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Opinions of Thursday, 11 March 2010

Columnist: Asante Fordjour

The Devolution of the Ghanaian Parliament

…A Forgotten Debate whose time has come… As the country faces population explosion and both electorates and politicians cry over regional/ethnic balance

*Asante Fordjour LLB(Hons), LLM International Law and Criminal Justice

ABSTRACT

In 1954 the Gold Coast Government, with the agreement of the Secretary of State, decided on its constitutional future. The great majority of recommendations received from the "Chiefs and people" had, in the words of Ronald E. Wraith (1), favoured a Second Chamber; the final upshot is a Single Chamber. Today, some 56 political years away, the city of Accra, it seems, is choked with mushrooming suburbs. But many of us, perhaps afraid of the uncertainties of competition- heads and muscles, assume that agitating for a Second Chamber Parliament for Ghana, is still divisive and ethnic-centred. Yet we seem to suggest that partitioning regions in ethnic lines might conjure peace and economic justice. Uncertain as our current political trials appear and as Wraith once put it in his article- The Second Chamber Question (2), there are several reasons why this forgotten parliamentary debate that was countrywide wailed for, ought to be revisited.

INTRODUCTION

A unitary state is defined as a sovereign state governed as one single unit in which the central government is supreme and any administrative divisions ((and here, sub-national units- as in the case of our regional and district administrations in- Asante, Eastern, Northern or Volta)) exercise only powers that the central government chooses to delegate. The most often comparable example to this political system is that of United Kingdom. Yet the Westminster has since 1997, embarked on devolution path, ceding power for example, to the Scottish Parliament, Welsh Parliament and the Northern Ireland. Yes, this is contra to a federation, a political system where the sovereign state is characterized by a union of partially self-governing states or regions united by a central (federal) government (3). Thus in a federation- as found in Nigeria, the self-governing status of the component states- such as Sokoto or Ogun, is typically constitutionally entrenched and may not be altered by a unilateral decision of the central government.

LEGAL HISTORY

On 22nd March 1950, a breezy debate, as Wraith put it, took place on all this in the then Legislative Council of Gold Coast. The sequence of events, as Wraith briefly sketches it, has been that in 1949, after a time of political disturbance, a Commission with an all- African membership, presided over by the then Sir Henley Coussey sat to consider every aspect of constitutional reform for the emerging Ghana. Their recommendations on local and regional government were acted upon, though in amended form, with great rapidity; those on the legislature had a little time to settle- the Commission itself failed to agree on the bicameral question. And it was not until 1952 that the Prime Minister asked "the Chiefs and people of Gold Coast, to consider "six separate issues, of which a Second Chamber was one. So there was nation-wide discussion on these fundamental questions.

According to Wraith, the question of whether to have one or two Houses was the only one on which the Coussey Commission was so evenly divided. Thus twenty votes to nineteen in favour of a bicameral legislature- but it felt unable to make any positive recommendation at all. Instead it drew up recommendations to cover either alternative and left it at that- in effect it asked the Secretary of State to decide the matter for them. “Their deliberations had been thorough, and their published arguments both in favour of and against a bicameral legislature touched most of the points to which Lord Campion has drawn attention- while on the unicameral side of the argument they advanced two reasons not usually thought of by political theorists. In reaching that historical decision at the time, Lord Campion gave a summary of contemporary theory and practice in the matter of Second Chambers. In the words of Wraith, he took examples from many countries, as diverse as Costa Rica and Canada, the Lebanon and the United States.

But as Wraith points out, they were countries where practice had been settled over a number of years, even if it had only recently been changed, as in New Zealand in 1951 and in Denmark in 1953. “It may be interesting, as a supplement to his ' article, to discuss what has been happening in a country where the question has recently had to be considered ab initio and where controversy and debate about it are still ringing in men's ears. This is of course the Gold Coast, now a laboratory for political scientists- a country in the final stage of political evolution before full independence,” he said. The divided Ghana as our own history reminds us was administered by the British colonial rulers (1844-1957) separately but gained its collective self-rule as unitary state on 6 March 1957. The national aspiration was that the freed “countries”, would be evenly developed.

Opting for a unitary or federal constitution depends on many factors. A constitution is defined as a body of laws which determines how a state is governed. It sets out the structure and functions of the organs of government, declares the principles which regulate its operations and the bonds between the citizen and the state. For example, Article 4 (1) of the 1992 Constitution states that the sovereign State of Ghana is a unitary republic consisting of those territories comprised in the regions which, immediately before coming into force of this Constitution (7 January 1993), existed in Ghana, including territorial sea an the air space. Subject to this provision; the President, under Art 5 (1) may, by constitutional instrument- (a) create a new region; (b) alter the boundaries of a region; or (c) provide for the merger of two or more regions if; (2) on the advice of the Council of State, is satisfied that there is a substantial demand for it.

