My case for constitutional reform
The title is inspired by Ito Hirobumi (1841 -1909)
Ghana’s 4th attempt at constitutional democratic rule began on January 7, 1992, when a President and Members of Parliament of the 1st Parliament of the 4th Republic were sworn into office under a Constitution that was approved in a national referendum held on April 28, 1992. The Constitution established a framework of government for Ghana in the hope that the framework “shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity.”
In order to realise this aspiration, the 1992 Constitution of Ghana chose as a basic structure a novel system of government; a hybrid. The basic government framework under the 1992 Constitution is a fusion between the Presidential system of government as prevails in the United States of America and the Westminster or Parliamentary system of government as practised in the United Kingdom.
This fusion finds expression in Article 78(1) of the Constitution. Article 78(1) allows the President, in the exercise of his Executive Authority under Article 58 of the Constitution to choose Ministers of State “from among members of Parliament”.
The 1992 Constitution also provides for “The Directive Principles of State Policy in Chapter 6 of the Constitution. These Directive Principles have been said to be guiding principles to “guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, Political Parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking or implementing policy decisions, for the establishment of a just and free society” (Article 34(1).
It is worth noting that Chapter 6 of the Constitution has been until recently held by the Supreme Court of Ghana not to be justiciable. (see the case of Ghana Lotto Operators v. National Lotto Authority). Our traditional social institution, the institution of chieftaincy is dealt with in Chapter 24 and emphasises in Article 270(1) that “The institution of Chieftaincy, together with the traditional Councils established by customary law and usage, is hereby guaranteed”
Like all other written constitutions, the 1992 Constitution provides for how it can be amended in Chapter 26. The chapter employs a binary approach to the classification of the provisions of the constitution viz; entrenched provisions and non-entrenched provisions and has prescribed amendments procedures for these different categories, flexible and rigid.
The President of the Republic of Ghana, Nana Akufo-Addo at a recent swearing-in of some Board members of the National Commission on Civic Education (NCCE), is reported to have said that the 1992 Constitution “has provided the bedrock for the longest uninterrupted, stable period of governance in Ghana’s turbulent history” (Modernghana, Mar 21, 2023).
According to the Report of the Constitution Review Commission, “The 1992 Constitution is a resilient foundation for good governance in Ghana. It has been the basis of the flourishing institutions under the 4th Republic and has the potential of guiding the evolution of the nation’s institutions towards, peace, prosperity and a good life for its people. Under the Constitution, five now eight successful Presidential and Parliamentary elections have been conducted, two now three of them involving a transfer of power from a ruling party to an opposition party.
However, the Commission found that there are many areas of the Constitution and constitutional practice that need to change for the better” (page”). One can, therefore, conclude that the 1992 Constitution has delivered political stability as compared to previous Constitutions. The question is; Has the 1992 Constitution delivered the promise of a “good life”, “prosperity” and “development”?.’ Has it been able to deal with ills of maladministration, corruption, wastage and recklessness in the use of public resources? Has it delivered the promise of equality of opportunities as promised in the preamble of the Constitution?
Recently at a meeting organised by the African Center for Economic Transformation in collaboration with the Ministry of Parliamentary Affairs at Marriot Hotel, Accra, I stated that Constitutions in a democratic setting are designed to check the exercise of power or authority by duty bearers, by establishing rules institutions, procedures, processes standards and so on which regulate the exercise of the authority of public office holders.
Consequently, in the 1992 Constitution, there are substantive, procedural and institutional limitations imposed on duty bearers in the exercise of their authority. This is the essence of constitutionalism – Checks and Balances. It, therefore, goes without saying that where the rules, institutions procedures and processes are weak and corrupt, the constitution might not be able to deliver on the democratic dividend, to wit prosperity and development. This might explain why the CRC titled their report thus: “From a political to a developmental constitution'.
This is why I make a case for constitutional reform; to tighten the loose ends, to make our institutions responsible and responsive, to make our government more accountable, to insulate our institutions against partisan political manipulation, to fight corruption and enhance trust through transparency.
In Tuffour v. AG (1980) GLR 637 Sowah JA (as he then was) speaking for the Court on page 647 stated thus: ”A written constitution such as ours is not an ordinary Act of Parliament. It embodies the will of the people. It mirrors their history….It contains within it their aspirations and hopes for a better and fuller life”.
