The 1992 Constitution: This “Paper Tiger” Can Kill Us

By Dr. Michael J.K. Bokor E-mail: mjbokor@ilstu.edu

There is a song in the air. The National Commission for Civic Education (NCCE) has questioned the appropriateness of the Speaker of Parliament to act as President in the absence of the substantive President and the Vice President. I am gratified that at last, someone is singing this song that Ghanaians should not refuse to listen to. The message of this song is appropriate in every sense and must be heard and acted on now! For long, we have lived with a problematic Constitution and must support the stance of the NCCE and use it as the launch-pad for drastic action to make amends today before anything untoward happens to create mayhem for us tomorrow. Those who seek to build the future do not sit down and prate over the past. Haven’t we as yet learned our lesson from history?

For many years now, tongues have been wagging about the need for action to be taken to amend some portions of our 1992 Constitution to make it more relevant to our needs. The quest for opportunities to deepen our democratic dispensation still goes on. No one, however, seems to be listening all this while. Although it is difficult to give reasons why no one (especially those in Parliament themselves) has made moves for any amendment (or why no amendment has been made to date), I can hazard a few guesses.

One is that some people appear to be comfortable under the existing circumstance in which the Constitution provides a safe haven for them and will not want to lose whatever it is that its “clumsiness” yields for them to enjoy. Another is the usual Ghanaian irresistible tendency toward misplaced priorities or plain apathy. There could also be a purposeful and determined but invisible resistance to such amendments from those benefiting from the Constitution as it has been for almost 17 years now. In short, our Constitution is problematic in many respects but we have chosen to live with it, forgetting that it cannot grow if it remains what it has been all these years.

It is in this light that this latest submission by Mr. Larry Bimi, Chairman of the NCCE, must be appreciated. In a contribution to an Institute of Economic Affairs panel discussion on the draft Presidential Transition Bill in Accra yesterday, he made it clear that the NCCE’s conviction was that “only people voted for by Ghanaian electorate should at any given time act as President.” He can’t be more apt than that for a number of reasons, which I will state through questions: What else do we need to be able to foresee this danger and to take proactive steps to smooth the Constitution to avert any crisis? Are we waiting for it to happen before we rush around for ad hoc measures in a vain attempt to contain it? What else are we expecting to ginger us up for action to amend the Constitution on this score?

If you haven’t yet seen the seriousness of the matter, listen to this explanation by the NCCE Chairman:

“Let's call a spade a spade; if both the President and his Vice die today, it will be against the sovereign will of the people to have the Speaker of Parliament organise an election within 30 days.”

I agree with Mr. Bimi. We claim that our Constitution is largely fashioned on that of the United States (at least, in the sense of the Executive Presidency although we have only a Unicameral Legislature) but don’t want to do what will help our system achieve stability and withstand the vagaries of politics as the US has been able to do over the years. The Speaker of the US Congress is an elected Member of Congress who represents the will of her constituents and the political party whose ideals she exhibits in his/her conduct. No outsider can ever be the Speaker of Congress because Congress is for elected representatives only! In the same vein, no unelected person will be in the line of succession or acting position at the Presidency. The Constitution has no room for that shoddiness in the representation of the “will of the sovereign people” of the country. Sadly enough, the situation is not so for us. Ours is haphazardly done, ordained as a constitutional lapse.

In our case, the Speakers of Parliament have been outsiders---people not elected by voters to function as such in Parliament to determine their fate. I don’t readily have any reference to what happened in the First Republic and stand to be corrected over this claim. But as far as I can remember, Nii Amaa Ollenu was one outsider who served as the Speaker of Parliament after the First Republic; and ever since, all of them have been outsiders. When both Kufuor and Aliu Mahama left Ghana at one time in the first term of the NPP government, the late Peter Ala Adjetey, Speaker of Parliament, acted as President for three days. He was not an elected representative of any constituency in Ghana at the time. Did we not know the constitutional problem that this acting President capacity created? This constitutional lapse is unusual and must be tackled. The Constitution must be amended at this level to ensure that the Legislature is headed by someone elected by the people who can then act as President of the country in the absence of the substantive President and his Vice. The position of a President is an elective one and must be preserved down the line to that of the Speaker. Action must start from Parliament itself. Our legislators should do better than they’ve been doing so far. They have already started wasting time on frivolous issues such as the “title” for the Leader of the House. This issue doesn’t really matter to the ordinary Ghanaian who expects that their elected representatives will pay more attention to important issues to deepen our democratic process. Constitutional amendments are a part of those important issues.

There are other important areas of the constitution that are either “unworkable,” “cumbersome,” or plainly unproductive. Such portions inhibit smooth administration instead of enhancing it and must be amended. For instance, the constitutional provision that makes it mandatory for two-thirds of Ministers to be chosen from Parliament is idiotic. Why should the Minister belong to both arms of administration at the same time? Even, the Bible tells us that one cannot serve two masters at the same time---either he will hate one and love the other or there will be total chaos. Let us choose the right path to decouple the Legislature from the Executive branch. The Parliamentarians should be the first to realize the problem that this Constitution has in such cases and must do something about it. We expect them to get down to serious business to work for the amendment of portions of the Constitution that have so far been identified as problematic. They are too parochial in their law-making guise. In the United States, the line is clearly drawn between who should function as a legislator or a member of the Executive branch. There is no criss-crossing of the terrain for political advantage. When Senator Hillary Clinton was nominated the Secretary of State, she immediately vacated her seat in the Senate. Now confirmed, her representation of the State of New York as a Senator is over. A new person is to be chosen to fill the slot. In effect, she has been constitutionally uprooted from the law-making branch and is now playing a single role as a member of the Executive. The Constitution is clear on that issue. There is no room for anything chameleonic!! We in Ghana have chosen to be chameleons, changing our political complexion as a ruse to either outwit the system or to create unnecessary tension for political expediency. For how long must we continue to live like that?

