On Amending the 1992 Constitution: The People V The President

His Excellency Nana Addo Dankwa Akufo-Addo the president of our Republic in a recent meeting with Civil Society Organisations espoused inter alia a gradualism approach towards amending the 1992 Constitution as opposed to the more radical perspective expressed by certain CSOs such as the CDD. Indeed the fixthecountry movement has adopted as a cardinal fulcrum of its agitation, “a new constitution for a new generation” and has taken steps towards declaring a vote of no confidence in this constitution. The views of the president eerily landed on me as being very reminiscent of the UGCC’s approach towards the struggle for independence which was encapsulated as “self-government within the shortest possible time” as against the ‘self-government now’ mantra adopted by the CPP. Knowing the origins of the man as being steeped in the UGCC, credence is given to the old cliché, ‘‘the apple doesn't fall far from the tree’’

The President described the steps - setting up the Constitution Review Commission(CRC) and subsequently the Constitutional Review and Implementation Commission(CRIC) - initiated by the Mills administration as being flawed notwithstanding the Supreme Court decision in Asare V Attorney General where the court held essentially that, the process started by the Mills government should be construed as only preparatory and not by any stretch a usurpation of the parliament’s exclusive power to amend the constitution guaranteed by article 289.The President obviously is entitled to disagree with the Supreme Court especially when two if its own judges dissented from the majority position. What is bewildering here is that His Excellency seems to be throwing the baby away with the bathwater. The import of the CRC’s work must not be sacrificed on the cross of the President’s perceived shortcomings in the processes.

A constitution is often characterised as a living document. Truly, the life cycle of a codified constitutional text encompasses its birth, amendment, and demise with an average lifespan of about 17 years according to Ginsburg et al. Nation-states may promulgate a new constitution at different times in history, our 1992 constitution ushered us into the Fourth Republic in hopes of - to paraphrase a section of the preamble - establishing a framework of governance that will secure for ourselves and descendants the blessings of liberty, equality of opportunity and prosperity. Again, the president posits that the 1992 Constitution having naturally served us the longest is fit for purpose in the foreseeable future albeit the work of the CRC which in many ways represents the voice of the people takes a different outlook, it proposes over 200 article amendments. Juxtapose that with the 299 articles in the constitution. Admittedly, we may have to revisit and perhaps revise the CRC report in order streamline it with any developments that may have arisen through case laws over the last decade, certain nebulous articles may have been clarified and furthered.

The mid-life of a constitutional document may necessitate revisions so as to adapt it to the socio-politico-economic vicissitudes of the present times. A critique of a codified constitution by Political Constitutionalists (Constitutional theorists who argue that the legislature must hold the greater role in the constitutional order other than a codified constitution i.e. parliamentary supremacy as seen in the UK) is the tendency for a single document constitution to hold nations captives in the past. Once the Constitution is agreed upon and given effect, the wheels of amendment are slow to grind especially when the political class who are the beneficiaries of the status quo charged with the responsibility of modifying same are disinterested. The often laborious and extensive work required particularly for entrenched provisions can be a disincentive. It is important to underscore the fact that this very nature of the constitution in setting more stringent standards for changes projects it above the whims and caprices of the all too familiar vindictive partisan politics. Nonetheless, this feature of the constitution may be the very impediment to the growth of constitutionalism and progress of we the people.

The CRC in its report acknowledged contentions from a section of the populace in the review process it was engaged for, but wrote on page 746;

‘’The overwhelming majority of submissions reviewed by the Commission on this issue, however, indicated that there was the need to review the Constitution. The proponents of this view argued that after almost two decades of operating the Constitution, many have realised that some provisions required further clarity and others have proven inimical to the growth of the nation‘s nascent democracy and as such needed to be removed from the Constitution or further clarified. This initiative, it was argued, would enable the Constitution to rid itself of nebulous provisions which have often been exploited to stultify the growth of constitutionalism as well as pervert democratic processes in Ghana.’’

It is abundantly clear today as it was a decade ago per the CRC report, that this constitution is rife for a major overhaul. This is a duty we cannot relent on lest posterity takes not kind to us. The CRC and CRIC's work cannot go to waste when frankly the promise of equality of opportunity and prosperity is true only for the elite class of our society.

Certainly it is not lost on Mr. President that his mandate is to actualise the will of the people, perhaps what is worth reminding him is that the last time a group of his kinfolk adopted a slower pace, what transpired is etched in our history forever.

Short live the 1992 Constitution as is! Long Live Ghana!

Owusu Prince Yeboah,

[email protected]