Has Prez Mahama Acted Unconstitutionally with EC Appointment?

By Kofi Ata, Cambridge, UK June 29, 2015

Until Dr Ransford Gyampo, senior lecturer at the University of Ghana’s Department of Political Science queried the appointment of Mrs Charlotte Osei as Chairwoman of the Electoral Commission (EC), describing it as “a bad precedent for Ghana by transferring the head of any of the constitutionally guaranteed independent bodies such as the EC, National Commission for Civic Education (NCCE), Commission on Human Rights and Administrative Justice (CHRAJ) or National Media Commission (NMC) to another sets a bad precedent to be exploited by whoever forms the next government in the country”, it did not occur to me that the position of NCCE head is similar to those of EC and CHRAJ (see, “Gyampo queries Charlotte’s appointment”, Ghanaweb/Daily Guide, June 29, 2015). Dr Gyampo has raised a very important but dangerous constitutional dilemma for Ghana that perhaps has eluded Ghanaian constitutional experts since the appointment was made public on June 25, 2015. This article is aanlysis of the constitutional implications of President’s Mahama’s decision to move the head of NCCE to head the EC.

According Article 232(2) of the 1992 Constitution, “members of the Commission [NCCE] shall be appointed by the President acting on the advice of the Council State”. Article 234 states, “except as provided in this Constitution or in any other law which is not inconsistent with this Constitution, the Commission shall not be subject to the direction or control of any person or authority in the performance of its functions”. Article 235(2) also states, “the Chairman of the Commission shall enjoy the same terms and conditions as a Justice of the Court Appeal ....” whilst Article 236 states, “the procedure for the removal of Chairman from office shall be the same as provided for the removal of a Justice of the Court of Appeal......”.

When the above Articles are put together, their collective meaning is that the president has no constitutional authority to remove or reassign the heads of NCCE, EC and CHARJ once appointed unless either Article 236 conditions arise or the office holder/s willingly resign or die in office. Why? It’s because the heads of all the above constitutional bodies are constitutionally protected and guaranteed unlimited terms of office until retirement age or death. The framers of the constitution did so to prevent political interference for political expediency by particularly the Executive arm of government.

Article 234 is the most powerful clause on the non-interference by the Executive. President Mahama by reassigning the head of NCCE to EC has subjected NCCE to his direction or control and interfered in the performance of its functions, since the head is both strategic and operational head of the Commission.

By Article 235(2), the head of NCCE enjoys the same terms and conditions of a Justice of the Court of Appeal. The question for President Mahama to answer is, has the president got the constitutional authority to reassign a Justice of the Appeal Court from Accra to Kumasi apart from appointing Appeal Court Justices onto Commissions of Enquiry, which is within the constitution (Justices continue to remain within the Judiciary whilst on a Commission of Enquiry and do return to the Judiciary on completion of commission’s work). If the president has no constitutional powers to reassign Justices of Appeal Court outside the Judiciary or within, then, why should the president be able to reassign the head of NCCE to the EC?

Moreover, the NCCE is not part of the Executive, where the President has prerogative to hire and fire including reassignment of his appointees as he pleases. By this reassignment or appointment, the President has extended this prerogative to the NCCE. That also amounts to direction or control and interference in the affairs of NCCE contrary to Article 234.

Legally and technically, the reassignment of head of NCCE to EC amounts to dismissal or removal first and foremost. In fact, Mrs Charlotte Osei could have refused the reassignment and challenged the reassignment as unlawful constructive dismissal, if she so wished. This is because the president must first remove her from her position before reassigning her. Once the removal occurred without going through specified due processes, Article 236 was breached by President. It is immaterial whether she was reassigned immediately to similar position or not. Most disturbing is that, this reassignment by default also limits the term of office of the head of NCCE by the president, which is again, unconstitutional.

The other reason why the President should not be allowed to extend his (prerogative) power of appointments, dismissal and or reassignment to constitutionally guaranteed independent bodies and protected public offices with unlimited terms is that it is a dangerous manipulation of the constitutional limitations on the appointing powers of the president. I agree with Dr Gyampo that it is bad precedent and will open the doors to unlimited political interference in constitutional independent bodies. For example, another president after Mahama could reshuffle heads of NCCE, CHRAJ and EC in a kind of musical chairs game and justify it by relying on this appointment as a defence.

Indeed, the reassignment or appointment itself is a threat to Mrs Osei’s continuous stay in office as head of EC in the future since President Mahama himself or future presidents could reassign her to CHRAJ or back to NCCE. It’s also a threat to the independence of these constitutional bodies and should not be allowed to stand unchallenged.

In conclusion, the reassignment of Mrs Charlotte Osei from NCCE to EC as Chairwoman amounts to subjecting NCCE to the direction and or control of the Executive and an interference in the performance of its functions which is a direct breach of Article 234 of the 1992 Constitution. It also amounts to dismissal without due process and also in direct breach Article 236 of the 1992 Constitution. It is also an attempt by the president to limit the term of office to such offices which again is in breach of the 1992 Constitution.

Though there is no specific Article in the 1992 Constitution that prohibits the president from reassigning heads of independent and constitutionally guaranteed and protected heads NCCE, CHRAJ and EC, that does not mean that the President cannot make such reassignment. However, putting together the relevant Articles of the Constitution (234 235(1) and 236), it is abundantly clear both in the letter and spirit that such reassignment by the president is prohibited.

For the reasons stated above, the reassignment or appointment of Mrs Charlotte Osei as the Chairwoman of EC is unconstitutional and therefore President Mahama must reverse the reassignment or appointment and make a fresh appointment. Failure of which the reassignment or appointment should be challenged at the Supreme Court for the sake of constitutional democracy and to avoid abuse of presidential powers.

Kofi Ata, Cambridge, UK