the means chosen are legitimate, appropriate and consistent with the Constitution.

On whether or not the State of Maryland could tax the Federal bank, the Court held thus: a State tax on a Federal instrumentality interferes with federal supremacy and undermines national unity. C J Marshall then made his immortal statement regarding jurisdiction of the Court with respect to interpretation: “We admit as all must admit, that the powers of government are limited, and that its limits are not to be transcended.” Continuing, he added “But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional.”

In sum whilst the Court did not transcend the limitations of the government by adding some restrictions that the law did not expressly provide, it implied those powers that were necessarily incidental to the powers already conferred and which were not prohibited but consistent with the letter and spirit of the Constitution to enable the government to carry into effect its powers.

The Supreme Court of Ghana rested its decision in the Professor Kweku Asare v AG [DLSC] 3261 largely on the McColloch case discussed above.

The facts:

The 1992 Constitution vests the power to amend it exclusively in Parliament by its Article 289(1) which states as follows:

 “Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution.”

On the strength of the Constitutional Review Committee of Inquiry Instrument, 2010, C.I. 64, the President constitutes a 10 member Constitutional Review Committee [CRC] to:

• Ascertain from the people of Ghana, their views on the operation of the 1992 Fourth Republican Constitution and, in particular, the strength and weaknesses of the Constitution.
  • To articulate the concerns of the people of Ghana on amendments that may be required for a comprehensive review of the 1992 Constitution.
  • Make recommendations to the Government for consideration and provide a draft Bill for possible amendments to the 1992 Constitution.

 The Plaintiff who viewed these a pre-legislation said they fell within the exclusive authority to     amend and that, therefore, the President did not have the authority to undertake that task.

Deciding against the plaintiff, the Court limiting pre-legislative activities to parliament alone is a great outline which the framers of the Constitution would have marked if they wanted to.  Additionally, the Court implied from the Constitution’s empowerment of the President to introduce Bills into Parliament that carrying out pre-legislative activities advanced that power, was in consonance with the intent of the Constitution, was not expressly prohibited and therefore not unconstitutional.

Benin JSC particularly noted as follows:

“I would say that once the action is not forbidden by the Constitution or any Act of Parliament, and is incidental to the purpose of the action or inherent in the office or implied from the functions or powers already given under the constitution, it is permissible in law to apply it even in the absence of such express words in the Constitution.”

An incident under the 1979 Constitution also illustrates the position that limits set by the a constitution should not be transcended. The 1979 Constitution prohibited any person, against whom a Commission of Inquiry made adverse findings from holding public office. Adverse findings were made by a Committee of Inquiry and when these were sought to be used against a person, as to disqualify him from holding public office, he raised a defence successfully that the adverse findings were made by Committee of Inquiry and not a Commission of Inquiry. The constitutional limitation could not be transcended. This, however, rather informed the definition of a Commission of Inquiry in the 1992 Constitution to include a Committee of Inquiry.

It is also important to note that the Supreme Court power of judicial review as stated in Article 2 of the 1992 Constitution is not as expressly stated in the Constitution of the United States of America. It was implied by Chief Justice Marshal in the case of Marbury v Madison (1803) 5 U.S. (1Cranch) 137.

In 1801, shortly before leaving office, President John Adams appointed several persons to judicial offices. William Marbury was one of them. His appointment was duly signed and sealed, but his commission was not physically delivered before the change of government.

When Thomas Jefferson assumed office, his Secretary of State, James Madison, refused to deliver Marbury’s commission.

Marbury sought a court order (a writ of mandamus) compelling Madison to deliver the commission. Instead of going to a lower court, he went directly to the Supreme Court. He relied on section 13 of the Judiciary Act of 1789, which appeared to authorise the Supreme Court to issue writs of mandamus to public officers.

However, the United States Constitution (Article III) had already defined the Supreme Court’s original jurisdiction and limited it to certain categories of cases (such as those involving ambassadors and states). A case like Marbury’s did not fall within those categories and, under the Constitution, should have begun in a lower court.

This created the core conflict:

• The Judiciary Act of 1789 purported to give the Supreme Court original jurisdiction to issue writs of mandamus in cases like Marbury’s.
• The Constitution had already fixed the Supreme Court’s original jurisdiction and did not include such cases.

Thus, Congress, by ordinary legislation, had attempted to expand the Supreme Court’s original jurisdiction beyond what the Constitution permitted.

When the Supreme Court was asked to act on Marbury’s application, it was therefore confronted with two inconsistent legal commands:

1. A statute telling it that it had power to hear the case, and
2. The Constitution telling it that it did not.

To resolve this conflict, Chief Justice Marshall reasoned that the Constitution is superior law and that courts, whose duty is to apply the law, must give effect to the Constitution where it conflicted with an Act of Congress. He therefore held that the relevant part of the Judiciary Act was unconstitutional and that the Supreme Court lacked jurisdiction to grant Marbury’s request.

