I am putting forth the proposition that former President John Dramani Mahama, like all our former Presidents, is not eligible to context election 2024, and indeed any other election in Ghana, henceforth, because the law says that they are officials of the State.
The counter argument to this proposition would arise from two constitutional provisions, which are Articles 62, and 66 of the 1992 Constitution.
Article 62 of the 1992 Constitution states;
“A person shall not be qualified for election as the President of Ghana unless-
“(a) he is a citizen of Ghana by birth;
“(b) He has attained the age of forty years; and
“(c) he is a person who is otherwise qualified to be elected a Member of Parliament, except that disqualifications set out in paragraphs (c), (d), and (e) of clause (2) of article 94 of this Constitution shall not be removed, in respect of any such person, by a presidential pardon or by lapse of time as provided for in cause (5) of that article.”
(Article 94 is not germane to this discussion and would therefore not be further referenced).
Notable in this discussion with reference to Article 62, are the following principles with regard to eligibility to become President of Ghana;
(a) You must be a citizen of Ghana by birth;
“(b) You must have attained the age of forty years; and
“(c) You must be a person who is otherwise qualified to be elected a Member of Parliament.
That is the rule. Everybody who is born a Ghanaian, remains a citizen, have attained the age of forty years and qualified to be a member of parliament, is qualified to vie to become President of Ghana.
In brief, a person who qualifies under Article 62, is eligible to contest to become President.
This is a principle. However, as the lawyers will tell you, for almost every rule or principle, there are exceptions, or there can be exceptions. In other words, it means that it is not everybody who qualifies under Article 62, who is eligible to contest to become President. There are exceptions to the rule under Article 62.
For instance, the Ga Mantse is a citizen of Ghana by birth. He is over forty years, and he is otherwise qualified to be a Member of Parliament, but he cannot pick up forms to contest to become the President of Ghana. This is because of Article 276, titled ‘Chiefs not to take part in active politics’.
Article 276 (1) states;
“A chief shall not take part in active party politics; and any chief wishing to do so and seeking election to Parliament shall abdicate his stool or skin.”
Therefore, if the Ga Mantse wants to seek election to go to parliament, he must first abdicate his thrown. Otherwise, he is debarred from seeking office to become a Member of Parliament and a President.
So one can say that Article 276 (1) is an exception to Article 62 of the 1992 Constitution. I am sure that there are other exceptions to Article 62 to be found in the 1992 Constitution, if we were inclined to delve further into this pursuit, an activity I am disinclined to pursue for now. However, it is trite that military personnel, police personnel, members of the judiciary, the Electoral Commissioner and his officials, and many other classes of Ghanaians cannot vie to become President, even though otherwise qualified under Article 62.
In this piece, I would argue and establish that Mr. John Mahama falls among these exceptions to Article 62.
Mr. Mahama is currently vying, once again, to become the President of Ghana under the fallacious assumption that under the 1992 Constitution, he is entitled to a ‘second term’ having served a ‘first term’. I say that this assumption is a fallacy, stemming from a misreading of Article 66 of the 1992 Constitution.
Article 66 (1), (2) and (3) of the 1992 Constitution states;
“(1) A person elected as President shall, subject to clause (3) of this article, hold office for a term of four years beginning from the date on which he is sworn in as President.
“(2) A person shall not be elected to hold office as President for more than two terms.
“(3) The office of President shall become vacant-
- on expiration of the period specified in clause (1) of this article; or
- (b) if the incumbent does or resigns from office or ceases to hold office under Article 69 of this Constitution.”
Certain principles can be crystalized from Article 66. They are as follows;
- The Presidential term is four years (Articles 66. (1) and 66.(3(a)). After four years, beginning from the date a President is first sworn in, it becomes vacant; unless
- The person in office is elected to hold office for a ‘second term’, granting him or her a cumulative ‘two terms’ (Article 66. (2)).
For now, the first principle does not raise any controversies, but the second formulation does raise serious controversies.
First, is whether the second term of the President, is dependent on he or she being elected as President for the first term (66. (1). In other words, the President must already be in office as President, before he can vie for a second term. This is a point that some legal advocates have been pushing, that once a person is elected President, he is entitled to seek a second term (even if he has served a previous term in the past). This is a point worth noting at this point. I would revert to it again as we go along. (For instance, some legal advocates suggest, even today, that once Mr. Mahama becomes President at some putative future date, they would go to court to seek a second term, because to their understanding, a person elected into office as President in Ghana for a first term, is entitled to a second term whilst in office. This is a view I share.)
The second controversy, is whether a person who is not already elected, or to put it better, currently holding office as President, is entitled to a ‘second term’.
If we read Article 66 (1), (2) and (3) together as one, then one interpretation is that it is the person who has been elected President for a first term, who is currently holding office, who is entitled to a second term, and no other person is otherwise so entitled. In other words, the right to a second term, is dependent on having been elected and holding office for a first term.
We can however also read clause (2) of Article 66 in isolation; that is, give the clause the interpretation that a person shall not be elected to hold office for more than two terms. Read in isolation, it means that each individual Ghanaian by birth, is entitled to hold office for at least two presidential terms, and no more. Ergo, John Mahama has a right to a second term, because he has served a first term before.
