Covid-19 is really threatening a serious constitutional crisis. The crisis is staring us right in our faces, but we may not see, or may not be ready to entertain sight of it. We don’t wish that our Covid-19 situation continues till December 2020 and beyond, but if it does, what is our fate as a country? This should concern every citizen of Ghana.
I don’t think we will like to see people throng polling stations for national elections in the wake of Covid-19, when we have already opposed the activities of NIA and the like because of Covid-19. Now, if the situation remains or worsens by December 2020, elections might be postponed beyond December 2020. If elections are postponed, this is what is likely to happen:
By article 66(1) and (3) (a) of our constitution, the term of office of the President is 4 years beginning from the day he was sworn in. The President was sworn in on 7th January 2017. This means, at midnight of 6th January, 2021, our President will cease to be the President of Ghana; No President, no Vice President.
By article 113(1) of the constitution, our Parliament also has a term of 4 years from the date of its first sitting, and shall stand automatically dissolved after the period of 4 years. This also means, after midnight of 6th January 2021, Parliament will stand automatically dissolved; No Parliament, no Speaker.
However, just like equity, I think a constitution suffers no wrong without a remedy.
What then will be our worst scenario? How can we resolve the crisis within the remits of our constitution?
1. Some of us are already seeing a remedy in Article 113 (2) of the constitution which empowers Parliament to extend its term beyond the 4 years if “Ghana is actually engaged in war”. It’s therefore envisaged that Parliament, in the circumstances, will extend its term beyond December 2020, due to Covid-19. Question is: can preventing the spread of a Pandemic be construed as “war” for the purpose of article 113(2)?
In my opinion, the word “actually” in article 113(2) suggests a deliberate expression of the framers’ preference for the ordinary meaning of “war” and nothing else; not even a threat of war. The ordinary meaning of “war” however, is a state of armed conflict between two countries, or groups within a country. “War” in article 113(2), therefore, contemplates an armed conflict between people. Accordingly, prevention of covid-19 spread cannot ordinarily mean “actual engagement in war”.
Purposive interpretation may only allow a departure from the ordinary meaning if, and only if, the ordinary meaning within the context leads to an absurdity or is likely to yield unreasonable consequence. Now does the word “war” in the context of article 113(2) and the whole constitution yield any absurdity? I think not. Someone might, but I can’t find the absurdity. I think we would rather be over stretching the linguistic or semantic possibilities of the word “war” if we construe a national health crisis as war. Accordingly I don’t think article 113(2) applies.
2. Others are seeing a remedy in article 298 of our constitution. Article 298 empowers Parliament to provide for matters that the constitution hasn’t provided for (expressly or by necessary implication). Here, it is also envisaged that, Parliament will pass an Act extending its own term and that of the President on the basis that the constitution has not provided for pandemics and their effect on elected officers’ tenure.
That would also be in correct in my view. The constitution has provided for both Presidential and Parliamentary tenures expressly. In the case of the President, the constitution has not provided for extension of his term beyond 4 years except by way re-election. This is reasonable, because the constitution has already created an order of succession to the Presidency whenever it is vacant. In the case of Parliament, the extension may be made only when Ghana actually engages in war. In all other circumstances, the term of Parliament is 4 years.
Accordingly, if Parliament purports to make a Law under article 298 extending its own tenure and/or that of the President solely due to covid-19 pandemic, that Act would be inconsistent with articles 66(1), (3)(a), 113 (1) and (2), as well as article 298 of the constitution itself. Obviously, I don’t see a constitutional remedy in article 298 too.
3. Another possible remedy is in chapter 25 of the constitution, which is amendment of the constitution. However, the provisions that require amendments under the circumstances are entrenched provisions. Their amendment requires a national referendum, which will pose the same danger in terms of covid-19 as the national election itself might. In other words, we might as well hold the national elections if we have to hold a national referendum in order to postpone it legitimately. Here again, constitutional amendment will not avail us.
What then is the best constitutional remedy in such a situation? Our best remedy in my opinion, is in articles 57(2) and 113(3) of the constitution. Article 57 (2) makes the Chief Justice next in Order of importance after the Speaker of Parliament. Truly, the constitution has not expressly provided that the chief justice succeeds the Presidency. However, based on article 57(2), we normally swear the Chief Justice in to act as President in the absence of a president, Vice President, and the speaker. That has become the convention. Accordingly, if the elections in December 2020 elude us (which is imminent), the Chief Justice must be sworn in as the acting president on 7th January 2021.
Now, article 113(3) empowers the President to call back a Parliament that is dissolved before elections, if he is satisfied that due to a state of war or Public emergency, it is necessary to call it back. In my opinion, “the president” as used in article 113(3) also include an acting president. As already stated, I think there’s no state of war in Ghana at the moment. However, the Covid-19 situation in Ghana suffices as basis for declaring a state of emergency by the President or acting President. Accordingly, the acting President may declare a state of emergency under article 31 of the constitution and call back the dissolved Parliament. He will then run the country until it is safe enough to hold a national election. In that Case the most senior Judge of the Supreme Court will be acting as the Chief Justice.
The acting President may appoint new ministers of state or endorse the previous Ministers. In either case, they must go through parliamentary approval on the authority JH MENSAH V THE ATTORNEY-GENERAL.
From where we stand, therefore, I foresee the Chief Justice ruling this country with an extended mandate of the current Parliament after 6th January 2020. Interestingly, and for the first time in our history, we will have none of our presidential candidates campaigning from incumbency. Gird up your loins!
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