No mention is made whether Ghana could someday, decide on federation. Perhaps this is based on ancient argument that unitary constitutions are usually adopted by countries with homogeneous (small) territories. So on 16th October 1952, Prime Minister Nkrumah made a Statement on Constitutional Reform, which included something in the nature of a questionnaire or referendum, inviting the people to write to him by the end of March 1953, saying what they thought about various matters, including "whether a Second House should be established and if so its composition and powers". In that request, over a quarter of a million copies of the Statement were circulated throughout Ghana(4). This unconventional procedure, per Wraith, ruffled the feelings of some of the more august bodies, such as the Territorial Councils and the Gold Coast T.U.C., who thought that a responsible committee should deal with matters of such high importance, and that it was both undignified and risky to let the Prime Minister Nkrumah’s Office sort out the replies.

The Osagyefo was therefore, compelled to meet personally, various stakeholders such as the Cape Coast Literary and Social Club, the Kumasi Taxi Drivers' Association and the Territorial Councils, to mention but a few, who have traditionally favoured a bicameral legislature as well as the then opposition political parties after the event. Wraith writes that whereas the C.P.P. was opposed to bicameral system of parliament but had wished to retain the Territorial Councils as deliberative assemblies, the Chambers of Commerce and Mines were however, less occupied with the intrinsic merits of the question than with asserting their right to sit in the Lower House if the Legislature was to be bicameral. In the words of Wraith “It might have been expected, following conventional British patterns of thought that the "organized working class" would tend to follow the C.P.P.

The T.U.C. was on its part, firm in its adherence to a Second Chamber, and went out of its way to affirm that "the Chiefs must remain, as in the past, the natural rulers of the Gold Coast people". The Gold Coast Farmers' Congress also held that "if we should preserve our cultural heritage then a Second Chamber should be established". The C.P.P. Government however, went against the will of the people, reasoning that there is an inherent danger in having two Houses, in that the Upper House would be largely composed of Chiefs or their representatives elected by the Territorial Councils, and any action taken by this House to delay or drastically to amend a measure passed in the Lower House might bring about a conflict which might jeopardize the position of Chiefs. So, it was concluded that the Territorial Councils- with some semblance of our current House of Chiefs- should remain as the Traditional Authorities to express their views on national issues in their own forum and convey them direct to the ruling Government.

To this end, the academic debate (however constituted) became entangled with what Wraith describes as the highly emotional question of what was to happen to the Chiefs in the “new Gold Coast.” According Wraith, Dr. J.B. Danquah, for example, was so spirited and provocative that he saw the approaching end of civilization in the fact that the Coussey Commission was unwilling to regard a vote of 20-19 ((which favoured bicameral legislature)) as the clear expression of the will of a Constituent Assembly. Today, the “central government in Accra”, which seems less touched with our livelihoods, ignores the political relevance of traditional chiefs. Yes, Article 270 (1) states that the institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed. Then is the provision for Regional and National House(s) of Chiefs which are indeed, provided for under Art(s) 271 and 272 respectively and have undoubtedly, some level of quasi advisory and judicial powers on customary matters.

This is clarified under Article 273 (1) which, for example, states that the National House of Chiefs have appellate jurisdiction in any cause or matter affecting chieftaincy which has been determined by the Regional House of Chiefs in a region, from which appellate jurisdiction there shall be an appeal to the Supreme Court, with the leave of National House of Chiefs, or the Supreme Court. In the pre-independence debate of 1954, one of the supporting submissions for a Second Chamber was that (1) it would "serve as a check on hasty legislation and would enable emotional issues to be considered in a calmer atmosphere"; (2) others pitched their claims on the importance in the Gold Coast social structure of Chiefs and Elders, and the need to uphold their dignity and to give them, and the "States" over which they preside, a place in the legislative process.

Had this been accepted, in composition, one-third of the then thirty-six elected members (nine elected by each of the then four Regions) were to have been "non-chiefs", which according to Wraith, implies that the Commission, took for granted that it would have been substantially a House of Chiefs. The total membership at the time was to have been thirty-eight, the other two "senators" being chosen by the Chamber of Commerce and Chamber of Mines. For the purposes of Article 277 of the 1992 Constitution which is similar to the “old law”, a “chief” is defined as a person who, hailing from the appropriate family and lineage has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queenmother in accordance with the relevant customary law and usage. Yet, Danquah's bid to retain a Second Chamber for Gold Coast for that matter Ghana was lost by twenty-one votes to five and seems haunting today.

