“The experience of democracy is like the experience of life itself, always changing, infinite in its variety, sometimes turbulent and all the more valuable for having been tested by adversity. ” JIMMY CARTER.
“Man’s capacity for justice makes democracy possible, but man’s inclination towards injustice makes democracy necessary.” REINHOLD NEIBUHR
THE Daily Graphic reported last Saturday, January 10, 2009 that legal opinion sought by the paper on the appointment of Togbe Afede XIV, the President of the Volta Regional House of Chiefs, to head the three-man economic team of President John Evans Atta Mills pointed to the fact that the exercise was not unconstitutional.
The opinion suggested that the action did not violate the spirit and letter of the 1992 Constitution because the position is a public office.
Indeed, when Togbe Afede, who is the Agbogbomefia of the Asogli Traditional Area, was named as part of Prof. Mills’s Transitional Team, no eyebrows were raised. However, as soon as he was named to head the team to oversee the Ministry of Finance and Economic Planning, tongues started wagging.
Togbe Afede is a very capable and competent Old Vandal, having distinguished himself as an astute entrepreneur. But the issues are not about personalities but principles.
A major question that must be addressed is whether his appointment is advisory or functional ministerially. This clarification is crucial to ensure open and unencumbered debate as to whether chiefs could serve in any public office, since, under the 1992 Constitution, public office is defined as including “an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament … “.
Thus, in reality, the President, the Vice President, the Speaker and Members of Parliament are all public office holders. However, it is clear from Article 94 (3) of the Constitution that chiefs are debarred from serving in the Legislative and Executive arms of government.
Article 78 (1) provides that “Ministers of State shall be appointed by the President, with the prior approval of Parliament, from among members of Parliament or persons qualified to be elected as members of Parliament, except that the majority of Ministers of State shall be appointed from among members of Parliament.”
Again, Article 62 (b) provides that “A person shall not be qualified for election as the President of Ghana unless he is a person who, is otherwise qualified to be elected a Member of Parliament.”
On the other hand, whereas the candidate for the office of Vice President is to be chosen by the presidential candidate before the election, Article 60 (3) states that “the provisions of Article 62 of this Constitution apply to a candidate for election as vice-president”.
Therefore, by the provisions of Article 94 (3) (c), to the effect that “A person shall not be eligible to be a Member of Parliament if he is a chief”, chiefs are barred from becoming President, Vice-President, Ministers of State or MPs.
This is reinforced by Article 276 (1), “A chief shall not take part in active party politics and any chief wishing to do so, and seeking election to Parliament, shall abdicate his stool or skin.”
That is where Article 276 (2) enters the equation, when it provides that “Notwithstanding Clause (1) of this article and Paragraph (c) of Clause (3) of Article 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified.”
Thus, whereas a chief can be appointed into any public office for which he is qualified, no chief can be appointed a Minister of State or Vice-President because a chief is not qualified to be an MP.
One of the canons of legal interpretation is that words must be given their plain and ordinary meaning. It is also underscored that the interpretation of statutes must take into account the objectives for the enactment and be purposive rather than structural. The spirit and letter behind the 1992 Constitution debars chiefs from contesting parliamentary elections, not just party politics, otherwise they could have been permitted to contest as independent candidates.
The provisions of Article 276 (2) do not oust the requirements of Article 78 (1). If such a dispensation were to be available, there would have been no need to add “for which he is otherwise qualified”, which suggests an alternative. Article 276 (2) is conditional; it is not any public office but a public office outside the Legislature and the Executive.
The Advanced Learner’s Dictionary defines otherwise as “or else, if not then, differently, in other respects, of an unexpected nature, different, something different in outcome”.
The Chambers Advanced Learner’s Dictionary also defines otherwise as “or else, if not, in other respects, in a different way, under different circumstances, except for what has been referred to, differently or in another way”.
Again, the BBC Dictionary states that otherwise “is used after stating a situation or fact, to say what the result or consequence would be if the situation or fact was not the case; where stating the general condition or quality or something after you have mentioned an exception to this general condition or quality; to refer to the opposite of something or something very different from what was previously stated; to refer to the opposite of the preceding word, especially in cases where either of them are correct”.
Chiefs are disqualified from becoming members of Parliament, and with that as Ministers of State, Vice-President or President of the Republic. They are not to be involved directly or actively with the Legislature and the Executive. However, they can hold positions in the Judiciary. They can be appointed into any other public office for which they are otherwise qualified.
These include all the civil and public services, the security services, the constitutional and governance bodies and commissions, ambassadors or high commissioners, chairmen or members of boards of public institutions, corporations and companies or chairmen and members of the Council of State. They can also serve in any advisory position to the government or President, but they can never be President, Vice-President, Ministers of State and MPs for as long as articles 60 (3), 62 (c), 78 (1), 94 (3) (c) and 276 (1) remain in the Constitution, irrespective of Article 276 (2), since 276 (2) does not oust any of the other provisions.
Accordingly, for as long as Togbe Afede serves in an advisory capacity but not as a Minister of State, his appointment will be constitutional. The argument will fall if he is to be appointed a Minister of State.
Credit: Yaw Boadu-Ayeboafoh, Daily Graphic
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