By

Justice Srem-Sai

Godwin Eli Dzah

KwabenaOtengAcheampong

of

the LADA Institute

1. INTRODUCTION

The question whether or not Parliament is entitled under Article 290 of the Constitutionto play an active role in the process of amending an entrenched provision (EP) has been pegged at the centre of an ongoingdebate. The debate derives from the activities of the Constitution Review Implementation Committee (CRIC) which has been given the mandate, generally, to carry through the implementationof Government’s White Paper on the Report of the Constitution Review Commission (CRC), 2011. In furtherance of this mandate, the CRIC has put together the Constitution (Amendment)(Entrenched Provisions) Bill, 2014 (the “Draft Bill”). The Draft Bill commenced its life a couple of months ago; has, in accordance with Article 290, already been returned from the Council of State; and is currently awaiting publication in the Gazette.

1. Schools of Thought

To a very large extent, the debate reflects the positions of two main schools of thought – the “Active School” and the “Passive School.” The Passive School argues that Parliament, beyond serving as a courier between the Executive, the Council of State and the Electoral Commission, has no real role in the amendment process of an EP. This, according to them, is because Article 290, which dictates the procedure for amending EPs, does not prescribe a role for Parliament in the entire exercisebeyond a coordinating role.

The Active School, on the other hand, asserts that Parliament is entitled to alter significantly and even have the “final say” on the nature of the provisions that areput to a referendum. Admittedly, there have been more than one strand within this school, the clearest and most cogent, in our judgement, being the one which is advanced by Prof Kofi Quashigah and Dr Peter Atupare, both of the Faculty of Law of the University of Ghana, Legon,in their insightful article – “Taking the Process of Amending the 1992 Constitution: A Legal Perspective.” The article was the subject of a public forum organised by the Civic Initiative Forum at the IDEG Auditorium, East Legon, Accra, on July 2, 2014. For purposes of simplicity we will refer to the authors of that article as the Lead Proponents of the Active School (as opposed to the Active School generally) throughout this article.

The Lead Proponents built their strand of the Active School on the premise that the legislature (not the executive) is the arm of government which ought to have the final say in what should be submitted to the citizenry for consideration at a referendum on EPs. Drawing inspiration from the hallowed statement in Marbury v. Madison, where the United States Supreme Court states that “it is emphatically the province of the judiciary to say what the law is,” the Lead Proponents, too, assert that “it is emphatically the province of the legislature to determine what the nature of the amendment that should be submitted to referendum should be.” This assertion would form the basis of their conclusion that Parliament is entitled under Article 290 of the Constitution to “determine” and have the “final say” on the substance of a bill for the amendment of an EP before it is put to a referendum.

1. Issues

While we appreciate the industry that has gone into the building of the two ratherextreme schools, we, respectfully, believe that the discussion could be taken a little further. Obvious as the issue whether Parliament could or could not “consider” the bill for the amendment of EPs may be, we believe that the issues must be slightly refined to read: whether or not Parliament has an active role to play in the amendment process for EPs; and, if so, whether it could make a substantial change to a bill submitted to it by the Executive for that amendment.In other words we wish to determine whether, first, there exists an active role for Parliament in the exercise and, if so, second, the extent of that role.

1. Outline of the Discussion

To resolve these issues, we will begin with a brief overview of the law-making processes in Ghana. We will continue by supplying a brief narrative on the background to the debate, particularly the call by some civil society organizations (CSOs) for another avenue for making entirely new proposals to be included in the Draft Bill. We will, then, follow this by showing that Parliament could not use the “consider” process to effect any substantial change to the Draft Bill. This will require that we assume (without necessarily admitting) as unassailable the main claims upon which the Active School is based.

1. LAW-MAKING PROCESSES GENERALLY

Just as there are different types of laws in our hierarchy of norms, so are theredifferent processes for making and amending them. Each process requires a different level of involvement of the different institutions of State. This is derived from the fact that Parliament, though vested with the legislative power under Article 93 of the Constitution, does not have actual monopoly over the law-making process. Other institutions like the Executive, the Council of State and the people of Ghana acting directly by themselves do, to some extent, share this power with Parliament.

Broadly speaking, the role of Parliament in the law-making processes of the Republic may be classified into two: those that relate to the Constitution and those that relate to other laws. The required process for the former is found mainly under Chapter Twenty-five on the “Amendment of the Constitution,” while that for the former is foundunder Chapter Ten on the “Legislature” and elsewhere.

Also, the process for amending the Constitution may further be classified into two: Those that relate to the amendment of EPs and those that relate to the amendment of non-entrenched provisions(NEPs). Those that relate to NEPs are regulated by Article 291, while the ones for EPs are regulated by Article 290. It must be mentioned here that this discussion relates to the amendment process for EPs.

1. THE CALL FOR FURTHER CONSULTATION

Motives define aims; and, aims determine the actions that people take. To be able to sufficiently appreciate the patent position of the Active School, it has become very important for us to take a step back and align their motives with their aims and, then, to their patent demands. That is when we will be able to fully appreciate the issues we seek to discuss.

The Lead Proponents have given (and we believe most people who are interested already know) the brief history of the Draft Bill. Therefore, we will not re-execute that exercise. Suffice it to say, however, that the Draft Bill was put together by the Constitution Review Implementation Commission (CRIC) which functions under the auspices of the Executive. By this fact, it may be said that the Draft Bill was initiated by the Executive.

