Presidential decisions run amok

There is something call the Spirit of the Law.

It's something that legal scholars and philosophers and even religious scholars have argued about for centuries.

What it says is that, the interpretation of the law is subject to its intent or purpose not its literal meaning.

It's a theory that legal scholars will argue about till the end of the world. In Ghana’s most recent legal history, if the Tsatsu Tsikatas and the Nana Addos have not been able to resolve this legal theory who are you and me to resolve it?

Let me give an analogy for Ghana. Say, Parliament want to reduce the gap between the North and the South through educational support. Pass a legislation to make University education free for any Northerner ‘living in Northern Ghana’ whose parents makes less than 2000 Ghana cedis a year.

For the sake of argument, say, Ali is Gonja. His parents couldn't find a job in Damongo moved to Kumasi with Ali and are now working. Ali parents annual in income is 1800 Ghana cedis. Ali is a bright student, did extremely well in his WASSCE exams and got admitted to KNUST to study medicine. Should the government pay for Ali school fees?

If you follow the spirit of the law, you will say yes and justify it.

If you follow the literalist definition of the law, you will say no and justify it.

However, both of them are right.

Let’s me get more concrete, in the US, when Obamacare was passed there was an IRS clause that says that US government will provide subsidies (free money) to poor people to help them buy health insurance in an “exchange established by the state”. Exchange is just website.

Then, in states where Republicans control the state government, the states refused to set up "state exchange " but the federal government set up a state exchange, which was allowed in the law, and gave poor people free money to buy insurance anyway. It worked. And millions of Americans got insurance.

These same states weren’t satisfied that it worked and wanted to kill the law. Hence, some Republicans sent the Obama administration to court to challenge the subsidies the federal government was providing in the “federal exchange”. They argued that the law says, “exchange established by the state” not the federal government. They lost. The Obama administration won. In a 6-3 decision, the US Supreme Court sided with the Obama administration on the basis of ‘purpose of the legislation’ not what is written in it. In writing for the majority, Chief Justice John Roberts wrote:

“In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined— “to say what the law is.” That is easier in some cases than in others. But in every case we must respect the role of the Legisla¬ture, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is con¬sistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Con¬gress’s plan, and that is the reading we adopt.”

See links here http://www.commonwealthfund.org/publications/blog/2015/jun/the-supreme-court-upholds-tax-credits-in-the-federal-exchange

So the law or the constitution is more complicated than reading phrase in the constitution and thinking that you are right. I'm not a lawyer and don’t claim to be one, the only field I know “very little in” is Econometrics not law.

Now, back to the case at hand, the Presidential Transition Act. The spirit of the act is to stop arbitrariness of a defeated president from using the authority of the presidency to make decisions that will favor him or her or punish the incoming administration.

A President before an election will not knowingly make decisions that will make the country ungovernable or deteriorate the country finances. However, a President after losing an election, who have an intention of contesting in the next election, may have some incentive to make the country ungovernable or deteriorate the country finances. Our legislature, ‘in its wisdom’, passed this act to prevent exactly what President Mahama is doing by his last minute appointments and decisions by requiring him to write his handing over notes a month before the election.

The questions shouldn’t be about whether the Act say literally “the president can’t appoint an auditor general after losing an election” but rather about whether the president’s appointment of a new auditor general is contrary to the purpose of the Presidential Transition Act. Which answer is overwhelmingly, with no uncertain terms, yes.

Some have said, its legal because even the NPP say its legal but not right. Since when did NPP become the yardstick for what is legal and illegal? Some people in NPP say its legal because they suspect President Kuffour did that or because they have different opinion or they take the literalist interpretation of the Presidential Transition Act. If you are loyal NPP member, you don’t want to be seen criticizing your party’s past actions just like NDC people don’t want to criticize President Mahama’s actions.

Luckily for me, I’m neither NPP nor NDC member, so I don’t care whether President Kufuor did that or not. I only care on whether its morally right and or legal. I only care on whether it’s good or bad for mother Ghana.

Some have also said, its legal and morally right because President Obama is doing it. Without going into detail about what decisions President Obama has made since the election, I disagree. We don’t decide on what is wrong or right based on what Obama does or doesn’t do. Neither do we decide on what is legal or illegal based on what Obama does or doesn’t do. Each action should be measured on their own terms. For example, killing innocent children is wrong whether Obama does or not.

What’s wrong is wrong even if your favorite person does it. What’s illegal is illegal even if your favorite person does it.

The ideas expressed here are that of Umar Najeeb Mohammed, a Data Analyst for a global financial firm in New York City. He can be reached at umarnajeebgh@gmail.com