The question or issue would be, which would be the correct formulation, to read Article 66 as a whole, or to read clause (2) of Article 66 in isolation?
The lawyers would tell you that it is trite knowledge that in Interpretation of Statutes, laws and statutes are to be read (construed or interpreted) as a whole. One cannot take clause (2) as a stand-alone clause without taking into consideration the other clauses in Article 66, or indeed the other clauses to do with the Presidency, or indeed the entirety of the 1992 Constitution.
If that is so, then the right to a second term is dependent on already being elected and holding office for a first term.
If I am right, then Article 66 of the 1992 Constitution also throws up a second category of persons apart from chiefs under Article 276(1) who are not eligible to contest for President under Article 62; that is persons who have already held Office as Presidents of Ghana.
That would in sync with the widely held body of thought that ex-President John Kufuor, for instance, is not entitled to hold office ever again in his life as President of Ghana. The same would apply to the incumbent President Akufo Addo when he leaves office. It is my proposition that the same holds for ex-President John Dramani Mahama. And that would jibe with the provisions of Article 68, for instance.
If we read Article 66 any other way, then it opens the door for persons who have held the Office of President before, with sufficient energy and resources, to attempt another effort on the Presidency. This may seem far-fetched, but assuming that in future we had a President who retires at age fifty, young, charismatic, well-resourced and willing, which other constitutional provisions can really stop him from starting out again as an assemblyman, a member of parliament, and a flag bearer and hence another attempt on the Presidency?
It is my proposition that the 1992 Constitution envisages such a development, and therefore made provision in Article 66. (1) (“(1) A person elected as President shall, subject to clause (3) of this article, hold office for a term of FOUR YEARS beginning from the date on which he is sworn in as President.”) meaning that if one fails to secure a second term whilst one is in office, one joins the coterie of ex-presidents.
It is why I stated earlier that laws are to be read as a whole, and so that even though the words are not explicitly written, the clear intimations are obvious in the 1992 Constitution. Former Presidents are not expected to seek the Presidency after leaving office, whether they served one term, or two.
WHY JOHN MAHAMA, AND ALL EX-PRESIDENTS, ARE NOT ELIGIBLE TO CONTEXT ANY OTHER ELECTION IN GHANA
Chapter 8 of the 1992 Constitution governs Executive power in Ghana, that is, it is the go-to Chapter that governs issues of eligibility, conduct and all matters to do with the Presidency in Ghana. The President, whilst he remains in office, is not at liberty to engage in business or any activity that brings him a profit or emolument.
Article 68. (1) of the 1992 Constitution states;
“The President shall not, whilst he continues in office as President-
- Hold any other office of profit or emolument whether private or public and whether directly or indirectly; or
- Hold the office of Chancellor or head of any university in Ghana.”
So that from the above, it is clear the President, whilst in office, cannot be a shareholder in a company. Imagine such a company existing in the realm, and what it can do, or will be allowed to do merely from the fact of its association with the President.
Article 68. (2) of the 1992 Constitution further states;
“The President shall not, on leaving office as President, hold any office of profit or emolument, except with the permission of parliament, in any establishment, either directly or indirectly, other than that of the State.”
The principles we can crystalize from Article 68. (2) of the 1992 Constitution are these;
- The President, upon leaving office, is to keep himself occupied in the affairs of the State.
- He is not to hold any office where he would receive a profit or emolument (salary, allowances, and things of such nature) OTHER THAN AN OFFICE TO DO WITH THE STATE.
- If it is necessary that he hold such office, then he de facto and de jure requires the permission of parliament.
The invocation of Article 68. (2) of the 1992 Constitution has become necessary, because on Tuesday, February 21st, ex-President John Dramani Mahama met members of parliament of his party and declared his intention to context for the Presidency. Following that, a group of leading members of his party went to buy nomination forms on his behalf from the headquarters of the National Democratic Congress party.
It immediately becomes clear, that he is seeking office in an establishment called the National Democratic Congress (NDC) party, first, as a flag bearer of that party, and secondly, as President of Ghana.
I have been asked the question; is the President not working on behalf of the State? Would that not make Mr. Mahama’s latest adventure legitimate?
I have countered with the answer whether the various candidates currently traversing Ghana, seeking to become Presidents, are working on behalf of the State. The obvious answer would be no. They are on a complete frolic of their own. Unfortunately for Mr. Mahama, he is an Article 68. (2) Office Holder, and is expected and required to live up to the aspirations of that clause.
Article 68. (2) of the 1992 Constitution is clear. The actions of Mr. Mahama are in complete conflict with Article 68. (2) of the 1992 Constitution. For now, as a President who has left office, he requires permission from parliament to engage with any establishment, including his political party and as a functionary of that party. This is clear and explicit
This is being brought to his attention, and that of his fellow political adventurers, in a timeous manner. He has time to do a number of things. He can;
- Take up his position a Statesman as the constitution expects of him, and withdraw from the race;
- He can apply to parliament to be allowed to contest the position of flag bearer of NDC;
- He can test the efficacy of these arguments in the Supreme Court; or
- He can play ostrich and hope this would go away, some way, somehow.
Whatever happens, we wait to see. But it is not over yet. Not by a long shot.