“… [In] these modern days, we do not take our oaths seriously because our Creator never smites us to death…whenever we tell a lie. I have even come across one or two protestant ministers of religion who have sworn on the bible and have told lie in court.

If then the oath is a mere formality, the question one may ask is why should the respondents refuse to take this simple oath.”  (Emphasis mine).

Archer J. (As he then was) in the case of ATTORNEY GENERAL V OTU, ATTORNEY GENERAL V KWAPONG (1969) 2 G& G 416.

On two or so occasions in the past couple of weeks or so, it has been widely reported that the Speaker of Ghana’s Parliament failed to ‘take and subscribe the oath set out in relation to the office of President’ before commencing to perform the functions of the President.

Several publications are to the effect that the Chief Justice of the Republic of Ghana had allegedly advised the Speaker not to take and subscribe the Presidential oath before commencing to perform the functions of the President when both the President and the Vice President were absent from Ghana in those recent instances.

Indeed, the President of the Ghana Bar Association is reported by the respected Daily Graphic newspaper’s edition of Saturday 15, September 2014 to have said that Her Ladyship the Chief Justice was right in advising the Speaker not to take and subscribe the Presidential oath. The justification for this proposition has been that because the Speaker had previously taken the Presidential oath before commencing to perform the functions of the President when both he and the Vice were absent from Ghana it was unnecessary for the Speaker to take the oath any time that situation arises. Such proponents have inter alia relied on the Oath Act as the authority for that proposition.

Subsection 2 of Section 3 of the Oaths Act (previously the Oaths Decree) NRCD 6 states that;

“No person shall be required to take any oath on appointment to any office unless that oath is different from or in addition to an oath duly taken by him in respect of any other appointment.”

Before we proceed on this issue any further it is important to subject the claim that it was the Chief Justice who advised the Speaker not to take the Presidential oath on the occasions under reference to critical scrutiny. In our opinion, that claim raises some fundamental questions. That is; if indeed the Chief Justice believes in the propriety of that proposition why was She (at least we are told) in the second instance determined to perform her constitutional mandate to enable the Speaker take the Presidential Oath? Or is it the case that the claim being attributed to the Chief Justice is false, thus her determination to cause the Speaker to take the oath even after it has been alleged that She advised the Speaker that it was unnecessary to take the oath again, having taken it previously for the same purpose?

Furthermore, if the claim is true, could it be that Her Ladyship the Chief Justice might have, upon a second and deeper consideration of the matter, vis-a-vie the compelling dissenting opinion of some arm-chair commentators (such as the present author) led the Chief Justice to change her position on the matter and therefore proceed to the Speaker to take the Oath?

We believe that the claim that it was the Chief Justice who advised the Speaker not to take the oath could not have been true. This is because the Chief Justice is too much aware that if the claim is true, she could have been ‘charged’ by the public of estoppel by conduct. The fact that the Chief Justice nor Her outfit has not responded in the affirmative or otherwise ought not be construed to mean that the claim is true. For, silence, we are advised, is golden in a sensitive legal and constitutional situation like the present. We need not be reminded that Judges, by the tenets of their calling, cannot engage in public discuss on matters that are likely to come before them for adjudication, especially in view of the seeming acrimonious environment ‘created’ for discussions on such sensitive matters in the 'court' of public opinion.

Having disposed off the preliminary matters, the legitimate question to ask is thus; Is the Speaker of Parliament required by law to take and subscribe the Presidential oath anytime the President and the Vice President are unable to perform the functions of the office of the President.?  This question cannot be answered satisfactorily in our opinion without reading together the relevant portions of the Constitution, 1992. Those relevant portions are in our respectful view, clauses 8, 11 and 12 of article 60 of the Constitution, 1992(hereinafter referred to as the Constitution.)

Clause 8 states thus;

“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 functions of the President until the President returns or is able to perform his functions.”(Emphasis mine).

Clause 11 provides that;

“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 President or the Vice-President is able to perform those functions…” (Emphasis mine)

Clause12 also stipulates thus;

The Speaker shall, before commencing to perform the functions of the President… take and subscribe the oath…(The Presidential Oath.)”                       

The above-quoted provisions can be read together thus;

Whenever the President and the Vice-President are both unable to perform the functions of the president, the Speaker shall perform the functions of the President until the President or the Vice-President returns or is able to perform those functions. Before the Speaker commences to perform the functions of the President he shall take and subscribe the Presidential oath.

It therefore appears to this author that at any point in time when the President and the Vice-President are both unable to perform the functions of the office of the President, the Speaker is obliged to take and subscribe to the Presidential Oath. If this interpretation is accepted it will mean that the Oaths Act quoted earlier in this paper cannot effectively support the argument of the Speaker as the basis for his failure to take the Presidential Oath anytime the President and the Vice-President are both unable to perform the functions of the President. This is so because the Constitution is the “supreme law of Ghana” and therefore prevails over any other law.

