Though I am not privy to the details of why the Speaker refused to take the Presidential Oath, I will start by saying that he did the right thing. There is no provision in the 1992 Ghanaian Constitution that says that anytime both the President and Vice President are absent from Ghana, the Speaker must be sworn in as acting president. There is nothing like that. Let me present what the constitution says on this matter:
Article 57 of the constitution says,
(1) There shall be a President of the Republic of Ghana who shall be the Head of State and Head of Government and Commander-in Chief of the Armed Forces of Ghana.
A president is of course singular, which means Ghana cannot have two presidents at the same time. Anytime we swear in the Speaker, we have two presidents, one at home, one overseas.
Article 60 (8) reads
Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform.
First of all, being absent from Ghana does not mean that the President in unable to perform his duties as president. After all, President Mahama was in Burkina Faso on official duty as president of Ghana, which means he was performing his duties as president. In addition, there is no mention of the Speaker in this provision. This provision does NOT say when the President is absent from Ghana, the Speaker should take over; it is the Vice President who is supposed to take over; neither does it say when both president and vice president are absent, the Speaker should take over.
Additional confusion comes from section 11 of article 60:
Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.
As can be seen, a poorly written constitution is the blueprint for disorder since it leaves too much room for interpretations. The question to be asked is this: Are the president and Vice President unable to perform their duties just because they are outside the country? Since the President and Vice President are on official duties, albeit outside Ghana, we cannot say they are unable to perform their duties. The duties they are performing overseas are duties of the President and Vice President.
Once we accept that “absent from Ghana” does not mean unable to perform their duties, then the Speaker does not come into the picture at all. Like many things we do in Ghana, we like to practice our own brand of democracy, the crooked one. When it does not work, we blame others, and complain that we should practice African democracy. Whose democracy do you think we have been practicing all along?
Article 60 section (3) says, Subject to the provisions of this Constitution, the functions conferred on the President by clause (1) of this article may be exercised by him either directly or through officers subordinate to him.
This means there is no need to swear in the Speaker because the President can at anytime delegate some of his subordinates to act on his behalf during his absence.
Section (12) of Article 60 states: The speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of the President.
The Speaker only performs the functions of the President if both President and Vice President are UNABLE to perform their functions. This situation can arise in the case of an accident involving both the President and the Vice President at the same time. Even here, as long as the President or Vice President is alert, one of them can take charge without the Speaker being sworn in. The only time the Speaker comes into the picture is when neither the President nor Vice President is able to perform. This can also come about if both resign at the same time. If the President resigns, the Vice President takes over. If the Vice president resigns, the President nominates another person.
In a properly constituted presidential democracy, anytime the Speaker is sworn in as acting president, it is an indication of a national emergency. When the Speaker is called upon to act as president, it means all mechanisms to maintain separation of powers by filling a vacancy in the presidency through the ascension of the Vice President to president or the nomination of a new candidate to fill the position of vice president has been exhausted, and that the only option left is for the Speaker to temporarily hold the position until a new president is elected. The speaker cannot be made a casual appendage of the presidency so that every time the president is out of the country, he takes over his responsibilities. This is not only a violation of the constitutional principle of separation of powers; it diminishes parliament’s autonomy and mires it in the politics of the executive.
Here are some allegations made in the Joy News article:
His refusal to take the oath means Ghana at the material moment has no acting president, since the President and his Vice are outside the country…
Ghana does not need an acting president because we still have an active President and Vice President. There are many people who the President can delegate to act on his behalf.
It will be obvious to all of us that, that action, first of all, disrespects the letter…[from the Office of the President
A disagreement about a constitutional matter is neither disrespectful nor an affront to anyone. Does it mean that whatever the President says must be obeyed? This is one way errors in legislative interpretations are corrected. This attitude is what has brought Ghana to its knees because we have slowly created an imperial president who does no wrong; parliament is his.
I would rather obey a lawful instruction from the Chief of Staff…
The ordinary Ghanaian may choose to obey any instructions from the Chief of Staff, but the Speaker does not have to. The Speaker as the legislative leader does not take instructions from the President let alone his subordinate.
There is the requirement for the physical presence of a person; and that person must be sworn in, in accordance with Article 60 (12) to perform the functions of the president.
Nowhere in the constitution does it say that the President must be physically at the presidency at all times. I can go on and on about this issue. One thing I see in Ghanaian constitutional discourse is that when we talk of the spirit of the law, we seem to think it simply means doing what we think is right or prudent.
Justice Atuguba remarked in one of his rulings that, “Indeed when the constitution itself or any statute commits an error, this court rectifies it.” If this is what we understand by the spirit of the constitution, then we got it wrong. First, the constitution does not commit en error. Until that “error” is corrected, not by the Court, but by constitutional amendment, it remains the law.
Judicial review is not meant to change the law; it is meant to give an interpretation to the law. The source of the new interpretation must come from sources in the constitution. This means, one can read into the constitution only when provisions in the constitution allow one to. To interpret “absent” to mean “unable to perform” is reading into the constitution without a source that allows one to. I’m sure the framers knew the difference between “absent” and “unable.”
Here are some of the ramifications of swearing in the Speaker when the President is out of the country:
1. During this time of two presidents, who should Ghanaians listen to in case there is a crisis?
2. After the Speaker has been sworn in, suppose the Vice President returns to Ghana before the President does. What happens then? Does the VP take over from the Speaker or does the Speaker continue as acting president? Since the Speaker was acting as president, the VP cannot take over from him because the VP would technically be taking over from a president.
3. After the Speaker steps down as acting president, shouldn’t he be sworn in again as Speaker, since by being sworn in as president, he ceased to be Speaker?
4. Suppose the speaker is sworn in as Acting President, and the President dies, does he hand over to the Vice President or does he remain the president?
5. The argument that there is no need to swear in the Speaker since he had been sworn in a year ago implies that he had been Acting President all along, even before President Mahama left the country.
This means he was Acting President and Speaker at the same time, a violation of the constitution. Even when we are doing the wrong thing, we still get it wrong! Just because we’ve done the wrong thing in the past by swearing in the Speaker does not mean we should continue doing it. We are actually the laughing stock of those who understand constitutionalism. Just as it is more honorable to follow the right example, it makes more sense to change course than to follow the wrong path. Democracy is a culture and a process; we are still learning, but the longer we take, the more we become a danger to ourselves.
THE SPIRIT OF THE CONSTITUTION CLEARLY INDICATES THAT THE SPEAKER SHOULD NOT BE SWORN IN JUST BECAUSE THE PRESIDENT IS ABSENT FROM GHANA.
Dr. Richard Amoako-Baah