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Opinions of Thursday, 24 July 2014

Columnist: Ata, Kofi

A Rejoinder: “The Quest for Constitutional Review in Ghana”

By Kofi Ata, Cambridge, UK

Prof Stephen Kwaku Asare’s Supreme Court suit challenging the ongoing Executive led Constitutional Review to amend the 1992 Constitution has generated mixed responses or perhaps, opened a can of worms amongst the legal fraternity as well as from outside that group. Dr Samuel Adjei Sarfo, Doctor of Jurisprudence, Attorney and Counsel at Law, in an article on Ghanaweb/Peace FM online on July 20, 2014, advanced legal argument to challenge the suit as being frivolous. Dr Michael J K Bokor also in an article entitled “Do our MPs and Judges not know their statutory functions, Kwaku Azar?” (Ghanaweb, July 19, 2014) questioned the motives of Prof Asare in challenging the Executive’s lead role. In this rejoinder to Dr Samuel Adjei Sarfo’s article (hereinafter referred to as Dr SAS), I intend to dispute his legal interpretation and application of the 1992 Constitution. Since Dr Bokor did not advance any legal basis to challenge Prof Asare’s case, I do not intend to make reference to his aforementioned article, except to point out that, the Judiciary is not the legal adviser to the Executive. That is the role for the Attorney General and Justice Minister. The role of Judges is to interpret the law when asked to do so through the law courts and they know that.

I should point out that I am not a lawyer, let alone a constitutional expert to challenge a distinguished Doctor of Jurisprudence, Dr SAS. However, I have the knowledge, understanding and the experience of interpretation and application of law through work and the training I received as a former Panel Member of the UK Employment Tribunal Services (ETS). For those who are not conversant with the UK ETS, a panel comprises of a Judge and two other members who are non lawyers but have knowledge and experience in industrial and labour relations legislation and I was appointed and served as one of the two non lawyers.

I am also conscious that some readers believe that my friendship with and the fact that, Prof Asare and I were classmates in secondary schools, often becloud my judgement and support for his positions. I totally reject such perception because, though we do agree on many, we also disagree on others, including our different positions on contempt of court versus the right to freedom of expression/media during the SC hearing of the 2012 Presidential Petition.

For the earlier reason regarding my limited proficiency in law, my legal argument challenging Dr SAS’s postulates and conclusion that Prof Asare’s suit is wrong, premature and should therefore be dismissed by the SC will be restricted to the proper interpretation and application of the 1992 Constitution. In other words, I will be considering the “letter of the law versus the spirit of the law argument. Letter of the law means following or obeying the literal interpretation of the words or language of the law, whilst spirit of the law means one does what the framers or authors of the law intended. To me, this is the fundamental legal difference between Prof Asare and Dr SAS as far as this matter is concerned.

I do not intend to repeat the all the legal arguments advanced by both but restrict my case to the relevant sections. It is Prof Asare’s opinion and I agree with him that and I quote. (2)“It is also well known that Parliament is the sole body that can initiate, consider and propose amendments to the Constitution; (3) Parliament’s power to amend the Constitution is not only plenary and exclusive but also cannot be delegated to or usurped by the/a President, the so-called Constitution Reform Commission or the Constitution Review Implementation Committee”.

Dr SAS on the other hand, is of the view that and I quote: “The foregoing arguments posited by the respected professor may peremptorily make sense on its face but may not stand the test of a closer judicial scrutiny. It is true that the Constitution can only be amended by its terms. It is also true that the Constitution Review Implementation Committee has no power under the laws of Ghana to schedule a referendum and/or to amend the Constitution of Ghana. But these limitations cannot be broadly construed to mean that Parliament is the sole body that can initiate, consider and propose amendments to the constitution. Inherent in our democratic dispensation is the right to speech and the consequent right of the individual to have an opinion and to express this freely”.

