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Opinions of Monday, 10 November 2014

Columnist: Ata, Kofi

Can the Speaker Interpret the Constitution?

By Kofi Ata, Cambridge, UK

The Speaker of Parliament refused to take the presidential oath prior to becoming acting President on Wednesday November 5, 2014 when President Mahama travelled to Burkina Faso and with the Vice also in India on official visit. President Mahama again left Ghana for Nigeria on Friday 7 November 2014 and the Chief Justice was in Parliament to administer the oath of office to the Speaker but for the second time in three days the Speaker refused to take the oath. The reason/s we are told and according to him “after careful reading of the relevant provisions and the oath I took on the 19th September 2013, I arrived at the conclusion that it would not be necessary to subscribe to another presidential oath.” It is alleged that the discussions before the Speaker arrived at the above decision involved the Majority and Minority Leaders of Parliament and the Attorney General or her representative. In this article I intend to discuss the constitutionality or otherwise of the above events and whether the Speaker has the powers to interpret the 1992 Constitution.

The relevance sections of the Constitution on the Speaker acting as President are as follows: Article 60 (11) “Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.” Article 60(12) “The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of President.” From clause (12) it is unambiguous that the Speaker MUST take the oath on every occasion that the President and Vice are both unable to perform the functions of the President. It is non-negotiable and I will explain why.

Both the President and Vice-President are elected by the whole electorate for their respective offices and having been sworn into office their oath is permanent for the period of the four year term and for that reason whenever they are both unable to perform the functions of the President, their oath does not lapse as long as they are alive, unless impeached. This is more so because whilst abroad they continue to perform the functions of their respective offices. On the other hand, the Speaker of Parliament though may be elected, is only elected by his or her constituency and also not elected for the office of the Speaker but nominated by the majority in parliament. In fact, the Speaker could be unelected as was in the case of Justice Bamford-Addo in the fifth Parliament of the 4th Republic. Moreover, the situations where the Speaker assumes the office of the President were envisaged to be rare (though now common because of the Supreme Court ruling, which I will refer to later). 

Indeed, the situation when the Speaker is expected to be acting President was meant to be during national emergencies such as when both the President and Vice are incapable of performing the functions of the President through serious accidents or illness of both and at the same time rather than when they are both outside Ghana. Such a situation would be a national tragedy/crisis and a necessity that will require the Speaker to act as an interim President to avoid any vacuum. For these reasons, the oath taken by the Speaker to act as President lapses the moment the President or the Vice is able to perform the functions of the President. It can never be in abeyance as claimed by the Speaker.

Article 130(1) of the Constitution states: “Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in - (a) all matters relating to the enforcement or interpretation of this Constitution; and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”

In my view, the reason/s given by the Speaker for refusing to retake the presidential oath amounted to the Speaker interpreting the relevant provisions of the Constitution on this matter whether he discussed it with the Chief Justice or with the Majority and Minority Leaders of Parliament and the Attorney General. The actions and or omissions of the Speaker on this matter has embroiled Ghana in a constitutional crisis or confusion because whenever and wherever there are doubts or disagreements on the actual meaning, interpretation and application of any provisions of the Constitution, it is the Supreme Court that must provide the right meaning and interpretation and not the Speaker or a selective representative of the Executive and the Legislature in discussion with the Chief Justice. This is a very serious breach of the Constitution by Speaker (and all those involved) and a danger to separation of powers between the Executive, Legislature and the Judiciary as well as a threat to the independence of the Judiciary.

What happened 0n November 5 and 7, 2014 constitute danger to constitutional democracy because the Speaker who by his interpretation of the Constitution was already the acting President refused the Speaker to administer to him the presidential oath of office. So the Speaker played the role of the Executive, the Legislature and the Judiciary at the same time and in so doing usurped the authority of the Supreme Court to interpret the Constitution. Even the Chief Justice on her own cannot interpret the Constitution because that is the prerogative of a properly constituted panel of Supreme Court Justices and not a single Supreme Court Justice.

