Questions over executive dominance in law making

Accra, March 13, GNA - Professor Henry Kwasi Prempeh, a lecturer in Law at Seton Hall University Law School, US, on Monday questioned the executive dominance in law making, saying it provided avenue for wide discretionary powers.

He said the process in which the monopoly of policy and legislative initiatives were left in the hands of the executive gave room to situations where policy pronouncements were made without even bothering to secure even pro forma legislative input or approval.

Prof. Prempeh said the executive discretion was even wide spread in the area of making subsidiary legislation.

"Statutory grants of rulemaking authority to the executive often leave individual ministers and for that matter the president wide discretion to apply the provisions of the law to individual cases, with little or no statutory or regulatory guidance to constrain such discretion," he said.

Prof. Prempeh was speaking at a roundtable organised by the Ghana Center for Democratic Development (CDD) on the topic: "Progress Towards the Rule of Law and Constitutionalism in Ghana,"

He said since government must rule through law it was necessary that anything designed to have the force of law could become law unless it had been enacted in accordance with constitutionally approved process.

The discussion, which dwelt mostly on how the fourth republican constitution's promise of constitutionalism is being realised, is part of the activities being held by the CDD to mark the country's 50th independence anniversary celebrations.

Prof. Prempeh said the problem of 'issuing law' was further compounded by the failure of Parliament to utilise its legislative approval power to rein in the Executive and also because of the inability of Parliament to define and defend its institutional interest. For instance, he said, the Parliamentary majority had ceded the appointment of a Speaker to the President while the speaker had lost its role as the leader of Parliament through an appointment of a Minister of Parliamentary Affairs by the Executive.

Touching on the judicial function and constitutionalism, Prof Prempeh said it was necessary for the judiciary to live above reproach to enable the people see that it was "the rule of law and not the rule of men," which was at work.

He said the cardinal principle of constitutionalism would be undermined in a situation where there was a widespread belief among the people that the courts were unable to deliver justice fairly because of partial judges.

Prof Prempeh also had issues with the unregulated administrative discretion of the Chief Justice within the judiciary, saying it created risk and certainly the perception of compromising the decisional independence of lower-level judges.

Other areas of concern are the open-ended Supreme Court composition and size and the Chief Justice practice of empanelling justices. Despite these challenges, Prof Prempeh said the fourth republican constitution had promoted respect for constitutional commands such as presidential term limits, scheduled elections, freedom of speech and media and improved climate of liberty.

Mr Sam Okudzeto, a legal practitioner who chaired the function, said the issues being dealt with had a direct bearing on the progress that was made in the country's democracy. 13 March 07