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Opinions of Wednesday, 17 November 2010

Columnist: Abdul-Yekin, Kofi Ali

Real Challenges Of The Constitutional Review Commission

Almost every AU member state has in the recent time embarked on a constitutional review exercise aimed at improving on the principles guiding the relationship among their citizens. These changes are yet to result in any significant change in the lives of the citizens making the dreams and aspirations of the nations still in their embryonic stage. The most recent and well orchestrated constitutional change of the AU member state is the Constitutional Review exercise and the Referendum of Kenya. Alas, few Kenyans will be brave enough to say that their dreams of a new Kenya are truly in place, though the days for any constructive assessment of the new constitution is still young.
It is however very important to mention at this point that, like other AU member states constitutional reviews, the reviewed Kenyan Constitution expressed much less about the role of the Kenyan in the AU as a citizen. It is also very important to mention our fruitless efforts of engagement with some of the active advocators of the new constitution among who are individuals like my friend Dr. Ngovi Kitau, on the need to allow the new constitution to consider the Kenyan as an AU citizen and express clearly the role of the individual in the choice of the leadership of the Union.
The nation and people of Ghana, like others in the AU are also out to follow the footsteps of the Kenyans in reviewing our constitution in other to equip the Ghanaian enough for the changing and challenging needs of our time. We have worked and lived by a constitution from the inception of our modern day nationhood. The Ghanaian constitution as a guiding principle on how we relates with one another, as citizens and our relationship as a people with others, is undergoing another review again out of necessity.
As a guiding principle of our relationships, this review allow for adjustment in order to fine tune the contents of the constitution to be able to meet up with demands made on this guiding principle due to changes; in time, in our challenges and in our circumstances.
The frequency by which our constitutional review takes place is determined by the magnitude of the inconveniences that come with the existing constitution in its ability to meet up with the needs of our citizens. Thus the constitutional review is an exercise that aims at bringing out a new constitution that will be functional enough to be able to meet up with the need and aspirations of the citizens and institutions of the people. Therefore, the exercise is to make the existing constitution of Ghana better than it is before the review and in the interest of the people of Ghana. In the course of the exercise, the aim is at ensuring that no stone is left unturned towards the attainment of the noble goal of every possible facet of interest of the Ghanaian.

The Ghanaian constitutional review is now in full gear. The committee made up of noble and able citizens of Ghana, has been mandated by the government under the presidency of His Excellency Pro. John Evans Atta Mills to come up with documented principles by which the people of Ghana will want to be governed in their day to day lives; as individuals and as institutions. In allowing for a flavour of our current democratic practices and a people oriented views to be reflected in the work of the constitutional review, a mechanism in a form of public forum is also in place to factor in the inputs of the people to be govern.
A critical observation of the work of the constitutional review, as per the public consultations and reaction, clearly exposed that the Ghanaian understanding of the scope of his/her sovereignty is unfortunately not conclusive enough. Thus the Ghanaian conception of his/her sovereignty excludes the external element of the sovereignty. By these limitations of the Ghanaian on the scope of his/her sovereignty, it makes the role of the individual as a person in analysing his/her constitutional right and duties as well, to be limiting. Thus, almost every issue the members of the public expressed, as an opinion towards the necessary adjustment for the new constitution, centres on the individual's internal matters while unintentionally turning a blind eye ignorantly on concerns about the external ones. By this misconception, the Ghanaian public are making an error that has kept the ordinary citizen out of external issue that does affect his/her day to day life, there by giving the president the sole prerogative right of acting on non Ghanaian internal concerns outside Ghana in the AU, even when such concerns could have been addressed better if the expressed view of the ordinary Ghanaian had been taken into consideration. In fact, a section of the nation's mysterious institution known as “External Affair Department” does not only enjoy a monopoly on this subject of the nation's view regarding the people's external interest but carry out such task shrewdly in secrecy, busy giving away the people's external sovereign mandate without adequate consultation or consent of the people.
The concept of sovereignty is bi-facet in nature. It consists of the internal and external elements of the same sovereignty. Just like in a football match by a team, the concept of sovereignty operates on defence and the attack principle. Thus the internal sovereignty of the Ghanaian is what the constitutional review committee is focused on thereby making the Ghanaian to give him/her self no any better choice on the external element of his/her sovereignty than leaving the president of Ghana as the head of state with no any other option than to “rubber stamp” the view of some faceless few on the external concerns of the Ghanaian. An average African country leader wallows in the pretence of enjoying a prerogative right on decisions on issues relating to external sovereignty of his/her people as the needs arise. Key to this kind of decision making is participation in the AU presidential election. By this, the president of Ghana act on behalf of every Ghanaian in the election of the president of the AU Authority.

