THE FOURTH REPUBLIC
The 1992 Constitution
The 1992 Constitution of the Republic of Ghana that came into effect on January 7, 1993, provides the basic charter for the country’s fourth attempt at republican democratic government since independence in 1957. It declares Ghana to be a unitary republic with sovereignty residing in the Ghanaian people. Drawn up with the intent of preventing future coups, dictatorial government, and oneparty states, it is designed to foster tolerance and the concept of power-sharing. The document reflects the lessons drawn from the abrogated constitutions of 1957, 1960, 1969, and 1979, and it incorporates provisions and institutions drawn from British and United States constitutional models.
The 1992 constitution, as the supreme law of the land, provides for the sharing of powers among a president, a parliament, a cabinet, a Council of State, and an independent judiciary. Through its system of checks and balances, it avoids bestowing preponderant power on any specific branch of government. Executive authority is shared by the president, the twenty-five member Council of State, and numerous advisory bodies, including the National Security Council. The president is head of state, head of government, and commander in chief of the armed forces of Ghana. He also appoints the vice president.
Legislative functions are vested in the National Parliament, which consists of a unicameral 200-member body plus the president. To become law, legislation must have the assent of the president, who has a qualified veto over all bills except those to which a vote of urgency is attached. Members of parliament are popularly elected by universal adult suffrage for terms of four years, except in war time, when terms may be extended for not more than twelve months at a time beyond the four years.
The structure and the power of the judiciary are independent of all other branches of government. The Supreme Court has broad powers of judicial review; it rules on the constitutionality of any legislative or executive action at the request of any aggrieved citizen. The hierarchy of courts derives largely from British juridical forms. The hierarchy, called the Superior Court of Judicature, is composed of the Supreme Court of Ghana, the Court of Appeal (Appellate Court), the High Court of Justice, regional tribunals, and such lower courts or tribunals as parliament may establish. The courts have jurisdiction over all civil and criminal matters.
The legal system is based on the constitution, Ghanaian common law, statutory enactments of parliament, and assimilated rules of customary (traditional) law. The 1992 constitution, like previous constitutions, guarantees the institution of chieftaincy together with its traditional councils as established by customary law and usage. The National House of Chiefs, without executive or legislative power, advises on all matters affecting the country’s chieftaincy and customary law.
The 1992 constitution contains the most explicit and comprehensive provisions in Ghana’s postcolonial constitutional history regarding the system of local government as a decentralized form of national administration. These provisions were inspired to a large extent by current law and by the practice of local government under the PNDC. Another constitutional innovation is the enshrinement of fundamental human rights and freedoms enforceable by the courts. These rights include cultural rights, women’s rights, children’s rights, the rights of disabled persons, and the rights of the ill. The constitution also guarantees the freedom and independence of the media and makes any form of censorship unconstitutional. In addition, the constitution protects each Ghanaian’s right to be represented by legitimately elected public officials by providing for partisan national elections and nonpartisan district elections.
Every citizen of Ghana eighteen years of age or above and of sound mind has the right to vote. The right to form political parties is guaranteed, an especially important provision in light of the checkered history of political parties in postcolonial Ghana. Political parties must have a national character and membership and are not to be based on ethnic, religious, regional or other sectional divisions.
Finally, highly controversial provisions of the constitution indemnify members and appointees of the PNDC from liability for any official act or omission during the eleven years of PNDC rule. These provisions seem designed to prevent the real possibility of retribution, should a new government hostile to the PNDC replace it, and to foster a climate of peace and reconciliation.
Since independence in 1957, the courts system, headed by the chief justice, has demonstrated extraordinary independence and resilience. The structure and jurisdiction of the courts were defined by the Courts Act of 1971, which established the Supreme Court of Ghana (or simply the Supreme Court), the Court of Appeal (Appellate Court) with two divisions—ordinary bench and full bench, and the High Court of Justice (or simply the High Court), a court with both appellate and original jurisdiction. The act also established the so-called inferior and traditional courts, which, along with the above courts, constituted the judiciary of Ghana according to the 1960, 1979, and 1992 constitutions.
