How to Amend the Constitution of Ghana

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Ghanaman 11 years ago

The constitution was adopted by popular vote. That should be the only way to change it.

The constitution was adopted by popular vote. That should be the only way to change it.
John Alass 11 years ago

The law is not about what should be done

The law is not about what should be done
Kwasi Nkua 11 years ago

90% of us do not understand a word of all these constitutional jargon.All we want is for the govt to provide us with certain simple basic amenities.Good roads,hospitals,schools,clinics,safe drinking water and a decent/afforda ...
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90% of us do not understand a word of all these constitutional jargon.All we want is for the govt to provide us with certain simple basic amenities.Good roads,hospitals,schools,clinics,safe drinking water and a decent/affordable housing in the major cities.Is this too much to ask?
Otu 11 years ago

"Nor can the President, or other Constitutional bodies, conscript Parliament into amending the Constitution."

Learned Sir:

Is there a provision in the constitution that prohibits the president from conscripting the parl ...
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"Nor can the President, or other Constitutional bodies, conscript Parliament into amending the Constitution."

Learned Sir:

Is there a provision in the constitution that prohibits the president from conscripting the parliament to amend the constitution of Ghana?
John Alass 11 years ago

Yes! In law, if the government is not allowed to do something then that thing is forbidden. However, for people when something is not forbidden then it is allowed.

So if the President does not have a specific power to cons ...
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Yes! In law, if the government is not allowed to do something then that thing is forbidden. However, for people when something is not forbidden then it is allowed.

So if the President does not have a specific power to conscript Parliament then the author is right to say the President cannot conscript Parliament.
Otu 11 years ago

"Yes! In law, if the government is not allowed to do something then that thing is forbidden."

So, you are saying if the law does not say "Government can do A and/or B," then government may not do A and/or B, right? Does th ...
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"Yes! In law, if the government is not allowed to do something then that thing is forbidden."

So, you are saying if the law does not say "Government can do A and/or B," then government may not do A and/or B, right? Does that prevent a parliamentarian from offering an executive originated bill as their own, unbeknownst to their parliamentarian colleagues?
John Alass 11 years ago

The President has an MP. He can sell his ideas to the MP. But he cannot use state funds to set up a commission to draft bills for the MPs.

The President has an MP. He can sell his ideas to the MP. But he cannot use state funds to set up a commission to draft bills for the MPs.
Bonsu 11 years ago

Those who framed our 1992 Constitution have not explicitly excluded the President from the frontend amendment process as Asare wants us to believe. To argue that the President has been assigned a backend mandatory assent fun ...
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Those who framed our 1992 Constitution have not explicitly excluded the President from the frontend amendment process as Asare wants us to believe. To argue that the President has been assigned a backend mandatory assent function because the framers wanted to avoid the turmoil that we are currently witnessing in Burkina Faso is preposterous.

As a preliminary matter, the President is not attempting to "amend" the constitution, as alleged. He is trying to "initiate" an amendment.

Asare's argument is over who gets to "initiate" a bill proposing the amendments of our constitution. He believes it is a function exclusively reserved for parliament but he is wrong. The fact of the matter is that the president can initiate a bill proposing an amendment, pursuant to the president's mandate with respect to Commissions of Inquiry.

Technically, Chapter 25 is silent on the power to initiate the amendment of the constitution though the formalities and procedure were addressed in the constitution .As it is, Asare is now relying on a provision in 297(c) which deals with "implied powers" but that is not a convincing argument as it works for both sides of the argument.

The Constitution could have specifically exempted Chapter 25 from the president's commissions of inquiry powers, or better yet, the exclusive power to initiate bills to amend entrenched provisions could have been made explicit under Chapter 25. The phrase ("and parliament alone") would have resolved the issue, although a more exhaustive sentence will now be better.
Akoto Lante 11 years ago

Your argument is silly. Did you read his article, where he says that Commissions are of a specific nature and must operate under certain rules.

Is there something in Chapter 25, which refers back to Chapter 23? If not then ...
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Your argument is silly. Did you read his article, where he says that Commissions are of a specific nature and must operate under certain rules.

Is there something in Chapter 25, which refers back to Chapter 23? If not then you are just engaging in an idle argument
Otu 11 years ago

"Chapter 25 is silent on the power to initiate the amendment of the constitution though the formalities and procedure were addressed in the constitution."

So, Asare is arguing that if the constitution is silent on an issue ...
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"Chapter 25 is silent on the power to initiate the amendment of the constitution though the formalities and procedure were addressed in the constitution."

So, Asare is arguing that if the constitution is silent on an issue, then that issue is forbidden. I'm not a lawyer, but that does not sound well to me.

John Alass 11 years ago

It is not silent.

It is not silent.
Otu 11 years ago

"It is not silent."

