The MOH Circular Forbidding All Health Sector Public Servants from Engaging in Partisan Politics May Lead to Judgment Debts

Introduction
On April 13, 2023, the Ministry of Health (MOH) issued a circular number MOH.KA3.17/17/01 captioned, “Engagement of Public Officers in Partisan Politics” and signed by the Ag. Chief Director of the Ministry, Emma Ofori Agyemang (Mrs.) on behalf of the Minister of Health. The circular is widely circulated in social media hence it is public knowledge.

The MOH issued the said circular subject to the tenets of its policy document dubbed the “Public Service Human Resources Policy Framework Manual”. I hereby abbreviate the name of this document as PSHRPFM for ease of subsequent reference.

Essentially, the MOH circular under reference seeks to direct that Public Servants in the health sector are not permitted to engage in active partisan politics. Suffice it to say that any health sector Public Servants who intend to contest in parliamentary primaries for example cannot do so whilst they are still working in the Public Service. According to the circular, Health sector Public Servants who flout the directive are to be sanctioned by the respective Heads of the MOH agencies concerned.

Unconstitutionality of the Circular

Pursuant to Article 94 (3) (b) of the 1992 Constitution and corresponding Supreme Court decisions on the subject, I submit that the aforementioned MOH directive and the PSHRPFM document are partly unconstitutional, and they fly in the face of case law which derives its constitutionality from Article 11 of the 1992 Constitution, which Article touches on the sources of law in Ghana.

Specific Directives
Specifically, the aforementioned MOH circular seeks to caution the health sector Public Servants who wish to engage in partisan political activities to be mindful of the following:

1. A Public Servant shall not openly participate in partisan political activities, seek political office whilst still in the public service or use Government facilities, equipment or resources to assist any candidate seeking elected political office.
2. A Public Servant shall not act in a manner or assume a position that results or is likely to result in the personal or political interest of that Public Servant being in conflict or being likely to be in conflict with the performance of the functions of office.
3. A Public Servant who wishes to identify with a political party or seek political office shall resign from the Public Service.
4. Governing Boards/ Councils and Heads of Organizations shall take necessary steps to sanction any Public Servants who violate the provisions in this Section.
5. Partisan politics shall not be introduced into or practiced at the workplace.

In view of the above, the Ministry wishes to advise all Health Sector Staff or Public Servants to adhere to the tenets of the code of ethics in the Public Service Human Resources Policy Framework Manual to avoid any sanctions. The MOH further directed that all Heads in the health sector are required to bring the circular to the notice of their staff.

Who are Public Servants in Ghana?

For the avoidance of doubts, Public Servants are public sector workers whose organizations have been mentioned under Article 190 of the 1992 Constitution or similar other public sector organizations later established upon the strength of Article 190 (1) (d) of the Constitution, which states that such other Public Services as Parliament may by law prescribe shall be deemed to be part of the Public Services of Ghana and by extension, their employees shall be called Public Servants.

Section 7 (1) of the Public Services Commission Act, 1994 (Act 482) also recounts the Public Services of Ghana as enshrined under Article 190 of the Constitution.

The MOH circular cited above directs that unless they resign, employees/Public Servants of the Ghana Health Service (GHS), the Teaching Hospitals, National Ambulance Service, National Blood Service, Mental Health Authority and the regulatory bodies in the health sector cannot engage in active partisan politics including seeking to become an MP or contesting a political party executive position. Is this directive Constitutional? Is it in tandem with existing case law?

Can Public Servants Engage in Partisan Politics or Not?

The question of whether public servants can engage in active partisan politics or not had been answered by the Supreme Court in two separate cases based on Article 94 (3) (b) of the 1992 Constitution. It is worth recollecting that the Supreme Court is the only judicial body clothed with power to interpret the 1992 Constitution (the supreme law) or any of its provisions. It is for this reason that Article 2 (1) (b) of the Constitution reads, “A person who alleges that any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court (SC) for a declaration to that effect.” Article 130 (1) (a) of the 1992 Constitution also states in parts, “the Supreme Court shall have exclusive original jurisdiction in all matters relating to the enforcement or interpretation of this Constitution.”

In Kwadjoga Adra vs. the National Democratic Congress (NDC) & 5 Others (Writ No. J1/13/2014) the SC ruled on 15^th July 2015 that Public Servants whose organizations are not mentioned under Article 94 (3) (b) of the Constitution ARE FREE to hold office in the Public Services and still participate in active partisan politics.

However, in a different case (Writ No J1/16/2016) dubbed Civil and Local Government Staff Association of Ghana (CLOGSAG) vs. Attorney- General & 2 Others, the Supreme Court held on 14^th June 2017 that on a true and proper interpretation of the Constitution, Civil Servants and Local Government employees DO NOT HAVE THE RIGHT to participate overtly in political party activities whilst still a member of the Civil Service or the Local Government Service because these two Public Service Organizations have been excluded from active partisan politics per Article 94 (3) (b) of the Constitution.

