The power and tenure of an ‘acting president’

The power and tenure of an ‘acting president’ in Ghana:

TOWARDS A BETTER CONSTITUTIONAL PRACTICE

Daniel Korang (aka Prof)

Introduction

The position of the president dominates Ghanaian politics and assumes centrality in our system of governance. The constitutional powers of the executive branch of government are contained in Chapter eight (8) of the Constitution, which inter alia provides for a single president, determines the method of his election, provides immunity for the president and provides a fixed term of four years. The constitutional structure of the executive organ poses serious constitutional problems and issues with which “We the People” must be concerned. In this discourse, I propose to highlight some few matters of grave concern.

The Problem of Continuity

Under our constitutional arrangement, the powers of the president are vast, his privileges and immunities are enormous. In fact, the President is the Head of State and Head of Government and Commander-in Chief of the Armed Forces of Ghana (vide article 57(1)). The President takes precedence over all other persons in Ghana; and in descending order, the Vice-President, the Speaker of Parliament and the Chief Justice take precedence over all other persons in Ghana. The constitution stops short of specifying who has the privilege of becoming the acting President in the absence of the Chief Justice. More importantly, the constitution does not also create any constitutional injunction that all the four most important citizens cannot legitimately leave Ghana at the same time.

By the distinctiveness and peculiar demands of their offices, practice and experience, there is a possibility that the President, the Vice-President, the Speaker of Parliament and the Chief Justice can legitimately travel outside Ghana to undertake official assignments. This is a possibility because the constitution does not prohibit such a situation. What then happens and who becomes the acting president when all the four, by virtue of the demands of their respective offices, travel outside? Who should be sworn in as president? Is it constitutionally and practically feasible for the constitution to endlessly list names of persons who should act as president in that descending order? If this is feasible, how many persons should be listed in the constitution? Or is it a better option for the constitution to create a positive injunction forbidding the absence of all the four named most important citizens of Ghana at the same time? I shall return with suggestions.

When Should the Speaker of Parliament become the President?

Under our constitutional arrangement, it seems impossible for the office of the vice president to be vacant. The most problematic provision is article 60(11) which provides that: “Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.”

From the reading of this provision, it becomes clear that in the absence of both the President and the Vice- President, the Speaker of Parliament assumes the presidency. The question is that, does the mere absence of the president or the vice president mean that they are unable to perform their functions?

For better appreciation of our discourse, a homespun example may not be out of place here. When President John Mahama left Ghana for Mali recently, his vice, Mr. Amisa Arthur became the President of Ghana and was constitutionally mandated to perform all the functions of the president. However, the absence of the president happened contemporaneously with the vice president’s visit to the UK. Did the absence of H.E. Amisa Arthur mean that he was, in the strictest sense of the word, unable to perform his functions? It is important to note that the President attended an official functions for and on behalf of Ghana. He was rightly performing his international functions.

Therefore, on Thursday 19 September, 2013 when we had both President John Mahama and his vice president absent, it was wrong for the Speaker of Parliament to be sworn in by the Chief Justice as an acting president of Ghana. The situation where we have the speaker of parliament being sworn in as president in the merest absence of both the president and his vice president is unconstitutional.

It is important to also emphasise that what transpired on Thursday 19 September, 2013 where the speaker of parliament was sworn into office as the president was done pursuant to article 60 (11). Under article 60(11), the ONLY ground upon which the speaker of parliament qualifies to be sworn in as president is “Where the President and the Vice-President are both unable to perform the functions of the President…” One important question which demands an answer is this: when the president is ‘absent’ from Ghana on OFFICIAL DUTY, can he be said to be UNABLE TO PERFORM HIS FUNCTIONS? The president does not travel or visit different countries on his own volition or for his own pleasure. The president and the vice president have both internal and external functions. Therefore to swear the speaker of parliament into office as president where both the president and the vice president are on official duty abroad is contrary to the tenor of article 60 (11). Their absence does not, and cannot be legitimately, interpreted to mean that they are “unable to perform their functions”. Was Mr. Amisa Arthur disabled on Thursday 19 September, 2013? Emphatically no! The mere absence of the president or his vice cannot be a ground to warrant the swearing in of the speaker of parliament as president.

It is an intrinsic part of the president’s official duties to visit other countries and to take part in international matters. That is why article 59 stated that “The President shall not leave Ghana without prior notification in writing, signed by him and addressed to the Speaker of Parliament.” The point which needs emphasis is that when the president is outside Ghana, he is neither disabled nor unable to perform his functions, unless it is expressly addressed to parliament that the president or the vice president is absent on grounds of ill-health. The functions of the president and the vice are transnational in nature.