The argument that it is unnecessary for the Speaker to repeat the oath thereby entitling him not to appear before the Chief Justice for that purpose, does not appear to us to be sustainable. Our position is that even if the Speaker did not have to take the oath anytime the prevailing conditions occur, which we disagree, the practice in the Court may be a guide to us. It is well known that where a person takes an oath before giving evidence, if he is unable to complete his evidence he does not repeat the oath on the next adjourned date. He is however required to stand before the court official to confirm that he still stands by his former oath. In any case our position is that whenever the Speaker has to perform the functions enshrined in article 60(11), he ought to take and subscribe the Presidential Oath, failing which, in our opinion he can be said to have engaged in unconstitutional act when he held himself out to be performing the functions of the President.

Another issue that may be raised is whether or not the Constitutional provisions under review clearly authorize the Speaker of Parliament to perform the functions of the President when both the President and the Vice-President are absent from Ghana? This will appear upon a cursory reading to be a non-issue. We are also not oblivious of the interpretation given by the Supreme Court on this issue in the well- known case of Asare v Attorney General. Our duty now is to have a second look at the exact provisions of the Constitution, especially article 60 (8) which ends the sentence with the words “… until the President returns or is able to perform.”  The use of the word or (highlighted above) which is disjunctive, can, therefore, be construed to mean that the President’s absence from Ghana does not occasion his inability to perform his functions.

It is interesting to note however, that the said article starts with the sentence “Whenever the President is absent from Ghana or for any other reason unable to perform the functions of the President…” Can it be said that the “or for any other reason” is capable of countering the above argument? Or is it a case of inelegant drafting resulting in ambiguity? Justice Date-Bah’s answer to these questions in the Asare case supra is, inter alia, that “... the provision may be regarded as possibly the origin of the practice or convention, if there is such…” Be that as it may, the question is: can it be said that whenever the president is absent from Ghana he is unable to perform the functions of his office? Of course this question has been answered by the Supreme Court in the Asare case. The question that needs to be asked is; whether or not the justification for the declaration by the court that there is the need at all times for a person to be physically present in Ghana to perform his functions because when he is absent from Ghana he is unable to perform his functions is tenable? In our respectful view, that proposition  does not appear to be tenable for the following reasons.

First of all, the functions of the President include diplomatic and international relations, some of which require that he leaves Ghana to enable him perform. (See art 73, 74 and 75 in addition to other relevant laws). Thus, can it be said that when the President is at the United Nations to perform his international relations functions which may involve the execution of treaties and convention, he is unable to perform his functions as president? Interestingly, when the Court was challenged that technological advancement can enable the President to perform his functions where ever  he may find himself,the court per Kludze JSC (May his soul rest in the bosom of the Almighty God) opines thus;

“Indeed technology is an unreliable ally in modern constitutionalism… If Ghana were under attack by a foreign power, communication with the President in a distant country may not provide a prompt, adequate or effective response."Perhaps, it may be argued that technology in the year 2004 when the Asare decision was given was not as advanced as it is now, but to make a definitive declaration that “technology is an unreliable ally in modern constitutionalism and cite the declaration of war as the basis, does, in our respectful view appear to be an understatement of the potency of technological advancement. In any case, there is no clear provision in the Constitution, 1992 that authorizes the President to declare war. The closest provision often cited is article 57 which states that the President is the Commander-In-Chief of the Armed Forces, as observed by the Constitutional Review Commission (CRC), which has therefore recommended for a clear Provision to that effect.

Some have also argued that a declaration that when the President and the Vice-President are unable to perform the functions of the President the Speaker shall act may have discounted the practical challenges and politico-legal maneuvering when the Speaker commences to act. For instance, in the case where the President’s party does not have majority in Parliament and as has been the convention and practice in Parliament, the Speaker has so far been a card-bearing member of the party with the majority in Parliament.

Should this situation arise as it nearly did occur in the 2008 elections, it would have meant that the Speaker was likely to be from the opposition party and would have at a point acted as President. Ordinarily this should not generate a challenge or a Constitutional conundrum. However, in view of the level of the seeming mistrust and acrimony between the two dominant parties in Ghana, should this imaginary scenario become a reality one day we shall witness a very interesting political game in this country.

Indeed what executive functions can the Speaker perform and which of them can he not perform when he is performing the functions of a President? Can he dismiss ministers and other political appointees and appoint his own ministers who, as is the case have substantially been members of the President’s party? These and more continue to fester in spite of the Asare case. Perhaps, the recommendation of the CRC on this issue to the effect that as much as possible both the President and the Vice-President ought not, unless there is extreme necessity, leave Ghana at the same time may, to a large extent settle most of these lingering questions should it become part of the Constitution.

Conclusion

In the respectful opinion of this author however, there is no need for the President to be physically present in Ghana before he can perform his functions. Further, the absence of the President cannot, with all due respect be said to amount to inability to perform the functions of his office. Indeed modern technological advancement can aid him to perform those functions which he cannot perform in Ghana whilst he is performing other functions outside Ghana.

As to the issue of whether or not the Speaker ought to take and subscribe the Presidential Oath, our answer is as quoted above thus;

If the oath is a mere formality, why should anyone apply technicalities, which in any case appear to be unsustainable to disable himself/herself from performing such a wonderful constitutional function? Could it be because of the terms of the oath, including possibility of punitive sanctions for failure to comply with some mandatory provisions of the Laws of Ghana?