For a national dialogue towards a sovereign national constitutional review conference

By: Explo Nani-Kofi

(Advocate for Constitutional Review and Grass Root Popular Participation in Governance)

The move from military regime to the present constitutional dispensation has encountered problems of (1) Democratic Deficit and (2) Uncompleted Transition Tasks.

If these are not consciously addressed sporadic eruptions from the population in response to this dissatisfaction will arise from time to time. At present this manifests itself when one of the major political parties loses elections. Opponents of the party previously in government seize control of public facilities which they feel that the previous regime had had unjust control of.

The problem is rooted in the transition from military. Although, Ghana was ruled by a military administration from 31st December 1981 to 1992, there wasn't a sovereign national conference to develop a transition programme but the military regime supervised the transition and even reconstituted itself into a political party to contest the elections. Hence, the authoritarian structures remain in the constitutional era with some others created as front for the apparently departing military government.

In 2000, as the regime which emerged didn't arise out of a sovereign national conference it was difficult to take bold decisions for total transition as the authoritarian structures which had been institutionalised as part of the constitutional dispensation could be used to subvert or sabotage the new regime. It was felt that what was necessary was a sort of national reconciliation. The National Reconciliation Commission therefore was convened to look at human rights issues since the independence era.

With 24 years of successful and peaceful constitutional dispensation with the two main political parties swapping government twice, we can now go further to deepen the constitutional democratic culture.

The election manifesto commitment by the New Patriotic Party (NPP) and Progressive People’s Party (PPP) for the direct election of District and Municipal Chief Executives contributes to addressing this democratic deficit. However, there is need for an analysis and a public discussion on a holistic approach to deepening the constitutional and democratic culture in the country which should a constitutional review beyond what the military supervised process has put on offer.

It is through elections, that the population or electorate participates in the setting up structures of governance and this is provided for by Article 42 of the Fourth Republic Constitution that "Every citizen of Ghana of eighteen years of age or above has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda."

Parliament is one body in which its entire membership, except maybe the Speaker of Parliament, is directly elected by the electorate and so is highest forum of the people's representation. It therefore deserves to play a central role in expressing the will of the nation and oversight of various bodies.

There are hurdles to be cleared for constitutional governance to be popularly accessible. The important role of Parliament in curbing corruption is referred to in a World Bank study. In the report, 'The Role of Parliament in Curbing Corruption' edited by Rick Stapenhurst, Niall Johnston and Riccardo Pellizo, it stated "Presidential Democracy. Because the legislatures in parliamentary systems can remove the leaders of the executive branch more readily than presidential systems, we expect this variable to have a positive impact on corruption, especially after accounting for the control of the legislature by the political party of the executive." Taking this into consideration should initiate a dialogue for a general overhaul of our system of governance whether Parliamentary or Presidential is suitable for us. We can also study other functioning democracies and see what we can pick from them to help us.

Under the Fourth Republic, parliament cannot initiate any bill which may involve taking money from the Consolidated or public fund but in practice there are events occurring from time to time which need action to be taken on by the police, district assemblies, district security councils, regional security councils, for example, drawing attention to flash points which will need public funds.

A major deficit in the oversight functions of parliament, for example, is that Parliament does not have financial autonomy. Other constitutional structures like the Electoral Commission, National Commission for Civic Education, Statistical Service should also have financial autonomy so they are not tempted to pander to manipulation of the Executive.

The Auditor-General's department is a necessary tool for Parliament to oversee the Executive in case of any malfeasance. Parliament is not in the position to play this oversight role effectively because constitutionally it is only the President who has the mandate to draw the attention of the Auditor General even though the Auditor General's department is supposed to be a tool for Parliament.

The Fourth Republic Constitution vests so much power in the President in making appointments to the Electoral Commission, Commission on Human Rights and Administrative Justice, National Commission for Civic Education. There is need for a clear ceiling on what number of judges on the Supreme Court should be.

There is need for a public intervention from civil society so that succeeding regimes do not use tenure pf office to balance manipulation differences or gaps. Despite the fact that there was no Sovereign National Conference to guide transition from military rule to the Fourth Republic, the biggest political party to emerge from the pro-democracy struggle has been able to stand up to the successor structure to the military regime in electoral strength, hence the alternative eight years for the past 24 years.

An area in which there are danger signals is the adjustment of constituency boundaries and number of constituencies. The arbitrariness with which the constituencies have been increasing with regimes has to be looked at seriously. Under the 3rd republic, we had 140 constituencies and this was increased to 200 at the birth of the 4th Republic. This was increased to 230 during the Kufuor era and later to 275 during the Atta Mills regime. There could be a great temptation for the present regime to consider catching up with the number constituency number increase of the National Democratic Congress (NDC).

The Article 71 emoluments need some clarity. Should we just allow various Presidents to set up this remuneration or that some formula be devised in reaching the amounts? The present dispensation seems open the gate for uncontrolled increases.

It is not enough to provide that recruitment to public service should not discriminate on the grounds of sex, religion, ethnicity or race but there must be a test of how it stands in practice.

How do we address issue of monetary influence in elections? What influence does the financial contribution have on the award of contracts so that the nation will not be short changed? Martin Amidu's allegation on implied corruption in the work of committees in parliament has to be looked at.

Decoupling of the offices of the Attorney General and Minister of Justice is needed to avoid conflict of interest. The appointment of majority of Ministers from Parliament and the fact that majority of Parliamentarians are likely to be from the President's political party creates a condition for remote control of Parliament by the Executive.

Whilst constitutionally, traditional chiefs are not supposed to be involved in partisan party political politics then is no provision for sanctions. As such when when they go against this provision nothing happens and it is dangerous. There ia also the issue of Asset Declaration which has to be approached more seriously.

The process of amending entrenched clauses of the Constitution is cumbersome and has to be examined. There is also the controversial Transitional Provisions which has been a no go area that raised a lot of concern at the birth of the Fourth Republic. Given the level of illiteracy bits and pieces cannot be addressed through referenda.

In the President's State of the Nation address, His Excellency called for some issues to be brought up for national dialogue. The whole of our Constitution also needs to be brought to such a platform of national discourse and possible Sovereign National Conference.

FURTHER DETAILS:

Explo Nani-Kofi (Advocate for Constitutional Review and Grass Root Popular Participation in Governance)

explo.nanikofi@gmail.com

Tel. 0241498912.

Regular weekly guest : Kpeve-based Look FM 98.5 FM

Guest also on Press TV (Iran) and TVC International (Nigeria)