For a moment, I thought that you had some brainwave of legal ingenuity here; until your naivete burst forth and spoiled everything.
Were you discussing the pending appointment of the EC? If so, you lost your way b ... read full comment
Kofi,
For a moment, I thought that you had some brainwave of legal ingenuity here; until your naivete burst forth and spoiled everything.
Were you discussing the pending appointment of the EC? If so, you lost your way before you even began when you jumped to patronage appointments.
Your best line in this article thus far is:
"The question the Justices who are sitting on this case must pose and answer is, who searched, identified and selected them for appointment as Supreme Court Justices? "
And if you had expatiated this further, you could have predicted that the Supreme Court will not disturb the established custom, tradition and convention without extraordinary reason. And then you would become a legal genius by predicting that this case is headed for the dumpster.
But I think you lost it.
Eddie 8 years ago
Listen to this idiot! .He didn't lose anything.He said it as it is! .No legal person worth his call,will take this issue to court for interpretation! .Let me also remind you that Kofi Ata is deep into law or legalities.Your c ... read full comment
Listen to this idiot! .He didn't lose anything.He said it as it is! .No legal person worth his call,will take this issue to court for interpretation! .Let me also remind you that Kofi Ata is deep into law or legalities.Your chicken interpretation is nowhere near Kofi's understanding of law!
Kofi Ata, Cambridge, UK 8 years ago
Dr SAS, my argument is no different from your summary, so what your point? Was it just because I mentioned the appointment by patronage in Ghana and gave two examples? I know that was a minor detour but it was to emphasise th ... read full comment
Dr SAS, my argument is no different from your summary, so what your point? Was it just because I mentioned the appointment by patronage in Ghana and gave two examples? I know that was a minor detour but it was to emphasise the point that public appointments in Ghana is often not by the rule and therefore whatever happens, President Mahama will get his man or woman as EC Chairman.
Mahmoud 8 years ago
Appointing the Chairman and Members of the Electoral Commission
Columnist Asare, Kwaku S
The Ghana Bar Association (GBA) has called upon the President “to seize the opportunity of the appointment of a new Chairman of ... read full comment
Appointing the Chairman and Members of the Electoral Commission
Columnist Asare, Kwaku S
The Ghana Bar Association (GBA) has called upon the President “to seize the opportunity of the appointment of a new Chairman of the Electoral Commission (EC) to appoint a person of integrity who is perceived as capable and just and who will not pander to political pressures from any quarters.” According to the GBA, such an appointment will boost the image and credibility of the Commission.
I agree with the GBA on the attributes that the new Chairman of the EC must possess and strongly disagree with those who argue that the GBA’s call is, “at this time, highly unnecessary and uncalled for.” The tenure of Dr. Afari Gyan, the current Chairman of the EC, ends in November 2015 and it is not out of place for the GBA, or other stakeholders, to remind the appointing authorities to emplace a mechanism that assures that a competent and independent person can be identified and appointed.
Nevertheless, I am concerned that the GBA’s call overestimates, perhaps misunderstands, the President’s role in the appointment of the Chairman of the EC and has the potential to mislead the President into taking actions that will be ultra vires and inconsistent with his powers under the Constitution.
I start by acknowledging the breadth of the President’s appointment power under the Constitution. However, the nature of the power is position dependent, ranging from absolute, where the President acts alone, to perfunctory, where the President is required to appoint someone nominated by another body. For instance, the President has the power to appoint 11 members of the Council of State, 4 members of the Judicial Council and 2 members of the Police and Armed Forces Council. That power is absolute in that it is exercised solely at the discretion of the President without the involvement of any other constitutional body. On the other hand, the President appoints some officers, such as the Auditor General, in consultation with the Council of State while others, such as ministers, are appointed with the prior approval of Parliament.
The framers of the Constitution have imposed varying levels of constraints on the President’s appointment power for democratic, governance, prudential and historical considerations. Analyzing and understanding the nature of the President’s appointment power is, therefore, important to assuring that the power is exercised in the manner dictated by the Constitution.