Until mid-1993, the inferior courts in descending order of importance were the circuit courts, the district courts (magistrate courts) grades I and II, and juvenile courts. Such courts existed mostly in cities and large urban centers. In mid-1993, however, Parliament created a new system of lower courts, consisting of circuit tribunals and community tribunals in place of the former circuit courts and district (magistrate) courts. The traditional courts are the National House of Chiefs, the regional houses of chiefs, and traditional councils. The traditional courts are constituted by the judicial committees of the various houses and councils. All courts, both superior and inferior, with the exception of the traditional courts, are vested with jurisdiction in civil and criminal matters. The traditional courts have exclusive power to adjudicate any cause or matter affecting chieftaincy as defined by the Chieftaincy Act of 1971.
Judicial appointments are made by the chief justice on the advice of the independent Judicial Council of Ghana and are subject to government approval. The PNDC Establishment Proclamation abolished the Judicial Council, but it was reestablished by the 1992 constitution.
Ghana also has quasi-judicial agencies and institutions. Examples of these are the Reconciliation Committee of the Department of Social Welfare and Community Development, provision for private hearings at home, and the use of various spiritual agencies, such as shrines, churches, Muslim mallams, and specialists in the manipulation of supernatural powers to whom many ordinary people resort.
Noteworthy for both the colonial and the postcolonial periods up to the present are the special courts, public tribunals, politico-military bodies such as asaf companies, and vigilante groups. These bodies exercise quasijudicial , extra-judicial, and law enforcement functions that often complement, and in some cases attempt to supplant, the functions of the regular or traditional courts.
Of these special courts, the former public tribunals deserve special mention. With the initiation of the 31st December 1981 Revolution, the PNDC established a number of judicial institutions intended to check abuse and corruption within the regular courts. These special courts, called people’s courts or public tribunals, were established in August 1982 as a separate system for administering justice alongside the country’s regular courts. Their purpose was to regulate the administration of justice to prevent frivolous abuse of court powers and to obtain the truth by concentrating on the facts of the case rather than on questions of law.
The public tribunals, which consisted of the National Public Tribunal, regional public tribunals, and district and community public tribunals, were an attempt to “democratize” the administration of justice by making it possible for the public at large to participate actively in judicial decision making. They were also meant to correct perceived deficiencies of the regular courts, to enhance the general accessibility of law to the common people, to promote social justice, and to provide institutional safeguards that would secure public accountability. The right of appeal against the verdict of the tribunals was not originally provided for until public outcry led to the introduction of appeals procedures in 1984.
Under the PNDC, the public tribunals exercised only criminal jurisdiction. They dealt with three categories of offenses against the state: criminal offenses referred to them by the PNDC government, certain offenses under the country’s Criminal Code, and offenses listed in the Public Tribunals Law of 1984. Proceedings of the tribunals were generally public and swift; sentences were frequently harsh and included death by firing squad. Under the Public Tribunals Law of 1984, without prejudice to the appellate system set out in the law itself, no court or other tribunal could question any decision, order, or proceeding of a public tribunal.
The creation of public tribunals and the PNDC’s violent attack on lawyers set the PNDC on a collision course with the Ghana Bar Association, which forbade its members to sit on public tribunals. Many of the rulings of the public tribunals were cited by Amnesty International and other human rights organizations as violations of such rights as freedom of the press and habeas corpus. Under the Fourth Republic, the public tribunals were incorporated into the existing court hierarchy.
The Civil Service
The civil service, an integral part of the executive branch of government, is a major component of the public services of Ghana, which come under supervision of the Public Services Commission. Ghana’s civil service is organized along British lines and constitutes one of the most enduring legacies of British colonial rule. The 1992 constitution provides that the president, acting in accordance with the advice of the Public Services Commission, appoint a public officer to head the civil service.