The political and perhaps legal position during the Second Chamber debate was that (i) it would be expensive for Ghana whose Hangar was that its principal industry will consist in governing itself; (ii) that its present central and regional system of government was fantastically complicated for four million people; (iii) that the consequent stagnation in the immediate affairs of more States than under a unicameral system which would be affected by the absence of their Chiefs; (iv) the effect on the number and quality of members available for a first chamber- a point which as Wraith argues may have been undoubtedly applicable to the Northern Territories and (v) the interaction of thought between elected members and "Elders" in a unicameral chamber would not only be beneficial but would also be in consonance with the accepted traditions of our country.

The fact, as Wraith forcefully put it, was that the Chiefs- were and even today, are firmly linked in the public mind with a Second Chamber even though the Coussey Commission sought to separate them from it to some extent- and are suffering from the painful process of the "telescoping" of history which characterizes all aspects of West African life. So in looking up to future he predicted: “Social, economic and political changes that have evolved through the centuries elsewhere must now be attempted in a decade. The traditional ruling class must now shed its power over the years with ease and dignity, but may suffer a head-on clash with the new forces of representative democracy.” This prophecy appears fulfilled if we consider the hypocrisy of Article 276 (1) of the Constitution which states that: A chief shall not take part in active party politics; and any chief wishing to do so and seeking elections to Parliament shall abdicate his stool or skin.

But the issue as 1992 Constitution seems to complicate, is not straightforward. For in the past, some traditional Chiefs held seats in the Legislature, served on important commissions, and been busy public men. Others, according to Wraith, were “illiterate, corrupt” and unfitted for new responsibilities save, petty State quarrels. But like some of the current crop of politicians and civil servants, one cannot generalize. As those lacking in the said western education wield invaluable cultural traits that can be brought to bear on modern politics which is also characterized by electoral disputes and intolerance? It could also be said that many traditional chiefs are indeed equally trained professionals. Probably, it is in this context that Art. 276 (2) states that: Notwithstanding clause 1 of this article and paragraph © of clause (3) of Art. 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified. Art. 94 (3) © provides that a person shall not be eligible to be a Member of Parliament if he ((she)) is a chief?

Yes, it is under these legal pretences that President Mills nominated traditional Chiefs such Togbe Afede XIV- the Paramount Chief of Asogli, to head NDC Economic Transition Team and more recently, Osabarima Nana Kwesi Atta- the Paramount chief of Oguaa Traditional area, to lead the Constitutional Review Team. So Nana Akuako-Sarpong- the Omanhene of Agogo Traditional Area, may be right in suggesting that our Nananom who are perhaps closer to the masses and indeed the electorate, can hardly be ignored in national development and politics. Then is the North-South educational disparity, not forgetting the said four million national population at the time which became the crux of the second chamber argument. Thus, it seems that such deficits no longer exist as Ghana’s current population is rising and the perceived poorest territories in the 1950s- Gold Coast, appears the richest regions in terms of human/natural resource in our time.

As the UK Labour Party under Blair has shown, a constitution is not cement concrete- it must adapt to serve its intended societies properly. Hence the alteration of the Laws in Wales Acts passed between 1535 and 1542, which made Wales part of England. Then are the English and Scottish crowns unification and the accession of James VI of Scotland to the English throne, as James I, in 1603. Thus, the Treaty (or Act) of Union united the parliaments of England and Scotland to form a single parliament meeting in Westminster was achieved in 1707, brought the two nations together to form what was to be the 'The United Kingdom of Great Britain'. The Irish Parliament also voted to join in the Act of Union (Ireland) in 1800- creating 'The United Kingdom of Great Britain and Ireland'. Yet as history has shown, neither the aspirations of the Scots, the Welsh nor the Irish were forever suppressed. So, what is Asante Fordjour attempting to suggest?

CONCLUSION

In this article the author has demonstrated that a Regional Parliament- where local institutions take active part in matters that affect them worth re-tracing as it might ease not only our current ethnic suspicions and developmental biases but also could diminish our huge expenses on politicians in Accra. The ancient argument of administrative stagnation and the effect on the number and quality of members available for a first chamber; particularly those in the Northern Territories, has also outlived its relevance. Credit JusticeGhana.com/The OmanbaPa Research Group