This admixture of Legislative and Executive “presences” in the case of Ghana is a major lapse that makes the Constitution scrappy. Apart from reducing to absurdity the desire for checks and balances to function efficaciously between the two arms of government, it also makes a mockery of the important requirement of independence of those branches. How can a Minister function effectively in a Legislature against any unpopular decision or action coming from the Executive of which he/she is a part? We are just a bunch of confused people, I daresay.

I recall several instances in the previous Parliaments when there was either a lack of quorum for serious business to be done or when the absence of those MPs doubling as Ministers virtually paralyzed business in the House. Who will not remember the open passionate appeals that came from the Majority Leader to such Ministers to be present in Parliament on certain occasions just to help pass bills that were being strenuously opposed by the Minority? On other occasions, last-ditch efforts had to be made by the party in power to mobilize those Ministers-cum-Legislators for them to add their votes to the bills that were being discussed for enactment into law. In some of those instances, business in the House was more of a circus affair than anything else. Some of the bills that were either hurriedly passed or forced down the throats of the Minority resulted from such scrambling. Clear examples wer the agreement that the former NPP Majority side effected with Vodaphone and the one on the sale of VALCO. It is more confounding (and annoying) to know that this kind of simultaneous “dual allegiance” (to the Legislature and the Executive) only serves the interests of the appointees and the appointing authorities. Do they enjoy the perks of both offices of the divide? While performing as Ministers, what benefits do they get from the Executive? How about from their presence in the Legislature? The tax-payer wants to be told how his/her tax money is being spent on all these people and other hangers-on, all in the name of governance! For now, nobody seems to be talking about the $20,000.00 car loans that the MPs are on record to have taken in the government of Jerry Rawlings and the first (and second?) term of Kufuor’s administration. Who has paid what so far? What is the situation going to be like this time that we have another crop of Parliamentarians in the Fifth Parliament of the Fourth Republic? How about the houses for the MPs? We are being kept in the dark about these issues and don’t like it. We must not do things to confirm public fears that politics in Ghana is a goldmine instead of being a call to serve the people and the country. Arguments citing the holding of referendums before constitutional amendments as a major stumbling block shouldn’t be allowed to delay the process any more. When was the last time any referendum was held in the country, anyway? If it is a referendum that should pave the way for the eradication of all stumbling blocks on our way toward refining the Constitution, let’s organize it without any hesitation. After all, the more we bring such confusing issues out to educate our people on before they make decisions, the better chances are that public awareness and involvement in national issues will be enhanced. What are we afraid of? Why should we be afraid, in the first place? Some arguments have been heard about the entrenched parts of the constitution (the Transitional Provisions), which some people think should be amended so that action could be taken to resolve the problems that necessitated such clauses. For instance, critics are quick to suggest that if such entrenched clauses are removed, it will be possible for court action to be taken against some past leaders for justice to be done in the cases involving them. I have no qualms against such viewpoints.

In that sense, the constitution will stop being a safe haven for those in authority. Viewed against the background of the Rawlings movement, if the amendment of the Constitution will help expedite action on serious peeks into cases that still create bad blood between segments of the citizenry, let’s go for it. We must not continue to see the Constitution as a cloak that protects some people against others. The Constitution must have a “clean face” so as to instill confidence in Ghanaians that it will serve national (and not parochial or sectional) interests.

Again, viewed against the background of the senseless retirement package that Kufuor handpicked people in his office to put together for him---which many of us have seen as an act of impropriety---it should be possible for constitutional provisions to cater for such issues. Let me be bold to say that I want the constitution to have provisions for punishing our leaders if they do what is disgraceful or fail to do what is required of them. Let us be given the chance to sue them and be sued by them. I remember Kufuor’s half-hearted attempt to intimidate Victor Smith over the news story alleging that he (Kufuor) had been implicated in an underground oil business worth over five billion dollars for which his lawyer (one Agyekum) was preparing grounds for litigation. Dead silence!!

I think that due consideration has to be given to contributions being raised concerning the scrappy nature of the Constitution to help us clean the system so that our Constitution doesn’t remain lopsided. It must earn the respect of the people for whom it is meant. In other words, the Constitution must be constantly assessed for its unproductive parts or those provisions that have become anachronistic to be abrogated or supplanted with better ones. Instead of remaining a “paper tiger,” our Constitution must be made “people-friendly” to serve the interests of the country and its people. We need amendments and our Parliamentarians must wake up to the reality.

Probably, the constitutional problems that are being identified and pointed to for rectification should do something else. They should remind us of certain attitudes that we must shed if we are to move our country forward. The history of the 1992 Constitution is intriguing within the context of the membership of the Constituent Assembly that put it together. The refusal of the so-called “learned friends” to participate in deliberations left its negative imprint on it. After all, those who worked on it did their best but couldn’t tackle all the issues that our so-called “learned friends” would have seen and helped tackle had they sunk their pride and political differences to participate in deliberations.

If we have realized that we have a Constitution that is lopsided in many aspects, it is partly because of the attitude of some Ghanaians who put their narrow political and sectional interests above those of the country. When their expertise was most needed to put together the Constitution, they balked. Rather paradoxically, these so-called “learned friends” are the very people who have turned round for 17 years now to depend on the Constitution to advantage. The farmers, fishermen, market women, and artisans who participated actively in drawing up the Constitution have been relegated to the background as mere voters to be “bribed” or apologized to at election time. Such is the nature of the Ghanaian problem; but the stitch that we make today can save nine tomorrow. We already have the needle and the thread. Let’s make the stitch now!