The Active School, as we have pointed out earlier, argue that Parliament is entitled to “consider” any bill that comes up for the amendment of an EP. They base this claim on the phrase in Article 290(2) which reads “… before Parliament proceeds to consider it …” The aim of the Active School is to secure inParliament an opportunity to, in a way, alter, substantially, the Draft Bill before it is put to the people for a referendum. We glean this from their commentaries on the CRIC’s work. For example, the Institute for Democratic Governance (IDEG) demands that an avenue be opened for new submissions to be taken on issues arising from the 2012 general elections. Also, the Institute of Economic Affairs (IEA) in particular has set up a Winner-Take-All Advisory Committee. This committee mooted the idea of using the current amendment process to push for changes that would mandate the President to appoint members of opposition parties to some executive offices. They believe this will do away with what they refer to as a ‘winner-takes-all’ democracy.

Clearly, these proposals radically depart from those that have been put in the Draft Bill; and, when allowed will have the effect of radically changing the Draft Bill.

It is these underlying motives – to get their proposal into the Draft Bill for the referendum – that informs the aims and, ultimately, the actions – hunting for an opportunity in Parliament – of the above-named CSOs. We contend that it is this hunt that parents the current discussion. In this regard, we recall that several attempts by some CSOs to get the CRIC to re-open the taking of new submissions from the public on these issues have failed. Our view is also confirmed by the Lead Proponents when they describe the CSOs as engaging in a fight for an “open, transparent, inclusive and amendment procedure.”

1. PRACTICAL LEGAL CONSIDERATIONS

Notwithstanding these developments, the issue that has occupied the attention of commentators and scholars has been whether Parliament may “consider” a bill for the amendment of an EP. This issue, no doubt, discloses the preliminary legal knot to be untied. However, the foregoing background considerations give rise to questions that go beyond this preliminary issue. They lead us to ask a more nuanced and practical question – what would be the effect of allowing Parliament to play an active role in the amendment process?

In order to better discuss this nuanced question, we will assume (without admitting) as unassailable some of the claims made by the Active School particularly the one made by the Lead Proponents. The first assumption in this regard is that the phrase “read the first time” as used in Article 290(4) is synonymous with the “First Reading Stage” of Parliament’s law-making procedure. This assumption seems to be an extrapolation from the legislative process for making an Act of Parliament under Article 106 of the Constitution. They then argue, based on this extrapolation, that “consider” as used in Article 290(2) allows Parliament to, just as at the First Reading Stage in the ordinary legislative process, receive new submissions from the public and, even, have the “final say” with respect to “what the nature of the amendment that should be submitted to referendum should be.”

What they, however, have not addressed is the scope of the First Reading Stage. That is, the nature of the public submissions and the extent to which Parliament could alter a bill at that Stage. In this regard, we contend that the scope of the First Reading Stage is not unlimited. It is limited in at least two respects.

1. Limitations with respect to the Legislative Powers of Parliament

Under the current constitutional arrangement, Parliament cannot make a law outside the parameters that the Constitution allows it (Article 93(2)). Even though the Constitution allows for private member’s bills, it does not allow Parliament to proceed upon a motion (“including an amendment to a motion”) on a private legislation which, “in the opinion of the person presiding,” has a financial implication (Article 108). It has over the years proven almost impossible to pull a legislation which does not have financial implications through;thus, the lifeless existence of a private members bill in our polity.

Consequently, it is difficult to imagine that Parliament could effect a change to the substance of the Draft Bill in dissonance with the Executive. In substance, therefore, it is not particularly accurate to say that Parliament could, in dissonance with the Executive’s wishes, effect the amount of changes that the proponents of the Active School seem to contemplate. Under this regime, the argument that Parliament has the “final say” in determining “what the nature of the amendment that should be submitted to referendum should be” is hardly sustainable.

1. Limitations with respect to Scope of the First Reading

The second limitation on the scope of the First Reading Stage is the very tenor of that Stage. At the First Reading Stage, Parliament may consider the legality of the bill. Parliament may also allow individual stakeholders to appear before the committee to assist it in examining the Bill. This may include “public hearing, consideration of memoranda from the public and arrangement of workshops with stakeholders as well as fact-finding visits.” (A Guide to the Parliament of Ghana, 2004).

It is not clear which other activities Parliament is entitled to undertake at this stage. It, however, seems quite clear that the submissions that may be made by the public or stakeholders cannot go beyond the boundaries of the provisions in the bill that is up for examination. In other words, the input from the public or stakeholders need to be sufficiently related to the issues that the provisions in the bill address. For example, a bill on the importation of luxurious salon cars from China may not admit a submission that seeks to deal with land tenure system in the Afram Plains. Clearly, this would be substantially different from the underlying policy of the bill.

Indeed, there may be good reasons behind the suggestion that these limitations do not apply in the case of EP amendments. There are, however, equally good reasons to believe that these limitations are even more needed in the case of EP amendments.

Based on these limitations, we respectfully submit that no matter how active Parliament is allowed to get, the First Reading Stage looks a little too inadequate a forum for the proponents of the Active School to get their radically-new proposals through to this particular referendum.