Where does it explicitly say that the president may not initiate an amendment? Quote and reference, please. Danke.

"It is not silent."

Where does it explicitly say that the president may not initiate an amendment? Quote and reference, please. Danke.
John Alass 11 years ago

Where does it explicitly say the President cannot be a Judge; or an MP cannot appoint a minister; or a Judge cannot pardon a convict?

I am sorry but you are reading constitution like an illiterate.

The branches of gover ...
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Where does it explicitly say the President cannot be a Judge; or an MP cannot appoint a minister; or a Judge cannot pardon a convict?

I am sorry but you are reading constitution like an illiterate.

The branches of government enjoy enumerated powers. If the constitution allows them to do something then they have power. Otherwise they do not.

If a power is given to another branch of government then that power cannot be exercised by the other branches.
Otu 11 years ago

I am indeed an illiterate when it comes to the constitution. But you the literate one are not differentiating yourself from me. I think I'll go to law school.

I am indeed an illiterate when it comes to the constitution. But you the literate one are not differentiating yourself from me. I think I'll go to law school.
Dr. SAS, Attorney at Law 11 years ago

Laws are not framed to reach absurd consequences......The idea that the president is excluded totally from the process of amending our constitution is absurd.
How does it square with you to conclude that parliament and parli ...
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Laws are not framed to reach absurd consequences......The idea that the president is excluded totally from the process of amending our constitution is absurd.
How does it square with you to conclude that parliament and parliament alone can initiate constitutional amendment, and what is your definition of initiation?
If it was the intent of the framers of our constitution to exclude the president from initiating constituttional amendment, they would have so stated explicitly, and left no smidgen of doubt about their exclusionist intent. They did not.
Finally, the interpretation of laws ought to take cognizance of case law in general, precedent elsewhere in particular, and general common sense in context. Your proposition that the president is excluded from constitutional amendment finds no source or application or precedent anywhere. Besides, it is not sensible.
The fact that Blaise Compaore sought to perpetuate his rule through constitutional amendment has nothing to do with the idea that if granted the power to initiate constitutional amendment, presidents will automatically abuse that power. A president who will abuse his power will abuse his power whether or not he has that power.
Therefore instead of wasting time on a questionable exclusionist argument, we should focus on the types of proposed changes that are being bandied about and offer healthy input. If all we lawyers are doing is just fixating on abstract arguments, we will wake up one day to discover that the president will do whatever he wants with parliament even if the power devolves to parliament to "initiate" constitutional amendments.
Remember Kwame Nkrumah who used the proper parliamentary procedure to make himself life president. In that particular case, it was parliament itself that "initiated" the amendment.Therefore the debate should not be about who initiates what, but rather what is in the works to be initiated.
Nana Mbrah 11 years ago

You lie. In most countries, presidents are barred from amendments. A good example is USA

You lie. In most countries, presidents are barred from amendments. A good example is USA
Otu 11 years ago

That certainly sounds sensible to me.

That certainly sounds sensible to me.
Dr. Law 11 years ago

You may be an Attorney at Law but you do not know Jack about Constitutional Law.

You may be an Attorney at Law but you do not know Jack about Constitutional Law.
Kofi Ata, Cambridge, UK 11 years ago

Dr SAS, before we answer the question on whether the framers intended to prohibit the president from (initiating) amending the Constitution or not, I believe that it is important to ask why the right of the President to do s ...
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Dr SAS, before we answer the question on whether the framers intended to prohibit the president from (initiating) amending the Constitution or not, I believe that it is important to ask why the right of the President to do so is explicitly missing Article in 278 and 289. Is it not interesting that the Executive is using the prerogative right of the President to set up commissions and the public interest test to claim that the President has the constitutional authority to initiate an amendment to the constitution? I have have the privilege of reading a copy of the AG's response to Prof Asare's suit on this matter and I can tell you that, I am more convinced than ever that I was right in supporting the view of Prof Asare earlier (see my article, "A Rejoinder: The Quest for Constitutional Reveiew in Ghana", Ghanaweb July 24, 2014).

The AG's argument rests entirely on public interest test and creates the impression that the President has constitutional powers on any matter of public interest. That suggests that there are no off limits for the president because the constitution requires that any action and omission of the President of the Republic must be in the public interest. Consequently, the president could initiate a constitutional amendment. In my view and for the argument made Prof Asare's article, using Article 278 to justify the president constitutional authority to initiate constitutional amendment is very weak.

