Yes, Let's Review the 1992 Constitution

By Dr. Michael J.K. Bokor

E-mail: mjbokor@yahoo.com

January 11, 2010

Even though criticized at large, President Mills’ government has just taken one giant step that is commendable. It has initiated moves for the 1992 Constitution to be amended, and President Mills inaugurated on Monday a nine-member Constitutional Review Commission for that purpose. This move is encouraging because it tells us that the government is interested in taking bold steps to revamp the main framework within which our democracy functions.

Complaints about the weaknesses in the country’s 1992 Constitution have been heard over the years and calls made for its review. Although some dissenting voices have also been registered on the issue, what has happened over the years reinforces public fears and justifies the demand for a review. Thus, the bold step now taken by the President is well founded. It confirms that something drastic will be done to fine-tune the Constitution to serve new purposes that have emerged since it was first promulgated in 1992.

Democracy grows when a people identify shortfalls in how they practise it and take appropriate remedial measures to set things right. The Constitution is a living document and must be nurtured and nourished to grow. This constitutional review process has come in the nick of time to prepare grounds for better governance.

Membership of the Committee

The Commission’s membership shows a fair representation of capable hands. It has a blend of overt political interests (considering the presence of known ardent politicians such as Akenten Appiah-Menka (NPP), Gabriel Pwamang (PNC), for instance) and traditional authorities (Osabarima Kwesi Atta II, Oguaamanhene, and Naa Iddrisu Abu Kumbum, Paramount Chief of Kumbungu). We also have academics and the clergy (Prof. Samuel K. Adjepong), legal experts, and others. These are competent people and should be supported to approach their responsibilities with seriousness without the injection of partisan political or ethnic interests into their deliberations.

The time-frame (12 months) is adequate for serious work to be accomplished. The Commission must undertake regional tours (or if possible, hold sittings at the lower levels too) to collect and collate data from as wide a constituency as possible. It must open its doors to all those who have submissions to make and present a public-friendly posture to excite public interest in its activities.

Purview of the Commission

We have been given hints concerning what this Commission’s scope is, which is unmistakable. We are told that the proposed amendments available to it re so far up to 40, and include a review of the powers of the Executive President; process of tabling and passing of private members bill in Parliament; decoupling the position of Attorney General and Minister of Justice; election of Metropolitan, Municipal, and District Chief Executives; and a change of the date for conducting Presidential and Parliamentary Elections in the country. These are, indeed, some of the core areas that one would expect the Commission to work on. There are others, though.

What the Commission should tackle

It must seriously interrogate other areas and offer strong recommendations for some, such as the:

• Amendment of the Indemnity Clause (Transitional Provisions) to remove anything that hampers the justice delivery system. Sections of the population have not ceased complaining about that Clause and would want something done about it to remove doubts and fears that as originally fashioned, the Constitution was meant to protect only one person (JJ Rawlings). Let’s have a Constitution that contains nothing of the sort. Our Constitution must be based solely on national aspirations and should reflect the letter and spirit of the Ghanaian nationality, not an individual ethnic group or person’s hopes and fears.

• Effective decoupling of the Legislature and Judiciary from the ambit of the Executive to ensure that the element of checks and balances is boosted. In this sense, the Commission should take a hard look at the financial and logistic aspects of the work of the Legislature and Judiciary (and their analogous institutions) to ensure that they are clearly defined and protected by the Constitution (for instance, in the allocation of funds, where a percentage of the GDP should be reserved for those institutions to extricate them from the undue influence that the Executive wields over them through the annual budgetary allocations by the Ministry of Finance and Economic Planning. If the financing of these institutions is clearly covered under constitutional provisions, it will be difficult for the Executive to starve them of the funds they need to function effectively/efficiently as a means of either browbeating or twisting arms to exact obedience.).

• Strengthening of the institutions of state to make them function efficiently to neutralize “the strong man mentality” that has characterized our politics over the years. • Amendment of the constitutional injunction that the President should appoint three-thirds of his Ministers from Parliament. This provision defeats the principle of checks and balances and must be streamlined to ensure that the Legislature is not unduly manipulated by the Executive through its “hybrids” in it (those MPs doubling as members of the Executive simultaneously).

• Ex-gratia awards to the President and MPs to be seriously considered and curbed accordingly. We need to know that the Rawlings government abolished ESB for public sector workers; and, for purposes of equity, the President and MPs shouldn’t enjoy that facility. The time has come for us to treat each other fairly in the allocation of the national cake.

• Abolish the Council of State, which is not serving any useful national purpose. It appears to be an appendage of the Executive and functions solely at the pleasure of the President. The President already has his team of advisors at the seat of government and they must serve whatever role the Constitution has unwisely given this talk-shop called the Council of State.

• Adequate protection for public sector workers against capricious dismissals, especially on baseless grounds of political persuasions.

• Inclusion of Dual Citizenship to complement earlier efforts at streamlining matters to empower Ghanaians in the Diaspora and facilitate their participation in national politics.

What the Commission should avoid:

Attempting to:

• Create a 2nd Chamber to be reserved for traditional authorities, which has been suggested by some chiefs. The Constitution debars chiefs from active partisan politics and they must remain so.

• To recommend an extension of the President’s term from the current four to five years. We don’t need any additional one year, contrary to what some might suggest. A serious President can do in four years what will recommend him/her to the electorate for a renewal of his/her mandate at the next elections. We must avoid the situation where we just “pad” the tenure to serve personal or parochial partisan political interests.

This constitutional review is appropriate and must be supported by all. Those condemning it (such as Professor Kofi Kumado) should rather seize the opportunity to offer useful ideas to help us straighten our path of democracy. I don’t want to think that the critical voices that we’ve heard so far want to take us back to what happened when the Constituent Assembly was being put together for the current Constitution and was repudiated by certain political and professional interest groups. They did the country a huge disservice and realized it only when they were in power and felt constrained by the Constitution.

We all know that their places were taken by the ordinary Ghanaians (farmers, fisherfolks, marketwomen, etc.) whose product is what has now been identified as having some inadequacies. Yet, they haven’t ceased identifying lapses in the Constitution. So, now that a review process has been initiated, what prevents them from stepping forward to provide vital input?

I hold the opinion that those critics who think they know how Constitutions are made should rather get on board to help the Commission iron out the rough aspects of the Constitution. It is only then that they will help the country and earn respect from the society. Anything short of that will register them as mere arm-chair critics who will remain nothing but a mere public nuisance. I, for one, welcome this process and will ensure that I make my voice heard.

When all is over, Ghanaians expect to see a revamped Constitution that will serve better purposes and move our democracy forward. The Constitution shouldn’t remain a mere paper tiger but should be fine-tuned as the blueprint for conduct by all individuals and institutions of state. That is why it is important to ensure that it empowers and motivates the people to be vigilant and to ensure that it is enforced without let or hindrance. Ghanaians need the firm assurance that they will benefit from this enforcement. It is only then that they will be committed to the Constitution. Anything short of that will create opportunities for a few self-seeking people to continue to manipulate the Constitution to advantage.

Together, we can use this constitutional review opportunity to reinvigorate ourselves and to work for a better society that will serve everybody’s interests. Although perfection is not a human quality—which means that as a human institution, we cannot expect a PERFECT Constitution—I am confident that what has been set in motion now will give us better opportunities to assess where we’ve come from as a nation, where we are now, and where we want to be in future. Reviewing the Constitution is a positive step to be supported by all.