In the Table below, I describe my understanding of the constraints that the Constitution imposes on the President's appointment power ranging from a Level 1 power (pure or absolute power) to a Level 10 power (perfunctory or ministerial power). In addition to the pure and perfunctory powers, I identify other appointments for which the President wields consultative, shared, or approval power. Consultative power means the President is required to consult another body prior to making an appointment. Shared Power means another body has to approve the President’s nomination. Approval Power means the President approves a nomination made by another body. Perfunctory power means the President is required to appoint persons nominated by other bodies. That is, the President has no involvement in selecting the nominee and no discretion in the appointment. Thus, the appointment power is merely ministerial involving no more than a mandatory appointment letter issued by the President. The process for appointing some public officers may involve a combination of powers. For instance, the President may be required to consult with the Council of State, hence a consultative power, and the nominee must be approved by Parliament, hence a shared power.
In addition to the Level and Nature of the power, the Table also provides the language employed by the Constitution and the positions for which the appointments are made. On close inspection of the Table, one observes that, as a general rule, the more independent the appointee is supposed to be in the performance of his task the more perfunctory the President's power. Such appointees also tend to have good-behavior life tenure. Conversely, the President typically acts alone to appoint persons who are part of bodies set up to advise him. These appointees tend to serve at the pleasure of the President or have tenure that is tied to the President’s. In effect, the nature of the President’s appointment power is remarkably nuanced and underscores the framers’ intention to subject the power to intricate and ingenious checks and balances.
As can be seen from the Table, the President’s power to appoint the Chairman and Members of the EC is at level 9a, which means that the power to make that appointment is perfunctory or ministerial. This is because Article 70(2) provides that, “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission.” The plain and ordinary meaning of Article 70(2) is that the President is obliged to act on the advice of the Council of State in appointing the Chairman and Members of the EC.
There are two important points about the “advice” contemplated in Article 70(2). First, it is a term of art. Advice, in constitutional law, is a binding instruction given by one constitutional officer to another. It is not “advice” in the everyday meaning of the word. Second, the advice must be in the form of an appointee not some attributes of the appointee. That is, the Council of State is required to give the President a nominee to appoint not advice in the form of, for instance, “Mr. President, we advice you to choose a man of integrity.”
The use of “advice” as a binding instruction has a long history in our Constitutional history. For instance, Section 16 of the 1957 Constitution provides that “the Governor-General, acting on the advice of the Prime Minister, appoints parliamentary secretaries to assist ministers.” Similarly, Section 7 of that Constitution provides that, “any minister may be removed from office by the Governor-General acting on the advice of the Prime Minister.” The Prime Minister at that time was Osagyefo Kwame Nkrumah and the Governor-General was Sir Charles Arden-Clerk [from March to June 1957] and the Earl of Listowel [June 1957 to June 1960]. It was, of course, well established, known and beyond dispute that the Prime Minister’s advice was binding on the Governor-General. Thus, the latter’s appointment power was merely perfunctory and the substantive power of appointment was vested in the Prime Minister. Moreover, it was also understood that the Governor-General played no role in the identification, vetting and selection or removal of the nominees, that power being vested in the Prime Minister.
As another example, both the 1969 (Article 30(2)) and 1979 (Article 37(2)) Constitutions provided that, “the Electoral Commissioner shall be appointed by the President, acting in accordance with the advice of the Council of State.” This simply meant that both President Edward Akufo Addo (1969-1972) and Hilla Liman (1979-1981) had a perfunctory appointment power with the substantive power to appoint the Electoral Commissioner vested in the Council of State. The framers of the 1992 Constitution did not break any new grounds in the process for appointing the Chairman and Members of the EC and clearly intended the meaning of advice as employed in the prior Constitutions.
Nor is that usage and meaning of advice unique to our constitutional history. The phrase originated in the United Kingdom and is still in use many common law jurisdictions. For instance, in the United Kingdom, the Queen appoints senior judges acting on the advice of the Prime Minister. In Canada, the Queen acts entirely on the advice of Canadian Government ministers. In Jamaica, the Governor-General, the Queen’s representative, acts in accordance with the advice of the Prime Minister. In all these cases, it is well understood that the advice given is binding and the Queen and Governor-General exercise only perfunctory powers.
Thus, when Article 70(2) of the 1992 Constitution provides that the President shall act on the advice of the Council of State, it contemplates that the Council of State (Council) will put in place a mechanism to search for, vet and nominate a candidate for the President to appoint. The Council could do so in a variety of ways. First, it could work through a committee of the Council. Essentially, this becomes a Search Committee tasked to identify a short list of qualified persons for the Council to choose from. Second, the Council is permitted to commission experts and other consultants to advise it. It could do so here. Third, the Council could advertise the position or call on citizens, political parties, NGOs, etc. to nominate candidates either to the Council at large or to the Search Committee. Finally, the Council could use my least favorite approach ? choose someone from within the EC, probably from the other members or a respected senior staff.
