Can Ghanaians Ever Remove a President from Office Under the 1992 Constitution? - Episode 2

It is trite knowledge that as a result of several military overthrows of democratically elected administrations, Ghana has had four different Constitutions namely 1960, 1969, 1979 and currently, the 1992 Constitution. The 1969, 1979 and 1992 Constitutions have provisions regarding the removal of the President from office on stated grounds and pursuant to stated procedures. For example, Article 47 of the 1969 Constitution and Article 56 of the 1979 Constitution provided for the removal of the President from office on stated grounds. In case of the First Republican Constitution, 1960, it made no overt provision for the removal of the President from office. The combined effects of Articles 11 and 23 of that Constitution, 1960 made Kwame Nkrumah the perpetual President of Ghana aside the fact that Article 1A (1) and 1A (2) of the Constitution made his political party (Convention People’s Party) the only political party in Ghana at the time. The Articles provided that a new President shall be elected only when the National Assembly was dissolved or the President died or the President resigned [Article 11 (1)]. Meanwhile, Article 23 (1) of the 1960 Constitution clothed the President with power to discretionarily dissolve the National Assembly and dissolution of the National Assembly was one of the conditions precedent to the election of a new President.

It so happened that all the three Presidents under the 1960, 1969 and 1979 Constitutions were ousted from office by the Military without recourse to the constitutional provisions cited above. Those constitutions were set aside through coup d'état in 1966, 1972 and 1981 respectively.

The 1992 Constitution has been the most stable Constitution of Ghana. It has been in force for the past 29 years and it has produced 5 Presidents as a result of 8 general elections.

Under the 1992 Constitution, Article 69 provides for removal of the President from office on the grounds enumerated below. It states that the President shall be removed from office if he is found-

• to have acted in willful violation of the oath of allegiance and the presidential oath set out in the Second Schedule to, or in willful violation of any other provision of the Constitution.
• Or to have conducted himself in a manner -

  (i) which brings or is likely to bring the high office of President into disrepute, ridicule or contempt; or

  (ii) prejudicial or inimical to the economy or the security of the State; or

• to be incapable of performing the functions of his office by reason of infirmity of body or mind.

Since the inception of the Fourth Republic on January 7, 1993, various Ghanaians especially politicians, investigative journalists and Civil Society Organisations (CSOs) have accused an incumbent President of either corruption or other constitutional violations that constituted a President’s breach of his oath of office and allegiance.

However, none of the persons or CSOs who so alleged against a sitting President had the audacity to initiate the impeachment processes leading to the removal of an accused incumbent President from office as provided for under Article 69 of the Constitution. In 2016, for example, the NPP accused the then sitting President of incompetence and corruption but failed to cause his removal from office. Definitely, an “incompetent and corrupt” President should have been deemed to be prejudicial or inimical to the economy and should have been removed from office based on Article 69 (1) (c), (a) and (b) of the Constitution.

Alternatively, and for the past five years, the NDC, journalists, CSOs and other groupings have been accusing the current President of several corruption scandals and non-performance but fails to initiate any impeachment actions against him.

If the foregoing accusations of corruption, incompetence and other constitutional violations against some sitting Presidents were backed with evidence but nothing was done to cause their removal from office by invoking Article 69, then can Ghana ever remove a President from office for breach of the oaths he swore to God and the people? If indeed the allegations have been mere or without evidence, then are Ghanaians not only crying wolf even at the sight of a harmless domestic dog?

Procedure for Removal of President from Office

The 1992 Constitution [from Article 69 (2) to 69 (13)] provides the following procedure for removal of an incumbent President from office on the grounds ut supra. The procedural steps are herein enumerated for ease of understanding and reference.

1. There must be a written notice for the purpose of removing the President from office and this notice must be duly signed by at least one-third of Members of Parliament (MPs). It means that currently it will take at least 91 MPs to sign that notice mindful of the fact that there are currently 275 MPs in Ghana.
2. The said notice must state that the conduct or the physical or mental capacity of the President be investigated on any of the grounds specified in clause (1) of Article 69. The notice must be presented to the Speaker of Parliament who shall immediately inform the Chief Justice and deliver the notice to him with a copy to the President.
3. The signed notice shall be accompanied by a statement in writing setting out in detail the facts, supported by the necessary documents, on which it is claimed that the conduct or the physical or mental capacity of the President be investigated for the purposes of his removal from office.
4. Accordingly, the Chief Justice (CJ) shall, by constitutional instrument, immediately convene a tribunal consisting of him or herself as Chairman and the four most senior Justices of the Supreme Court. The tribunal shall inquire, in camera, whether or not there is a prima facie case for the removal of the President.
5. Where the said signed notice is delivered to the CJ on grounds of infirmity of body and /or mind, the CJ shall, in consultation with the professional head of the Ghana Health Service, cause a medical board to be convened which shall consist of not less than four eminent medical specialists and the President shall be informed accordingly.
6. The President shall be invited to submit himself for examination by the medical board within fourteen days after the appointment of the board. The President shall be entitled during the proceedings of the tribunal or of the medical board to be heard in his defense by himself or by a lawyer or other expert or person as the case may be, of his own choice.
7. The Rules of Court Committee shall, by constitutional instrument, make rules for the practice and procedure of the tribunal or of the medical board for the removal of the President.
8. Where the tribunal or medical board specified in clauses (4) and (5) of Article 69 determines that there is a prima facie case for the removal of the President or that the President is by reason of physical or mental incapacity unable to perform the functions of his office, the findings shall immediately be submitted to the Speaker of Parliament through the CJ and copied to the President. Parliament shall, within fourteen days after the date of the findings of the tribunal or medical board, move a resolution whether or not the President shall be removed from office.
9. The resolution for the removal from office of the President shall be by a secret ballot and shall be taken to be approved by Parliament if supported by the votes of not less than two-thirds (about 183 MPs currently) of all the members of Parliament after prior debate.
10. The proceedings of Parliament for the removal of the President shall not be held in camera except where Parliament otherwise orders in the interest of national security.
11. The President shall cease to hold office as President on the date Parliament decides that he be removed from office.

Conclusion

It is obvious that procedural steps provided for removal of an incumbent President from office are circuitous and almost cast in stone. In addition, the Constitution clothes the President with power to appoint all public office holders just that he or she may delegate such appointing authority. A part from the Speaker of Parliament and the MPs, the President appoints the Chief Justice and other Justices of the superior Courts as well as the Director General of the Ghana Health Service who are constitutionally required to participate in the impeachment process leading to the removal of President.

The President is even required by Article 78 (1) of the Constitution to appoint majority of the MPs as Ministers of State. It means that a significant number of the MPs required to sign the notice of removing the President and later vote to remove him or her from office are presidential appointees so once their bread is buttered in the ministerial positions, it will be difficult for them to vote for removal of the President from office.

Again, the party in power or the President’s party has been in the majority in Parliament with large margins since 1993 except that the 2020 elections made the gap very thin.

Mindful of the foregoing, the questions I pose to readers are these:

1. Have various Presidents not violated Article 35 (7) of the Constitution by willfully abandoning government projects started by their predecessors with funding from the public purse? Has this not breached the oath of allegiance and the presidential oath they swore in the name of the Almighty God to preserve, protect and defend the Constitution of the Republic of Ghana at all times?
2. Can Ghanaians succeed in removing a President from office under the 1992 Constitution?
3. Is Article 69 of the 1992 Constitution just a modicum or not?

~ Asante Sana ~

Author: Philip Afeti Korto.

Email: [email protected]