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Opinions of Wednesday, 1 August 2012

Columnist: Asare, Kwaku S.

The Process For Nominating A Vice-President ? A Rejoinder

S. Kwaku Asare


I write in response to the article by Professor Paul Kuruk on “The Process for Nominating a Vice-President,” which was featured on your esteemed website on July, 31, 2012 (http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=246372&comment=8143182#com). According to Professor Paul Kuruk, Ghana’s Constitution, Article 60(10) does not specify a time limit for a President, who assumes office under Article 60(6), to nominate a Vice-President. I write to correct this misinterpretation.
Article 60(10) provides that: “The Vice-President shall, upon assuming office as President under clause (6) of this article, nominate a person to the office of Vice-President subject to approval by Parliament.”
In the context of Article 60(10), the ordinary meaning of the phrase “upon assuming office,” is “immediately.” To see why, consider a similarly worded mandate, whose meaning is not convoluted by the functions of the Vice-President, which appears to be what is confusing the learned Professor: "Upon assuming office, the President shall give an acceptance speech." This can only mean one thing. The acceptance speech must be made immediately after the assumption of office. It will require an extraordinary interpretation of this mandate to suggest that the giving of the acceptance speech is not time limited and that the President can give the speech whenever he is ready.
The learned Professor seems to be distracted by whether or not the functions of the Vice-President are critical. He argues that the Vice-President chairs some councils and his other duties are triggered only by the absence, resignation or death of the President. He concludes “Therefore, the lack of a Vice-President should not create such a constitutional vacuum to mandate the nomination of a Vice-President by President John Mahama within minutes, hours or a few days of his assumption to the Presidency.”
The learned Professor’s argument and conclusion are not helpful to understanding Article 60(10). The President’s mandate to nominate a Vice-President upon assuming office under Article 60(6) is not dependent on one’s views on the importance of the office of the vice-president. Thus, quiet apart from my disagreement with the learned Professor on the criticality of the Vice-President’s functions, I reject his linking the interpretation of Article 60(10) to the functions of the Vice-President. In other words, the learned Professor is incorrect in suggesting that the timing of the nomination of the Vice-President should be linked to one’s conception of the importance of the office. The Article should have the same meaning whether or not the Vice-President plays an important function.

Another approach to discerning the meaning of "upon assuming office" in Article 60(10) is to read the report of the Committee of Experts on Presidential succession. This is the so called purposive approach, sometimes employed by the Supreme Court of Ghana. That is, what is the purpose of a constitutional provision? In the report, it is heavily emphasized that there should never be a vacuum in the office of the Presidency. This is why there must be always be a President and Vice-President. While the learned Professor seems to appreciate that there should never be vacuum at the Presidency, he fails to see that this condition (no vacuum at the Presidency) is only fulfilled when there is always a President in waiting, hence the creation of the Office of the Vice-presidency to allow for the planned continuity of the presidency in case of an emergency. More plainly, the absence of a Vice-President creates an indirect vacuum at the Presidency!

Another way to understand why the appointment has to be immediate is to contemplate what will happen if President Mahama is unable to perform his functions (e.g., because he has to travel outside the country, if you take the Supreme Court seriously). Who acts? To his credit, the learned Professor appreciates this point. However, he finds an answer in Article 60(11), which provides that the Speaker should act when “both the President and Vice-President are unable to perform their functions.”
The learned Professor has misfired. Article 60(11), on its face, requires the presence and subsequent incapacitation (unable to function) of BOTH a President and Vice-President. It is not an Article to resort to willy-nilly because it has important implications. In particular, once the Speaker is sworn in under that Article, an emergency Presidential election must be held in 3 months, as acknowledged by the learned professor. But it is an entirely absurd proposition to suggest that we hold emergency Presidential elections, which should and can be entirely avoided by a proper reading of the Constitution and careful interpretation of "upon assuming office." Does anyone seriously believe that the succession plan in our Constitution requires the holding of emergency elections because the same Constitution gives the President ample time to nominate a Vice-President upon assuming office under Article 60(6)?

It is often said that the Vice-President MUST always be ready to step in the shoes of the President. Among others, this means that the Vice-President, if he becomes President, must be ready to name a new Vice-President immediately. While this carries with it the scary implication, that the Vice-President must contemplate how he would govern if the President were to, for instance, pass away, that is the harsh reality of governing a country and assuring that no vacuum is created in the office of the Presidency and Vice-Presidency.

Finally, if the learned Professor’s interpretation is to be believed then the President can take as long as he wants, up to the last day of his term, to make the nomination. This is plainly absurd. The President has no such choice in the nomination of a Vice-President. He must nominate the Vice-President, upon assuming office.

The learned Professor admonishes that in the nomination of the Vice-President, there is the need to hasten slowly in order to minimize errors. This is a red herring. In electing a Vice-President, the electorate also decides to accept and “live with” whoever this Vice-President will nominate as Vice-President under the succession plan in Article 60(10), subject to a parliamentary approval (I MUST add that no time limits are specified for this approval but a purposive interpretation will fill that apparent lacuna). The approval must be immediate and must not be subject to the usual politics of approving nominations!

Because of the inherent power entrusted to the new President, the notion that “care must be taken to vet prospective nominees through a process that is bound to be time-consuming and would involve extensive background checks to ensure that the eventual nominee would be acceptable to the general masses” as espoused by the learned Professor is a fiction.
It is true that the new President is nominating someone who “will be just a heartbeat away from the Presidency,” as the learned Professor says. But this is a task that the new President must have contemplated before becoming President. If a time consuming process was intended to find a Vice-President, the option of a bye-election would have been used.

The phrase "upon assuming office" means “upon assuming office.” Not days, weeks, or months after assuming office but “upon assuming office.” It implies “immediately and now.” It has to be that way because that was the intention of the constitutional framers, whose intention was to avoid a vacuum in Presidential succession, triggering absurdities, such as an emergency election, under Article 60(11).

When it comes to naming the Vice-President, under Article 60(10), the proper maxim is a "nomination delayed is a vacuum created," not “hasten slowly,” as suggested by the learned Professor.

Ghana must always have a President. That is why Ghana must also ALWAYS have a President in Waiting.

The next time the author is in Court and the court-marshal announces that "all shall rise, upon the entry of the Judge," he should rise days after the judge enters arguing that no time frame was specified by the marshal.