The Quest for Constitutional Review In Ghana

By Dr. Samuel Adjei Sarfo

Attorney and Counselor at Law

An interesting debate is unfolding in Ghana about the constitutionality of the Constitutional Review and Implementation Committee appointed by the government of Ghana. The Committee, chaired by Prof. Emmanuel Victor Dankwah, was set up by the government to make proposals and recommendations for the review of the constitution of Ghana. The recommendations and proposals will then be subjected to a vote at a referendum.

But Prof. Kwaku Asare says, “Professor Dankwah and his so-called Constitution Review Implementation Committee have no power under the laws of Ghana to schedule a referendum and/or to amend the Constitution of Ghana.” He has therefore asked the Supreme Court of Ghana to issue an order directing the President, the Chairman and Members of the Constitution Review Commission, among other government officers, to cease and desist from taking any actions that seek to amend or otherwise disturb the Constitution insofar as such actions are inconsistent with Chapter 25 of the Constitution (writ # J1/12/2014).

It is the opinion of this writer that the Committee is properly established, and has so far done nothing wrong, and that all the reliefs being sought by the venerable professor should be denied by the august court.

The following are Prof. Asare’s core contentions:

1. It is common knowledge that the Constitution can only be amended by its terms.

2. It is also well known that Parliament is the sole body that can initiate, consider and propose amendments to the Constitution

3. Parliament’s power to amend the Constitution is not only plenary and exclusive but also cannot be delegated to or usurped by the President, the so-called Constitution Reform Commission or the Constitution Review Implementation Committee.

4. Further, it is trite knowledge that the President’s role in constitutional amendment is limited to the ministerial task of giving assent to bills properly passed by Parliament.

5. We maintain, as we have from 2010, that the President has no power to set up a commission to initiate amendments or draft amendment bills to the Constitution.

6. To the extent that the President has usurped Parliamentary powers and misappropriated Article 278(1) to traverse the amendment architecture emplaced by Chapter 25 of the Constitution, all actions taken by the Committee remain unlawful, unconstitutional, impermissible, null, void and of no effect.

The foregoing arguments posited by the respected professor may peremptorily make sense on its face but may not stand the test of a closer judicial scrutiny. It is true that the Constitution can only be amended by its terms. It is also true that the Constitution Review Implementation Committee has no power under the laws of Ghana to schedule a referendum and/or to amend the Constitution of Ghana. But these limitations cannot be broadly construed to mean that Parliament is the sole body that can initiate, consider and propose amendments to the constitution. Inherent in our democratic dispensation is the right to speech and the consequent right of the individual to have an opinion and to express this freely. This right is capsuled in the legal maxim “Everything which is not forbidden is allowed" and capsules the essential freedoms of the ordinary citizenry. But the converse principle — "everything which is not allowed is forbidden" — applies to public authorities whose actions are limited to the powers explicitly granted to them by law. To initiate, consider and propose amendments to the constitution are all implied in this intrinsic freedom of the people. Indeed, the debates afforded by these civil exercises are the necessary ingredients that make up a good bill for parliamentary consideration. Therefore to suggest that such actions are prohibited by the constitution when it comes to its own amendment is wrong. It is never wrong for the people’s input to be sought in any attempt to amend the constitution of Ghana!

It is also wrong for Prof. Asare to state that the President’s role in constitutional amendment is limited to the ministerial task of giving assent to bills properly passed by Parliament. All citizens of the country have the civil obligation to participate in any discourse concerning the constitution of Ghana and any intended amendment. The president has the same participatory right as a first citizen. Thus he is not to be seen as a lobotomized personage whose role is confined to the robotic assent of parliamentary decisions concerning the constitution. But in addition to his right as a citizen, he also has the power to appoint a commission to source opinion from the generality of the population in accordance with Chapter 23 of the constitution of Ghana which states inter alia that the President shall, by constitutional instrument, appoint a commission of inquiry into any matter of public interest. Thus the creation of the Constitutional Review Committee could be seen as the praxis of the president’s enumerated prerogative within the constitution itself. The President is therefore within the bounds of his power in appointing the Dankwa commission.

Viewed in this content, the Supreme court of Ghana cannot declare the establishment of the Constitution Review and Implementation Committee and all its actions “unlawful, unconstitutional, impermissible, null, void and of no effect” as being sought by Prof. Asare’s suit. However, the Committee will be acting ultra vires were it to go beyond its legal terms by doing any of the enumerated acts in Chapter 25 of the constitution. This chapter sets out how the constitution shall be amended. It states inter alia: Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution.

The chapter then sets out to define the scope of the parliamentary powers in amending specific areas of the constitution and then fully describes the proper procedures as follows:

(2) A bill for the amendment of an entrenched provision shall, before Parliament proceeds to consider it, be referred by the Speaker to the Council of State for its advice and the Council of State shall render advice on the bill within thirty days after receiving it.

(3) The bill shall be published in the Gazette but shall not be introduced into Parliament until the expiry of six months after the publication in the Gazette under this clause.

(4) 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 referendun held throughout Ghana and 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 favor of the passing of the bill.

(5) Where the bill is approved at the referendum, Parliament shall pass it.

In this respect, the constitution is clear on the proper procedures in amending it. What the Dankwah committee has done so far are not in violation of any part of the constitution insofar as the committee has limited itself to the ministerial exercise of sourcing input from the general public. But the committee will be going against the constitution were it to organize a referendum to effectuate amendments to the constitution. In this respect, it can only conduct opinion polls on any area of importance to it.

But so far, nothing done by the committee forms a legal basis for anybody to contend that it is about to hold a referendum or act in any way to impose constitutional amendments on Ghanaians. The basis of Prof. Asare’s suit appears to be that the committee is not legally established and that it is about to organize a referendum at some future time on certain issues. It is my position that the committee is constitutionally established. And concerning the referendum, the chairman’s statement made at a forum alone is not enough to justify a suit. The committee should take a concatenation of actions to further a usurpation of parliamentary powers before it could be susceptible to suit. In other word, Prof. Asare’s suit is premature and should be dismissed by the Supreme Court on the judicial philosophy that it lacks ripeness.

Notwithstanding all that I have said, the fact that we are debating the constitutionality of presidential actions and proceeding to court to test their validity is yet another testament that our democracy has indeed come of age.

Samuel Adjei Sarfo, Doctor of Jurisprudence, is a general legal practitioner in Austin Texas, USA. You can email him at sarfoadjei@yahoo.com