President is too powerful
Former Speaker of Parliament, Mr. Peter Ala Adjetey, has punched several holes in the 1992 Constitution of Ghana, including the concentration of too much power in the hands of one man (The President), describing the situation as dangerous for democracy.
He has, therefore, called for its review to keep abreast of the times.
He said the 1992 Constitution was adopted in circumstances in which real freedom did not exist in Ghana and there was no guarantee of fundamental human rights and freedoms.
Mr Ala Adjetey said, for instance, that the provisions dealing with the Legislature as contained in Chapter 10 of the 1992 Constitution needed to be closely examined to see whether they provided for or ensured the division of political power among "diverse persons so that there is effective check on power by power".
According to the Daily Graphic, Mr Ala Adjetey made the call at an inaugural lecture organised by the Citizens Network for Democracy and Economic Development (CNDED), an NGO, in Accra on Wednesday.
The CNDED is aimed at addressing issues of economics, governance and political philosophy.
It also focuses on how these three forces should be properly aligned to produce a just and equitable country operated on free-market principles and respect for the rights of the individual.
Mr Ala Adjetey said although Article 93(2) vested the legislative power of Ghana in Parliament, it also limited the exercise of that power to the extent contained in the Constitution.
He said in accordance with this qualification, certain 'no go" areas for Parliament were prescribed by the Constitution itself.
Mr Ala Adjetey said these "no go" areas were contained in Articles 107 and 108.
"The nation was chafing under a military dictatorship that had maintained its stranglehold on power for some 10 years and that violently suppressed all attempts to overthrow it, in several instances accompanied by bloodshed.
"Its leaders had made no secret of the fact that they were not entirely enthused by liberal democratic ideas and would not hesitate to ride roughshod over individual liberties," he said.
Mr Ala Adjetey said those times were not a political atmosphere calculated to generate a freely agreed liberal democratic constitution and one should not be-surprised at not finding all that one would desire and expect in a constitution.
"The Consultative Assembly established by the Provisional National Defence Council (PNDC), like the Constituent Assembly established by the Supreme Military Council, was not clothed with jurisdiction to enact, promulgate and bring into force the Constitution for Ghana that it would prepare and agree upon," he said.
He said it was left once again to an unelected body that had taken power illegitimately by force of arms to enact, promulgate and bring into force a new Constitution for Ghana.
Mr Ala Adjetey said it was true that the draft Constitution that came out of the Consultative Assembly was submitted to a referendum on April 28, 1992 and was duly approved at the referendum.
He said "it is submitted, however, that the people of Ghana did not really have entirely free hands in voting at the referendum, since at the referendum they were presented with the Scylla of accepting the draft with all its serious imperfections and failure to meet the standards required of a modern liberal democratic Republic, and the Charybdis of rejecting the draft Constitution and being saddled with a military dictatorship represented by the PNDC for a number of years uncertain. This was a cruel choice".
He said the power of the purse was taken away from the hands of Parliament and vested in the hands of the Executive which, he said, should not have been so.
Mr Ala Adjetey said, for instance, that the appointment of Justices to the superior courts should have been entrusted into the hands of an independent body and not in the hands of the Executive.
He said another area to draw attention to the defects in the 1992 Constitution was Chapter Six, which deals with the Directive Principles of State Policy, which, he said, must gladden the hearts of liberal democrats worldwide but its wording did not expressly provide for its enforceability by judicial proceedings.
"This has given rise to pessimists and enemies or opponents of liberal democracy to contend that the principles were not enforceable," he stated.
Thus, its adoption as the correct constitutional position by the Supreme Court would have serious consequences for the rule of law and the protection of fundamental human rights and freedoms in the country's body politic.
Illustrating the contradiction in the Directive Principles of State Policy, Mr Ala Adjetey cited Clause (1) (b) of Article (2) of the 1992 Constitution, which provides that a person who alleges that any act or omission of any person "is inconsistent with, or is in contravention of a provision of this Constitution" could institute proceedings in the Supreme Court for a declaration to that effect.
However, he said, the Directive Principles were contested by many on the Bench and out of it as non-justiceable, which meant that persons listed in Clause (1) of Article 34 had failed to be guided by any of the principles in Chapter SIX, "if such a person cannot avail himself of the right conferred by Article Two to bring an action in the Supreme Court for a declaration to that effect".
Another serious drawback, according to Mr Ala Adjetey, was Article 60(11) of Chapter Eight, which enjoins the Speaker of Parliament to perform the functions of the President: "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 or a new President assumes office, as the case may be."
The former Speaker of Parliament said that provision had been taken for granted to mean that where both the President and the Vice-President were absent from the country in the ordinary physical sense, the Speaker of Parliament was enjoined to perform those functions.
He also challenged some provisions of Chapter 20, which deals with decentralisation and local government, because those provisions tended to make the District Assembly and its municipal and metropolitan variations only extensions of the central government.
The Chief Executive Officer of the CNDED, Mr Kwadwo Mari, said the organisation would stand for a check on unrestrained government action.
He said the organisation believed in the smallest possible government, even though it is not anti-government.
Source: Daily Graphic