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Opinions of Monday, 23 May 2016

Columnist: Asare, Kwaku S.

Free parliament from this colonial arrangement

The Legislative Drafting Division (LDD) is responsible for drafting substantive and subsidiary legislation for the Government. Its primary task is to assist Parliament in its legislative functions. In this respect, the Division also works closely with the Government printer to ensure that legislation prepared by the Division is published in the Gazette and go through the necessary reading and consideration by Parliament.

Currently, as has been the case since independence, this Division is part of the Attorney General's department.

In the immediate post-independence regime, where there was fusion between the legislature and the executive, the subordination of this Division to the Attorney General did not present serious governance, institutional and constitutional issues.

The 1992 Constitution however contemplates an independent parliament, at least from the legislative perspective. While it is yet to happen, the Constitution contemplates the possibility of a legislature controlled by one party and an executive controlled by another (a skirt and blouse government).

This raises questions about the rationality of the current regime where Parliament is dependent on the LDD, an executive unit, to perform its independent legislative function.

In consequence, there is considerable confusion about the nature of the legislative process. For instance, when we battled the constitutionality of the CRC, too many people who ought to have known better simply assumed that the executive initiates all bills because all bills emanate from the Attorney General. Of course, the reality was that all bills emanated from the LDD, a division charged with assisting Parliament but that resided at the AG's department as a result of a historical accident.

Another recent instance is the stalled attempt to amend the Constitution to allow for elections to be held within 60 days, rather than the 30 days, of the dissolution of Parliament. Parliament seems hamstrung as it awaits on the LDD to act. Yet, Parliament does not have control over the LDD, which is under the control of the AG, hence the executive.

Yet, this unworkable arrangement is neither required nor is difficult to undo. I propose the setting up of an Office of Parliamentary Counsel (OPC), a wing of the legislature, that will be charged with the current functions of the LDD. This will ensure complete separation of the LDD from the executive and provide legislators with unimpeded access to legislative help from a parliamentary cadre of skilled legal draftsmen. This arrangement will also facilitate the development of private member bills as any member can approach the OPC with policy ideas that, with the aid of the OPC staff, can be converted to a bill in the member's name. The OPC staff would also be responsible for ensuring that any new bills are consistent with the existing law and do not violate the Constitution.

Contemporaneously, the current LDD should be restructured and charged with the mission of (i) ensuring that legislation are simplified and operationalized for the ministries, departments and agencies (MDAs), (ii) obtaining, explaining and operationalizing court rulings for the MDAs; (iii) monitoring MDA's actions to ensure compliance with existing statutes and the Constitution.

Were this proposal to be adopted, it will be the restructured LDD, rather than the Electoral Commission, that will be outlining the implications of the Supreme Court's holding in the Ramadan case for implementation by the Commission.

To sum up, the current practice where legislative bills emanate from the LDD, which is under the control of the executive, is antithetical to the doctrine of separation of powers and bastardized Article 93 of the Constitution, which vests legislative power in Parliament. Parliament must be stop depending on the LDD and emplace its own OPC.