Parliament can tame over exuberant Executive - Franklin Cudjoe

The English Author, Walter Bagehot once said, “An influential member of parliament has not only to pay much money to become such, and to give time and labour, he has also to sacrifice his mind too – at least all the characteristics part of it that which is original and most his own.-

I have been very happy recently over the boldness of Ghana’s Parliament at demanding critical answers from ministers over important matters of the nation.

I was even more grateful that in spite of the limited financial support that the Parliament’s Assurances Committee receives, it has a leadership code with teeth and actually dared stiffer ‘punishment’ for delinquent ministers who fail to respond to their calls. It seems to me in the face of a constitutionally designed framework to make the executive arm of government an overbearing one when it comes to the introduction of important bills and programmes and projects, some sections of Parliament are holding their own and exerting latent powers to tame the executive.

There is more Ghana’s Parliament can do on two important issues. The proposed amendments to the constitution and the delayed passage of the right to information bill.

The amendment of entrenched provisions bill, seems to have stalled in its last stage of a passive introduction to Parliament for it to merely stamp. Perhaps it is a good thing. The whole process to make amendments to the 1992 constitution appear to be misrepresenting and misconstruing constitutional stipulations, as well as neglecting historical antecedents and international best practices to further reform our democracy and deepen citizen participation in our democracy and most importantly set precedence for generations unborn that this land was once occupied by far seeing beings.

During this journey to constitutional rule, we have been presented with opportunities to make drastic changes for which posterity will eternally hold us accountable. One can think of the repeal of the criminal libel law to enhance freedom of the press and recently the right to information which many lawyers fear will not be beneficial to citizens in its current form.

It turns out the memorandum accompanying the Bill, which takes it spirit from article 290 of the 1992 constitution proposes the following stages prior to the passing of the Bill: referral of the Bill to the Council of State by the Speaker of Parliament for advice, following receipt of advice, the bill will be Gazetted and cannot be introduced in parliament for six months after which the referendum will be held (at least forty percent of the persons entitled to vote, voted at the referendum and at least seventy-five percent of the persons who voted cast their votes in favour of the passing of the bill), sequel to which it will be passed by Parliament and assented to by the President.

A constitutional law expert, Professor H Kwasi Prempeh has said “It should be noted that, Parliament’s power to propose amendments to a Bill is a necessary incident to, and thus necessarily implied in its power to “consider” a Bill. It need not be expressly stated. However, where the Constitution intends to deny Parliament its inherent revision or amending power in relation to a Bill, as in article 108 (pertaining to financial matters), it is necessary for that limitation on legislative power to be expressly stated. He goes on “The fact that article 290(2) also requires Parliament to solicit the “advice” of the Council of State before proceeding to consider an amendment Bill lends further support to our understanding of the active role Parliament is expected to play in the amendment process. Again, there is no point in requiring the Council of State to render its advice on the Bill or Parliament to obtain the advice of the Council of State on an amendment Bill if Parliament is without power to act on it.

Section (4) of article 290 makes a provision which appears to limit the role of Parliament in the process. This interpretation however falls apart upon a critical analysis of the sequence of events prior to the passing of the Bill. Section 4 of article 290 provides in part that, “After the bill has been read the first time in Parliament it shall not be proceeded with further unless it has been submitted to a referendum held throughout Ghana . . . .”

He emphasizes that “this provision can only be triggered after the Bill has been considered by Parliament (under section 2) and, then, published in the Gazette for a period of six months (under section 3). In effect, there is a clear logical sequence to sections (2), (3), and (4); section (3) occurs after section (2), and section (4) after section (3). What section (4) means, then, is that, once the Bill has gone through those earlier processes outlined in sections (2) and (3), no further legislative action on the Bill is warranted; the Bill is now in final form, ready to be put to a referendum. Parliament’s duty at that stage is a purely procedural one; it must subject the finalized Bill to a First Reading but no more—indicating that, no further substantive change or legislative action may be taken on the Bill at that stage.

It may have taken almost twelve years to tie all the knots on the Right to Information Bill, but the relevant Committee of Parliament and the Coalition on the Right to Information has done well in the face of executive obstruction. What is left is for the necessary procedure to get the Bill passed. Parliament should get busy on this.

An essential characteristic of any well-established democratic dispensation is its ability to adapt to changing trends and needs of the governed. The most developed and advanced democratic and political dispensations of our time were not the best of fits at inception, but evolved making the goals of the past, present and future generations crucial to any well-meaning democracy. Ghana’s Parliamentarians are indeed trying a whole lot. As I have said this week, some of us are willing to intellectually support promising candidates from all political parties that want to get into Parliament so together we can build a prosperous country.-

Happy Easter!

Respectfully yours,

By: Franklin Cudjoe Founding President & CEO, IMANI