The Process For Nominating A Vice-President

Festina Lente: The Process For Nominating A Vice-President

The ascension to the Presidency on July 24, 2012 by the then Vice-President John Dramani Mahama following the death of President John Evans Atta-Mills, has opened up a debate regarding the nomination of a person to discharge the duties of a Vice-President. The relevant constitutional provision states as follows: “The Vice-President shall, upon assuming office as President under clause (6) of this article, nominate a person to the office of Vice-President subject to approval by Parliament.” (Ghana Constitution, Article 60(6)). The provision does not specify a time limit for such nomination and so the issue that has arisen concerns how soon after such assumption of office the new President ought to nominate a Vice-President in order to meet the constitutional obligation.

Some have opined that there are critical constitutional functions to be performed by the Vice-President which warrant an immediate nomination of a Vice-President so as to avoid a vacuum. However, a closer examination of the Constitution does not indicate the type of void to which they allude. Regarding the functions of a Vice-President, the Constitution provides: There shall be a Vice-President of Ghana who shall perform such functions as may be assigned to him by this Constitution or by the President.” (Art. 60(1)). The duties imposed on the Vice-President under the Constitution are to: act as President when the President dies, resigns or is removed (Art. 60(5)); act as President in the absence of the President (Art. 60(8)); preside over meetings of the Cabinet in the absence of the President (Art. 77(1)); preside over meetings of the National Security in the absence of the President (Art. 83(2)); or act as of chairman of the Police Council (Art. 201(1)), the Prisons Service Council (Art. 206(1)) and the Armed Forces Council (Art. 211(1)).

Except for his duties as Chairman of the Police Council, the Prisons Service Council and the Armed Forces Council, the Vice-President’s other duties are triggered only by the absence, resignation or death of the President. Thus, in reality, as long as President John Mahama is in office, the only constitutional duties that cannot currently be discharged by reason of the lack of a Vice-President are duties of the Chairman of the Police Council, the Prisons Service Council and the Armed Forces Council. However, since the membership of each of these councils is complete except as noted with regard to the post of Chairman, and the Constitution does not prohibit these councils from operating in the absence of the constitutionally designated Chairman, it is expected that the three bodies will continue to function smoothly as envisaged by the Constitution. Therefore, the lack of a Vice-President should not create such a constitutional vacuum to mandate the nomination of a Vice-President by President John Mahama within minutes, hours or a few days of his assumption to the Presidency.

In an article posted on the Ghana web on July 27, 2012, the Danquah Institute argued that it was necessary to have a Vice-President nominated not more than a week after His Excellency John Mahama’s ascension to the office of President to avoid a constitutional crisis and disruption in the “succession plan.” It is submitted however, that even without a Vice-President, should the President die, resign or is removed from office, the Constitution is very clear that the Speaker of Parliament would assume the office of President under those circumstances subject to the holding of elections within three months of her assumption of office. (Art. 60(11)).

The Danquah Institute notes further that “[t]he phrase “Upon assuming office” means just that, upon assuming office. It should not be stretched to mean days or weeks upon assuming office.” By implication, the nomination of a Vice-President should be made nearly contemporaneous with the swearing of the oath upon which His Excellency John Mahama assumed the office of President. The emphasis the Danquah Institute seeks to place on the phrase “upon assuming office” is rather misplaced.

Read in its proper context, the phrase serves to state an obvious exception to the general rule requiring a Presidential candidate under the normal situation involving elections to name a candidate as Vice President before the election of President. (Art. 60(2)). Thus, where a person is elected as President under such a normal situation, he would in effect, have named a Vice-President before assuming the office. However, where a Vice-President assumes office of President without an election under the extraordinary circumstances specified in the Constitution, it will be unrealistic if not absurd to insist on the nomination of his replacement before the Vice-President was sworn in as President. Such a rule would disrupt the transition process and leave the nation at a critical time without a leader until the nomination was made. In recognition of this reality, the Constitution provides for the exception requiring the new President to nominate a Vice-President after but not before his assumption of office. It is submitted that the phrase “upon assuming office” as used in the Constitution merely seeks to clarify that the new President should nominate a Vice-President only after he was sworn in. The phrase should not be stretched to define a time-frame for the nomination process. In effect, the absence of a specific time limit for the nomination means the constitutional obligation to name a Vice-President could be satisfied anytime after the assumption of office of President.

The Danquah Institute faults the NDC for a “delay” in the nomination process, essentially accusing the party of misplaced priorities for initiating a process to select a flag-bearer for the party but apparently not acting quickly to ensure the nomination of a Vice-President. However, the statement of the Danquah Institute ascribes a role for the NDC in the selection of a Vice-President which is not supported under the Constitution. When it comes to nominating a Vice-President, the Constitution is quite clear that it is only the new President who has the power of nomination, subject to approval by Parliament. (Art. 60(10)).

It is quite instructive to examine the experience of the United States (which has rules of succession similar to those in Ghana) on the matter of the appointment of a Vice-President during transitional periods. Several times during the twentieth century when a vacancy occurred in the office of the US Vice-President due to the ascension of the Vice-President to the Presidency following the death or resignation of a US President, there was no immediate appointment of a Vice-President. From August 2, 1923 to March 4, 1925 there was a vacancy created by the ascension of Calvin Coolidge to the Presidency. When Harry S.Truman became President after F.D. Roosevelt’s death, the United States had no Vice-President for more than three years, from April 12, 1945 until January 20, 1949. Similarly, immediately following the assassination of John F. Kennedy on November 22, 1963, a Vice-President was not appointed until January 20, 1965, when Hubert Humphrey was sworn in after having been selected as the running mate for Lyndon B. Johnson for the elections of November 1964. Most recently, a vacancy occurred in the office of Vice-President from August 9, 1974 to December 19, 1974 with the ascension of Gerald Ford to the Presidency following the resignation of Richard Nixon. In all these cases, the respective governments functioned smoothly even though there was no Vice-President.

The reason for the apparent lack of haste in the appointment of a Vice-President during such transitional periods is obvious. The person nominated to be Vice-President under the extraordinary circumstances specified in the Constitution would in effect be appointed to the position and would not have gone through the most democratic process of an election. To minimize errors in the use of a process - albeit constitutional - in which the general electorate does not have the opportunity to express an opinion directly (except indirectly through their representatives in the Legislature), care must be taken to vet prospective nominees through a process that is bound to be time-consuming and would involve extensive background checks to ensure that the eventual nominee would be acceptable to the general masses. It should be kept in mind at all times that the end goal is the selection of person who will not be filling an ordinary statutory post, but will be just a heartbeat away from the Presidency.

Therefore, it is imperative that the nomination process of a Vice-President for Ghana be guided by the wisdom expressed in the Latin maxim, Festina Lente, which literally means “hasten slowly.” In effect, the maxim requires important activities to be performed with a proper balance of urgency and diligence. Consistent with that very sound guideline, the nomination process should not be conducted in a manner designed solely to meet the strictures of self-imposed artificial deadlines not specifically mandated by the Ghana Constitution. If the all-important task of nominating a Vice-President is rushed too quickly, mistakes could be made and good long-term results may not be achieved. Therefore, His Excellency President John Dramani Mahama should not be pressured unduly to come out with a nominee for Vice-President in a relatively too a short time after his assumption to the office of President. Instead, he should be given sufficient latitude to carry out the necessary due diligence and consultations with persons both inside and outside government.

Professor Paul Kuruk

Professor of Law, Cumberland School of Law of Samford University, USA; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV), Accra.