Feature Article of Thursday, 9 August 2012

Columnist: Kuruk, Paul

Gaps in Constitutional Provisions on Veep Appointment?

On August 6, 2012, the former Governor of the Bank of Ghana, Mr. Kwesi Amissah-Arthur was sworn in as Vice-President after having been nominated for the post by President Mahama nearly a week earlier. The nomination as well as approval of the nominee by Parliament were effected in record time in compliance with the Article 60(6) of the Constitution requiring the President “upon assuming office as President” to “nominate a person to the office of Vice-President subject approval by Parliament.” The seamless manner in which the Veep appointment process was conducted testifies to the wisdom of interpreting the Constitution to provide some reasonable time after the swearing of the new President for the process to work. Others would disagree with this assessment. For example, Professor Stephen Kwaku Asare in an article posted August 1, 2012 on the Ghanaweb, and also in two comments posted on the Ghanaweb on July 31, 2012 (where he wrote under the pseudoname “Kwaku Azar”), took the position that nomination of the Vice-President had to be contemporaneous with the swearing in of the Vice-President.

Professor Asare’s article and related comments bristle with rather strained interpretations of views I had advanced in an earlier writing posted on Ghanaweb on July 31, 2012. Contrary to Professor Asare’s assertions, nowhere did I state that the President could take “as long as he wants” to nominate a Vice-President or wait until the last day of his term to do so or even refuse to nominate one altogether. Were the President to proceed in that manner, it would amount to a flagrant violation of the Constitution. Like Professor Asare, I recognize the urgent need to nominate a replacement Vice-President, but had argued that under the extraordinary circumstances a Vice-President would have assumed the office of President, it would not have been realistic (and could not have been the intention of the drafters of the Constitution) to expect him to nominate a Vice-President WITHIN MINUTES of his swearing in as Professor Asare would have us believe. Because the person so nominated “would in effect be appointed to the position and would not have gone through the most democratic process of an election,” due diligence by the President (involving consultations and vetting of prospective nominees) was required “to ensure that the eventual nominee would be acceptable to the masses.” Hence, the conclusion was drawn that this all-important constitutional obligation had to be “performed with a proper balance of urgency and diligence.” This should not be misconstrued, as Professor Asare does, to mean that the President could simply drag his feet in nominating a person.

In this context, it is recalled that it took President John Mahama about 8 days to conduct the required due diligence before submitting to Parliament the name of Mr. Kwesi Amissah-Arthur as his nominee for Vice-President. In so doing, the President applied the appropriate balance called for by the author. In effect, the President balanced the need to act “immediately and now...not days” (as per Professor Asare), that is, not later than 8:15 pm on July 24, 2012; and the need to take about 8 days to assess potential nominees and consult with persons inside and outside government before dispatching the nomination letter to the Speaker of Parliament early morning on August 1, 2012. I respectfully submit that the President’s action complied fully with the terms of the Constitution and kudos to the President for a timely performance of an important constitutional obligation.

Professor Asare argues in his August 1, 2012 article: “...‘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 speech is not time limited and that the President can give the speech when he is ready.” Further, he notes at the end of his article that “the next time the author is in Court and the court-marshal announces that “all shall arise, upon entry of the Judge” he should arise days after the judge enters arguing that no time frame was specified by the marshal.”

Regrettably, the two examples Professor Asare offers are completely irrelevant as they do not take into account the underlying factor I cite as to why an “immediate” nomination may not be warranted: the need to balance urgency and due diligence. His examples are too simplistic and ignore the legitimate issues that underpin my argument for balance. Simply put, his examples about giving an acceptance speech or rising from one’s seat when the judge enters the courtroom do not involve the type of due diligence considerations I identify and he needs to come up with better examples.

However, in case Professor Asare had conveniently developed some amnesia when writing his article and forgotten about a more relevant example he could have cited to, I would like to remind him about a reference he himself had made and which could have formed the basis for a more appropriate example in his article. What if Article 60(6) of the Constitution had instead provided “Upon assuming office the President shall appoint such number of Ministers as may be necessary for the efficient running of the State?”