The civil service is Ghana’s single largest employer, and its union is large and strong. It recruits graduates of Ghana’s three universities and other educational institutions through a system of competitive examinations. Staffing of the civil and the public services with competent personnel is the principal function of the Public Services Commission, which serves as the government’s central personnel agency.
The Office of the Head of Civil Service includes a large team of administrators, executive and management analysts, and other technical experts. These officials supervise a hierarchy of graded personnel working in such areas as health, agriculture, transportation and communications, and local government. Working in cooperation with them are other state bodies such as the Chieftaincy Secretariat, Audit Service, Public Services Commission, and the Ghana Cocoa Board. Since the launching in 1983 of the ERP, an austere economic program that the NDC government of the Fourth Republic continues to implement, the civil service has been cut drastically. Despite the retrenchment, civil servants have not engaged in organized protests or strikes, despite threats to do so.
The Ghanaian government owns the only two major daily newspapers, the Daily Graphi (known as the People’s Daily Graphi under the PNDC) and the Ghanaian Time with 1994 daily circulations of 80,00-100,000 and 60,000-70,000, respectively (circulation varies according to the availability of newsprint). The other daily, The Pionee, established in 1930, is an independent paper with a circulation of about 30,000. There are also a number of weekly newspapers with substantial circulations, including the independents, the ChristianMessenge and the Standar, and the state-owned Sunday irro and Weekly Spectato, the latter two with 1994 circulations of 85,000 and about 90,000, respectively. A number of state-owned and independent periodicals appear in English and in African languages.
The 1979 constitution, which the PNDC suspended after taking power, was the first to give special attention to Ghana’s mass media. It prohibited press licensing, outlawed censorship, and guaranteed freedom of expression and equal access to the stateowned media. The constitution also provided for the establishment of an independent press commission, the responsibilities of which included appointing chief executives and boards of directors for the state-owned media, preserving press freedom, and maintaining the highest professional standards.
Under the PNDC, self-censorship was the rule in the media. The government considered it the responsibility of the state-owned media, if not the media in general, to project a good image of the government and to defend government programs and policies. To ensure compliance with this policy, the PNDC hired and dismissed editorial staff and other media personnel of government-owned publications. The Ghana Journalists Association, which acted as a pressure group for the advancement of the professional interests of journalists, had little real influence. The Newspaper Licensing Law, reintroduced by the PNDC in 1983, discouraged or inhibited the establishment and the freedom of private media.
The state-owned media and some of the privately owned local newspapers attacked Ghanaian journalists who worked or wrote for the foreign press, accusing them of supporting or collaborating with organizations opposed to the PNDC. With the suspension of the 1979 constitution, such rights as freedom of the press, freedom of assembly, and freedom of association were not guaranteed but were merely granted at the discretion of the PNDC; however, numerous professional and civic organizations and independent newspapers that were non-political were allowed to exist and to operate freely.
The Committee of Experts (Constitution) Law of May 1991, which established the Committee of Experts to draw up proposals for a draft constitution, required that the proposals should assure the freedom and the independence of the media. Accordingly, the 1992 constitution guarantees fundamental human rights and civil liberties, including the freedom and the independence of the media. To protect the independence of the media, the National Media Commission was created in 1993 in accordance with a constitutional provision. The commission, an independent body, is charged with ensuring that all types of media, private as well as state-owned, are free of government control and interference. Under the Fourth Republic, the press has begun to enjoy a significant degree of toleration and freedom of expression.
Regional and Local Government
Before the changes in regional and local administration under the PNDC, Ghana had a highly centralized government structure in which local people and communities were little involved in decision making. Local government services were poor and depended largely on funds and personnel provided by the national government in Accra. Since the 31st December 1981 Revolution, however, local government has increasingly benefited from the decentralization of government ministries and from the establishment of district assemblies in 1989.
