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Opinions of Thursday, 12 February 2009

Columnist: Asante Fordjour

Mills Handcuffs Parliament?

The Supremacy and Sovereignty Of Parliament Under Threat

Asante Fordjour LLB, LLM International Law And Criminal Justice

Article 1(1) of the 1992 Ghana Constitution states that: The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.

Sub-section 2 explains that this Constitution shall be the supreme law of Ghana and that any other law found to be inconsistent with any provision of this Constitution which came into force on 7 January 1993, shall, to the extent of the inconsistency, be void.

The legislative powers are provided in Article 93(1)(2) which make it clear that subject to the provisions of this Constitution, the legislative power shall be vested in Parliament and shall be exercised in accordance with this Constitution.

In making room for future constitutional deadlock between other arms of government- here, between the executive and legislature, the lawmakers set out in Article 1(2) that-

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.

Thus the Supreme Court shall, for the purposes of a declaration under clause (1) of the cited 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.

The interpretation here could be that once a bill is passed by parliament and is duly assented into law as the ex-gratia awards saga appears to be that, the Legislature could be the only arm of government which could legally reverse its constitutional legality by revoking it in the same way it was enacted but not the executive and in our present submission, President Mills?

Article 71 of 1992 Republican Constitution- DETERMINATION OF CERTAIN EMOLUMENTS, states: (2) The salaries and allowances payable, and the facilities available, to the President, the Vice-President, the chairman and the other members of the Council of State; Ministers of State and Deputy Ministers, being expenditure charged on the Consolidated Fund, shall be determined by Parliament on the recommendations of the committee referred to in clause (1) of this article.

For the purposes of this article, and except as otherwise provided in this Constitution, the legally mandated Constituent Assembly, clarified "salaries" to be paid/awarded in sub-section (3), to include allowances, facilities and privileges and retiring benefits or awards.

Yes, being expenditure charged on the Consolidated Fund, the Fourth Republic Constitution states that this shall be determined by the President on the recommendations of a committee of not more than five persons appointed by the President, acting in accordance with the advice of the Council of State which in reality, the newly-elected President J.E.A. Mills, has not.

So who was to determine ex-gratia entitlements and payments- the outgoing President Kufuor or the incoming President Mills, who while attempting to fulfil the grievances of the public outcry seemingly, every imputation points to the fact that he is acting against the will and spirit of the Parliament, by freezing what the Ghanaian Parliament had truly sanctioned?

Indeed it is argued that the doctrine of parliamentary supremacy is not exhaustive and that it would be unconstitutional for a parliament to do certain things- meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things.

But does it really mean that it is beyond the powers of Parliament to do such things? In Madzimbamuto v. Lardner-Burke [1969] 1 AC 645, Lord Reid said that “If Parliament chose to do any of them the courts would not hold the said Act of Parliament invalid.

Yes this position was put to test in 2004, where the United Kingdom Government sought to pass the Asylum and Immigration (Treatment of Claimants) Bill which contained a comprehensive "ouster clause", which would have excluded judicial review of decisions on applications for asylum.

The argument here is that, there was indeed uproar among judges and lawyers, to an extent that the Lord Chief Justice- Lord Woolf, went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it. Thus with such a constitutional threats, the ((people- focused)) government backed down, and the clause became law in what has been described as diluted form. Then is the increasing use of referendums.

It is argued that although the result of a referendum and in my judgement electoral triumph is in no way binding on Parliament unless it has previously agreed that this will be the case.

In reality there appear to be emerging and yes, considerable pressure on Parliament from the electorate to take the result, including public outcry such as mass protest against particular law or policy into account whilst due care is taken in not sacrificing legislative supremacy?

A typical example, could be what happened on 03 February 2009, where the Committee of Joint Action, under the leadership of a Kwesi Pratt demonstrated and petitioned to President Mills’ NDC government to review an ex-gratia awards which though, said to have been sanctioned by the Ghanaian Parliament, the CJA sees as financially and indeed, economically threatening for a country which relies on donor handouts in building projects such as public lavatories.

Whilst this stands in contrast to the numerous sacrifices that governments implore us to make for a better Ghana that we all cherished to have for ourselves and posterity, it is still difficult to see how the professor of laws and here, the recently-elected President John Atta Mills, could be constitutionally right to be a judge in his own cause by freezing parliamentary enactment unless he later resile from that entrenched cockpit that soothes political bluster.

Asante Fordjour LLB, LLM (Master of Laws) International Law And Criminal Justice

Credit JusticeGhana.com