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Opinions of Saturday, 3 May 2014

Columnist: Ata, Kofi

Is there a Constitutional Case to Impeach President Mahama?

Is there a Constitutional Case to Impeach President John Mahama?

By Kofi Ata, Cambridge, UK

On the evening of Tuesday July 24, 2012 in the midst of a nation mourning the sudden death of President John Evans Attah-Mills earlier in the day, the Chief Justice, Her Lordship, Georgina Wood swore in the then Vice-President, Mr John Dramani Mahama as the fourth President of the Fourth Republic to complete the unexpired term of the late President in accordance of the Article 60(6) of the Constitution. In the presence of Members Parliament, Mr John D Mahama swore the Presidential Oath as follows:

“Having been elected to the high office of President of the Republic of Ghana do in the name of the Almighty God swear, solemnly affirm that I will be faithful and true to the Republic of Ghana. That I will at all times preserve, protect and defend the Constitution of the Republic of Ghana; and that I dedicate myself to the service and well-being of the people of the Republic of Ghana and to do right to all manner of persons. I further solemnly swear, solemnly affirm that should I at any time break this Oath of office, I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it. So help me God.” On January 7, 2013, His Excellency, President Mahama was again sworn into office for four years after the December 2012 Presidential Election. This time, the swearing was at the Independence Square and in front tens of thousands of Ghanaians, where he repeated the above Presidential Oath. In this article, I will provide undisputable evidence that the President has not obeyed his presidential oath. Nearly three years after swearing to the first oath and fifteen months after the second oath, I regret to report to Ghanaians that the President has not keep faith with the above Presidential Oath. President Mahama has failed to “at all times preserve, protect and defend the Constitution of the Republic of Ghana.” To be specific, President Mahama violated the 1992 Constitution that he swore to preserve, protect and defend at all times. The facts of my case are follows: Article 1(2) of the 1992 states, “The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency, be void.” Article 2(1) states, “A person who alleges that – (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

In accordance with Article 2(1)(a) and (b) above, Prof Stephen Kwaku Asare, a Ghanaian citizen domiciled in the US did bring action in the Supreme Court to challenge the requirement on Ghanaian dual nationals under Article 8(1) of the Constitution to apply for and be given a Dual Citizenship Certificate or Card to be declared unconstitutional, null, void and of no effect.

On May 22, 2012 nine Supreme Court Justices with JSC Atuguba presiding ruled in favour of Prof Asare and declared as unconstitutional the requirement for Ghanaian dual nationals to apply for and be given Dual Citizenship Certificate or Card under the provisions of the Citizenship Act 2002 (Act 591).

I quote from the relevant sections of the written judgment of JSC Date-Bah as follows:

The Plaintiff’s case under the second strand is, as stated in para 16 of his original Statement of Case, as follows: “The Plaintiff’s case, furthermore, is that any subsidiary legislation or administrative practice that calls for dual citizens to possess additional document that sole citizens are not required to possess is unreasonable, unnecessary and not constitutionally warranted is therefore null, void and of no effect.”

SCJ Date-Bah states in his written judgement in response to the above as follows: “This, to my mind, is the most powerful contention in the Plaintiff’s case. It is important to stress that the rights of citizenship of dual nationals are unconditional. It is true that dual nationals are lawfully excluded from particular offices, but that does not derogate from the proposition that the citizenship rights of dual nationals are unconditional. Accordingly, any administrative procedures or practices or subsidiary legislation which seeks to impose fetters of conditions on the exercise by dual nationals of their rights as citizens are unconstitutional, The authority for this view of law is Article 8(1) of the 1992 Constitution. The plain language of that article makes it quite clear that a Ghanaian may hold the citizenship of another country in addition to the citizenship of Ghana. No conditions are attached to this primary constitutional provision”.

SCJ Date-Bah then made the following declarations in his written judgement as sought by the Plaintiff. “A Declaration that the administrative requirement of the Republic of Ghana for a dual citizen to obtain dual citizenship card is discriminatory, unreasonable, burdensome, serves no legitimate constitutional purpose and thereby null, void and of no effect as it contravenes the letter and spirit of Article 17 of the 1992 Constitution” and;

A “Declaration that the administrative requirement of the Republic of Ghana for a dual citizen to obtain dual citizenship card is discriminatory, unreasonable, burdensome, serves no legitimate constitutional purpose and thereby null, void and of no effect as it contravenes the letter and spirit of Article 15(1) of the 1992 Constitution”.

Despite the above ruling by the Supreme Court on May 22, 2012 in the case of Prof Stephen Asare versus The Attorney General of Ghana, Ghana High Commissions and Embassies across the world still advertise, accept and process Dual Citizenship applications from Ghanaian dual nationals abroad for a fee in clear violation of the Supreme Court ruling.

Article 2(2) states, “The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given to the declaration so made.” Article 2(3) states, “Any person or group of persons of whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.”

Article 2(4) states, “Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice-President constitute a ground for removal from office under this Constitution.”

Article 2(5) states, “A person convicted of a high crime under clause (4) of this article shall (a) be liable to imprisonment not exceeding ten years without the option of a fine; and (b) not be eligible for election, or for appointment, to any public office for ten years beginning with the date of the expiration of the term of imprisonment.

Though the Supreme Court did not make any specific orders or give any directions regarding its judgement, the declarations were very clear and implicit on the government to comply with them. It is therefore abundantly clear from the above that President Mahama and his government have not obeyed the declarations of the Supreme Court on May 22, 2012 and therefore violated Articles 1(2), 2(1), 2(2) and 2(3), 15(1) and 17. He MUST consequently suffer the punishment prescribed under Articles 2(4) and 2(5) accordingly. The Attorney General and minister for Justice, ministers for Foreign Affairs and Interior who had the direct ministerial responsibility for complying with the Supreme Court Declaration should be tried and imprisoned as prescribed under the same Articles.

I am therefore calling on President Mahama to subject himself to the laws of Ghana and suffer the penalty for violating the Constitution as he swore to do on July 23, 2012 and January 7, 2013.

I also call on Parliament, particularly, the Speaker to institute the necessary actions to impeach President Mahama and the trial of the above mentioned ministers for breaching the 1992 Constitution without any further delay.

My objective for calling for the impeachment of the President is not to cause constitutional crisis in Ghana but to strengthen constitutional democracy in Ghana as well as my concern for the lawlessness in Ghana. It is also because the government has deliberately refused to comply with the Supreme Court ruling as admitted by Hannah Tetteh, the Foreign Minister on March 3, 2014 in an answer to a question on the subject at the Royal African Society’s seminar of Ghana’s 57th Independence at the School of Oriental and African Studies in London.

Kofi Ata, Cambridge, UK