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Opinions of Wednesday, 25 March 2015

Columnist: Ata, Kofi

Has Justice Emile Short Become Anti-Constitutional?

By Kofi Ata, Cambridge, UK March 23, 2015

Retired Justice Emile Short was once the defender of human/constitutional rights and administrative justice in Ghana as the first Commissioner of the Commission for Human Rights and Administrative Justice (CHRAJ) under the Fourth Republic, a role many Ghanaians believe he excelled, compared to his successor, Lauretta Vivian Lamptey who was embroiled in controversy, extravagance lifestyle, incompetence, conflict of interest, etc and currently under judicial investigation and could potentially face dismissal. However, of late, Justice Short is becoming anything but constitutional. This article is a review of some of his actions and ideas that are anti-constitutional and anti-democratic.

Justice Emile Short made a very dangerous and unconstitutional suggestion on Friday March 13, 2015. Commenting on the Woyome acquittal and the decision by the Attorney General to appeal against the decision, he rightly suggested that the country must decouple the Attorney-General’s office from the Ministry of Justice. “So long as we have the current situation, it is almost impossible to really expect the Attorney-General to be able to prosecute corruption effectively. He or she will be in a dilemma and when I talk about an independent prosecutor, I mean not someone who’s been appointed by President in consultation with the Council of State, but somebody who will be appointed with the participation of and in consultation with civil society and bi-partisan parliament, so that we can get somebody who is credible, who is independent-minded and somebody who will not be susceptible to any influence or control of the executive” (see, “A-G's Planned Appeal Of Woyome Case Dead On Arrival – Emile Short”, Peacefmonline; “Woyome Ruling: AG’s appeal will backfire – Emile Short”, Starrfmonline and Ghanaweb, March 13, 2015).

The decoupling of the Attorney General’s Department is not what is dangerous and unconstitutional, neither is the independence of the appointee. In fact, the decoupling is long overdue and should have been done by now. Rather, the suggestion that for the prosecutor to be independent minded, the appointment should not be done by the President in consultation with the Council of State as required under the 1992 Constitution but by the participation of and in consultation with civil society and bipartisan parliament. In other words, Emile Short is saying that the constitution should be ignored. For me, this is not only unconstitutional but also raises a number of unconstitutional issues such as the blurring of the separation of powers between the Legislature and the Executive. It’s an insult to the office of the President because the office of the state prosecutor is part of the Executive arm of government, though independent.

Nowhere in the developed democracies do civil society organisations and the legislature (parliament) appoint heads of public institutions and agencies under the Executive arm of government. In the United States the President appoints the Attorney General and in the UK the final choice on the appointment of Director of Public Prosecution rests with the Executive through the Attorney General and Minister for Justice with approval of the Prime Minister, though the selection is done by the Independent Public Appointment Commission. Again, the legislature does not make appointments for the Executive but vets the nominees of the Executive. Why did Emile Short not provide an example of a country that practices the sort of appointment process he suggested? Whilst I reconginse that the President has too much power over public appointments (the President should not appoint Chief Executives MMDAs), Emile Short’s suggestion should be rejected outright because it is deliberately crafted to disrespect the office of the current President.

I agree that the selection should be through competitive recruitment process through an Independent Public Appointment Commission or the Ghana Public Services Commission, who will recommend two or three candidates to the President for the final decisions in consultation with the Council of State. That is what is done in the UK, yet the government of the day always gets its preferred candidates appointed, especially when it comes the Chairs of strategic public boards and institutions. When the Labour Party is in power most of such public bodies are chaired by pro Labour individuals and vice versa when the Conservatives are in power. For example, when the Conservatives came to power in 2010, the next BBC Trust Chairman was a former Conservative Party Chairman (Lord Chris Patten) and when he resigned, the government wanted Lord Coe (a Conservative Life Peer in the House of Lords) to be appointed but he declined so the wife of leading Conservative was appointed. The difference is that those appointed in addition to their party affiliation are highly qualified. I believe the same is the case in other democracies. Parliament had nothing to do with such appointments though from time these public officers appear before Parliamentary Committees to give accounts of their stewardship.

