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Opinions of Saturday, 25 April 2020

Columnist: Francis Doe - Glah

Who will be president of Ghana if general elections are not held before 7th January 2021?

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In the event when COVID 19 refuses to go, who will be the next president, there have been various arguments as to whether the president continues to be president, speaker of parliament or the chief justice becomes president if general election scheduled for 7th December 2020 is not conducted before 7th January 2021.

The president and tenure of the presidency

Article 57 (1) states that; there shall be a president of the Republic of Ghana who shall be the head of State and head of government and commander-in-chief of the Armed Forces of Ghana. The president is to hold office for a term of four years beginning from the date on which he was sworn in as a president unless he resigns, dies or he is removed from office according to article 66 of the 1992 constitution. The current president of Ghana was sworn into office on 7th January 2017 and its tenure is expected to end on midnight 6th January 2021.

Succession of the Presidency

The president’s office becomes vacant in two ways as according to article 66(3)(a) and Article 66(3)(b). Firstly the president’s office becomes vacant after the expiration of his four-year tenure. Secondly by death, resignation and upon his removal from office within the four-year tenure of his presidency.

Can the Chief Justice be president if election isn’t held after 7th January 2021?

The argument in favour of the Chief Justice occupying the office of President is highly motivated by article 57(2) of the 1992 Constitution which states that; the president shall take precedence over all other persons in Ghana; and in descending order, the vice president, the speaker of parliament and chief justice shall take precedence over all other persons in Ghana.

In my opinion, the chief justice may not be an option because apart from Article 57(2) above that refers to the Chief Justice as the four most important person in Ghana, the whole of Article 60 which deals with succession to the presidency did not mention the Chief Justice. The framers of the constitution did not envisage an event where the country will be without a president, vice president and the speaker of parliament. If the chief justice can be president the framers of the 1992 Constitution would have mentioned it in the wording of article 60 of the 1992 Constitution.

Another motivation that assumes the chief justice to occupy the high office of the president in the absence of parliament and an elected president is based on the opinion expressed by Professor Kludze in ASARE V THE ATTORNEY GENERAL where he’s reported to have stated that the Chief Justice could be president in the absence of a president. This opinion, however, will not constitute a force of law with regards to judicial precedent because it didn’t constitute a reason for the decision in the determination of whether the speaker of parliament refusal to swear the oath of office of the president was in breach of Article 60(12) of the 1992 constitution as was the matter for determination in the case above. Professor Kludze expression on the chief justice is a “dicta” (meaning things said outside) that is a judicial pronouncement or consideration on a matter that is found to be not so relevant to the conclusion of the court over the issue at stake and cannot constitute a judicial precedent to apply in favour of the Chief Justice to assume the office of the president as suggested by many if the electoral commission fails to hold a general election as scheduled.

What about the Speaker of the parliament?

The speaker of parliament is a successor to the presidency where the president and the vice president are both unable to perform the functions of the president, the speaker of parliament shall perform those functions until the president or the vice president assumes office, as the case may be article 60(11), Article 60(13) further states that where the speaker of parliament assumes the office of the president as a result of the death, resignation or removal from office of the president and the vice president there shall be a presidential election within three months after his assumption of office. However, these provisions thus article 60(11) and 60(13) will only apply within the period of the tenure of the presidency i.e. while the president is still in office but not at the expiration of the 4-year tenure of the president before the conduction of a general election.

The argument in favour of the Speaker of parliament apart article 60 is further to include article 113 of the 1992 constitution which seeks to suggests that the tenure of parliament can be extended beyond 6th January 2021 in order for the speaker of parliament to assume the office of the president. Article 113 (1) establishes the tenure of parliament as a four years period starting from the date of its first sitting and shall then stand dissolved. However, the tenure of parliament can be extended under the powers granted to parliament under article 113(2) and powers granted to the President under article 113(3) under a specified existing condition of war or a state of public emergency.

Article 113(2) states that any time when Ghana is actually engaged in war, Parliament may, from time to time by resolution supported by the votes of not less than two-thirds of all the members of Parliament, extend the period of four years specified in clause (1) of this article for not more than twelve months at a time, except that the life of Parliament shall not be extended under this clause for more than four years. Article 113(3) states that; where, after a dissolution of Parliament but before the holding of a general election, the President is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.

