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Tue, Dec

Ghana: A Fresh Constitution?

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The 1992 constitution of Ghana is an interesting one. It allows dictatorship to be craftily constitutionalised. It does so by concentrating virtually all the powers ...
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A constitution sets the framework for governance. It contains the fundamental principles and laws defining not only the powers and duties of government, but also the rights and privileges guaranteed to the people among others. These fundamentals must be gotten right if any nation-building project like ours is to be successful. This means our constitution cannot escape blame when we are experiencing clear systemic difficulties in the way we organise ourselves for development.

The 1992 constitution of Ghana is an interesting one. It allows dictatorship to be craftily constitutionalised. It does so by concentrating virtually all the powers of the unitary state in the hands of the head of the executive branch of government, the president. The powers include the authority to appoint both heads of the other two branches of government. In the case of the legislature, a further level of executive influence is still created with the requirement to appoint 50℅ of ministers from Parliament. Also, the president has a further influence on the judiciary by the power to add to the number of Supreme Court judges. These aside, heads of all state security agencies including the police, military, and the rest are all appointed by the president. The same applies to heads of other state institutions such as the Council of State, the Electoral Commission, the Auditor General’s Department, CHRAJ, etc. The central bank governor, all heads of parastatal institutions and their board members, MMDCEs etc. are also appointees of the president. In a case like this where the president can exercise such influence and even more, no checks and balances can hold as corruption thrives. That is why as a nation in distress, we cannot afford to shy away from the crucial task of confronting this constitutional anomaly head-on. In our current situation, efforts of any government to deal with ineffective governance, corruption, injustice, inequity and the like can only scratch the surface and that is it. 

It is not to say that the 1992 constitution has not been useful in any way. At least, we can credit it with the longest period of political stability under democracy. Perhaps, we needed this kind of dictatorship, after spending many years under military rule, in order to sustain the kind of political stability we are enjoying today. If this is so, then one may point to the stability factor to suggest that the 1992 document is a masterpiece. Nonetheless, a more comprehensive appraisal, may want to find out whether the constitution assures the quality of governance that it was designed for, beyond this apparent classy codified set of guides. It is no secret that governance in Ghana since 1993 has largely failed to deliver sustainable development. Our institutions are not working well, while corruption has become the order of the day. Indeed, it is very common to hear one political analyst or the other, blame one defective aspect of the constitution or another, all to the effect that our constitution needs fixing.

The question then arises as to what exactly must be done about the constitution?

There are those who believe that we can fix the defects by reviewing the constitution with the aim of amending undesirable aspects. Indeed, the government under the late Prof. Mills, in agreement with this position, put together a committee to carry out such a review. The Constitutional Review Committee (CRC) submitted its report over 3 years ago but the recommendations therein are yet to be implemented. In fairness however, the intention of the current government to allow MMDCEs to be elected coincides with one of the many recommendations by the CRC.

On the other hand, there are also others like myself who are in favour of a more radical approach. That of initiating a process of replacing the existing constitution with an entirely new one. I see this option as an opportunity to exhibit our freedom in unity to decide how we want to be governed. We should not forget the gun-to-head situation we found ourselves in 1992 and in other years after 1960. In all cases, we were far from being free democratically. In the case of 1992 I remember clearly that some relevant groups boycotted the Constituent Assembly that drafted the constitution. It was evident that we could not garner the full complement of the Ghanaian spirit to freely determine our course of governance.

Fortunately, we have managed to practice constitutional democracy continuously for 25 years, long enough to appreciate well what constitutional rule means, as well as what it takes for a constitution to guide the government and the governed effectively as we move towards progress. Today, after such a long period of stable constitutional governance, all relevant social sectors, including political and civil organisations stand clearly identifiable and free enough to represent their views in a process to design a fresh constitution. These are among the reasons I believe we are in the perfect moment and in the best position to have in place the most effective Ghanaian constitution ever. The opportunity will also bring new insights and perspectives to bear as well as enable us to draw on past lessons in order to carve a truly responsive framework for democratic governance

Now the big question. How do we do away with an existing constitution in order to have a new one in place?

Apart from the 1960 constitution, which was an amendment to the 1957 one, the mandate of all other constitutions since independence ended by military coup d’état. This is how military dictators appropriated for themselves the mandate of determining how we want to be governed. What is more, they incorporated in such constitutions indemnity clauses that shielded themselves from accountability of tenure. Truth be told, any constitution obtained this way is an imposition and nothing else. Fortunately, it appears the majority of Ghanaians today will rule out this option of constitutional change.

Another possible means of changing constitutions, apart from the way of coup d’état, is by way of civil movement. This is when discontented citizens through civil disobedience mobilise themselves to oust the government of the day and overthrow the constitution. After that, an interim government is put in place which is then given the task to supervise the drafting of a new constitution and holding of referendum before elections. However, the problem with this option is that it will truncate the political stability we have been enjoying since 1993, aside the fact that it will present a situation that is full of uncertainties.

Our best bet then, is to have a substantive government initiate the democratic process for a fresh constitution. This also comes with a challenge. If we gauge the current political and societal landscape, it will be difficult to have Ghanaians agree to the mandate of a sitting government to initiate the process, even if there existed the political will to do so. Perhaps we can deal with it by making the issue an electoral one. By this, I mean specifically that a candidate wishing to push the agenda for constitutional change can advance it as the main campaign manifesto or promise prior to the presidential elections. In such a case, if the said candidate becomes the winner, then she or he automatically earns the mandate to lead us through the constitutional process. With adequate mechanisms in place, a project to change constitutions could be undertaken successfully within a four-year tenure without any undue influence from any quarters.

As for the type or kind of constitution, it is the constitutional process that would determine it. When all political, civic, commercial, professional, traditional and religious stakeholders among possible others are brought together to consider proposals and to give and take, we can arrive at something that truly represents our collective will.  If done well, a fresh constitutional process will offer the platform for the needed reconciliation of long standing differences regarding how we want Ghana to be governed. By the end of the process, we would have acted as a democratically free people united in our determination of how we want to be governed, having assessed our culture and history, our current situation and aspirations as well as considered best practices and perspectives to help us respond adequately to our unique situation. Already, there are proposals, including one by a group called African Reform Movement (ARM), that demonstrate our intellectual capacity to give birth to a constitution of the highest quality that is responsive to our needs and aspirations. All we need to do now is take that first crucial step to open a new democratic process to consider proposals for a fresh constitution.

Long live Ghana! 

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