Do our MPs and Judges not know their statutory functions

Sat, 19 Jul 2014 Source: Bokor, Michael J. K.

Do our MPs and Judges not know their statutory functions, Kwaku Azar?

By Dr. Michael J.K. Bokor

Friday, July 18, 2014

But for its contradictory and paradoxical implications, the legal suit filed against the Attorney-General, the President, and the Constitution Review Implementation Committee by Stephen Kwaku Asare (who writes under the moniker, “Kwaku Azar,” on Ghanaweb and other online media) wouldn’t have turned my crank.

His suit says “Professor Dankwah and his so called Constitution Review Implementation Committee have no power under the laws of Ghana to schedule a referendum and/or to amend the Constitution of Ghana… Parliament is the sole body that can initiate, consider and propose amendments to the Constitution.” Kwaku Azar insists that Parliament’s power to amend the Constitution “is not only plenary and exclusive but also cannot be delegated to or usurped by the President, the so-called Constitution Reform Commission or the Constitution Review Implementation Committee.”

We note that the Constitution Review Implementation Committee isn’t gearing up to organize any referendum on the submissions and proposals gathered from Ghanaians by the Constitution Review Commission led by Mr. Fiadjoe. The Constitution Review Implementation Committee, chaired by Prof. Emmanuel Victor Dankwah, was set up by government to make proposals and recommendations for the review of the constitution. The recommendations and proposals will be subjected to a vote at a referendum. And we already know that it is only the Electoral Commission that is mandated to perform such a responsibility as organizing general elections or referendums. The CRIC isn’t usurping that role either.

Even before the case is certified for hearing, Kwaku Azar has begun whipping up public attention to his suit and one cannot sit back unconcerned. In all honesty, the suit has come at a time that efforts are far advanced toward a possible referendum for amending the Constitution.

If my reading of the suit (as made available by Kwaku Azar himself) is anything to go by, I suppose that his roping in the President (the late Mills, who appointed the ConstitutionReview Commission, and the incumbent John Mahama, under whose tenure the Constitution Review Implementation Committee is fine-tuning the submissions for constitutional amendment) speaks volumes. At a higher level, his claim that it is only Parliament that has the statutory responsibility to perform such functions clearly disparages Parliament and reinforces the poor opinion that some of us have about it as useless!!

But that is not the substance of my opinion piece on this suit. I have more about it to comment on. First things first, though.

Kwaku Azar is no stranger to us when it comes to filing suits of this sort, especially when they are heavily invested with political capital. He has done so on a few occasions, written opinion pieces to fight his case at the court of public opinion, only to lose the substantive case in the chamber of the Supreme Court. He is a strong apologist for the NPP and does his political writing on that score. His suit may have some political stain, but it has more to do with a quest for self-projection than what will improve governance.

I don’t think that he can claim to know more than all the legal brains that worked to get the Constitution Review Commission established or to superintend over its activities to bring us thus far. But he has every right to go whichever way he thinks his knowledge of the law will move him. At the hearing of his case, steel will cut steel (“Dadie be twa dadie”).

What he has set in motion with this challenge to the legality of the constitutional review process will be no exception to what he is already known for. Even after filing his case, he has taken to Ghanaweb and other online media to push his own agenda, writing articles or regurgitating the very suit that he has filed at the Supreme Court. If he were any serious lawyer, he would be the first to know that he was breaking bounds. Once a case is before court, it qualifies as “sub judice” and shouldn’t be commented on outside the confines of the court. But our Kwaku Azar has been all over the place, commenting on his own suit and provoking others to do same. What does he hope to achieve at this early stage when the Chief Justice hasn’t even empanelled the Supreme Court to begin hearing his suit?

I suspect that by pushing his case out this way, he is only doing his kind of politics with it to reinforce the purpose behind his suit: to cast the President in a bad light and create the impression that he is abusing his powers or to portray Parliament as grossly incompetent.

Now, let’s veer off a bit to see Parliament in this light. Since the establishment of the 4th Republic, Parliament has been functioning, using the provisions of this Constitution as the guide/blueprint for its operations. None of the crops of Parliamentarians ever raised any doubt about the Constitution as configured nor has any even initiated any bill toward amending any aspect of the Constitution despite massive public concern about some aspects of the Constitution that don’t encourage good and productive governance. No MP has initiated any move for amendment of provisions regarded as counter-productive.

Much noise has been made and heard about the Transitional provisions, especially when Kufuor took over from Rawlings; but none of those leading the pack of noise-making could get anything done toward amending those portions of the Constitution that seemed “obnoxious” to them. All the so-called bragging that the NPP has “intellectuals” couldn’t lead us toward identifying specific problematic areas of the constitution for amendment. Kufuor left office without seeing the need for any amendment.

