Mon, Jun

Constitution Day, Let's Talk A Little About Law

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The loopholes in our Constitution are frightening and dangerously alarming. Take for example, Article 78(2), (with all due respect to the framers of the Constitution) is a very terrible provision that leaves so much room ...

I know this may be a boring post compared to my usual ones, but it's okay.

The Constitution by itself already has made the President of the Republic too Powerful. It appears to me that, after we signed the Bond of 1844 and came under the British rule, the usurpation of Power away from the people and arrogated to one imperial, monarchical authority has since not been averted even after our 1992 Constitutional independence.

There has been several arguments about when exactly we became completely free and Sovereign, as some believe that this happened in 1957 even though we were still under a Governor-General representing the Queen and running a Westminster System, others believe we were only completely weaned off by our 1960 Republic, whichever you belong, my focus is on the ills I find with the 4th Republican Constitution which we use today.

There is a general belief that the constitution was framed to favour the desires of Flt Lt (Rtd.) Jerry John Rawlings at the time, well, even if it was so, I think it is time take another look at it and tighten the loopholes.

Although Article 1(1) of the 1992 Constitution purports to precipitate the residual powers Of Ghana's Sovereignty to the People of Ghana, it appears the extent of this power ends only at the ballot box, and after that, the President is the Almighty.

The loopholes in our Constitution are frightening and dangerously alarming. Take for example, Article 78(2), (with all due respect to the framers of the Constitution) is a very terrible provision that leaves so much room and unlimited discretion to the First Gentleman of the land to determine how many Ministers of States he will appoint, this allows for the easy breeding of "jobs for the boys" and creates a legal propensity to encourage large spending of state funds and use of its hard earned resources without being in conflict with the Law. Currently we have about 110 Ministers, the next President can actually chose to appoint 300 Ministers and it will not be in any way a breach of constitutionality because the law allows it, therefore if as a Presidential candidate he is massively helped by certain powerful people and he eventually wins, he can as a matter of loyalty to reward the helpers decide to appoint them as Ministers, and if he has majority in Parliament, which is mostly the case, the vetting is but just a rubber stamp in practical terms. That provision needs an amendment, we need to cap it, we can’t continue like this where every President has a free room to appoint just about an unlimited number of ministers he feels he wants. Nigeria with over 200 million population currently have just 24 ministers in Buhari's Government.

Article 108 is another, it is continuously exploited by both the Executive and Legislature, and since both benefit from it, nobody is willing to block that loophole, you know what I mean - the Consolidated Funds.

There is also a concern in our Separation of Powers, can you imagine that One Man, can be a Member of Parliament, a Minister of State and still sit as a Board Member of an SOE! So, I ask, what happens if a Bill from his Ministry is brought to Parliament? Won't he have an unfair influence on his colleagues on how the Bill is scrutinized and passed since he is also part of them? Many people will do anything to become a Member of Parliament, because it appears aside its own lucrative powers, it is also the most likely route to becoming a Minister.

The President appoints all CEOs of SOEs purely by his sole power and discretion, this becomes more political than technocratic, this means no matter how competent or well run an SOE is by any CEO who perhaps was appointed by a previous Government, the new President without recourse to his competence, can just by a stroke of a Pen remove him and replace the CEO by a Party faithful, whether or not the previous CEO was doing well and perhaps more competent than the new entrant CEO - this is a major problem! The Law needs to re-look at how CEOs of SOEs are appointed.  Why don’t we have a due process of a rigorous appointment process that will run through from vacancy notice, to CVs submission, then shortlisting, proper interviews conducted, all candidates passed through series of tests and examine their ability to fix complex problems using scenarios and real life models, then when you are finally appointed, you are given KPIs, with timelines and subjected to an independent Panel that will access your productivity and score quarterly? Isn’t this a better way to ascertain who should be a CEO of an SOE than just a direct appointment even when the current CEO is doing a good job?

Let me give you a close example, Ex-President John Mahama appointed the current Auditor General, who is still doing a great job under NPP, do you know that, by Law, he can be replaced tomorrow, with even a less competent person, and the measurement of who is more competent is just by the discretion of the President? Isn't that dangerous?

And in a very surprising twist of event, Parliament itself continues to acquiesce on their own powers by making the President more powerful each day through various Legislations! Amazing! This continues to give the Executive the power to marginalise Parliament even in sensitive issues such as the creation, renaming and abolition of Ministries, President doesn't need to consult Parliament, except it is a Public office or to be maintained by Consolidated funds.

So far, it appears the only restrain to the President's extreme Power is when his actions are believed to be in breach of a Constitutional Provision upon a true and proper interpretation of such a provision for which anyone could challenge it in the Supreme Court under Article 2(1), as has been seen in many Decided Cases including the famous landmark NPP v AG (31st December Case) where the celebration of Coup D’état and use of public funds for same was declared unconstitutional, and a case like JH Mensah v AG, where Rawlings' Minister (after his Presidential re-election) in a previous regime was attempting to present Budget in Parliament  as a Minister in continuity, without the him going through Parliamentary approval, and the Supreme Court held that there had to be another Parliamentary approval before a previous Minister could act again as a Minister in a re-election of even the same Government.

Happy Constitution Day, but that book called the Constitution needs a serious Review, the one Late Prof Evans Attah Mills commissioned, we don't know how it ended and where it is now.




By: Godwin Martey

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