WHAT IS JUDICIAL INTERPRETATION

In the context of this discussion, perhaps the most apt formulation of what judicial interpretation is, is as stated by the Supreme Court in Agyei Twum v AG and Akwetey [2005-2006] SCGLR 732 where at page 757 the Court said as follows:

“judicial interpretation is about determining the legal meaning of a set of words. A set of words will often raise a range of possible semantic meanings and the task of judicial interpretation is to select which of these semantic meanings should be accepted as the legal meaning of the text. All legal texts which are placed before a court have to be subjected to this process of judicial interpretation, even if their meaning appears to be plain. This is because the plainness of the meaning is itself a conclusion reached by the relevant judge after a process of interpretation.”

PURPOSE

According to the Supreme Court, purpose under the purposive approach to interpretation is not the subjective purpose. The subjective purpose is what the framers of the Constitution actually intended. It is the objective purpose, which is what the provision should be seeking to achieve, given the general purposes of the Constitution and the core values of the legal system and the Constitution. It is the purpose that a reasonable person would have had if he or she were faced with formulating the provision in question.

THE INTERPRETATION PROCESS

Here too, the language of the court in the Agyei Twum case serves a useful purpose. At page 577 the court said as follows:

“In interpreting constitutional language, one should ordinarily start with a consideration of what appears to be the plain or literal meaning of the provision. But that should not be the end of the process. That literal meaning needs to be subjected to further scrutiny and analysis to determine whether it is a meaning which makes sense in its context and in relation to the purpose of the provision in question. In other words the initial superficial meaning may have to yield to a deeper meaning elicited through a purposive interpretation. Thus where an interpreter comes to the conclusion that a literal meaning does not make sense within its context and in relation to the purpose of the relevant provision, it becomes necessary for the interpreter to explore other semantic possibilities flowing from the language of the provision. In exploring these possibilities the interpreter has to bear in mind the purpose of the provision… The core values of the constitution can be drawn upon to help fashion a construction of its language. Thus, though an initial superficial reading of a provision may convey a particular meaning, further reflection on the provision, taking into account the context and the core values of the Constitution, may lead to a different construction of the provision. This further construction may identify a gap in the provision whereas at first sight it might have been thought to be complete and to bear a particular plain meaning.”

WHAT TO DO IF A GAP IS DETERMINED

There are two schools of thought representing two diametrically opposed positions on the subject. The position of the first, the conservative approach or the literal school of the strict constructionist is as stated by Lord Esher in R v Judge of City London Court [1892] 1QB 273 where at page 290 he said as follows:

“If the words of the Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislator has committed an absurdity.” This position was followed by Lord Simonds in the Magor and St. Mellons case in 1952

A lead proponent of the other school, the modern liberal trend, Lord Reid in the case of Federal Steam Navigation Co Ltd. v Department of Trade and Industry [1974] 2 AER 97, however, provides three scenarios under which a gap could be filled.

1. Where without such substitutions, the provision is unintelligible or absurd or totally unreasonable.
2. Where it is unworkable.
3. Where it is totally irreconcilable with the plain intention shown by the rest of the statute.

Sir Rupert Cross in his statutory interpretation (1976) edition at page 43 supports Lord Reid’s view in the following words:

“The Judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.”

The Ghanaian courts in appropriate circumstances follow the modern liberal trend. A case in point is Sasu and Amoah-Sakyi [1987-88] 1 GLR 506, CA where Taylor JSC, taking the decision to fill in gaps in PNDC Law 191, said as follows:

“I have arrived at this conclusion by considering the content and consequently the wording of section 3(2) not in isolation but within the context of the whole PNDC Law 191. And I have carried out this exercise by examining all the other words of PNDC Law 191. I have further more looked at the previous state of the law and the objectives of the law with the mischief it was designed to remedy. The exercise has necessitated filling in gaps by adding words to the provisions to make sensible reading in order to give effect to the intention of the legislature. I suppose the legal question posed by this apparent meddling with enacted words in order to discover what the legislature intended to enact is: do the principles and canons of interpretation permit this license with legislation?”

Making reference to the school of the modern liberal trend which he discussed in his judgement, he answered the question posed above as follows:

“It seems to me that if the thrust and implications of the rules derivable from the authorities I have discussed in this ruling are considered with due regard to my analysis of the wording of section 3(2) of Act 372 as inserted by PNDC Law 191, and they are applied to a construction of the provisions of the said section 3(2) having regard to the context, the other words of the said PNDC Law 191 and the intention of the legislature as is apparently disclosed by the wording, then the meaning I have given to it by supplying the omissions, following my comparative analysis, cannot be resisted.”