The Powers of an Acting President

Another area of grave concern relates to the constitutional powers of an acting president in Ghana. What are the powers of an acting president? Is it semantically proper to refer to the vice president as “acting president” in the absence of the elected president? Is he a full president or a mere “acting” subordinate? Article 60(8) provides that “Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform.”

From this article, when the Vice-President takes the place of the President, he is constitutionally mandated to perform all the functions relating to the office of the president. In fact, in the strictest sense of the word, the Vice President becomes the President. Interestingly, the vice president is not required to subscribe the oath in relation to the office of President whenever the president is “absent” from Ghana. He subscribes the presidential oath only when he assumes the presidency by virtue of death, resignation or removal from office of the president (see article 60(9)). Now, having become the president, the vice president has all the powers and privileges of the elected president. This situation creates a plethora of interesting questions.

If the elected president stays outside Ghana for more than one month, is the Vice President (who is now the president) entitled to the monthly salary, allowances, emoluments etc of a president or vice president? Regrettably, the constitution has no answer!

Yet another serious question is that, when the Vice President becomes the president, can he legitimately make new policies or reverse policies put in place by the absent president?

Also, when the absent president dies abroad, is he deemed to have died in office as the president of Ghana? Conversely, if the “acting” president dies in office before the return of the absent president, is he deemed to have died as a president of Ghana? Would he be given a presidential burial?

Again, when both the absent president and the “acting” president all die, which of them ought to be regarded as “our departed president”? Do they all die presidents?

Moreover, do both the absent president and the “acting” president act in a presidential capacity? If they both act in a presidential capacity, can we say that at a particular point in time, Ghana can have two presidents – internal president and external president? Obviously, when the president is on an official assignment abroad, he ultimately acts in his presidential capacity. Equally, when the acting president also undertakes domestic assignments, he does so in his presidential capacity.

More importantly, can an acting president give a presidential assent for a bill to pass as law? If he can, can the absent president, upon his return, withdraw the presidential assent if he is not satisfied with the bill? The constitution states that the ‘acting’ president has the power to perform all the functions of the absent president.

What happens when there is the need for the president of Ghana to undertake an urgent international assignment during the tenure of the acting president and during the absence of the elected president? Is the ‘acting’ president supposed to go outside Ghana or is it the already absent president who should do that from wherever he may be? The questions continue unabated!

The Tenure of Office of an Acting President

A clear reading of the provisions of the constitution reveals that, the tenure of office of an acting president is not only uncertain but is regrettably fraught with vagueness. In a purported effort to supply an answer, Article 60(11) provides that: “Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.” In the case of absence of the president, Article 60(8) provides that “Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform.”

When is “until the President returns or is able to perform”? When is the absent president deemed to have returned from his journey? Is it when his airplane enters the geographical territory of Ghana? Is it when he arrives at the airport or when he enters the office of the president? Regrettably, the constitution does not mandate that the acting president must hand over power to the returned president. Can it be said that when the president arrives in Ghana there are two presidents in Ghana? What happens when upon the arrival of the president into Ghana, the acting president is seriously in the middle of a particular presidential assignment at the Kwame Nkrumah Circle or at the Flag Staff House? Must the acting president stop for the returned president to continue? If no, should the returned president sit and watch the acting president? And if he does so, in what capacity does he sit in the audience - as president or exalted observer or second president?

The questions continue! When the president arrives in Ghana with sickness which renders him unfit to hold his office, it means that the acting president must hold office until the sick president “is able to perform” his functions (see article 60(8)). In this case, how many presidents do we have in Ghana? Does the sick president cease to be a president? If he does, must power necessarily be handed over to him upon recovery? If he does not cease to be a president, when does the tenure of the acting president terminate? Is it when the sick president notifies the acting president of his intentions to resume of

Conclusion

The 1992 Constitution is the only democratically approved document used in governing our country. If the constitution must retain its place and virtues as the supreme law of the land, then it must be complete in its scope, certain in its provisions and free from obscurities that hinder its meaningfulness. The issues raised in the foregoing analysis are important and impact greatly on the value of the constitution. It is therefore suggested that the provisions relating the office of the president be reviewed and better constitutional practice adopted to solve the problems highlighted above. A review will also have the added advantage of placing our constitution on a more admirable pedestal. The current constitutional practice relating to the absence of the president is more problematic and calls for an urgent attention.

(Readers should watch out for some modest suggestions in the next article.)

BY DANIEL KORANG

ENSO NYAME YE CHAMBERS

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