Short: Review process of ’92 Constitution “unconstitutional”

Former Commissioner of the Human Rights and Administrative Justice (CHRAJ), Justice Emile Short, has described as “unconstitutional,” the use of a commission of inquiry as a mechanism for initiating a review of Ghana’s 1992 Constitution.

According to him, even though he had no qualms with the Executive arm of Government initiating the process of constitutional amendment, it cannot do so through the establishment of a commission of inquiry under Article 278.

Justice Emile Short made the observation while discussing the Supreme Court ruling on Asare vs Constitutional Review Commission on Class 91.3 FM’s ‘point of law’ programme hosted by Godwin Agyei-Gyamfi, which discusses the legal aspects of topical issues on Tuesdays and Thursdays.

In his view, although the Supreme Court dismissed Prof Kweku Asare’s application that sought to challenge the legality of the Constitution Review Commission (CRC), the Chief Justice herself, according to Mr Short, indicated in the ruling that a commission of inquiry was inappropriate for an exercise of revision of a Constitution.

“I don’t have a problem with the Executive initiating the process of amending the constitution, but I think the issue is whether a commission of inquiry was an appropriate mechanism for amending the constitution,” Mr Short said.

The Supreme Court in October dismissed an application filed by the US-based Ghanaian law Professor, which prayed the highest court of the land to declare as unconstitutional, the use of the CRC set up by President John Mills (late), to review the 1992 Constitution, by going round the country to collate views about the 1992 Constitution.

Professor Asare had sued the Attorney-General on grounds that the CRC had usurped the powers of Parliament and for that reason the process must be declared null and void.

The court dismissed his application for an order directing the President and state agencies to permanently cease and desist from taking any actions that sought to amend or otherwise disturb the Constitution as far as such actions were inconsistent with Chapter 25 of the Constitution.

In a 5-2 majority decision, the Supreme Court, presided over by the Chief Justice, Mrs Justice Georgina Theodora Wood held that there was no merit in the case.