People like Emile Short should not be allowed to dictate to the Executive or President and truncate the Constitution with their own agenda. Why did he not make such suggestion when he was the CHRAJ Commissioner? Is it because he does not like the current occupant of the presidency? I think it is important that when it comes to constitutional matters and the presidency, we must differentiate between the office itself and the occupant. Just because some people do not like the occupant does not mean it should be weakened with some illogical suggestion since such irrationality once introduced would affect the office forever, irrespective of who occupies.

What is important with the appointment of a State Prosecutor if the Attorney General’s Department is decoupled is to ensure that whoever is appointed by the President asserts his or her independence from the appointing authority. That is what happens in the developed democracies and not who makes the final appointment. With Emile Short’s bizarre suggestion, would the post holder not regard himself or herself as having allegiance to the civil society organisations and parliament that appointed him or her? What about the separation of powers between the Executive and the Legislature if parliament is making appointments for the Executive? How will the Legislature carry out its oversight responsibilities over the Executive and public officers if parliament made appointments for the Executive? Did Emile Short consider such constitutional matters before he came out with such stupid idea?

If what Emile Short suggestion is the best, what about the appointment of the Chief Justice, Supreme Court Justices and other Justices who are expected to be totally independent from both the Executive and the Legislature, yet, they are appointed by the President in consultation with the Judicial Council? Is the Chief Justice not expected to be the most independent minded of all public officers appointed by the President? If so, why should the President not appoint the head of the Sate Prosecution because of the need for his or her independence?

Constitutional bodies irrespective of who appoints their heads must assert their independence from the appointing authority once in office. That is how Ghana can ensure that there is accountability and good governance. Who are civil society organisations accountable to (Ghanaians, the Executive, Legislature, Judiciary or their financiers)? Who appointed them and who funds them that they should be appointing heads of public institutions who report to the President/Executive? Which civil society organisation did Emile Short have in mind, (IMANI, IDEG, IEA, Occupy Ghana, CJA, Danquah Institute or who)? Emile Short’s suggestion smacks of elitism. Ghanaian elites are deluded to believe that they should be making certain decisions for Ghana and Ghanaians wherever they are (whether in government or outside?).

Justice Emile Short is also one of the a group of eminent Ghanaians working with the Institute of Economic Affairs (IEA), led by the Catholic Archbishop of Accra, Most Reverend Palmer-Buckle who are planning or plotting to force proportional representation government down the throat of Ghanaians through a constitutional amendment. Some of them had suggested the idea of a national unity government but when no one listened to them they constituted themselves into a Working Group at the IEA to propose a constitutional proportional representation form of government to be part of the Constitutional Amendment Review.

This idea is also dangerous because there is no constitution that has formalised constitutional proportional representation. Bearing in mind that Ghana’s 1992 Constitution clearly states that the presidential candidates that gains 50% plus one vote or more at the presidential elections forms the Executive government and not the party with the majority in Parliament. What happens under this proposal if an independent presidential candidate wins the presidency? Is it not contrary to what the constitution says? What is confusing and anti-constitutional about their proposal is the lack of definition of what is meant by their so-called constitutional representation government, it’s character and how that would work with an Executive President? Worryingly, no consideration has been given by the group on the potential difficulties of the two leading political parties in Ghana (NDC and NPP) being forced to form a proportional representation government.

There is nothing constitutional by this strange and devious idea of enshrining proportional representation government into the Constitutional except to weaken constitutional democracy in Ghana. If some political parties want to come together to form a government of national unity after an election, then it is up to such parties to negotiate the format, terms and conditions of the coalition government but not for some self-seeking opportunists to force perpetual proportional representation governments on Ghanaians, no matter the outcome of the presidential and parliamentary elections. The proposal is unworkable, deceptive and a scam to ensure that failed political parties and candidates secure roles in government by hook or crook and should be rejected. If Emile Short and his cohorts want their allies to be in government they should be bold to mount political platforms and openly campaign for their preferred presidential candidates and political parties and stop hiding behind civil society organisations to prosecute their political agenda. Their ideas and suggestions are undemocratic and unconstitutional. It appears Justice Emile Short has become anti-constitutional and anti-democratic.

Kofi Ata, Cambridge, UK