In buttressing the above concerns further, the origin of sovereignty like is the same with the concept of justice, inmates from the people. The Ghanaian, internally and externally, is the source of every facet of the sovereignty of the state of Ghana. Thus the Ghanaian is duty bond to be consulted for his/her opinion democratically on issues that relates to the exercise or transfer of such sovereignty. Some of our anti-AU brothers and sisters might be arguing, “Is that not what election in the country all about”? But little will these people be telling us about the candidates in the Ghanaian election who are worse in their own understanding of the principles of the AU to be able to educate and advance any sensible policy position regarding the reshaping of the African Union?
Key to this concern is how the Ghanaian relates with the Africa Union institution. By this, it involves the rules and regulation by the constitutional review on how the Ghanaian in the future will be relating to a fellow Ghanaian on AU related matters and with his/her fellow AU citizens from outside Ghana.

In Ghana, the president of Ghana is a fellow citizen to every other Ghanaian citizen. However as a president of the state of Ghana who is specifically mandated democratically to; supervise, coordinate and facilitate relationships, among his fellow citizens as per their sovereign interests, the president acts on behalf of the Ghanaian in the event that the Ghanaian is incapable of doing it by him self. In reality, the presidential sovereign mandate as an authority is not absolute but rather circumstantial. By a non absolute mandate of the presidential authority we mean, the individual as a citizen of Ghana is at liberty of advancing his/her interests until such individual is considered incapable of doing so or his/her action is deem to contravene the common principles expressed within the constitution. Thus, the sovereignty of the individual ceases and that of the president on behalf of the government prevails, as exercised or enforced by presidentially delegated or constitutionally mandated authorities or institutions. So we therefore say that the transfer of the individual citizen's liberty to the president as an authority democratically is not absolute because the individual still retain certain degree of this liberty until his/her circumstances change by which the liberty becomes a threat, incapable or disable and thus, forfeited to a mandated authority.
It must be born in mind that the transfer of the citizens sovereign status change both ways. So if the citizens’ circumstances change negatively, more of his sovereignty goes to the state. Equally, if for some other reason the circumstances of citizen appreciate positively, the state is expected to repose more of the citizen’s sovereignty earlier withdrawn due to his/her inability.
Change in citizen’s circumstances could be as a result of several factors such as, change in technology, weather condition, resources available, information, etc.
So in 1963, the circumstances that made it impossible for the Ghanaian to be incapable of participating in the election of the Secretary General of the OAU, thereby making the president of Ghana to be acting on behalf of the Ghanaian in exercising his/her sovereign duty could be argued not to be the case in 2010 due to the resources now available in the modern world.
In addition to the presidential day to day work as mandated by electorates which consists of supervising, coordinating and facilitating the sovereign interest of his fellow citizens, 85% of the work of the president is conditional. So the mandate to the president as our highest authority of the state of Ghana is more of a preparation for immediate action when the need arise. The presidential machinery then swing into full action, by mobilizing national resources for the restoration of law and order within Ghana. Thus the presidential authority as a custodian of the people sovereign interest is more of a machine in partial action, as the citizens who are the owners of the sovereign interests are themselves those in constant action, with the president prepared for full action when the need arise.
This principle is as well what happens when the Ghanaian is outside Ghana in other AU member states. Unfortunately, the authority of the government of Ghana is ill equipped in terms of recognition as compared to the authority of the Union to defend the interest of the Ghanaian in other member states of the Union. Thus while the treaty right of the Ghanaian as expressed in the Ghanaian constitution is fully enforceable within Ghana by the democratically elected president of Ghana, such rights as contained in the Constitutive Act of the AU is not being enforced because the enforcer or custodian of such interest of the Ghanaian does not receive his/her mandate directly from the beneficiaries of these rights who is the ordinary Ghanaian.
The current constitutional review holistically aims at reviewing the principles that guards this relationship, internally and externally. Painfully, the trend is mainly centred on the internally understood concerns of the Ghanaian with the external concerns within the union considered as non existent or as less relevant.
Coincidentally, the internal concern is where the president of Ghana is the most active, not surprisingly a normal expectation by a person responding to the source of his sovereign authority. Equally, it is by these internal concerns that the performance of the president of Ghana is judged. Therefore, it is a matter of common sense and in the best interest of the Ghanaian to have a president of the AU whose concerns shall be focused on issues of interest to the Ghanaian outside Ghana within the Union and judged accordingly by the Ghanaian electorate.
So having come this far with our analysis, most of our dear readers will be concluding that everyone should be understanding why the new constitution of Ghana must include a clause allowing citizens to be participating in the election of the Chairman of the AU Commission, than just limiting this to our most able 53 heads of member states. The argument will be base on common sense as if common sense is that common to common people. (To be continuing in Part 2).

Chair/Coordinator of AGA (ACTION GROUP OF AFRICA)
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