Mahama Breaches Constitution -Constitutional Lawyer

A Constitutional Lawyer (Name withheld) has said that President John Dramani Mahama’s recent appointment of Madam Charlotte Osei as the Commissioner of the Electoral Commission (EC) is in contravention of the 1992 Constitution.

He has said that the President’s appointment of Charlotte Osei is in contravention of articles 234, 235. (1) and 127. (2) of the 1992 Constitution.

Recently President John Mahama named Madam Charlotte Osei to the position of Commissioner of the Electoral Commission. Until her naming as the Commissioner of the Electoral Commission Mrs. Osei was the Commissioner of the National Commission for Civic Education (NCCE).

In an interview with the Daily Searchlight, the Constitutional Lawyer said that there is an urgent need for President John Mahama to tell Ghanaians exactly the nature of his actions with regard to Mrs Charlotte Osei.

“What, exactly, did the President do in removing Mrs Osei from the NCCE to head the EC? Did the President sack the NCCE Commissioner before re-appointing her at the EC boss? To follow up on this question, can the President sack the NCCE boss? Did he ‘transfer’ her from her position as Commissioner of NCCE to Commissioner of EC?” he asked. He said that in each instance, whether the President sacked, transferred or removed her as NCCE Commissioner, the President would be in breach.

“The President cannot transfer the Chairman of the NCCE laterally to another parallel agency. The law is clear on this,” he said.

Explaining, he said that the President for instance cannot transfer the Commissioner of the EC, CHRAJ or similarly constitutionally protected agencies.

“Imagine the hell that would break out if any President were to take it into his head to sack, transfer or re-appoint the Commissioner of the EC to another agency of government. But that is exactly what the President has done with Charlotte Osei because as far as the constitution is concerned both agencies enjoy exactly the same degree of immunity,” he said.

To illustrate exactly what the President has done, he said that one needs to go to the relevant constitutional provisions with regard to the NCCE and the EC.

To begin with, he said that NCCE has constitutional autonomy and independence with regard to its mandate. It is not to be interfered with.

Article 234 states; “Except as otherwise provided in this Constitution or in any other law which is not inconsistent with this Constitution, the Commission (NCCE-Editor) shall not be subject to the direction or control of any person or authority in the performance of its functions.”

Article 235. (1) says of the conditions of service of the Commissioner of NCCE; “The Chairman of the Commission shall enjoy the same terms and conditions of service as a Justice of the Court of Appeal, and a Deputy Commissioner of the Commission shall enjoy the same terms and conditions of service as a Justice of the High Court.”

He said that with regard to the EC, the 1992 Constitution states at Article 46; “Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any other person or authority.”

Article 44. (2) says of the conditions of service of the Commissioner of EC; “The Chairman of the EC shall have the same terms and conditions of service as a Justice of the Court of Appeal.”

Article 44. (3) says; “The two Deputy Chairmen of the Commission shall have the same terms and conditions of service as are applicable to a Justice of the High Court.”

He said that with the exception of the words “Otherwise” and “which”, Article 46 is an exact replica of Article 234 and vice versa.

Again, Articles 44. (2) and (3), combined, are almost an exact replica of Article 235. (1), with the only difference being that the NCCE has one Deputy Commissioner whilst the EC has two.

“Not to sound unnecessarily pedantic, the word “applicable” also occurs at Article 44. (3),” he said.

“From Articles 234 and Article 46, we learn, immediately, that the NCCE and the EC enjoy immunity and cannot and should not be trifled with in their functions. In fact, if one were to pose the question; can the Commissioner of the EC be sacked, transferred, demoted or otherwise trifled with, the immediate response would be a quotation of Article 46. But the EC has exactly the same constitutional protection from interference as the NCCE and vice versa. So if one cannot sack, transfer or demote the Commissioner of EC because of Article 46, then one cannot do same to the Commissioner of NCCE because of Article 234.

“But what of Articles 44. (2) and 235 (1)? What are the conditions of service of a Justice of a Court of Appeal? One of the conditions of service of the Justice of the Court of Appeal is capture under Article 127. (2) which states; “Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions; and all organs and agencies of the State shall accord the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution”.

“Going by Article 127. (2), the whole of Ghana would scream to the high heavens were the President to take it into his head to sack, transfer or demote a Judge in Ghana.

“From the fore-going, it is clear that the President cannot interfere with the Chairman of the NCCE. He cannot be transferred, sacked or demoted. He has security of tenure. If we insist otherwise, then we would be saying that the Commissioner of the EC can be sacked, demoted or transferred, and who would accept that?” he wondered.

Concluding, he posed the question, “Can one person hold the position of Commissioner of EC as well as CHRAJ? The President can say that he would expect his appointee to resign one of the positions, but what would happen were the person to refuse to resign one of the positions? It is to avoid exactly this danger that the framers of the Constitution, in their wisdom, provided the provisions to ensure against interference. What the President has done is set a very dangerous precedent that must be corrected immediately,” he said.