Reviewing our constitution

When the National Commission on Democracy (NCD) travelled the length and breadth of the country to collate views on the type of governance that the people wished for, Ghanaians did not leave the Justice Daniel Francis Annan's led-group in doubt that they preferred multiparty constitutional democracy.

In the end, Ghanaians settled on the 1992 Fourth Republican Constitution with an overwhelming yes in a referendum on April 28, 1992. They knew that the document had limitations, but it provided a better basis for governance than military usurpation.

Prof. Kofi Kumado, one of the country's top constitutional lawyers, in an article on "Constitutional Framework of Democracy" noted that “in two areas the PNDC have clearly got its way. First is the integration of certain levels of the public tribunal system into the pre-31st December 1981 judicial system provided for in Chapter Eleven of the Constitution; second is the provision debarring political parties from local government elections. Whether this will be good for democracy in the Fourth Republic, only time can tell."

Indeed, the First Parliament under the Fourth Republic did not complete its tenure when it was virtually directed to amend certain sections which gave primary responsibility to the Vice-president a direct result of the incompatibility between the then President Jerry John Rawlings and Vice-President Kow Nkensen Arkaah. Provisions relating to the National Media Commission were also amended to increase the membership from 15 to 18.

Since then, there have been calls for amendment to certain portions of the constitution. Now that the government has set up a Constitutional Review Commission, it has become necessary for the sharing of views on areas which must be looked at.

Ghanaians must heave a sigh of relief that for once, the composition of a committee under President John Evans Atta Mills cuts across party lines. The inclusion of Mr Akenten Appiah-Menka, whose effort to contest the Ashanti Regional slot on the Council of State, prompted the Ministry of Local Government and Rural Development to prevail on the Electoral Commission to delay the elections, sends a new signal of inclusiveness. That must be the principle and the way forward from now.

The areas which readily come to mind relate to the power and authority of the President decoupling the positions of Attorney-General from Minister of Justice, appointment of minister from outside parliament putting a sealing on the number of ministers and justices of the Supreme Court, political party participation in the district level elections, election of district chief executives, appointment of a third of assembly members as well as the date for general election.

Indeed, the matter of the date for the general election is not a constitutional one. The constitution does not prescribe a time period for presidential elections. It, however, indicates that parliamentary elections cannot be held later than thirty-one days from the life of a new Parliament. It is because we decided to hold the parliamentary and presidential polls at the same time, which has generated the problem.

In the first place, Article 298 envisaged the fact that the constitutional provisions might not have dealt with all the issues and thus provide 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 have 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." Chapter 25 provides for amendments of entrenched and non-entrenched clauses.

For now the clamour is for a change of date for general elections. Thankfully, Article 112 is not entrenched. Again, the issue about political party participation in district level elections and the election of district chief executives could be dealt with by Parliament, if the Executive is willing to surrender its authority of appointment since the clauses are not entrenched, so also is the number of Supreme Court judges.

However, when it comes to the number of ministers, ministers outside Parliament and the decoupling of the office of Attorney General and Minister of Justice, that are entrenched provisions that require more elaborate processes for amendment.

To amend a non-entrenched provision, the bill must be published twice in the Gazette with a minimum of three months between the two publications. After the second publication, 10 days must pass before the bill is introduced to Parliament.

After the first reading, the Speaker must refer the bill to the Council of State for consideration and advice, which must be done within 30 days.

Thereafter, Parliament can proceed with the bill and provided that at the second and third readings, at least two-thirds of all MPs voted for it, then the President would have to assent to it (Article 291).

On the other hand, to amend an entrenched provision, the bill must first be referred to the Council of State for advice and responded to within 30 days before Parliament could consider the bill. The bill is then published in the Gazette for six months before it is introduced to Parliament. After the first reading, the bill has to be subjected to a national referendum, where at least 40 per cent of all registered voters must turn out with a verdict valid upon 75 per cent of the votes in favour of the bill. If the referendum approves of the bill, then it will be passed by Parliament and presented to the President, accompanied by a certificate signed by the chairman of the Electoral Commission.

It is probably because of the elaborate nature of the amendment of entrenched provisions, coupled with the fact that there would be a general election in 2012 that prompted Prof. Kofi Kumado to describe the institution of the Constitution Review Commission as a misplaced priority.

As things stand, the Commission may take a long time to do its work and we would not have the money to conduct a referendum in 2011 as much as it would not be politically correct to hold the referendum in 2012 alongside the general election.

But as it is, something needs to be done about the constitution. Any amendment must also seek to empower Parliament, which is disenabled from initiating certain legislations which are charges on the Consolidated Fund, although by law, Article 174(1) provides that, "No taxation shall be imposed otherwise than by or under the authority of an Act of Parliament."

Accordingly, Article 108, which states that "Parliament shall not unless the bill is introduced or the motion is introduced by or on behalf of the President must be reviewed since the essence of Article 108 is that it has crippled Parliamentary initiative in the introduction of legislation.

Additionally, there is a need for provision on the replacement or succession of the office of the Vice-President as in the same way that provisions have been made for the President.

Credit: Yaw Boadu-Ayeboafoh/Daily Graphic