Ghana is divided into ten administrative regions, each headed by a regional secretary. The ten regions and their regional capitals are: Greater Accra Region (Accra), Eastern Region (Koforidua), Central Region (Cape Coast), Western Region (SekondiTakoradi ), Volta Region (Ho), Ashanti Region (Kumasi), Brong-Ahafo Region (Sunyani), Northern Region (Tamale), Upper East Region (Bolgatanga), and Upper West Region (Wa). After taking power, the PNDC launched a decentralization plan in December 1982 designed to restructure government machinery to promote democracy and greater efficiency. The plan proposed a three-tier system of local government to replace the four-tier system established in 1978.
This early decentralization plan, however, was not implemented. Instead, interim management committees were organized to manage the affairs of the district councils. PNDC district secretaries were appointed chairmen of their respective district councils and were responsible for day-to-day administration. Membership of the interim management committees normally consisted of respected citizens of the district, such as chiefs, headmasters, retired administrators, and teachers. At the lowest levels, local government remained in the hands of village, town, or area development committees; PDCs; and chiefs and their traditional councils, who still wielded considerable influence in most rural areas.
On July 1, 1987, the PNDC launched a three-tier system of local government. The principal innovations of the new system included creating 110 administrative districts to replace the sixty-five districts that had existed before and changing the name District Council to District Assembly. The District Assembly was to be the highest political and administrative authority in each district, with deliberative, executive, and legislative powers; it was responsible for creation of the two lower-level tiers, town or area councils and unit committees, within its jurisdiction.
The membership of the District Assembly included a district secretary appointed by the PNDC. Two-thirds of the members were directly elected by universal adult suffrage on a non-partisan basis; the other third were appointed by the PNDC from the district in consultation with traditional authorities and various associations. Appointed members held office for a maximum of two consecutive terms, that is six years. Elections to the District Assembly were to be held every three years (the 1992 constitution provided for a four-year term and reduced the number of appointed members from one-third to no more than thirty percent of the total membership). The District Assembly was made responsible for the overall development of the district.
A 1990 law ensured that people at the grass-roots level had the opportunity to help make decisions that affected them regardless of their education or socio-economic backgrounds, so long as they were eighteen years or older and were customarily residents of the district. Finally, in each of the ten regions, a Regional Coordinating Council was established consisting of the regional secretary, the deputies of the regional secretaries acting as exofficio members, all district secretaries in the region, and all presiding members of the district assemblies in the region. The 1992 constitution added at least two chiefs to the membership of each council. The functions of the council included the formulation and the coordination of programs through consultation with district assemblies in the region. The council was responsible for harmonizing these programs with national development policies and priorities, and for monitoring, implementing, and evaluating programs and projects within the region.
A local government law passed in 1991 created thirteen submetropolitan district councils and fifty-eight town or area councils under three metropolitan assemblies; 108 zonal councils under four municipal assemblies; and thirty-four urban, 250 town, and 626 area councils under 103 district assemblies. In addition, 16,000 unit committees were established under metropolitan, municipal, and district assemblies throughout the country. (District assemblies, of which there are 110, are designated metropolitan and municipal assemblies in metropolitan centers and major cities.) No Urban Council, Zonal Council, or Town Council or Unit Committee has the power to levy any taxes without the approval of the relevant assembly.
The functions of urban, zonal, and town councils include assuming the functions of the former town and village development committees and assisting any person authorized by the assembly to collect revenues due the assembly. In addition, the councils organize annual congresses of the people within their respective jurisdictions to discuss economic development and to raise contributions to fund such development. Membership in urban, zonal, or town councils and in unit committees consists of both elected and appointed people from within the respective jurisdiction.
Each of the ten regions is administered from the regional headquarters or capital by a regional secretary, who is the regional political and administrative head. The regional secretary is supported by metropolitan and municipal secretaries and their metropolitan and municipal assemblies as well as by district secretaries and the district assemblies they head. At the regional headquarters, the regional secretary is assisted by a Regional Consultative Council and a Regional Coordinating Council, both chaired by the regional secretary. The number of administrative districts within regions varies, the Ashanti Region having the most—eighteen, and the Greater Accra Region and the Upper West Region having the fewest—five. The establishment of a district assembly in each region ensured that, with the local people in control of their own affairs, no part of the country would be neglected.