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Opinions of Saturday, 31 December 2016

Columnist: Annor, Joseph

Issues of President Mahama’s CHRAJ appointment

By Joseph Annor

Despite President Mahama and his Government losing the 2016 elections massively, the President has made three key appointments on the blind side of the transitional team of Nana Akuffo Addo incoming Government. The new appointees are Mr. Joseph Whittal, Ms. Josephine Nkrumah and Mr. Daniel Domelovo who are to head CHRAJ, the National Commission for Civic Education and the Auditor-General Office respectively. It has been reported that Mr. Daniel Domelovo has rejected his appointment.

Beside the above appointments, the Government has also taken other major decisions including signing new contracts and increasing the allowance for the National Service Personnel by a huge 40%.

As expected, the President actions have received condemnation, particularly from NPP transitional team which has served noticed that NPP will review the appointments and contracts, and has already started a court action to reverse some of the appointments. Furthermore, Mr Martin Amidu has advocated that the “Looter Government” that has been substantially rejected by the voters does not have any basis to make such last minute key appointments.

However, some Government appointees and Mr. Kwaku Baako have defended the decisions of the President as follows:

• Mr Mahama Ayariga stated the €18m last minute contract signed is to enable him “to leave a legacy”. He also stated, because of the elections he had delayed signing the contract and had only done so after the elections.

• Mr. Ofosu Kwakye (Deputy Minister of Communications) stated that the criticism of the President’s decisions is based on “a partisan trend, not an objective, fair, candid analysis of the situation” and that “It appears … there’re some people who simply do not respect the decisions and mandate of president Mahama…” but the Presidents has to function until end of tenure.

• Kwaku Baako stated “Whatever it is Kufour did, presented a challenge to the Mills government so the government met with organised labour and stakeholders and decided to defer it at least for a year and implemented it in 2010. “Obviously the Mills administration suspended the thing, subjected it to review, deferred implementation and began at the time it thought was in the national interest to do so. So what is the big deal,"

Most importantly, President Mahama himself has defended his decision. He stated that all decisions that have been made [during the transitional period] are in the interest of the country.

He stated also that “Our democracy is evolving and so there are some constitutional issues that definitely have come up as to whether a President is still a president even after he has lost an election until the midnight of the inauguration. But I believe convention or legality might answer those questions.” (see: “Last-Minute’ Appointments In Ghana’s Interest – Mahama”:

http://peacefmonline.com/pages/politics/politics/201612/302085.php). Clearly, President Mahama has made some useful points and the discussion below will address them.

However, Ghanaians have all the reasons to worry about the contract that Mr. Ayariga has rushed to sign because he is notoriously known for engaging in dubious contracts and transactions. For example, in 2012, Mr. Ayariga as a Deputy Minister of Education put pressure on the Ghana Education Trust Fund (GETfund) to cough $44 million to purchase some useless atlas books for schools.

In that transaction, Mr. Ayariga awarded a hoping $25 million of the contract for printing the books to only one company (Approachers (GH) Ltd) and the rest to other 4 companies. As expected, the move received a lot of condemnation and Mr. Sam Garba, the Administrator of the GETfund refused to comply with the directive that was impregnated with corruption. And only God knows how much financial benefit that Mr. Ayariga would have received if the contracts had proceeded.

Also, in 2009, Mr Ayariga dubiously acquired five John Deere tractors, which President Kuffour Government imported before leaving office. The affordable tractors were only available to low income farmers to buy, but Mr. Ayariga bought 5 of them, which obviously deprived others the opportunity to get some to buy. Therefore, Ghanaians are genuinely concerned that Mr. Ayariga may be using the contract he has signed as a mean to derive his retirement package.

Furthermore, in several jurisdictions, in order to prevent an outgoing government from taking last minute decisions that will tie down the incoming government, there are specific constitutional provisions or conventions that prohibit an outgoing government for taking decisions that may stifle the agenda of the incoming government.

For example, the Article VII, Section 15 of the US Constitution stipulates that: “two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety”.

Also, Australia has caretaker conventions which regulate the incumbent government actions during 8 weeks or so before elections and in the post-election period until the election results are clear and either the incumbent government is retained or there is change of government and the new government is sworn in (Caretaker Period).

During the Caretaker Period, the incumbent government is considered as a mere caretaker and can only generally deal with ordinary or routine administrative matters that ensure that the business of the government continues. There are two rationales for the operation of the caretaker conventions in Australia but only one may be applicable to the Ghanaian context because the other is relevant only to parliamentarian form of government.

In relation to the rationale that may be relevant to Ghanaian political context, it is stipulated that it is unfair for a potential outgoing government to bind a future government just before the new one comes into office. If it could do so, a losing government could leave all kinds of booby-traps or impose enormous financial commitments upon its successor and limits the freedom of the incoming government to act. Accordingly, the Australian caretaker conventions prescribe as follows:

1. Major Policy Decisions

Governments must avoid making major policy decisions during the Caretaker Period that are likely to commit an incoming government. Whether a particular policy decision qualifies as ‘major’ is a matter for judgment.

Relevant considerations include not only the significance of the decision in terms of policy and resources, but also whether the decision is contentious. If circumstances require the Government to make a major policy decision during the Caretaker Period that would bind an incoming government, the Minister would usually consult the Opposition spokesperson for the issue to be resolved on bipartisan basis. For example, the Government has in the past provided urgent financial assistance to drought-affected areas following consultation with the Opposition.

2. Appointments

Governments defer making significant appointments during the Caretaker Period. Factors that should be considered include the importance of the appointment, and whether the proposed appointment would likely be controversial. If deferring the appointment is impracticable because it will affect a proper functioning of a government department, then the appointment can be made on acting or a short-term basis. If that is not practicable, the government consult with the opposition before a full term appointment is made.