I must hasten to state that I am not unaware of the existence of the views of other people who think and believe that the Constitution is a “living document capable of growth” coupled with the fact that constitutions are normally skeletal frameworks, it should be left to the province of the courts to provide the ingredients that will ensure its growth through the utilization of the interpretative jurisdiction of the Supreme Court.
The chief proponent of this view appears to me, in my humble view, to be the President of Ghana who has cautioned campaigners for constitutional reforms to hasten slowly, “Festina lente”, he says. The President did not, however, make haste slowly when he decided to appoint a record number of judges to the Apex Court of the land, even in the face of an existing caution by the African Peer Review Committee’s report against packing the Courts.
Moreover, the recent reversal of the Supreme Court of America’s decision in Roe v, Wade does not give campaigners like me comfort. It is my considered view that a political solution to the perceived weakness of the Constitution is the way to go. So there is a need to trigger Chapter 25 of the 1992 Constitution. I, therefore, vote for constitutional reform.
To conclude, my people in Dagbang have a saying that loosely translates thus: the fact that you cannot do all should not prevent you from doing some. Thus if a total overhaul of the constitution will be difficult to accomplish, there are some provisions of the constitution which are literally asking to be amended and I will shortly proceed to set them forth.
- Articles 43 and 44 of the 1992 constitution
Subject matter: Electoral Commission
Article 43 be amended to read on the advice of the Public Services Commission with the prior approval of Parliament by a 2/3 majority.
Justification: The EC is essentially a public office and a 2/3 parliamentary majority will assure a bipartisan consensus
Article 44 should be amended to impose a term limit.
- Conversely, article 70 should be amended by the substitution of the Council of State for the Public Services Commission. Both article 43 and article are entrenched.
- The appointment of Justices to the Supreme Court should be capped
Amendment proposed: Article 128(1) delete “less than” and insert “more than” non-entrenched.
Proposed cap: 12 or 15. Concerns have been raised about the workload of the Justices of the Supreme Court of Ghana. I have not yet seen a study that provides empirical evidence to suggest that the volume of work at the Highest Court of the land warrants this packing of the Court. In any case, does it have to case that a case started in the High Court must necessarily end at the Supreme Court? Is it not about time to reform this practice and institute a filter system where a single judge sitting as a Supreme Court will determine whether an appeal emanating from the High Court raises interesting legal issues worthy of consideration by the Supreme Court?
- Articles 142 -144 on Regional Tribunals are to be deleted
Justification: fallen into disuse.
Article 145 – Consequential amendment (entrenched)
- Article 78(1) – Entrenched. Delete the concluding part. Further, delete ”from among members of Parliament”
Justification: Members of parliament, otherwise called legislators are principally lawmakers. They also play a representative role because of the sheer impossibility of all electors in the country to represent themselves. But more importantly, Members of Parliament also perform oversight responsibilities, particularly over the executive arm of government. I am of the view that Members of Parliament will better perform their oversight responsibilities if Article 78(1) is amended to exclude Members of Parliament from being considered Ministers of State. The present arrangement makes parliament, which is a critical component of our democratic experiment, weak and corrupt.
Put a cap on the number of Ministers a President can appoint. The power is at large and susceptible to abuse. (Article 78(2). The government must be encouraged to demonstrate that they can achieve much with less. In the face of the economic difficulties confronting the world, rich and developed countries are reducing the size of government to control government expenditure. There appears to be a compelling need to cap the number of ministers of State a President can appoint. I believe that that can help check impunity.
- Article 71 delete and substitute Independent Emoluments Commission or an arrangement that will establish a commonly agreed and acceptable standard or procedure that will determine public sector wages and salaries with due regard to the relativities. It will be easier to justify a decision taken or made through the use of a commonly accepted procedure for reaching decisions. Such procedures are the key to the process of democracy.
It would appear that Article 71 appears is inconsistent with Article 17 of the Fourth Republican Constitution. It is important to restore public trust and confidence in the political system. The spirit and letter of the 1992 constitution and Article 17 of the said constitution subscribe to the principle of egalitarianism. It is manifestly unjust to treat public officers differently based solely on social standing. Economic and social inequalities can lead to an injustice that favours the rich and privileged individuals in our nation and a widening of the gap between the poor and the rich.
- Heads of Independent Constitutional Bodies be appointed by a process put in place by the Public Services Commission with prior approval of a 2/3 majority in parliament.
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