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Constitutional day, a celebration of a constitutional dictator

Ghana Constitution Constitutional Day is observed on January 7 in Ghana

Fri, 7 Jan 2022 Source: Francis Doeglah

The celebration of the constitutional day has its objective to give meaning to the democratic dispensation and encourage citizens participation in the governance process towards nation building

The question which should ask on this day is how effectively have the provisions in the 1992 Constitution ensured the realization of the tenets and principles required of a Democratic society in Ghana.

Democracy has been widely understood as a government for the people by the people. It can be seen as a system of government that provides a set of prescriptive approaches to political action and provides rules that make people responsible for their governments.

Globally democracy has been desirable but there is little argument on what exactly it sets to achieve. Has the 1992 constitution placed limitations on government powers? The presence of a constitution does not in itself create a democratic government unless it places limitations on the exercise of government power.

Ghanaians often tickle and pride themselves with Ghana as a beacon of democracy in Africa because of eight successfully consistent elections held to elect presidents. This could be a wrong assertion because it's the combination of powers that gives rise to dictatorship. Elections only give legitimacy to government actions and say nothing about the actual powers that one attains upon victory and the degree of constraint on those powers.

Even though the constitution has enshrined provisions of democratic tenets and principles such as the protection of fundamental basic rights and ensuring accountability and transparent governance and allowing citizen participation through voting and decision making, the provisions in the constitution have also created a constitutional dictator(president) with enormous executive, legislative and judicial powers likened to a dictator.

The president in practice is perceived more like a dictator than a democratic leader with a combination of powers that places an institutionalized limitations on sovereignty, accountability, and participation in governance.

The 1992 constitution even though has enshrined provisions to ensure separation of powers, vesting separate powers in the three arms of government, the character and spirit of checks and balances have put enormous powers in the president which leaves the other two arms at the "mercy" of the guidance of moral principles of governance.

The president's legislative role comes under Article 106, where bills are initiated by the president and subsequently approved by parliament. It states, the power of parliament to make laws shall be exercised by bills passed by parliament and assent to by the president”, this provision suggests that it is only when the president assents to the approved bill that it becomes law.

Secondly, the president has a veto power in Article 106 which provides that where a bill passed by parliament is presented to the president for assent he shall signify, within seven days after the presentation, to the speaker that he assents to the Bill or that he refuses to assent to the Bill unless the Bill has been referred to the council of state.

These provisions put the supreme function of lawmaking in the president and limit the power of the people in law-making through Parliament, If parliament is the representative of the people and is supposed to speak the voice of the people in taking decisions, the veto power of the president as per Article 106 suppresses that will and gives the president the room to choose which laws will favor him and reject the laws which will not despite the fact his decision might be contrary to the will of the people.

Another dictatorship tool of the president granted by the 1992 Constitution is the Publication of White Paper to confirm or reject findings and report of a commission of inquiry. Under Article 280(3) the president is expected to issue a published report and a white paper within six months from the date a commission of inquiry report is submitted.

The meaning of Article 280(3) is, firstly the president has the power to reject the will of the people by refusing to publish a white paper within six months; secondly, the president can use the white paper to accept the recommendations of the people which may be favorable to him and reject the ones which are not favorable to him by giving reasons for not accepting those recommendations.

One might be tempted to believe that the recommendations made by a constitutional review commission set up by the president in 2010 to engage the citizenry to what changes they wish to be made to the constitution will be final and implemented by the president.

The question is what has happened to the recommendations made in the report of the constitutional review commission to the president, several calls have been made but the president refused to issue the white paper to initiate the changes in the proposed constitutional provisions. Ultimately the final decision always rests with a president who is not bound by the constitution to follow the wishes and aspirations of the people.

The Judicial powers of the president granted by the 1992 Constitution erode the principle of an independent judiciary as required by a democratic society. These powers include the president's constitutional powers under Article 144 to appoint the Chief Justice, the Supreme Court justices and the justices of the court of appeal and of the high court and the powers of the president to remove a justice of the superior court as provided in Article 146 erodes the independence of the judiciary.

Dr. Raymond Atuguba, a senior associate of the university law faculty on his findings on Loyalty/Judicial Partisanship effect, in his presentation at the annual GIMPA Law Conference titled “Politics and judicial decision-making; case studies from Ghana’s Supreme court’ analyzed the voting pattern of Ghana’s Supreme court judges from 1993 to 2018 by taking 100 cases and looked at the judges who sat on them and the extent to which their loyalty to the appointing authority, in each of these case, the presidential appointments of Supreme Court Justices according to him influenced the outcome of their judgments because the judges are loyal to the political parties under whose regime they were appointed and they frequently voted for the government when the president who appointed them is still in office in politically-related cases.