3. Major contracts

The convention requires Australian governments not to enter into any major contracts or undertakings during the Caretaker Period. When considering whether a contract or undertaking qualifies as ‘major’, departments should consider the monetary value of the commitment and also whether the commitment involves a routine administrative matter or it rather implements or entrenches a policy, program or administrative structure which is politically contentious.

A further consideration is whether the commitment requires ministerial approval. If it is not possible to defer the commitment until after the Caretaker Period, for legal, commercial or other reasons, the Minister could consult the relevant opposition spokesperson regarding the commitment. Such contracts will include clauses that may enable a new government to terminate the contracts if it so desires. Similarly, potential tenderers are warned about the possibility that a tender may not proceed if there is a change of government.

4. International negotiations

The Government ordinary seeks to defer major international negotiations, or adopt observer status until the end of the Caretaker Period.

5. The neutrality of the Australian Public Service

The Australian Public Service remains neutral while it continues to advise the Government during the Caretaker Period.

Why NPP Government can successfully challenge the Mahama Midnight appointments

Although the Ghana constitution does not contain any provision prohibiting midnight appointments and last minute contracts, it seems the NPP may have a legal basis to sack the appointees or challenge them in court.

For example, Mr Martin Amidu has argued that the interpretation of the law in respect of the action of the President should not be limited only to the letter but also the spirit. The letter of the law refers to just obeying the literal interpretation of the words (the "letter") of the law while one obeys the spirit of the law when one does what the authors of the law intended the law to do in addition to the letter or without necessarily adhering to the literal wording.

For example, Jesus taught that to merely refrain from adultery is obedience to the “letter of the Law,” but to obey both the spirit and letter of the Law requires one to exercise self-control and refrain from lusting after someone (i.e. committing “adultery in the heart”). In summary, while the Constitution provides the President the power to make appointments, the authors of the Constitution did not intend that the President’s power will be used to stifle the efficient running of a new government.

Accordingly, it appears that the action of President Mahama is not consistent with the purpose of the Constitution. This is particularly true in relation to the CHRAJ appointment as the President’s appointee is the same person that led the investigation that exonerated the President from corruption allegation in relation to the Ford gift saga.

In fact, given the high profile corruption cases that have characterised President Mahama’s administration, it is fair to state that the President has appointed Mr. Joseph Whittal in order that he would protect the appointees of the Government from any objective and effective CHRAJ’s investigation into the numerous corruption allegations. Thus, one can even argue that his appointment conflicts with the constitutional requirement to fight corruption.

Moreover some people have argued that former President Kuffour also made some last minute major decisions, particularly, he increased salaries of workers by 16-32 per cent. However, that does not mean what President Mahama has done is right because President Kuffour’s action was also not right.

It is important to note that Mr Osafo Marfo, the former Finance minister for President Kuffour criticised President Kuffour’s decision as follows: “There should have been a silent memorandum to the NDC detailing what has been discussed and agreed, for them to have a look at it and incorporate it in the budget.” Accordingly, Mr Kuffour’s precedent cannot be used as an appropriate basis to justify the action of President Mahama.

Filipino experience

In 2010, the outgoing President, Gloria Macapagal-Arroyo made several high profile appointments (in fact about 970 of them) which occurred some few days before the onset of the constitutional prohibition period but not confirmed until the day after prohibition period began.

The new President Benigno Aquino by executive order revoked the appointments but some of the appointees took the matter to the lower court and lost the case. They then sent the matter to the Court of Appeals, which also ruled against them and affirmed the legality of the President Benigno Aquino’s executive order revoking the “midnight appointments”.

Importantly, the Associate Justice Noel Tijam stated that “The Constitution imposes a prohibition on the part of the President to make midnight appointments because during the transition period, he is no more than a mere ‘care taker’ who must not do anything that would undermine the policies of the succeeding President,” and “The purpose is also to eradicate the possible abuse of Presidential prerogatives of appointment for partisan purposes thereby preventing the incoming President from choosing the persons whom he sees fit to aid him in promoting his policies and running his administration”.

It can be infer from the above ruling that it does not make sense that President Mahama did not confirm the appointment of Mr. Whittal for more than a year and has only done so when the President is on his way out.

Clearly, the reason why the Constitution provides the President the prerogative to choose appointees is to enable the President to choose people that he can work with during his tenure. And since President Mahama is leaving office, there is no legal basis for him to appoint people that the new government will have to work with.

This is why the Republican Party refused to allow Mr. Obama to appoint the Supreme Court judge when the position became vacant about 6 months before the US elections. In relation to Mr. Whittal, President Mahama had more than one year to confirm him as the substantive chairman of CHRAJ, yet the President did not avail himself of that opportunity/prerogative, why would he then confirm the appointment when the President is on his way out and would not be working with the appointee?

Accordingly, while Ghana does not have any specific provision prohibiting midnight appointments, one can imply that the spirit of the law prohibits President Mahama from making those last minute appointments and Nana Addo can either dismiss them or continue with the court action against the appointments.


References:

• http://m.myjoyonline.com/marticles/opinion/kufuor-also-made-major-last-minute-decisions--mahama-ayariga-
• https://en.wikipedia.org/wiki/Letter_and_spirit_of_the_law
• https://rcg.org/p162.a.html
• http://thechronicle.com.gh/getfund-exposes-ayariga
• http://newsinfo.inquirer.net/261418/ca-sacking-of-midnight-appointees-legal
• https://www.dpmc.gov.au/resource-centre/government/guidance-caretaker-conventions