Feature Article of Monday, 27 January 2003
Columnist: Aduku, Kofi
The renaissance of constitutional democracy in 1992 in Ghana requires analysis of the constitutional system of the State of the Republic of Ghana.
Powers of State
Three powers of State can be identified from the Constitution of the Republic of Ghana 1992. These powers are:
Separation of powers
To restrain or prevent officers or functionaries of any of the State powers from abusing their function and position, and to afford effective checks and balances between the State powers, one constitutional school of thought, championed by Locke and Montesquieu, have adduced that the three powers of State should be separated in function and in composition. This means that each power should have one exclusive function, and no person should be a member of more than one power of State.
The type of government practised under this school of thought is presidential government. This means that the Cabinet and other government ministers do not sit in Parliament. The main advantage of Presidential government is the absence of coalition with other parties. The President is free to appoint his Cabinet Ministers. Presidential governments are stronger than coalition governments, which are usually fragile.
The opposing constitutional school of thought holds that absolute separation of powers does not exist. It is the view of this constitutional school of thought that the best protection against abuse is a balanced constitution. In such a balanced constitution, all the three powers of state may be held in equilibrium controlled by checks and balances.
The type of government proposed by this school of thought is parliamentary government. The Cabinet sits in Parliament. Parliamentary governments are usually characterised by pacts between two parties to form a coalition government.
The rule of natural justice states that nemo dat judex in causa sua potex. In a democratic system where Ministers of Government are also Members of Parliament, and are entitled to vote when the Government proposes bills to be passed into law, such Ministers of Government become prosecutors and judges in their own cause.
The main constitutional defect characteristic of Parliamentary governments is that the Government is the lawmaker and also the law enforcer. The Executive usurps the legislative powers of the Legislature. The Government meddles in Parliamentary proceedings and dictates to Parliament. The Parliament is unable to check and scrutinise the Government effectively. Such a Parliament merely rubber stamps the Government?s bills into Acts.
Type of government
Article 62(2) provides that the President shall be elected on the terms of universal adult suffrage. Article 76(1) of the Constitution of the Republic of Ghana 1992 states that the ?Cabinet shall consists of the President, the Vice?President and not less than ten and not more than nineteen Ministers of State?. Article 78(2) empowers the President to appoint all the Ministers of State.
Article 79(1) empowers ?the President to appoint one or more Deputy Ministers to assist the Minister in the performance of his functions?.
Article 79(2) provides that Deputy Ministers shall be appointed from among Members of Parliament.
The combined effect of Articles 76(1), 78(1), 79(1) and 79(2) is that the Ghana Government under the present constitutional arrangement is an unusual hybrid of Presidential and Parliamentary Government.
The Parliament of Ghana is annexed by the Executive, because the President of the Executive is empowered by the Constitution to recruit Members of Parliament as Members of the Executive. To secure a powerful and sovereign Parliament, the Parliament and the Executive need to be separated from each other in membership and function. This will ensure that Parliament is unfettered in the exercise of its legislative supremacy without Governmental meddling. In this way, the legislative power will not be usurped by Cabinet Ministers and Deputy Ministers. It will prevent the rest of Parliament from being sidelined into a powerless spectator cheering on the Government. Parliament will become bold and frank in its scrutiny of the Government. Parliament shall not be cajoled and bullied by the Cabinet Ministers and Deputy Ministers into submitting to the aspirations of the Government. Parliament will be prevented from becoming a disciple or puddle duck of a shepherding Executive. Parliament must not become a bull seized by the horns by Cabinet Ministers and Deputy Ministers.
Parliament should consider making the following amendments:
Articles 78(1) and 79(2) should be amended so that a member of Parliament or the Metropolitan or District Assemblies who is subsequently appointed a Minister or Deputy Minister of the Government of the Republic of Ghana, on taking the oath of office as Minister shall be deemed to have resigned his membership of Parliament or the relevant Assembly. Additionally, Article 111 of the Constitution should be amended so that Members of the Executive will be barred from sitting and voting in Parliament.
It is imperative for Parliament to amend these Articles so that all Members of Government shall be outside Parliament in order that a complete Presidential Government will become operative.
Comparative Constitutional System
Under the 1999 Constitution of the Federal Republic of Nigeria, all the Ministers of Government must be outside Parliament. Article 147(4) of this Constitution provides that a Member of Parliament who is later appointed a Minister of Government shall be deemed to have resigned his membership of the legislature on his taking the oath of office as minister. A bye-election is subsequently held to fill the vacant Parliamentary seat
It may be argued that the Vice President, the Cabinet Ministers and Deputy Ministers function as a buckle between the President and Parliament. The reality is that the Vice President, the Cabinet Ministers and Deputy Ministers represent un-due Executive influence on the Lawmakers. It is obvious that a Parliament of 200 members, out of which about one-third are Ministers or Deputy Ministers, the Executive usurps the powers of the Parliament. This interference of the Executive in the functions of the Lawmakers results in Executive dictatorship to Parliament. The Opposition Minority is unable to successfully scrutinise the President?s Bills. Additionally, the Parliamentary Ministers and Deputy Ministers, in fear of demotion during a reshuffle, and the Majority Government Backbenchers wanting promotion to ministerial positions, are unwilling to challenge the President?s Bills. This means that the Executive is a powerful vehicle with defective parliamentary checks or brakes. In conclusion, there is indirect Presidential or direct Governmental dictatorship to Parliament.
Additionally, there is the need for an elected upper house of Parliament, a Senate, to reinforce the legislature and to be in charge of regional matters. Under the present constitutional arrangement, the unicameral Parliament, undertakes two readings of a Bill after which it may be enacted. The advantage of a bicameral house is that Parliament will read a Bill three times before it is enacted.
Ministers of State The President of Ghana during the Presidential Press Conference on Thursday, the 3rd October 2002, opened a national debate to allow him to increase the number of Ministers of State. The President, however, cannot increase the number of Ministers without first asking Parliament to amend certain Articles of the Constitution. Such amendments will empower him to increase the number of Cabinet Ministers, which is at present limited to nineteen.
Article 76(1) of the Constitution allows the President to appoint not less than ten and not more than nineteen Ministers of State. Article 79(1) allows the President to appoint one or more Deputy Ministers to assist a Minister in the performance of his function.
To increase the number of Ministers of State, the President will have to propose a Bill to Parliament and ask Parliament to amend Article 76(1) and possibly Article 79(1).
There is no real need to increase the number of ministers since an increase in the number of staff creates problems of accountability.
The following amendments are, however, recommended:
Article 76(1): Parliament should amend the title ?Ministers of State? to ?Secretaries of State?.
Article 79(1): Parliament should amend the title ?Minister of State? to ?Secretary of State? and upgrade the title ?Deputy Ministers? to ?Ministers? so as to increase their responsibility.
Article 79(1): Parliament should amend the phrase ?one or more? to a specific number, for example, ?one or at most ?.
Alternatively, Parliament can amend the phrase ?one or more? to ?not less than [one] and not more than [three]?. The phrase ?one or more? used as a numerical value, could mean an infinite number of deputy ministers. Parliament should quantify the phrase into a definite quantum.
Parliament will need to empower a Secretary of State to head a Ministry and also empower a Minister to head a department under the Ministry. For example, the Ministry of Roads and Transport, would then be headed by the Secretary of State for Roads and Transport. Under the Secretary of State for Roads and Transport would be a Roads Minister and a Transport Minister.
In conclusion, there is not the real need to increase the number of members of the Cabinet at this moment beyond 19. The description of their title is what needs to be changed.
1 Article 93(2);
2 Article 58 (1);
3 Article 125 (3).