Dr SAS is manifestly and legally wrong to disagree with Prof Asare because he failed to apply the spirit of the law and rather followed the letter of the law in concluding that the power to initiate, consider and propose amendments to the 1992 Constitution is not restricted solely to Parliament. The body of the evidence (spirit of the constitution) is made manifestly clear and unambiguous on how the entrenched and the non entrenched provisions should be amended in Chapter 25 of the Constitution, specifically, Articles 289 (1), (2)(a)(b); 290 (1) (2) and 292.

Article 289 (1) states as follows: “Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution, (2) This Constitutions shall not be amended by an Act of Parliament or altered whether directly or indirectly unless - (a) the sole purpose of the Act is to amend this Constitution; and (b) the Act has been passed in accordance with this Chapter. Article 290 (2) states: “A bill for the amendment of an entrenched provision shall, before Parliament proceeds to consider it, be referred by the Speaker to the Council of State for its advice and the Council of State shall render advice on the bill within thirty days after receiving it”

The ineligibility of the Executive or a President to initiate, consider and propose let alone lead amendments to the Constitution, particularly, the entrenched provisions but not exclusively is abundantly clear in Chapter 25 which must be read in whole but specifically, in spirit of Articles 289 (1), (2)(a) and 290 (2). Why do I say so?

Indeed, the framers of the constitution did not give Parliament a blanket licence to amend the constitution whenever the Legislature wished to. Their intention was that it must be done only when it is absolutely necessary. This is in the spirit of Article 289 (1). Note that the language is “may” and not “shall”. Again, the language used in Article 289 (2)(a) “this Constitutions shall not be amended by an Act of Parliament or altered whether directly or indirectly unless the sole purpose of the Act is to amend this Constitution” and in accordance with Chapter 25.

The strongest basis for the Legislature’s prerogative to initiate, consider and propose amendments to the entrenched provisions is in the spirit of the requirement on the Speaker to refer the draft bill to the Council of State for advice prior to Parliament proceeding to consider it. Why was this requirement placed on the Speaker (Legislature) and not the/a President (Executive)? This is why it is very important and critical to analyse the intentions of the framers (spirit of the law) and I will do so briefly.

The framers were aware that Council of State and the/a President are closer than the Council of State and the/a Speaker of Parliament. In fact, the Council of State advises the/a President on many decisions including ministerial and other appointments. It is also common practice that under the Presidential and Parliamentary hybrid form of government in Ghana, it is the Executive arm of government that initiates, considers, proposes/drafts and presents bills to the Legislature for debates and approval, though individual MPs can initiate bills in parliament through private member’s bill. Moreover, the norm is that prior to bills being sent to the Legislature by the Executive, advice is often sought from the Council of State by the Executive. If the framers intended for the/a President to initiate, consider and propose amendments, why would they delegate this requirement when the/a Presidentis closer to the Council of State in their working relationship than the Speaker? It’s very obvious that, the only rationale behind this shift in the requirement to consult the Council of State for advice on the draft bill from the/a President to the Speaker is because the framers barred a President from initiating, considering and proposing constitutional amendments. Otherwise, that requirement would not have been given to the Speaker. The requirement on the Speaker is not a delegated one but statutory.

As Prof Asare rightly concluded that this was to avoid conflict of interest and a situation where a President will cheery pick to suit his/her whims and caprices whenever s/he finds some provisions of the constitution not to be in his/her favour. That could also undermine constitutional democracy and subject the state to the risks of constitutional dictatorship. So far, Ghana has been lucky not to have had the “Obasanjo” type of Executive President, so none of the presidents have attempted to change the Constitution to extend the maximum two-terms but who knows what a future president could do if s/he could initiate, consider and propose amendments to the constitution, especially when the Legislature is weak, the majority in Parliament also holds the Executive power and are in the pocket of the Executive?

I am of the strong opinion that the totality of Chapter 25 MUST be read, interpreted and applied in whole and in the spirit of the law. The effect of this approach is that, Parliament has the sole authority not only to initiate, consider and propose amendment to the “entrenched provisions of the 1992 Constitution but also any part of the Constitution.