The strongest case for baring the president initiating a constitutional amendment is Article 289. Why do I say so? One must consider the working relationship between the President and the Council of State vis-à-vis that of Parliament and the Council of State. The President works very closely with the Council of State on most constitutional matters (as required under the Constitution). Why is it that despite this closeness between the President and the Council of State, it is Parliament and not the president that must send the draft constitutional amendment bill to the Council of State? My answer is unambiguous. That is, it was not intended to be the president who should draft the bill but parliament. If it is the president who is to draft the bill, particularly with the entrenched provisions since parliament was not even to debate it but publish it why pass it through parliament to the Council of State when the President is closer to the Council of State?

We should not confuse by the normal role of the Executive to initiate, draft and present bills to the Legislature for approval with that a constitutional amendment bill, which is not part of the normal or regular duties of the Executive in policy and decision making processes. Constitutional amendments are one-off events that do not occur regularly.

In your response, you say there are precedents of the Executive initiating constitutional amendments but you did not provide any example. Any reason?

For those of who say what Compaore did could not happen in Ghana, and therefore the Executive should initiate constitutional amendment should be careful in assuming the social, economic and political environment will remain the same and would be positive forever. The fact that today we have a president who will not want to abuse his powers to amend the constitution for his personal or political interest does not mean that in the future Ghana could not have a situation where such conditions will inure to a very popular and powerful president with massive majority in parliament and across the nation who could change the constitution for his or her personal and political interests. In Hungary, a very popular right wing and xenophobic Prime Minister who fought against totalitarian communist governments has used his massive popularity and overwhelming majority in parliament to change the constitution for his political ambition. He was originally supported by the US and EU but they are both now worried about the direction he is taking his country. To think that this could never happen in Ghana is naive and perhaps lack of better appreciation of global history. Remember, Hitler came to power through popular democratic processes.

I believe that the President is not the one to initiate a constitutional amendment but at the same the president is not precluded from participating in the processes once it has been initiated by parliament. Let's keep the debate going.
Dr. SAS, Attorney at Law 11 years ago

You have to put whatever you say in context by defining "initiate" and asking yourself whether by setting up a committee to source ideas for a constitutional amendment, the president has acted ultra vires.
Thereafter, you w ...
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You have to put whatever you say in context by defining "initiate" and asking yourself whether by setting up a committee to source ideas for a constitutional amendment, the president has acted ultra vires.
Thereafter, you will see clearly that nothing in Prof. Asare's suit or your argument prevents a president from doing whatever he wants with parliament if he has an overwhelming majority.
Then again, as I have argued elsewhere, "initiating constitutional amendment" is a term that is overbroad and may include alll citizens. If ordinary citizens can "initiate" or "suggest" or "consider" an amendment to a constitution, there is no reason to presume that the president is barred from doing so.
Prof.Asare's suit will certainly fail for mootness and illogicality. But more importantly, it distracts from the real issue of evaluating the content of the proposed amendments for signs of presidential over-reaching.

Kofi Ata, Cambridge, UK 11 years ago

Dr SAS, you know I am not from the "I put it to you fraternity", so I am not sure if you are asking for a legal or ordinary definition of "initiate" The ordinary or Wikipedia definition which is the one I referred to in my c ...
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Dr SAS, you know I am not from the "I put it to you fraternity", so I am not sure if you are asking for a legal or ordinary definition of "initiate" The ordinary or Wikipedia definition which is the one I referred to in my comment is: "to cause something (a process or action) to begin", including to begin, to start, to commence, etc.

I am not in any way (and I believe Prof Asare also is of the same view) suggesting that by setting up a committee to source ideas for a constitutional amendment, the president has acted ultra vires. However, I am of strong the opinion that the fact that the president has not acted ultra vires makes his action constitutionally right.

I have also have no problem with any citizen initiating a constitutional amendment as far that citizen is not the president or part of the Executive.
Dr. SAS, Attorney at Law 11 years ago

There is no power wielded by any ordinary citizen which is not also wielded by the president or members of the executive. Therefore the proposition that citizens have certain rights which the president does not have is absurd ...
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There is no power wielded by any ordinary citizen which is not also wielded by the president or members of the executive. Therefore the proposition that citizens have certain rights which the president does not have is absurd.
You state: "I am of the strong opinion that the fact that the president has not acted ultra vires makes his action constitutionally right."
Shelve your opinion and argue why he is wrong.
Kofi Ata, Cambridge, UK 11 years ago

As an ordinary citizen I can sue the government of Ghana, headed by the President. Can the President or a member of his cabinet as an ordinary citizen sue the same government whilst still in office? I do not think so because ...
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As an ordinary citizen I can sue the government of Ghana, headed by the President. Can the President or a member of his cabinet as an ordinary citizen sue the same government whilst still in office? I do not think so because the president is not an ordinary citizen. The president is the first citizen.

We have argued among others that it is wrong because it's a bad precedence which if unchallenged could threaten constitutional democracy (the potential risk of a future president relying on massive popularity and overwhelming parliamentary majority to change the constitution for personal and political interests).