The Supreme Court in the Agyei Twum case following the reasoning of Taylor JSC in the Sasu  v Amoah-Sakyi case, rejected the conservative approach of the literal school as not being “...helpful in the development of the constitutional jurisprudence of this country.”

The background to the Agyei Twum case cited above and the decision of the Court thereof, are certainly beneficial to the comprehension of the subject under discussion.

Article 146(3) provides as follows:

“If the President receives a petition for the removal of a Justice of a Superior Court other than the Chief Justice or for the removal for the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facis case.”

Article 146(4) provides as follows:

“Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial Council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.”

Article 146(5) provides as follows:

“The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.”

Article 146(6) provides as follows:

“Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President and three other person who are not members of the Council of State, nor members of Parliament, nor lawyers.”

As can be noted, whilst Article 146(3) and (4) require the President to await the determination of a prima facie case determined by the Chief Justice before he sets up a committee to investigate a Justice of the Superior Court other than the Chief Justice against whom a petition has been filed, the same is not expressly required of him where the petition is filed against the Chief Justice.

In the Agyei Twum case, the second defendant filed a petition for the removal of the Chief Justice on grounds of stated misconduct and abuse of power. The President set forth to constitute a committee to investigate the Chief Justice, whereupon the Plaintiff brought the action for a declaration among others that there was the need for a prima facie case to be determined prior to the President constituting the committee to investigate the Chief Justice. 

In deciding for the Plaintiff the Court reasoned as follows:

“In my view, the purposive approach to interpretation of our Constitution requires that in the context of this case implicit words be read into the Constitution to avert a manifest absurdity. It has to be remembered that there is room for the unwritten in a written constitution. The fact that a country has a written constitution does not mean that only its letter may be interpreted. The courts have the responsibility for distilling the spirit of the Constitution, from its underlying philosophy, core value, basic structure, the history and nature of the country’s legal and political systems etc, in order to determine what implicit provisions in the written constitution flow inexorably from this spirit. The requirement of the establishment of a prima facie case against a Chief Justice before a committee is empanelled to consider a petition filed for his removal is one such implicit provision. The authority of the courts to imply such a provision through purposive interpretation is not a license for the judges to re-write the Constitution. The interpretative authority is a limited one to make explicit what is implied within the penumbra of the letter of the Constitution, given the Constitution’s objective purpose, core values and underlying philosophy.”

APPLICATION OF THE LAW TO MAHAMA’S PRESIDENCY

ON WHETHER OR NOT ANY TWO TERMS SUFFICE TO TRIGGER THE BAR

In consonance with the law stated and discussed, any two terms being sufficient to trigger the bar under Article 66(2), is a great outline in the Constitution which the framers would have put if they wanted to.

Besides, the only limitation that the Constitution places under Article 66(2) is two terms. This must not be transcended. To hold any two terms as a bar is to transcend the only limitation placed by the Constitution contrary to the law stated above.

ON WHETHER OR NOT MAHAMA IS BARRED FROM CONTESTING IN THE 2028 GENERAL ELECTIONS

In accordance with the law stated and discussed above, there is the need to read Article 66(2) together with Articles 243(2) (c), 246(2), 3(4) (b), 35(7) and the preamble to the Constitution in order to determine the purpose of the framers of the Constitution with respect to article 66(2). It will also help determine whether Article 66(2) conveys a meaning other than its plain meaning.

Article 246(2) provides as follows:

“Unless he resigns or dies, or he earlier ceases to hold office under clause (3) under Article 243 of this Constitution, the term of office of the District Chief Executive shall be four years, and a person shall not hold office as a District Chief Executive for more than two consecutive terms.” 

The District Chief Executive, as provided by Article 243(2) (c) represents the President in the district. Article 243(2) (c) provides as follows:

“The District Chief Executive shall -

(c) be the representative of the Central Government in the district.”

Consequently, the President is empowered by Article 243(3) (b) to remove him from office. Article 243(3) (b) provides as follows:

“The office of the District Chief Executive shall become vacant if -

(b) he is removed from office by the President…”

The irresistible and most logical outcome of reading Article 669(1) and (2) together with Article 243(3) (b) is that subject to Article 243(3) (b), the tenure of the District Chief Executive is coterminous with that of the President. Thus, if the plain meaning of Article 66(2) is to be taken as sufficient, it leads to the incongruous situation where the President, the appointing authority of the District Chief Executive, is limited to any two terms whilst the District Chief Executive, his appointee, is allowed to do two consecutive terms. The result here is hierarchical incoherence, structural inconsistency and absurdity, the vary result that the purposive approach to interpretation is designed to avoid. And this effortlessly points to a gap in Article 66(2).

Perhaps, the case of J H Mensah v AG may be a useful guide here. The brief facts of that case are the following:

Article 66(1) provides that “A person elected as President shall, … hold office for a term of four years beginning from the date on which he is sworn in as President.”

