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Opinions of Saturday, 20 April 2002

Columnist: Adu-Asare, R. Y

Ghana's 1992 Ailing Constitution Needs Radical Surgery to Grow

Ghana’s 1992 constitution, if it were an organic matter, could be said to possess conditions for a stunted growth process and low life expectancy. Because of flawed and tainted gestation, the Constitution was born with ailments that need treatment through invasive surgery for it to do what constitutions are expected to do; that is to lay down the rules for governing society with lasting efficacy. This much was said in 1992 and continues to be the case today.

That the 1992 constitution needs radical surgery (read amendments) has become more imperative, recently, with respect to how it is being shredded to pieces by Tsatsu Tsikata and his lawyers, even in a case as straight forward as misappropriation of public funds. But the situation such as in Tsikata’s case is to be expected precisely because of who conceived the constitution, who wrote it, how it was written, why it was written and who supervised it’s writing, for what purpose and in whose interest? Should all these questions be answered properly and together, it would become clear that the 1992 constitution was created to serve the long-term interest of the individuals who wielded economic and political power of the military state of the Ghanaian society that supervised its creation.

One clear indication that the 1992 constitution is intended to serve and protect the interest of Jerry Rawlings’ regimes and the elements who wielded power of the state during that period, can be found in the “Indemnity Clause”. To acquaint one’s self with the truism of this assertion, it would serve a useful purpose to read all of Section 34 of Part IV of Schedules (Miscellaneous) of the 1992 Constitution, page 201, extant; Section 8 attests also to my gripe that the 1992 constitution was written for the benefit of the ruling class elements associated with Jerry Rawlings regimes.

To expect the Rawlings’ regime to have made any serious attempt to amend anomalies in the 1992 constitution would have been similar to serving one’s best cooked meal to others while staying hungry. The point here is that the constitution under discussion served the purposes of Rawlings and his henchmen in office to the extent that no Ghanaian should have expected any amendments of it. Certainly, if I were Tsatsu Tsikata, I would, as he has, call for an independent judiciary in Ghana today based on the idea that “the Supreme Court has the mandate to interpret the constitution,” (Ref.: Ghanaweb.com, “Tsatsu Calls for Independent Judiciary”, April 16, 2002) knowing that I had a hand in drafting it (i.e. the 1992 constitution).

Responsibility for amending Ghana’s 1992 constitution to serve the interest of all of society, lies with the present regime. But this need for amending the constitution will happen only with pressure from all concerned citizens, especially the younger generation of Ghanaians who would have to live with it for the greater part of their lives. Yet, it is incumbent on all well-meaning Ghanaians to leave behind a constitution that has the capacity to shepherd society into posterity.

To say that the gestation period of Ghana’s 1992 constitution was tainted and flawed is to indicate that the process by which it came into existence was calculated and planned to deceive.

At the fundamental level, under the special circumstances of Ghanaian society prevailing in 1992, given the siege of military dictatorship characterized by organized violence, thuggery and hooliganism (to wit: defence of revolution) against civilian populations, the general atmosphere was anything but free for open dialogue about writing a new constitution if the provisions were not in conformity with the wishes and interest of the regime in power. Besides, the fact that the law establishing the constitution was based on a 1981 Proclamation by the military regime of the Provisional National Defence Council, PNDC, leaves much to be desired with respect to both the actual legality of the regime considering that it overthrew a constitutionally existing government of Hilla Limann-led, PNP. In addition, freedom for approving the acceptance of the 1992 constitution was truncated by the mere fact that the Referendum held on April 28, 1992 for that purpose, was supervised by an extra-legal military regime, as all military regimes tend to be.

To most sincere Ghanaians, December 31, 1981, like February 24, 1966 and January 13, 1972, will remain “red letter days” in the annals of the political and constitutional history of Ghana. These were the days when all principles of democracy were thrown into the gutter to be supplanted by totalitarianism instituted by elements of Ghana’s military establishment who saw it as their private prerogative to right what they alone deemed as the wrongs of society. What a sham?

For another reason, why was a Consultative Assembly empanelled to deliberate the expectations for the 1992 constitution from a sample of society as opposed to a Constituent Assembly? After all, outcomes of a consultation process do not have binding authority and no enforcement capacity. This is to say that the drafters (not the framers) of the 1992 constitution were free to insert whatever provisions that suited their interest as opposed to what society expected.

Another reason why the 1992 constitution could not be a representation of the political will of Ghanaians has a lot to do with the fact that the final product is a piece of work planted in the juridical superstructure of society. Legal documents, written by people with legal minds (assuming they have legal brains) tend to contain ambiguous language, deliberately bifurcated to allow the side with a convincing argument to win a case. It is fair to say that facts, as facts, do not always represent the truth, devoid of argumentation and rationalizations.

To be on the fair side of history, the 1992 constitution should have been grounded in the political structure of society, where it belongs. In the political realm, discourse always starts with the ‘why’ question and ultimately ends with the issue of power; who has it, how it used, for what purpose and in whose interest. In this instance, a question such as: “Why should Jerry Rawlings and his appointees who ruled Ghana for 19 years not be called upon in the court of law to account for their stewardship whenever society deemed necessary, rather than wait for three years?

Given that a large proportion of the Ghanaian population does not have adequate working knowledge of the English language in which the constitution is written, it is fair to state that majority of society is cut off from accessing the document’s provisions for their benefit. My late cousin, the palm wine tapper, lamented that he could not go to Accra to air his views on the price paid for cocoa to Jerry Rawlings because he (my cousin) could not speak the English language. Meanwhile, my late cousin had spent all of his adult life producing cocoa that has been the mainstay of Ghana’s foreign exchange earner since before independence. What injustice!

In addition, compared to the size of some of the existing constitutions of the world that have stood the test of time, Ghana’s 1992 constitution is a tome that cannot be carried around for quick and easy reference. This phenomenon, it can be argued, is yet another reflection of the ugly intents of Ghana’s 1992 constitution which cast doubts on its efficacy. Ghana’s 1992 constitution is 135 pages long; I challenge Tsatsu Tsikata to carry one in his breast pocket. My pocket-size copy of the United States constitution – seven articles and 26 amendments – is 28 pages long.

It cannot be emphasized any stronger than to say that Ghana’s legislature must move with alacrity to remove all the odious provisions of the 1992 constitution in the interest of the country’s democratic experiment.