Are you seriously suggesting that I/we have not argued why it is wrong? Let's be serious.
Dr. SAS, Attorney at Law 11 years ago

You want the president to sue his own government? Can you sue yourself? A suit is between two adversarial parties, and not by the same entity against itself. The right to sue oneself is not a citizen's right nor the president ...
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You want the president to sue his own government? Can you sue yourself? A suit is between two adversarial parties, and not by the same entity against itself. The right to sue oneself is not a citizen's right nor the president's right. But the right of the citizen to sue the government is assured....and so is the right of the president/government to sue any citizen.
You should rather ask whether the president or his government can sue a citizen. And your answer will be "yes".
The broader question is whether the president can "initiate" or "suggest" or "commence" constitutional amendment. And the answer is "yes".
Kofi Ata, Cambridge, UK 11 years ago

Are you suggesting that President Mahama is the government? He heads the government but not the government. The two are not the same. If the government is sued by A ,it's A vrs the Republic of Ghana or the AG and not A vrs Ma ...
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Are you suggesting that President Mahama is the government? He heads the government but not the government. The two are not the same. If the government is sued by A ,it's A vrs the Republic of Ghana or the AG and not A vrs Mahama. This is not because the president cannot be sued whilst in office but first and foremost, the two are separate legal entities. Again, when ministries are sued it's not someone vrs the minister but the ministry. The point I wanted to make was that President Mahama is not an ordinary citizen.

We have different views on this matter which is helpful in a democracy so let's wait to see what the Supreme Court will say. Good night from this side of the pond. I hope it's been a good debate.
Dr. SAS, Attorney at Law 11 years ago

This is a bad debate......Your view of the law is worse than I thought. In fact your view of the law is jaundiced. I will no longer waste my time debating one that is so clueless.

This is a bad debate......Your view of the law is worse than I thought. In fact your view of the law is jaundiced. I will no longer waste my time debating one that is so clueless.
Bonsu 11 years ago

Parliament has different functions with respect to amending entrenched provisions versus non-entrenched provisions. In respect to the scope of chapter 25 the constitution was silent on the initiation process other than that a ...
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Parliament has different functions with respect to amending entrenched provisions versus non-entrenched provisions. In respect to the scope of chapter 25 the constitution was silent on the initiation process other than that as a matter of protocol parliament has a role in both the entrenched and non entrenched amendment process.

Upon passage by the electorate, parliament is required to pass the amendment and the president is required to assent to it, no questions asked. Parliament actually has a very limited role in amending entrenched provisions under article 25. Their function is passive with respect to entrenched provisions of the constitution.

According to section 2 of the chapter 25 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.

Since Chapter 25 is silent on the power to initiate the amendment of the constitution the only provision to rely on is provision 297(c) which deals with "implied powers" but that works for both sides of the argument. It is there reasonable to use the public interest test argument under the Chapter 23 which states that

278.

(1) Subject to article (5) of this Constitution, the President shall, by constitutional instrument, appoint a commission of inquiry into any matter of public interest where-

(a) the President is satisfied that a commission of inquiry should be appointed; or

(b) the Council of State advises that it is in the public interest to do so;

I don't think there is any ambiguity here,if there is a clamour to amend certain aspects of the constitution and it is in the public interest to do so,then the president can initiate that but parliament as well has a role. Asare's argument to exclude the president from exercising that role is preposterous and must be resisted.
Dr. SAS, Attorney at Law 11 years ago

Good job!!

Good job!!
John Alass 11 years ago

Where does it explicitly say the President cannot be a Judge; or an MP cannot appoint a minister; or a Judge cannot pardon a convict?

I am sorry but you are reading constitution like an illiterate.

The branches of gove ...
read full comment

Where does it explicitly say the President cannot be a Judge; or an MP cannot appoint a minister; or a Judge cannot pardon a convict?

I am sorry but you are reading constitution like an illiterate.

The branches of government enjoy enumerated powers. If the constitution allows them to do something then they have power. Otherwise they do not.

If a power is given to another branch of government then that power cannot be exercised by the other branches.
Kwame 11 years ago

Capitalist Democracy is a Ruse. So the U.S. president has the right to veto a vote in Congress. What the current constitutional changes are about is to limit the power of the president of Ghana, thus limiting his ability to r ...
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Capitalist Democracy is a Ruse. So the U.S. president has the right to veto a vote in Congress. What the current constitutional changes are about is to limit the power of the president of Ghana, thus limiting his ability to run the economy. We will then turn round to call in IMF to run the economy for us forgetting that no Ghanaian voted the IMF to power. When ever the Breton Woods Institutions run an economy they do so without responsibility. Whom are they responsible to. Poverty of social thought of our intellectuals.

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How to Amend the Constitution of Ghana

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