The important point is that Article 70(2) not only obligates the President to appoint whomever the Council nominates but it also bars the President from sending a name or otherwise consulting with the Council prior to the nomination. This process can be contrasted to the level 2 appointments where the Constitution contemplates a consultative process. For instance, the President appoints the District Assemblies Common Fund Administrator acting in consultation with the Council of State. By creating subsections of Article 70, the framers highlighted that the process for appointing Article 70(1) officers differs from that of Article 70(2) officers.
The rational for assigning the President a perfunctory role in the appointment of the Chairman and Members of the EC is not far fetched. The EC is, in essence the political referee of the quadrennial political games, and it is flawed constitutional design for the President, a key political player, to have an active role in the EC’s appointment. Incidentally, this, in my opinion, is also the reason why Parliament is excluded from this appointment process. It would have been absurd to assign the President a critical role in the appointment process and exclude Parliament, hence the opposition parties, from the process. Thus, a purposive interpretation of Article 70(2) will also support the conclusion that the President’s power to appoint the Chairman and Members of the EC is only ministerial.
The framers operated on the assumption that the Council is an independent, non-partisan body and could be trusted with the task of essentially appointing the Members and Chairman of the EC. Thus, the Council's independence and integrity are critical to the effectiveness of this appointment scheme. Nevertheless, because the President has a level 1 power to appoint 11 out of the 25 Council members, it is important that any process established by the Council to discharge its Article 70(2) function is transparent and verifiable. Without a high level of transparency and verifiability, it is impossible to know whether the President has acted on the advice of the Council or impermissibly acted in Consultation with the Council. Thus, sound governance and prudential considerations will require the Council to employ a transparent nomination, vetting and selection process. The Council must not only act independently of the President, in the discharge of its Article 70(2) responsibility, it must go the extra mile to be seen to be independent.
In conclusion, the President’s power to appoint the Chairman and Members of the EC is merely a ministerial one. The substantive power of appointment is assigned to the Council of State. The President shall act on the advice of the Council of State means the President is barred from the nomination, vetting and selection process. Those who framed the Constitution were keenly aware of the impropriety inherent in allowing the President, a political player, to play a critical role in selecting the political referee. Nevertheless, out of deference for the office of the President, the framers allowed him, as the Chief Executive Officer, the honour of “appointing” the candidate selected by the Council of State. In this case, all the President is required to do is to issue the appointment letter under the Presidential seal but no more.
If the lawmakers had intended for the advice of the Council of State to be binding on the President, they would have stated so in their article. Nothing in that article precludes the President from turning down a particular c ... read full comment
If the lawmakers had intended for the advice of the Council of State to be binding on the President, they would have stated so in their article. Nothing in that article precludes the President from turning down a particular choice of the Council of State and asking it to submit another recommendation. If Parliament intended the advice of the Council of State to gbe binding on the President, then it should have stated so in the article. The fact that the article speaks to "advice", that should lead one to believe that the Council of State's advice to the President is not intended to be binding and thus leaves room for the President to decline the Council's advice and request a new recommendation. While the debate lingers, Parliament should be reminded to make laws that make sense to every voter instead of drafting laws that are so vague they leave room for folks to waste time and resources fighting it out in the courts.
CLARK 8 years ago
Mr Ata,I am not a lawyer,neither do I have any legal background,but I made the same argument here in the US,excluding the example you made about the US.
This is just simple common sense argument! .Majority of the members of ... read full comment
Mr Ata,I am not a lawyer,neither do I have any legal background,but I made the same argument here in the US,excluding the example you made about the US.
This is just simple common sense argument! .Majority of the members of the council of state are the president 's appointees.So whether Jonah swallowed the whale or the whale swallowed Jonah,there was a swallow,period! .
Kwobia (Toronto) 8 years ago
Funny.It's only the NPP that is making a lot of noise about who appoints the EC chairman.If they were in the driver's seat they would want no interference.Kuffour filled the judiciary with his own men and women.Talk about hy ... read full comment
Funny.It's only the NPP that is making a lot of noise about who appoints the EC chairman.If they were in the driver's seat they would want no interference.Kuffour filled the judiciary with his own men and women.Talk about hypocrisy!
