Why Ghana may not be able to remove an unfit president from office

Every nation thrives on the bedrock of its constitution, the very framework that governs, shapes, and reflects the values of its people. As the grundnorm from which all laws derive their authority, the constitution must remain fundamentally relevant at all times and be in tune with present and future realities.

Is Ghana’s 1992 Constitution robust enough and in tune with future realities or some of its flawed provisions could be exploited to create a constitutional crisis if they are not amended? One of the provisions I consider flawed and could potentially create a future constitutional crisis is article 69, which deals with the removal of the President from office.

Article 69 of the Constitution provides that the President shall be removed from office if he is found to have wilfully violated the oath of his office or provisions of the Constitution or conducted himself in a manner which is likely to bring the high office of President into disrepute, ridicule or contempt.

Article 69 further provides that the President shall be removed from office if he is incapable of performing the functions of his office by reason of infirmity of body or mind.

A President who seriously misconducts himself or becomes totally and permanently incapacitated either physically or mentally, must be swiftly removed from office for the Vice President to be elevated to the high office of President to avoid governance being adversely affected by the inability of the President to perform his functions. Easier put in the Constitution than in practice, methinks.

Article 69 then goes on to outline the means by which the President shall be removed from office. A minimum of one-third of all the members of Parliament may trigger the removal of the President by signing a written notice stating that the conduct or the physical or mental capacity of the President be investigated.

They shall then give the signed notice to the Speaker of Parliament who would in turn write to the Chief Justice with the notice attached and copied to the President.

Per article 69, the Chief Justice shall, by a constitutional instrument, constitute a tribunal made up of himself/herself and the four most senior Justices of the Supreme Court to determine if there is a prima facie case for the removal of the President.

If the removal of the President from office is on the grounds of physical or mental incapacity, the tribunal shall be aided by the head of the Ghana Health Services to constitute a medical board made up of eminent medical specialists, who shall examine the President and obviously submit its report to the tribunal.

The President is at liberty to appear before the tribunal or the medical board to defend himself either personally or by a lawyer or an expert.

Where the tribunal or medical board, as the case may be, determines that there is a prima facie case for the removal of the President from office, the Chief Justice shall submit the findings to the Speaker of Parliament with the President in copy. Parliament shall then move a resolution and vote by means of a secret ballot (two-thirds prevails) to determine if the President should be removed from office.

The framers of the Constitution may have had the best of intentions to mandate Parliament to initiate or trigger the removal from office of the President on stated grounds but in reality, this may be difficult to do for reasons stated below.

Generally, members of Parliament are not angels assembled from heaven to dutifully obey what the Constitution requires of them. They may have vested interests. If there are loopholes in the Constitution, they may exploit it to their personal advantage. And if exploiting the constitutional loophole is in the interest of their party, they may be “whipped” in line to obey the orders of the party.

For instance, if the opposition has one-third majority in Parliament, they may still be reluctant to trigger the removal of the President. This is because they would be better of having an infirmed and ineffective or a scandal-ridden President occupying the presidency for electoral gain at the next elections rather than removing and replacing him with a Vice President of the same ruling party, who might turn the fortunes of the country and his party around and ride on a new wave of popularity to defeat the minority party at the polls.

On the other hand, if the ruling party has one-third majority in Parliament, it may even be more difficult commencing an action to remove the President from office on stated grounds.

There could be some members of Parliament, on the majority side, aligned with the Vice President and hoping their fortunes would change if the President is removed from office and the Vice President succeeds him. At the other end of the spectrum, there could also be those MPs, from the same majority side, who may have benefitted from the President, by way of appointments and other favours, and would move heaven and earth to keep an ailing or scandal-plagued President in power for their own parochial interest.

Then again, there could be the ruling party hierarchy who may compel its members in Parliament not to start or support any action to remove the President from office because it could affect their electoral fortunes.