My conclusions are supported by the spirit of the further requirements on the amendment of the non entrenched provisions under Article 290 (4), “after the bill has been read the first time in Parliament it shall not be proceeded with further unless it has been submitted to a referendum held throughout Ghana and at least, forty percent of the persons entitled to vote, voted at the referendum and at least, seventy-five percent of the persons who voted cast their votes in favour of the passing of the bill”. Again, Article 291 (2) also states, “the Speaker shall, after the first reading of the bill in Parliament, refer it to the Council of State for consideration and advice whilst Article 291 (3) directs that, “where Parliament approves the bill, it may only be presented to the President for his assent if it was approved at the second and third readings of it in Parliament by the votes of at least, two thirds of all the members of Parliament”. Note the language here is ALL the members of and NOT the quorum of members present in parliament).

Finally, Article 292 states, “a bill for the amendment of this Constitution which has been passed in accordance with this Constitution, shall be assented to by the President only if”– (a) it is accompanied by a certificate from the Speaker that the provisions of this Constitution has been complied with in relation to it; and (b) in the case of a bill to amend an entrenched provision, it is accompanied by a certificate from the Electoral Commission, signed by the Chairman of the Commission and bearing the seal of the Commission, that the bill was approved at a referendum in accordance with this Chapter (that is, Chapter 25)

Why is the Speaker burdened with all these requirements as above, especially 292 (a) if the/a President could initiate, consider and propose amendments to the constitution? At what point would the Speaker know that the President in initiating, considering and proposing amendment, complied with the prescribed processes, if the Speaker is only to take over from the/a President at a certain stage of the amendment or is delegating on behalf of the/a President? The framers went the extra mile by enshrining all these requirements on the Speaker to prevent conflict of interest and abuse of process by the Executive or the/a President. These were not just mere procedural decorations but constitutional and statutory safeguards to guarantee the separation of powers.

In fact, the evidence of the practice so far in Ghana is contrary to Dr SAS’s position. Do you remember the confusion between the Council of State and the Speaker, when he presented the Executive led constitutional amendment draft bill to the Council of Sate? I suspect it was because the Executive/President might have already sought the advice of the Council of State prior to sending it to the Speaker. As a result the Council of State expected the Speaker not to refer the bill to it again but to gazette it. I am emphatically certain and without doubt that the whole process should be led solely and exclusively by the Legislature, when Chapter 25 is read, interpreted and applied in whole and not in bits or by cherry picking.

Last but certainly not the least, when it comes to applying the spirit of the law to interpreting statutes we must differentiate between authority bearing obligations and rights bearing enjoyments. Authority bearing obligations by their very nature are restricted to the selected few and powerful in society (the Executive, Legislature and the Judiciary). Consequently, the spirit of the law application is to restrict to them to only those whom they were intended for and not expand them to others. On the other hand, rights bearing enjoyments are for the many and the weak in society (such as the right to vote). Therefore, the right approach and to ensure their full enjoyment by the majority of those meant for is for the spirit of the law to expand and not restrict such rights. What Dr SAS is attempting to do is to substitute one for the other. Where no authority bearing obligations exist, we should not create or manufacture one by default. That is dangerous. The/a President has no authority bearing obligations to initiate, consider or propose amendments to the 1992 Constitution. Only the Legislature has prerogative of the authority bearing obligations under Chapter 25 of the constitution to initiate, consider and propose amendments to the constitution. Period.

The question as to who can, may and shall initiate, consider and propose amendments to Ghana’s 1992 Constitution is indisputably made in Chapter 25 as a whole. The spirit of the law as in the various articles referred to under Chapter 25 (what the framers of the constitution intended) is that, it rests solely and exclusively with the Legislature/Parliament and not the Executive/President. Any attempt/s, act/s or omission/s to misinterpret and misapply Chapter 25 of Constitution either in whole or in parts and bestow on the Executive the authority to initiate, consider or propose amendments to the constitution is unconstitutional, illegal and potentially treasonable.

Kofi Ata, Cambridge, UK