Is Nana Akufo-Addo Experiencing Amnesia?

By Kofi Ata, Cambridge, UK

“I would respectfully urge the President to abide by the Constitution and allow the Council of State do its work openly and transparently, so that the final product will engender broad public confidence. It is important for the strengthening of our democracy. This is, in effect, the first time such an appointment is being made under the Fourth Republican Constitution – hence the anxiety of the public that we should get it right. I have no doubt that the President, the avowed democrat that he is, will not fail the people of Ghana in this regard” According to NPP Communications Directorate, the above advice by Akufo-Addo was when he addressed a packed hall of students at the University of Cape Coast, in a meeting of the Tertiary Students Confederacy (TESCON), on Saturday, April 18, 2015 (see, “Allow Council of State to do its work, Akufo-Addo urges Mahama”, Ghanaweb, April 20, 2015). This is a brief analysis of Article 70(2) relative to Akufo-Addo’s advice.

Article 70(2) of the 1992Constition provides that, “the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission” (EC). This constitutional provision, according to Nana Akufo-Addo, “imposes an obligation on the President to act on the advice of the Council of State in appointing the Chairman and Members of the EC. Advice in this context refers to a binding instruction given by one constitutional officer to another. Thus, when Article 70(2) provides that the President shall act on the advice of the Council of State, it contemplates that the Council of State will put in place a mechanism to search for, vet and nominate a candidate for the President to appoint”, Nana Addo explained.

It beggars belief that Nana Akufo-Addo, an astute lawyer, former Attorney General and Minister for Justice under President Kufuor would say the above. I pray and hope that he did not indeed say all what is attributed to him by NPP Communications Directorate. This is because if they are true, then either Akufo-Addo has very short memory or he is simply telling lies.

It is never true that this is “the first time that Article 70(2) appointment is being made under the Fourth Republican Constitution. In fact, Dr Afari Gyan and all past and present deputy Commissioners and other Commissioners since the coming into force of the Constitution appointed by Ex-Presidents Rawlings, Kufuor and Mills as well as President Mahama were made under the same Article 70(2). If the former chief government adviser did not know this then where has he been all these years? That is a lie and what Kwaku Baako will describe as mischief.

On the proper interpretation of Article 70(2) of the 1992 Constitution it appears some lawyers, including Akufo-Addo, Prof Mike Oqauye and my good friend, Prof Kwaku Asare are confused and are using the 1969 Constitution, what happens in the UK and Germany, all Ceremonial Heads of State and not Executive Presidents to wrongly interpret the words “on the advice of” to mean and to use Akufo-Addo’s words, “that the Council of State will put in place a mechanism to search for, vet and nominate a candidate for the President to appoint.” As Dr Arthur Kennedy said in his article on this subject on Ghanaweb on April 16, 2015, they are comparing appeals to oranges.

The proper approach to the correct interpretation of Article 70(2) should be two-pronged. First, is the spirit of 1992 Constitution. A read through the constitution clearly shows that the framers wanted an Executive President with wide ranging powers over public appointments. In fact, the whole constitution was fashioned to suit the authoritarian leadership style of Rawlings. Most or all public appointments were vested in the hands of the Executive President with other constitutional bodies having either mere advisory or consultation roles while the Legislature has an approval role in a few cases (which was meant to be a forgone conclusion). Under such a constitution it not plausible that the words “on the advice of” meant that body must put in place a mechanism to search for, vet and nominate a candidate for the President to appoint, reducing the powerful Executive President to a mere follower. That is illogical and as Rawlings will say “who born dog”?

The second, is the customary practice or what has been happening since the inception of the Fourth Republican Constitution. Since then, the four presidents have appointed either Chairman, Deputy Chairmen or other members of the EC. The answer lies in how these appointments were made by the presidents. Did the Council of State put in place a mechanism to search for, vetted and nominated candidates for the presidents to appoint them? I doubt if that is what has been happening. The question is, if what Akufo-Addo suggested has not been the past practice why now? Is it because some people think Mahama is incapable of making the decision?

I am not suggesting that if what has been happening in the past was wrong, then it should not be corrected. However, I am of the strong opinion that what Akufo-Addo and others are campaigning for is not the correct interpretation of Article 70(2), unless they claim this is a case of “omnia praesumuntur rite et solemniter esse acta” (All things are presumed to be done correctly and solemnly until the contrary shall be proved).

Another way of resolving the interpretation of Article (70(2) is to look at what happens with the appointment of other Supreme Court Justices under Article 144(2) which states, “the other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial Council in consultation with the Council of state and with the approval by Parliament.” Does this also mean that the Judicial Council puts in place a mechanism to search for, vets and nominates candidates for the Presidents to appoint? Is that what has been happening in all the appointments of Supreme Court Justices? I think Nana Akufo-Addo is best placed to tell Ghanaians what happened when he was Attorney General and a member of Judicial Council when Supreme Court Justices were appointed by President Kufuor. Was President Kufuor the one who put in place a mechanism to search for, vetted and nominated candidates and thereafter sought the advice of the Judicial Council before appointing or the other way round as he is now advising President Mahama to do?

Though I am not a qualified lawyer, my training in matters of law, interpretation and application are such that, in my opinion, the position of Akufo-Addo, Prof Mike Ocquaye and others is fundamentally flawed both in law and in logic because without giving considerations to the spirit and customary practice of the 1992 Constitution but transposing the 1969 Constitution and what happens in democracies with Ceremonial Presidents into Executive Presidency with far reaching appointing authority is turning this appointment into the usual NDC/NPP political football.

I am also of the view that the words “on the advice of” is weaker than “in consultation with” I say so because of the appointment of the Chief Justice under Article 144(1) which states, “the Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament”. Why other Supreme Court Justices are to be appointed on the “advice of the Judicial Council but in the case of Chief Justice “in consultation with Council of State....? This view is not only supported but strengthened by the recommendation of the Constitutional Review Commission that Article 70(2) should be amended to read “in consultation with the Council of State and with approval by Parliament.

If Article 70(2) is stronger as being described by Akufo-Addo and others why would it be watered down with “in consultation with” when the objective of the constitutional review recommendations among others is to reduce the powers of the president and strengthen those of other constitutional bodies? The introduction of approval by parliament does not necessarily make it stronger because from practice since the political party holding the Executive arm of government also has majority in the Legislature as well as the lack of independent minded parliamentarians, the presidents’ nominations are always approved by the Legislature through the votes of the majority.

The words, “in consultation with” are stronger than “on the advice of” because it means the appointing authority must consult from the beginning of the appointment processes. What happens in the UK must not be compared to Ghana, because the Queen has no executive powers. On the advice” in the UK means the advice is from the one with Executive powers (the Prime Minister) and therefore binding on the Queen because the actual selection is by the one with executive powers. That is not the same in the case of the 1992 Constitution because the President has not only executive powers but also powers to appoint whilst the advisory body (Council of State) has no executive powers or appointing powers.

Nana Akufo-Addo and co should not turn the appointment of the next EC into a constitutional circus with their own interpretation of Article 70(2) for political expediency. If Akufo-Addo is being honest, he should tell Ghanaians as former Attorney General and member of the Judicial Council how Kufour made Articles 70(2) and 144(2) appointments and not pretend that this is the first of such appointments. Is he suffering from amnesia?

Kofi Ata, Cambridge, UK