Now, let us take a step up the ladder. Granted one-third of the members of Parliament sign a notice to remove the President from office and this is delivered by the Speaker of Parliament to a Chief Justice appointed by the President who is at risk of removal from office.

If, more so, the grounds for removal is mental or physical incapacitation, then it could be the turn of the Chief Justice and the Head of the Ghana Health Services, who may also have been appointed by the same President, under pressure, to return the President’s favour by finding no prima facie case for the removal of the President.

Again, let us assume the tribunal finds a prima facie case for the removal of the President from office and refers the matter to Parliament for voting by a secret ballot. Remember that after a prima face case has been established for the removal of the President, per article 69, two-thirds of members of Parliament must vote in favour of the resolution to remove the President from office for it to be effective.

Since the commencement of the fourth Republic, the ruling party has always had the majority of their members in Parliament. It would therefore be extremely difficult for two-thirds of members of Parliament to be marshalled to vote to remove a sitting President, most especially, in the light of the considerations indicated above.

So, what can be done to avert a constitutional crisis in this regard?

The Constitution should be amended to take away from Parliament, the power to trigger the removal of the President from office. Any citizen of Ghana, who has strong evidence that, in view of article 69 of the Constitution, the President is not fit to continue functioning as President, may file a petition at the Supreme Court for the removal of the President from office. Upon receipt of the petition, the Chief Justice shall inform the Judicial Council of the petition in writing with the President in copy.

The Judicial Council shall then meet to randomly select seven Justices of the Supreme Court, by means of technology, to be empanelled to hear the Petitioner and the President to determine whether there is justification for the removal of the President from office.

The random selection of the Justices to hear the petition for the President’s removal from office is to ensure additional fairness and eliminate any bias, real or perceived, in adjudicating such a sensitive matter which will be in the public’s interest.

If the grounds for removal of the President from office, as contained in the petition, is physical or mental incapacity of the President, the President shall submit himself to the petitioner’s medical experts, the President’s personal medical experts (if he so wishes to do) as well as a pre-constituted Presidential Health Assessment Medical Board for independent examination by these three groups of experts. These medical experts would be required to testify separately at the hearing to determine whether there is justification for the removal of the President from office.

The Presidential Health Assessment Medical Board must be a body created by a Constitutional Instrument to be called upon to examine the President if a citizen of Ghana files a petition for the removal of the President on health grounds. The power to constitute membership of the board should be vested in the Ghana Medical Association (GMA). Membership should be based on expertise and eminence.

Where, by a majority decision, the Justices of the Supreme Court determine that there is indeed justification for the removal of the President from office, the President shall have thirty days to appeal to the Supreme Court for review of the judgment.

Where the Supreme Court determines that per its final decision, the President must be removed from office, the judgment of the Supreme Court shall be referred to the Speaker of Parliament for Parliament to begin the process of formally removing the President from office.

This process shall involve the Speaker of Parliament formally writing to the President to inform him of the Supreme Court’s decision and directing the President, as part of the transition, to begin formally briefing the Vice President, who would be the in-coming President, on the state of affairs pending the formal swearing-in of the Vice President.

The outgoing President shall, his health permitting, also address Parliament on the state of the nation’s affairs before he leaves office. The date for the swearing-in of the Vice President, as the new President, should be set by Parliament and the actual swearing-in done within one month after the Speaker of Parliament’s receipt of the Supreme Court’s decision via the Chief Justice.

You may recall that in 2010, Nigeria suffered a constitutional crisis when President Umaru Musa Yar’Adua became incapacitated by a debilitating illness and went missing from Nigeria thereby paralysing the executive and enabling unelected officials close to the President to allegedly forge his signature to siphon money from Nigeria among other alleged corrupt acts. It was the eventual death of President Yar’Adua that resolved the constitutional crisis and enabled the then Vice President, Goodluck Jonathan, to take over as President of Nigeria.

Ghana cannot afford to go through such constitutional crisis and the only way to avert it is to amend the Constitution to be in tune with some of these future realities outlined in this article.