Abeeku Mensah 8 years ago
It is a testament to a wasteful Supreme Court of the land that has lost its luster and reverence. Most of the cases filed with the Supreme Court are not meritorious but political because the Kufour administration used the cou ... read full comment
It is a testament to a wasteful Supreme Court of the land that has lost its luster and reverence. Most of the cases filed with the Supreme Court are not meritorious but political because the Kufour administration used the courts to go after the opposition and made Ghana's highest court a disrespected court. In countries where the Supreme Court continues to be the court of last resort cases are accepted where appellate courts have rendered contradictory judgments and or clarification of laws of precedent is needed to save the courts. In Ghana we use our highest court for what it has become.
Kofi Ata, Cambridge, UK 8 years ago
Abeeku Mensah, I couldn't agree with you more. Instead of the High and Appeal Courts dealing with some cases, it appears every case emanating from government decision must go to the highest court of the land. In fact, some ca ... read full comment
Abeeku Mensah, I couldn't agree with you more. Instead of the High and Appeal Courts dealing with some cases, it appears every case emanating from government decision must go to the highest court of the land. In fact, some cases that go to the Supreme Court are not about interpretation of the Constitution but a decision taken by government which is opposed by an individual or a group. You are right that Ghana's Supreme Court is becoming the first point of call instead of a court of last resort. It will soon become irrelevant because it would be burdened with numerous cases that the Justices would be unable to handle for reasons of judicial time.
Rita 8 years ago
Kofi, you said the case that would ever go before the Supreme Court would be the one concerning the appointment of the EC boss. I think the easiest case that the Supreme Court will forever handle was the 2012 election petitio ... read full comment
Kofi, you said the case that would ever go before the Supreme Court would be the one concerning the appointment of the EC boss. I think the easiest case that the Supreme Court will forever handle was the 2012 election petition.
LONTO-BOY 8 years ago
MASSA KOFI, personally, I would say the Supreme Court petition on the EC Chair appointment, at best, is simply an exercise in futility. Perhaps, this is like arguing over whether to use the Remote Control to switch on the TV ... read full comment
MASSA KOFI, personally, I would say the Supreme Court petition on the EC Chair appointment, at best, is simply an exercise in futility. Perhaps, this is like arguing over whether to use the Remote Control to switch on the TV or press the power button of the TV to turn it on.
Kofi,
For a moment, I thought that you had some brainwave of legal ingenuity here; until your naivete burst forth and spoiled everything.
Were you discussing the pending appointment of the EC? If so, you lost your way b ...
read full comment
Listen to this idiot! .He didn't lose anything.He said it as it is! .No legal person worth his call,will take this issue to court for interpretation! .Let me also remind you that Kofi Ata is deep into law or legalities.Your c ...
read full comment
Dr SAS, my argument is no different from your summary, so what your point? Was it just because I mentioned the appointment by patronage in Ghana and gave two examples? I know that was a minor detour but it was to emphasise th ...
read full comment
Appointing the Chairman and Members of the Electoral Commission
Columnist Asare, Kwaku S
The Ghana Bar Association (GBA) has called upon the President “to seize the opportunity of the appointment of a new Chairman of ...
read full comment
If the lawmakers had intended for the advice of the Council of State to be binding on the President, they would have stated so in their article. Nothing in that article precludes the President from turning down a particular c ...
read full comment
Mr Ata,I am not a lawyer,neither do I have any legal background,but I made the same argument here in the US,excluding the example you made about the US.
This is just simple common sense argument! .Majority of the members of ...
read full comment
Funny.It's only the NPP that is making a lot of noise about who appoints the EC chairman.If they were in the driver's seat they would want no interference.Kuffour filled the judiciary with his own men and women.Talk about hy ...
read full comment
It is a testament to a wasteful Supreme Court of the land that has lost its luster and reverence. Most of the cases filed with the Supreme Court are not meritorious but political because the Kufour administration used the cou ...
read full comment
Abeeku Mensah, I couldn't agree with you more. Instead of the High and Appeal Courts dealing with some cases, it appears every case emanating from government decision must go to the highest court of the land. In fact, some ca ...
read full comment
Kofi, you said the case that would ever go before the Supreme Court would be the one concerning the appointment of the EC boss. I think the easiest case that the Supreme Court will forever handle was the 2012 election petitio ...
read full comment
MASSA KOFI, personally, I would say the Supreme Court petition on the EC Chair appointment, at best, is simply an exercise in futility. Perhaps, this is like arguing over whether to use the Remote Control to switch on the TV ...
read full comment