Come in the late President Mills and efforts began being made to identify problematic areas for amendment; hence the establishment of the Constitution Review Commission (headed by a seasoned lawyer and law professor, supported by a crop of brilliant lawyers and experts) to help smooth the rough edges of the Constitution. The Commission spent resources to gather data from diverse constituencies of Ghanaians (home and abroad, political and apolitical), which led to the Mills’ government’s issuing of a White Paper to accept recommendations for constitutional review.

Following up on that initiative, a Constitution Review Implementation Committee is in place, fine-tuning efforts so the appropriate institution charged with electoral responsibilities (the Electoral Commission) can organize a national referendum on the areas that are deemed critical for constitutional amendment.

In comes Stephen Kwaku Asare to sue the President and the Constitutional Review Commission on that score to create the impression that the President is acting ultra-vires and that Parliament is the only body with the constitutional mandate to pioneer constitutional amendments. This suit, to me, is nothing but an exercise in futility, apparently because it has more to do with the sentimental than the legal imperative. I am no trained lawyer, but common sense tells me that the setting up of the Constitution Review Commission under a Constitutional Instrument by the late President Mills is no violation of the Constitution. Neither does it amount to a usurpation of Parliament’s power or function.

If it were so, won’t Parliament itself be seen as “dead”? What made it impossible for the MPs themselves to know that their powers were at risk? Why won’t they rise up to right the wrong, if it were so?

In any case, Stephen Kwaku Asare is free to exercise his constitutional right to seek the interpretation of the constitution by the Supreme Court as far as his suit is concerned; but I daresay that he is already putting a lot out to create the impression that he is on a wild goose chase. Behind all that he has set in motion is his calculated move to undermine the Presidency and create the unfortunate impression that political opponents of the NDC administration have continued to use for undeserved political leverage.

I am being blunt here to say that our Constitution needs amending, apparently because circumstances have changed and its provisions must be revisited and used to serve needs that our contemporary existential circumstances demand. The bitter truth is that no Constitution anywhere is sacrosanct. It is a paper tiger that must be bent to serve useful purposes whenever possible, which is why it must be amended when necessary.

In our Ghanaian case, we have a peculiar problem when those who refused to participate in the drawing up of this very Constitution have turned out to be those who implemented it to advantage when in power or those now mischievously seeking to prevent its being amended. When the clarion call came, the so-called “interrectuals” refused to respond, leaving the task to ordinary but committed, patriotic citizens from the lower ranks of society (artisans, farmers, fisherfolks, traders, and what-have-you) who teamed up with some well-intentioned and educated compatriots to form the Constituent Assembly. Those who turned their back are now in the limelight, raising dust and drawing needless attention to themselves to be seen as “patriotic”. Their days are gone and they should spare us their tantrums disguised as legal illumination. They aren’t out to serve any useful national purpose but partisan political ones.

The questions, then, are: Has any of them known that by setting up the Constitutional Review Commission and spending public funds on its activities the President was acting ultra vires but didn’t bring it out? Did any not know that as the Third Estate of the Realm (the Judiciary), they have the bounden duty to offer input for good governance? If the President was acting ultra vires but they didn’t raise red flags, what did they seek to accomplish or to add to our democracy? Or have they been waiting (and being unpatriotic and incompetent as such) for other Ghanaians (like this Kwaku Azar) to bring the matter before them before they act? Why should it be so? Or that what the Constitution Review (Implementation) Commission has done so far is irrelevant to the quest for input to improve governance and must be discarded? Many more unasked questions!!

In the final analysis, Kwaku Azar’s legal suit has only one objective: to either embarrass the President or curtail the ongoing efforts at Constitutional review (that is, if the Supreme Court agrees with him, which will be a sad reflection on the integrity of the judges themselves as those charged with interpreting the Constitution, meaning that someone among them should have seen that problem and raised it long before the filing of this suit but didn’t). Very paradoxical. In one breath, here is someone who has come across as interested in constitutional amendments while at the same time initiating a legal process to curtail those very amendments. How contradictory!!

Or is he suggesting that Parliament has been too dormant and incompetent and must seize the opportunity provided by his legal suit to begin the process toward constitutional amendment? And to imagine that the majority of our Parliamentarians are people who brag as lawyers? More ironical.

I am waiting impatiently for the Supreme Court to begin hearing this suit by Kwaku Azar. Then, I can get to know more about the under-current and intrigues. Clearly, I don’t think that the Supreme Court judges (whose responsibility it is to interpret the Constitution) can free themselves from blame if they see eye-to-eye with Kwaku Azar, apparently because as experts, they have been expected to know inside-out the provisions of this Constitution and to take steps to help us use them to improve governance. In fine, then, I consider this suit as a hot air being blown by Kwaku Azar.

I shall return…

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Columnist: Bokor, Michael J. K.