Article 66(2) provides as follows:

“A person shall not be elected to hold office as President of Ghana for more than two terms.”

It is submitted that Articles 66(1) and (2) read together mean that, after the first term, the President may present himself for reelection. Differently put, it means that after the first term, he has to go back to the people of Ghana for a renewal of his mandate for another term.

Article 78(1) provides that “Ministers of State of shall be appointed by the President with the prior approval of Parliament…” By Article 78(2), the Ministers are to help the President run the state efficiently.

J. J. Rawling was the first President under the 1992 Constitution. He was sworn into office in 1993. At the end of his first term in 1997, he was reelected for another term. That is so to say, his mandate was renewed.

When he was sworn into office for a second term, his Ministers in his previous term continued to work in their previous ministries as Ministers in his second term whereupon this case was instituted for a declaration that just as the Presidents term was renewed, so the Ministers had to have their terms also renewed by a reappointment by the President and a re-approval by Parliament. The Court upheld this submission even though there is no express provision in the Constitution for the reappointment and re-approval of a Minister who served in a previous government. The Court took this position on the grounds that the Ministers’ tenure was coterminous with that of the President and just as the President needed a renewal of his mandate, so did they. This saved the absurdity where whilst the appointing officer needed a renewal of his mandate, the officers he appointed did not.

THE INTENTION OF THE FRAMERS OF THE CONSTITUTION WITH RESPECT TO ARTICLE 66(2)

Article 3(4) (b) says “all citizens of Ghana shall have the right and duty at all times -

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown or abrogated ...”

The word ‘restore’ in this context means to bring into being what was. To restore the Constitution would also mean to restore the Government of the day that was overthrown with the overthrow or suspension or abrogation of the Constitution. The intention that can be gleaned from this is to ensure continuity of the Constitution and the continuance of the mandate of the government of the day.

Article 35(7) provides that “As far as practicable, a government shall continue and execute projects and programmes commenced by the previous Governments.”

And the preamble notes that the constitution is meant to provide the blessings of liberty, equality of opportunity and prosperity for the people of Ghana and their posterity.

It is inconceivable that the framers of the Constitution would intend continuance in governance of a government that has been overthrown and between governments when there is a democratic exchange of power, whilst at the same time forbidding a continuous governance of a particular government within the maximum period of time given. Thus, it is submitted that intention behind the provisions above is to ensure continuity. The thread of continuity that runs through is informed by our constitutional history where the various military take overs denied the people of Ghana of the benefits of democracy. It in this regard that rather than enact a new constitution, the framers of the Constitution now require its restoration, for a continuity in order that Ghana benefits from democratic governance. Also, projects of governments that were overthrown were left unfinished and thereby depriving the nation the benefits of democracy.

One of the justifications for the first coup d’etat in Ghana in 1966 was, the making of Ghana’s first President, a president for life in the 1960 Constitution.

Against the background presented above, the intention of article 66(2) is not to vest power in any person for too long a time to invite coup d’etats whilst at the same time providing for continuity in governance within the maximum time given to enable the nation harvest the benefits of democracy.

CONSEQUENTIAL MATTERS

Consistent with the analysis above, if Mahama presents himself again, he would not be going for a third term, but a second consecutive term.

There is no need to amend the Constitution to make it possible for him to present himself again. All that is required is a suit for the interpretation of Article 66(2) as in the case of Rosemary Ekwam v Kwame Piani (2) [1996-97] GLR 120 SC.

The Constitution was enacted according to its preamble to give to the people of Ghana and their posterity the blessings of prosperity among others. Peace is an essential part of prosperity. As this legal conundrum has arisen in our lifetime, we have a duty to resolve it rather than pass it on to unborn generations.

Admittedly, this issue is both legal and political. As our politics is itself governed by law, the legal question that arises must be given prominence and allowed to be decided by the proper forum, the Supreme Court rather than on political platforms.

CONCLUSION

We have considered the plain meaning of Article 66(2) as enjoined by the law stated above. Subjecting it to further scrutiny and analysis revealed a gap filling in which the word “consecutive” avoids the absurdity that would otherwise exist. Furthermore, filling in the gap is consistent with the intention of the frameworks of the constitution as gleaned from reading the said Article 66(2) together with Articles 289(1), 243(2), 246(2), 3(4)(b) and 35 (7). We have also been faithful to the decisions of the Supreme Court in similar cases and benefited from the reasoning of the Court in arriving at the conclusion that a non-consecutive second term of John Dramani Mahama does not bar him under Article 66(2) from contesting the presidency again. Article 66(2) intends, as demonstrated above, to bar a person only where he has served two consecutive terms, not any two terms as John Dramani Mahama is currently serving. To hold otherwise is to be literalist, a position rejected by the Court.

By: Emmanuel Adabayeri

The writer is a private legal practitioner