In an earlier writing posted on the Ghanaweb on July 27, 2012 titled “Why We Always Need a Vice-President” Professor Asare comments on similar language found in Article 78 in relation to the appointment of Ministers of State and effectively concedes that such appointments had to be made “SOMETIME AFTER he is President”(emphasis added) because “[e]veryone knows that these appointments can only be made while the President is in office.” What logic explains why the phrase” upon assuming office, the President shall nominate a Vice-President” should require immediacy but not the identical phrase (“upon assuming office the President shall appoint such Ministers....”)? Why is it that (using Professor Asare’s own words) “every one” cannot “know” just as is the case for the appointment of Ministers, that it will take a little bit of time after the swearing in for the new President to nominate a Vice-President? Professor Asare needs to be consistent: the phrase “upon assuming” cannot mean one thing in one context and through twisted logic acquire the opposite meaning in an identical context.

In his August 1, 2012 article, Professor Asare argues for an immediate nomination because it “was the intention of the constitutional framers...to avoid a vacuum in Presidential succession, triggering absurdities, such as an emergency election, under Article 60(11).” Here, his arguments conflate the issue of temporary performance by the Speaker of the duties of the President when both the President and Vice-President are unable to do so dealt with under Article 60(11) which does not involve the holding of emergency elections, with the other method of succession provided in Article 60(13) which does require elections. Article 60(13) provides: “Where the Speaker of Parliament assumes the office of 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.”

What Professor Asare fails to understand is that the combined effect of Articles 60(11) and 60(13) means that where the office of Vice-President is vacant, unless the President dies, resigns or is removed from office, the Speaker will perform the duties of the President until “the President ... is able to perform those functions or a new President assumes office, as the case may be.” Such temporary service of the Speaker as President under Article 60(11) is not limited to 3 months as Professor Asare assumes, but could well exceed 3 months. However, were the new President to die soon after his ascension to office but while he was yet working diligently to find a suitable nominee to be Vice-President, the Speaker would assume the office of President under Article 60(13). The latter provision will also apply in all relevant cases where there is no sitting Vice-President, irrespective of the reason for the vacancy and so there will never be a vacuum in the leadership of the country. Therefore, I respectfully disagree that the assumption to office of President by the Speaker and the holding of elections under those circumstances constitute “absurdities.” Rather, it speaks to the great foresight of the drafters of the Constitution to have provided methods of succession to deal with every case where the nation does not, for whatever reason, have in place both a President and Vice-President capable of performing their duties.

A critical point not fully appreciated by Professor Asare but which weakens his analysis is that to guarantee with absolute certainty that there would be no vacuum in the office of the Vice-President there must not only be a nomination within minutes after the President is sworn in, but Parliament must quickly turn around and approve the nominee the SAME DAY and within minutes of the nomination. This is because the nomination in and of itself will not suffice to ensure that a Vice-President is in place ready to carry out his constitutional duties. The Constitution requires prior approval by Parliament before the nominee could perform such functions. Even assuming for the sake of argument that the President could nominate a person immediately after he is sworn in, what is the earliest possible time specified by the Constitution for Parliament to approve the nominee? Again like the issue of nomination, the Constitution does not provide a definite time for such approval. However, it should be obvious that some reasonable time must elapse to accommodate activities that are integral to parliamentary approval including receipt of relevant information from the general public and deliberations on the nominee by at least a Parliamentary committee. All this cannot be accomplished within minutes of the nomination! The reality, therefore, is that there will have to be some delay while Parliament attends to the matter of approving the nomination.

In conclusion, it is worth restating that both Professor Asare and I agree that the new President must nominate a Vice-President after he is sworn into office. However, we differ as to how soon after the swearing in the President should discharge the constitutional obligation. While Professor Asare argues for an immediate nomination contemporaneous with the swearing in, my contention is that the nomination cannot be immediate as the constitutional process for the appointment of a Vice-President must allow some reasonable time under the circumstances for the expeditious nomination of a person to be Vice-President and also, the approval of the nominee by Parliament. The just concluded process utilized in the appointment of Vice-President Kwesi Amissah-Arthur was consistent with this interpretation and did not expose any gaps in the methods of succession provided in Article 60 of the Constitution.

Professor Paul Kuruk

Professor of Law, Cumberland School of Law of Samford University, USA; Former Visiting Professor, GIMPA Law School, Accra; Executive Director, Institute for African Development (INADEV), Accra.