The Chief Justice, The Speaker and the Oath.

There seem to be some kind of wrangling about the role of the Speaker [of Parliament] and the stipulation of the constitutional for the holder of the office to swear the Presidential Oath before taking over the duties of the president.

This is not difficult to understand as we will find out. First, we shall look at the framework of power in government and how it applies to the above scenario.

To get a grasp on whether the Speaker has to take the oath of the Presidency in each instance , we have to look at the statutory convention of primus inter pares. To explain it simply; the person or personalities which the constitution recognises as the lead individual(s) in the country in all instances.

The constitution of Ghana gives the list as follows:

The President
The Vice President
The Speaker of Parliament
The Chief Justice
There is a reason why the Chief Justice is the last of all these personalities. She is the only individual in group with the power to interpret the constitution. The Constitution gives her oversight to administer the required oath in each instance and ensure that the constitution is being followed. This provision is given to her by the constitution which stipulates that the interpretation of the constitution shall be vested in the judiciary [ of which the Chief Justice is the head ].

If she is not satisfied, nothing will happen. Therefore if she requires the Speaker of Parliament to swear the oath as per her interpretation of the law under the powers given to her by the constitution and the speaker refuses, she can declare the Speaker unfit for the office of Acting President, for attempting to usurp the office of the president without due authority.

That is high treason.
Such a declaration though unlikely will also lead to the the removal of the Speaker, indicating that the speaker has violated his oath of office. It will also mean that the Chief Justice is summarily the First Person recognised by the constitution.

This is an extreme measure and intended to outline the entrenchment of checks and balances in the Constitution. It is to ensure that no arm of government is detrimentally exercising undue power or influence. However in practice the Chief Justice will explain the constitution to the Speaker of Parliament which will suffice to ensure that the correct balance is maintained. The speaker cannot decide that he will not take the oath and go on to arrogate himself powers of a high office.

That will be a crime.
Now with regards to the number of times that the Speaker has to take the oath, we have to look again to the Chief Justice for the answer. In the performance of her duties, the Chief Justice always holds court [ administering her judicial duties ]. As such the full powers accorded to her under the constitution comes into play. She can give any directives on whether an action is a continuance or not. In this respect, following an earlier administration of an oath to the Speaker of parliament, she may choose not to let the Speaker go through the full gamut of reciting the oath of the office again the next instance he has to assume the role of President. She can simply enquire [ of the the same speaker ] if he remembers the earlier oath. If he replies in the affirmative, the Chief Justice may remind him that he is still under oath [ from her earlier court session ].

Any subsequent action in the new capacity by the speaker will then be lawful.

Now having dealt with the balance of power pertaining to the oath we will now look at the instances when it is necessary for the Speaker of Parliament to assume the role of the President.

Here is the catch.
The only person empowered by the Ghana Constitution to assume the role of the President when he/she is out of the country is the Vice President. No one else [ repeat ].

The case of the Speaker of Parliament has come up on numerous times in this respect. He is not empowered to take that role. The relevant sections of the constitution are listed as follows

Article 60 (8)
Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform.

Article 60 (11)
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 is able to perform those functions or a new President assumes office, as the case may be.[end]

The qualification for the Vice President undertaking the role of the President includes the absence from the country, however the qualification for the Speaker does not.

It is not in the constitution of Ghana for the Speaker of Parliament to assume the role of the President when the President and his Vice are away from the country. The qualification for the Speaker of Parliament to undertake the role of the President is only when the President and his Vice are unable to undertake their roles. It does NOT include absence.

The Chief Justice means well and studies of her decisions shows a willingness to foster full participation in all legal processes if it means the right thing is done by the people. No one should therefore assume that the judicial process can be taken lightly or used to engender some form of unruly exuberance.

If the President and the Vice President are not incapacitated or worse, the Speaker of Parliament is not needed; thus says the Constitution.

No one should rouse the Chief Justice next time the The Chief Executive and his Vice are absent, because unless they are additionally incapacitated or worse The Good Woman Her Lady Chief Justice Theodora Wood does not have to do a thing.

Jedd Rii