Constitutionalism in Ghana: An otiose or a plausible venture?

CONSTITUTION Ghana  News A photo of the Ghanaian constitution

Sat, 13 Mar 2021 Source: Ephraim A. Armstrong

The intriguing and mind-boggling question that requires critical analysis is whether the mere fact that Ghana has a working constitution is a guarantee of the practice of constitutionalism? No country has developed beyond the limitations of its own laws and constitutionalism cures this mischief.

According to John Locke, constitutionalism entails the idea that government can and should be legally limited in its powers and that its authority or legitimacy should be hinged on the observance of these limitations.

Well, juxtaposing the realities in Ghana to the above definition makes one wonders if the practice of constitutionalism is an otiose or a plausible exercise.

The writer makes an attempt to proffer lucid and vivid answers in this article, drawing inspiration from John Locke’s philosophical orientation of political theory and Justice Sowa’s remarks on a living constitution “The Constitution has its letter of the law. Equally the constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alterations are specified. In our peculiar circumstances these methods require the involvement of the whole body politic of Ghana. Its language therefore must be considered as if it were a living organism capable of growth and development”.

Ghana’s hybrid constitution of 1992 is a neo-presidential practice that imbibes some fundamental attributes of both the US Presidential and British Westminster systems of Government, perhaps buttressing the notion that a working constitution adopts a mixed system that inhibits the features of the two main systems of government. But this has not been smoothly executed without strings on the practice of constitutionalism in Ghana.

First and foremost, the hybrid Constitution of 1992 gives extensive and unfettered powers to the president so much such that the president is the government endowed with appointment of ministers, heads of boards, agencies, commissions, mayors, Supreme Court judges, Auditor General, the IGP and members of the council of state etc. as specifically enshrined in articles 70(1), 71(1), 74(1) and 78(1). In fact, think of any government institution in Ghana the president is not directly or indirectly involved in its appointment processes, and that is how powerful the president of Ghana is.

In reality, the sovereignty of Ghana is not in the people of Ghana as stipulated in Article 1(1) of Constitution 1992; the sovereignty of Ghana is entrusted in the president. Where then are the legal limitations of power and authority of a government that is manned by a president with unfettered powers? This is just like trying to figure a “triangle in a circle”.

Secondly, article 128 (1) of the Constitution 1992 provides that, “the Supreme Court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court.” Invariably, there is no ceiling or highest number that should be appointed into the Supreme Court. This is not only a challenge of Ghana’s hybrid constitution but also a threat on “freedom and justice” since a weak parliament controlled by the president will approve any number of judges appointed by the president in an attempt to pack the apex court of the land and manipulate its composition in a manner that makes the president a judge in his own cause or better still a “Lord over Lords”.

Another sphere, through which the 1992 Constitution jeopardizes constitutionalism, is in the aspect of MPs cross-carpeting. For instance, article 97 (1) (g) indicates that “a member of parliament shall vacate his seat in parliament if he leaves the party of which he was a member at the time of his election to parliament to join another party or seeks to remain in parliament as an independent member.” The writer is of the view that article 97(1)g sought to address the mischievous situation under the First Republic (1960-1966) when President Nkrumah lured MPs to cross-carpet to his party and gave them appointments while those who resisted were detained (Awoonor, 1990).

Don’t you see this as a threat to MP’s independence on the floor of parliament and to vote according to their conscience? What bamboozles me is the fact that Joseph Osei–Owusu, Honorable member of parliament for Bekwai and First Deputy Speaker of parliament who went to parliament as an independent candidate but must fit himself in either of the two sides in the conduct of parliamentary business instead of respecting his independence.

Conclusively, the writer is of the view that constitutionalism in Ghana remains an otiose and until constitution 1992 is subjected to unbiased amendment, there would invariably be no independent institution in Ghana as the president, who is in fact the government is endowed with unfettered powers in appointments.

Why are Ghanaians blaming politicians for the removal of Charlotte Osei from the EC and compulsory accumulated leave orders and subsequent retirement of Daniel Domelevo? Let’s channel our energies in rather ensuring the practice of constitutionalism.

Thank you.

Columnist: Ephraim A. Armstrong