This problem has arisen partly due to the Supreme Court ruling in the case of Asare v Attorney General [2003-4] SCGLR 823, when the Supreme Court held that “the purposive interpretation to be given to Article 60(11) is that where both the President and the Vice-President are absent from Ghana, they are to be regarded as unable to perform the functions of the President and thus the Speaker is obliged to perform those functions.” Prof Stephen Kwaku Asare had challenged among others that there was no need to swear in the Speaker as acting president when the President and Vice are both out of the country because the President is still able to perform the functions of the President from outside Ghana. Sadly, the Supreme Court disagreed and a decade later, this problem has come back to haunt Ghana.

To be honest, the Supreme Court judgement as above was and still absurd because with modern Information Technology it is possible for the President to perform the functions of the President wherever he is on planet Earth. In fact, I remember on one occasion in 2011 the then President, the late Prof Mills telephoned from his hotel in New York to contribute to a radio programme in Accra and said that he was up at his desk working for Ghana. The situation where Ghana has one president abroad performing his official duties and another acting president at home whenever the president is away from Ghana is ridiculous and must end. The Supreme Court must interpret the Constitution as a living document by taking into consideration the prevailing circumstances on each occasion a matter is brought before it.

I am more than convinced that the Speaker has violated the 1992 Constitution for a number of reasons I have already alluded to. In addition to those already stated, because the Chief Justice appears to have a different interpretation or understanding of the relevant provisions of the Constitution referred to by the Speaker, she returned to Parliament on the second occasion to administer the oath despite what happened on the first occasion. In other words, the Chief Justice believes that the Speaker must take the oath of office on each occasion before becoming the acting President of the Republic. 

The Speaker also failed to pose and answer the critical question of what has been happening in the past when both the President and Vice were out of the country on more than one occasion in one parliamentary term. There have been five Speakers in the 4th Republic (Justice Daniel Annan, 1993 – 2001, Peter Ala Adjetey, 2001 - 2005, Ebenezer Sekyi Hughes, 2005 – 2009, Justice Joyce Bamford-Addo, 2009 – 2013 and Edward Doe Adjaho, 2013 - ). They all begin their terms on January 7 and end on January 6 of the respective parliamentary terms and they are all addressed as “The Right Honourable”. The relevant question is, during the parliamentary terms of the last four Speakers, were there two or more occasions in one parliamentary term that both the President and Vice travelled outside Ghana and if so, did the then Speaker take the oath on each occasion? If the answer is yes, then that should be the established customary practice (though I accept that that may not necessarily be what ought to or must be done but only the Supreme Court can make that determination and not Speaker Adjaho).

In my humble opinion, neither Speaker Adjaho nor the Majority and Minority Leaders and the Attorney General or her representative, either individually has or collectively have the constitutional powers to interpret the Constitution. What happened on November 5 and 7, 2014 was unconstitutional, an affront to constitutional democracy, disrespectful to the office of the Chief Justice and a threat to the independence of the Judiciary that must not be allowed to go unchallenged. I agree with Mr Kweku Baako when he described it as “constitutionally lawless. 

Ghana may be sleep-walking into a constitutional crisis if breaches of the Constitution by the Executive and the Legislature are not checked. The Chief Justice and the Judiciary must assert their authority and independence without fear or favour. I believe that this matter cannot wait for the Constitutional Amendment Review and must be put before the Supreme Court immediately for an urgent interpretation in order to end the absurdity and the constitutional conflict between the Speaker and the Chief Justice. 

In the long term, the Constitution must be amended for a president to be able to perform the functions of the President from outside Ghana and the only time the Vice President should act as President is when the President is incapable of performing the functions of the President due to serious accident and or ill health, including when undergoing surgical operation under general anaesthetic. That also means the Speaker becoming acting President only when both President and Vice are incapacitated in similar situations at the same time, which though possible will be rare as intended by the framers of the Constitution. What is your view?

Kofi Ata, Cambridge, UK