Secondly, the constitution has been criticized for granting too much appointing powers to the president to appoint public officers, especially to public accountability offices. Judicial appointments and other public appointments by presidents require the highest standards of propriety, involving impartiality, integrity, and objectivity, about the stewardship of public funds and the oversight and management of all related activities.

These public officials stand at a conflict of interest position and may be biased in matters relating to the president and even if they act impartially in matters affecting the president, their actions will still be perceived to be impartial, bias and unjust. Emile Short, the first-ever commissioner of CHRAJ at the Institute of Economic Affairs (IEA) on the theme “Winner Takes All Politics in Ghana: The Case for a Review of the Appointing Powers of the President” was reported by Class Fm-online on 21 June 2017 suggested that the president’s power to appoint the CHRAJ Commissioner, inspector general of police and the chief justice under the 1992 constitution should be reviewed because these appointments do not promote democracy and prevent the appointed officers from being objective especially on politically related crimes.

Former President Kuffuor was criticized for packing the judiciary against Tsatsu Tsikata in the case of Tatsu Tsikata v the Attorney General. At the beginning of the trial process to challenge the legality of the fast-track high court, a decision of 5-4 was ruled in favor of Tsatsu Tsikata. Critics have persistently used the Tsatsu Tsikata case as a yardstick to accuse president Kuffuor of warping the tenets of justice in Ghana contrary to democratic principles of an independent judiciary.

The power of prerogative of mercy under Article 72 of the 1992 constitution also erodes the independence of the judiciary, even though it’s a political decision, it may be considered as the highest form of judicial decision according to Opoku Agyemang. Article 72, gives the president power to issue executive clemency to reduce the sentences or free convicted persons. According to WikiLeaks President Kuffuor was also criticized for goofing in his midnight clemency and pardons to former members of the NDC before leaving office as president. The question is “Why would he pardon someone found guilty of corruption? And if they were not guilty, why were they imprisoned? The question is if Kuffuor has not been granted clemency after leaving, will they still be in prison whiles their government is in power, the answer is NO, and this is evident in the case of the famous Montie 3 case. In this case, three Pro-NDC communicators were tried and jailed for four months for criminal contempt and after serving one month in jail the President John Mahama under Article 72 released them. In this vein in my opinion, if President Kuffuor has not released Tsatsu Tsikata from jail and dropped the case involving the first lady, the erstwhile Mills administration would have done so within the powers granted to him under the 1992 constitution.

The third critic of the 1992 Constitution is the extent to which it places an Institutionalized Limitation on Accountability. Accountability is said to exist when people are held responsible for their actions and can be sanctioned. Mostly Accountability has to do with what citizens want and what government officials do, that is some focusing on government processes (are procedures fair and transparent) some dealing with government actions (do representatives advocate policies that citizens favor) some dealing with policy outcomes (do they reflect citizens preferences). There is a general perception that an elected president is a democratic president, however, election has often failed to tell us how a president will be held accountable once he is in office, effective accountability will even be absent even if the president makes his action public.

One might argue that the Impeachment Clause sets in an alternative mechanism for accountability, the president under Article 69(1) shall be removed from office if he is found to have violated the presidential oath set out in the second schedule to, or in willful violation of any other provision of the constitution; or to have conducted himself in a manner - which brings disrepute, ridicule or contempt; or prejudicial or inimical to the economy or the security of the state. The constitution failed to state clearly an act or conduct that will be deemed to have brought disruption to the office of the president, this will make it difficult to bring a case against the president under Article 69 if not impossible.

The wordings in Article 69 are too broad and its adherence is mostly based on morality and the question is whose moral conduct should one choose? Even though Article 69 was meant to be an accountability tool to whip the president in line history has drained it of any use, especially in the absence of clearly criminal conduct by a President. It is so difficult to convict and remove a President and most Presidents can assume that they will never face a genuine threat from this direction even in the worse scenario of constitutional breaches.

Another way of ensuring accountability of presidents is through the courts, bringing a suit against the president for his criminal and civil acts which might be contrary to law. This will be a difficult task to perform if he enjoys multiple constitutional privileges against a suit or if courts regularly defer to his judgments about national security(a practice common in dictatorship regimes). The 1992 constitution of Ghana has enshrined provisions to protect the president from multiply suits. Article 57(4) of the 1992 Constitution, states without prejudice to Article 2 of this constitution and subject to prerogative writs, the president shall not, while in office be liable to proceedings in court for the performance of his functions, or any facts that the president shall not whiles in office be liable to proceedings in court for the performance of his functions or for any act done or omitted to be done or purporting to have been done in the performance of his function, under this constitution or any other law. Article 57(5) says that; the president shall not while in office as president, be personally liable to any civil or criminal proceedings in court. The Supreme Court in the case of NEW PATRIOTIC PARTY V PRESIDENT RAWLINGS, held by a majority that; the President could not be sued and that the Attorney-General was the proper person to have been sued. The attorney general under Article 88(5) is supposed to represent the president in civil cases brought against the president but the president is completely immune from criminal prosecutions until under Article 57(6) when he ceases to be president contrary to the democratic principle that ensures equality before the law. This provision places the president above the "equality before the law" principle, which is a key tenet of democracy.