The difference between article 113(2) and 113(3) is that; parliament in article 113(2) has the power to extend its tenure before it’s dissolved, whiles the president has the power to recall parliament after it's dissolved under article 113(3) before an election is held. In practice, the Ghanaian presidential and parliamentary election is held on the same day on 7th December every four years. The tenure of the president terminates with the dissolution of parliament at midnight on 6th January after conduction of general elections.

Does parliament have the power to extend its tenure in the event where COVID continues?

No, the letters in article 113(2) stated one condition (i.e. when Ghana is actually at war) under which parliament on its own can extend its four-year tenure not more than 12months at a time supported by 2/3 votes of members of parliament before a general election. In my opinion, the word “actually at war” as a condition in article 113(2) could be interpreted literally to mean reasonable man understanding of war. Therefore, unless the country is actually at war parliament cannot activate this provision. In sum, this provision will not apply if coronavirus pandemic refuses to go and elections aren’t held.

If COVID 19 refuses to go, can the president recall a dissolved parliament?

The president has been granted powers under article 113(3) to recall a dissolved parliament under the two conditions; when the country is at war and under a state of public emergency. In such an instance as an outbreak of a pandemic can be interpreted to fall under the required condition of “state of public emergency”. The president has to be in office to be able to recall a dissolved parliament. However, this provision could be challenged in practice at a time where the four-year tenure of both parliament and president ends at midnight on 6th December. This provision will be feasible when dissolution of parliament precedes the expiration of the tenure of the presidency. In effect the president has to be president in morning of 7th January to be able to call a dissolved parliament, this is not the case in Ghana’s current political dispensation.

Can Parliament extend the tenure of the president if election isn’t held on 7th December 2019?

Most people are tempted to resort to the residual powers of parliament under article 298 of the 1992 constitution to answer this question. Article 298 states that; subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this constitution or otherwise, there is no provision, express or by necessary implication of this constitution which deals with the matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with. This provision is simply about the amendment of the constitution subject to chapter 25 which deals with; the amendment of the constitution, amendment of entrenched provision and non-entrenched provisions.

The tenure of the president provided by article 66 is an entrenched provision under article 290(1), therefore a referendum is required to be able to complete such amendment. The decision to revise the tenure of the president by way of extension is question that is supposed to be answered by the citizens of Ghana at a referendum and does not lie solely with parliament of Ghana. Therefore, any attempt by the parliament to extend the tenure of president will be inconsistent article 290(4), and a breach of article 2 and article 66 of the 1992 constitution.

What then is the remedy to the situation when election isn’t held before 7th January 2021?

In my opinion, the 1992 Constitution of Ghana has not provided any remedy for such gap that will be created in the office of the president if general election isn’t held. Per the letters of the constitution, neither the president nor the speaker of parliament will be able to assume the office of the president neither by an extension of the tenure of the president by parliament or by extension of the tenure of parliament by parliament itself or by a recall of a dissolved parliament by the president if election isn’t held before 7th January 2021. The question of who then becomes president has not been provided in the letters of the constitution. However, the constitution is said to have its letter and spirit. The spirit is the reasoning behind the letters of the constitution and lies within the original/exclusive jurisdiction (i.e. interpretation of the constitution) of Supreme Court. The comprehensive rules for constitutional interpretation were laid out by Sowah JSC in the case of TUFFUOR V ATTORNEY GENERAL as follows;

“A written Constitution such as ours… embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of law. Equally, the Constitution has its spirit... Its language ... must be considered as if it were a living organism capable of growth and development... A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.” (Emphasis on bringing conformity with the needs of the time).

What remedy may be intended by the framers of the constitution?

In my opinion, a provision that might aid in an interpretation in line with the will of the people and bringing into conformity with the needs of the time is article 113(3) which requires the president to recall parliament even after it's been dissolved in the event where Ghana is at war or under a state of public emergency. This provision implies that for the president to be able to recall a dissolved parliament, the framers of the constitution intended that the president shall continue to be in office during times of war or state of public emergency before elections are held. Ghana needs a president, a parliament and cabinet of ministers if it intends to survive a war or a state of public emergency, since in practice both parliament and the president terminates at the same time, in my opinion, the president on 6th January 2021 should be president on and after 7th January 2021 if general elections are not held and stay until the general elections are conducted