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Opinions of Sunday, 28 January 2018

Columnist: Ahmed Antwi-Boampong

Ghana needs a clear Presidential Succession Act

LOOOKING BEYOND THE MANIFEST ABSURDITY IN SAMUEL ATTAH MENSAH V AG: A CASE FOR A PRESIDENTIAL SUCCESSION ACT

In a spate of about two weeks, Ghanaians have been treated to a bizarre spectacle of witnessing the Speaker of parliament, Professor Aaron Mike Oquaye being sworn in repeatedly anytime the President took a leave out of the jurisdiction for an official function.

Compounding this situation is the unfortunate incapacitation of the Vice President whose medical leave outside the jurisdiction is the spring bestowing this blessing on the speaker to be sworn in on two such occasions.

Informing this constitutional faux pas is the interpretation of a supreme court ruling in Supreme Court decision in Asare v A-G which was re-enforced in Attah Mensah v A-G that ruled inter alia that the Speaker of parliament swears the oath of office to give effect to Article 60 (11 and 12) by way of meaning that the absence of the president meant he was incapable of performing this function.

Articles 60 (11) reads ‘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. 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.

Flowing from this manifest absurdity is the organised circus of a show that we have seen with the swearing of the Speaker twice in barely under two weeks a situation that has left many political and legal brains to ask the vexed question of whether what is playing out constitutes the true construction and intention of the framers of our constitution against the backdrop of the legal and political implications such a process would have on our constitutional and democratic forward march.

Whiles this plays out, Ghanaians are at pains to understand why the speaker has to be sworn-in as Acting President and keep asking in which jurisdiction, institution or organisation does a boss travel to perform his official duties only to have his assign to be given an appointment letter as the substantive boss until he returns?

In what capacity would President Nana Addo be holding himself out there at the AU meeting of head of states given that our constitution construes his absence from Ghana as being incapable of performing his functions?

Given the confusion surrounding the manifest absurdity of the SC ruling that directs the Speaker to be sworn in any time the president is outside, it would appear what didn't play on the minds of my lords in reaching this decision at the time was the situation as we have on our hands now - the Vice President absence from the jurisdiction at the same time as the presidents’.

Sad as this is, I shudder to say my lords would in their privacy not wait to entertain an application seeking to cure this absurdity by way of a review.

For me, what I see playing out now is a tip of the iceberg of bigger problems to come. What happens if after swearing in the speaker tomorrow he falls dead, or he is incapacitated? Who is next? The Chief Justice and then who?

What we urgently need now is a presidential succession act that clearly details the line of succession beyond what we have as pertains in other jurisdictions.

In the USA for example, the presidential succession act of 1947 establishes who shall exercise the powers and duties of the office of the president of the United States in the event neither a President nor Vice President is able to discharge the powers and duties of the office.

Any failure to do this, it wouldn't be farfetched to envisage how the constitutional order can be easily subverted without necessarily firing a gun. With the status quo remaining it's reasonably foreseeable to see the chaos Ghana can be plunged into next week assuming the speaker and Chief Justice become incapacitated, are held captive or put under duress to resign and the president doesn't make immediate entry or is denied a return into the jurisdiction.

Whiles we are engrossed with the ongoing debate over the repeated swearing in of the Speaker of Parliament, it would be worth our time to immediately consider passing a presidential succession act that details the order of seniority with which members of government should be next in line after the Chief Justice.

Beyond that also, our parliament should also consider fashioning out a standard operating procedure and emergency response act that should dictate how our national security responds to a national emergency that portends to affect or destabilize our national way of life such as in the case of a terrorist strike, a natural disaster or any other unforeseen emergency.

The necessity for this is dictated by the need to secure all in line of succession and have someone with formal and constitutional authority at all times to confront the emergency and not to create a power vacuum that should entice or invite any adventurer to seek to fill the void.

The classic case of the speed of which the United States USA responded to the September 11 terrorist attack that saw the Commander-in-Chief George Bush in the air aboard Air Force one within minutes, Dick Cheney was rushed underneath the North Lawn of the White House where there is the Presidential Emergency Operations Center (PEOC) and all the next 30 potential successors to secured locations is ample proof of a forward-looking country that anticipates threats and deals with them rather than being reactionary. This procedure we are told empowers the marine on duty to physically tackle the commander in chief in the event that in the view of the marine he resists any such safety protocols that could potentially put him in harm’s way.

We might not be as powerful as the United States but we cannot fail our future generations who we owe a duty to plan ahead to meet their needs. The USA presidential succession act is as old as it was enacted in 1792 as amended 1886 and 1947.

If their founding fathers had the foresight to anticipate the exigencies of today's world and made provisions for, let our government in concert with out parliament and her people rise to this occasion and move this current discussion beyond the nuisance of swearing in a speaker repeatedly anytime the president is out of the jurisdiction to a much wider, broader and meaningful discussion of the points herein raised with a view of securing, protecting and safeguarding the 1992 constitution as a document sui generis that must be impervious to any unforeseen eventualities brought on by a curable legal lacunae.