A dictator may want to acquire much wealth at the expense of the state. This perception is also true in democracies and also manifests in the way the President’s emoluments are determined under the constitution and the guarantee of certain monetary privileges for the president. In the determination of emoluments under Article 71 of 1992, the president nominates a five-member committee that determines emoluments for both the president and parliamentarians subject to the approval of Parliament and the president respectively. Could this confirm the palace “you scratch my back, I scratch your back”?

Whereas in dictatorship regimes the leader may decide and take what he wants from the state coffers, the 1992 constitution grants the president the same luxury but indirectly through a committee set up by him to determine his emoluments. A committee appointed by the president is likely to be under the influence of the president and therefore what is a reasonable emolument will depend on the moral standards of the president.

The forth issue is the fact that the constitution has ensured an institutionalized limitation on citizens’ participation in governance especially at the local level. The size and complex nature of societies has left effective participation of the people in both decision making and program execution at the local level of governance. Participation normally is used in two different ways, thus participation in the democratic process (electing of local government representatives) and participation in decision making. Participation in democratic process allows people to choose their own leaders. The principles of participation in local government was emphasized in Article 240(2e) of the constitution of Ghana, which states that ‘to ensure the accountability of local government authorities, people in particular local government areas shall, as far as practicable, be afforded the opportunity to participate effectively in their governance’.

The structure of the decentralization in Ghana as provided by the 1992 constitution does not allow citizens at the grass-root to elect their leaders. Article 243 (1) states that regional and district political leaders shall be appointed by the president and coupled with the situation where Article 242 allows the people only to elect the 70% members of the assembly and whiles 30% of members are appointed by the president. The appointment of the 30% is dictatorship tool used by the president firstly to confirm the appointments of Metropolitan, Municipal and District Chief Executives(MMDCEs) whose appointment is with prior approval of not less than two-thirds majority of members of the Assembly who might not be the people’s choice.

This structure impedes the principle of the popular participation in decision making at the local level with influence of the president through the activities of district chief executives, presiding members and the appointed members of the assembly. This will in effect lead to the president through the MMDCEs adopting a latitude and sustain a largely authoritarian approach to decision making where important decisions are taken without consultation with community members, the lack of consultation limits the opportunity for the people to influence policy outcomes in their community as required by democracy.

Democracy is a mix of contradictions and conflicting ideas in theory and practical application, as much as the framers of 1992 constitution drafted it mindfully of establishing democratic principles, it still contained provisions with tendencies capable of making a democratically elected president a dictator. This provisions largely has been criticized to be carefully crafted to give some dictatorship powers to the leader at the time President J.J. Rawlings, who was a military ruler at that time. The 1992 constitution is over three decades and opposition leaders mostly complain of its dictatorship tendencies but mostly see nothing wrong with those powers when they are in government. Is it because they become comfortable using those power when they form government?

As rightly stated by Winston Churchill “in the absence of nothing good the worst is the best” without any better alternative to eliminate some of the supreme legislative and judicial powers of the president and other enshrined provisions that have tendencies of making a president a dictator. The constitutionalism experienced so far regime is still the best in the absence of any good alternative to the above-mentioned dictatorship-like constitutional provisions.

This is because aside the dictatorship tendencies it may also be used in ways or purposes that promote basic and human rights which are also good tenets of a democratic system. Example article 72 which allows the president to issue clemency to prisoners has been alternatively used to pardon sick prisoners and those who have served long term with good behavior. The immunity of the president from prosecution whiles in power may also promote the dignity of the office of the presidency and also makes the president achieve its developmental objectives without the interferences of frivolous law suits.

Notwithstanding this fact I recommend the following; there should be an established systematic and scientific framework of determining the president’s emoluments.

To ensure effective accountability, public appointments should be restricted to political appointments that terminate with the expiration of the president’s term in office to ensure effective accountability.

As much as there is a huge cry for the election of MMDCEs as a way to promote effective participation in local governance, I share a contrary opinion which seeks to keep the status quo the same. This is because the current system of the appointment of MMDCEs by the president in my opinion is not undemocratic but rather one of the models in which local governments are organized.

However to ensure a fair means of citizens' participation, the provision that allows the president to appoint thirty percent of the membership of the assembly to be reviewed to allow only elected members to serve as members of the assembly.

Democracy in practice is a myth, however, to realize the full benefits of constitutionalism is a duty for all citizens.

HAPPY CONSTITUTIONAL DAY

Columnist: Francis Doeglah