Unless they resign from the Public Service, therefore, Public Servants whose employer organisations are mentioned under Article 94 (3) (b) of the Constitution cannot engage in partisan politics.

As it stands now, the employer organizations of Public Servants that the MOH seeks to prohibit from engaging in active partisan politics have not been proscribed by Article 94 (3) (b) of the Constitution. For this reason, any aggrieved or sanctioned Public Servant (s) in the health sector may challenge the constitutionality/legality of the MOH circular at the Supreme Court in tandem with Articles 2 (1) and 130 (1) (a) of the Constitution as cited above.

In February 2020, I did two separate media publications and discussed extensively, matters relating to the caption, “Can Ghanaian Public Servants Participate in Partisan Political Activities Or Not?” The said publications were made on www.modernghana.com and they may be accessed using the links below. Those who want to read extensively on the Supreme Court decisions cited herein may follow the links and read further.

1. https://www.modernghana.com/news/983213/can-ghanaian-public-servants-participate-in-partis.html
2. https://www.modernghana.com/news/983738/can-ghanaian-public-servants-participate-in-partis.html

Article 94 (3) (b) Public Servants

For the avoidance of doubts and ambiguity, Article 94 (3) (b) of the Constitution is worth citing verbatim herein. It states, “A person shall not be eligible to be a member of Parliament if he is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service;” It is imperative to remind readers that the journey to becoming a Member of Parliament starts with partisan political activities at constituency levels.

It is also obvious from the above constitutional provision that the Ghana Health Service, National Ambulance and the National Blood Service for example, do not fall under Article 94 (3) (b) of the Constitution to warrant the MOH preventing their employees from engaging in partisan politics.

This was why the Supreme Court ruled in Kwadjoga Adra vs. the National Democratic Congress (NDC) & 5 Others that Paa Nii Lamptey of Ghana Highway Authority (GHA) and Ernestina Yawson of Ghana Education Service (GES) were free to engage in active partisan politics even as they continued holding their offices in the GHA and the GES respectively because Article 94 (3) (b) does not prevent such Public Servants from engaging in active partisan politics.

MOH is a Civil Service Organization, but some of its Agencies are Not

It is worth reiterating that workers of the MOH including the Chief Director are Civil Servants whose organization (the Civil Service) has been mentioned by Article 94 (3) (b) of the Constitution that they cannot engage in partisan politics.

Ironically, employees working in the agencies of the MOH such as those in the Ghana Health Service and the Teaching Hospitals are not Civil Servants because they belong to other Public Services (GHS and THs), which are different from the Civil Service. This is why the Civil Service and the Ghana Health Service as well as the Teaching Hospitals (THs) have been established by different Acts of Parliament.

In a similar vein, the GHS is headed by a Director- General appointed by the President based on the Ghana Health Service and Teaching Hospitals Act, 1996 (Act 525). The Civil Service is Headed by the Head of Civil Service whose office appoints the Directors and Chief Directors of the Ministries. There is also a Civil Service Act. The Teaching Hospitals also come under Act 525 of 1996 and their CEOs are not appointed by the Civil Service even though the THs are agencies of the MOH.

Apparently, these constitutional boundaries in the Public Services and their sector ministries were ignored by the MOH circular which necessitated the publication of this piece.

Partisan politics shall not be introduced into or practiced at the MOH workplace

The MOH circular dated April 13, 2023 further directed that health sector employees shall not engage in partisan politics in the workplace. The relevant rhetorical questions are that what is the workplace in the health sector? Does the workplace include the Nursing and Midwifery Training Colleges (NMTC) nationwide which are run by the Ministry of Health? If the NMTC constitutes a workplace for MOH employees working there, then why does the MOH not prevent flagbearers of various political parties and MP aspirants from campaigning to Nursing and Midwifery students on their campuses? Can the MOH operate contrary to Supreme Court interpretational decisions and not be sanctioned by the apex Court?

Caution and Conclusion
The MOH in its April 13, 2023, circular advises all Health Sector Staff to adhere to the tenets of the code of ethics in the Public Service Human Resources Policy Framework Manual to avoid any sanctions. It means that even health staff working in the MOH agencies such as Ghana Health Service, National Blood Service, National Ambulance Service, Mental Health Authority etc that do not even come under Article 94 (3) (b) of the Constitution must also comply with the said directive or face sanctions. Really?

Seemingly, if the directives contained in the MOH circular number MOH.KA3.17/17/01 dated April 13, 2023 are strictly enforced, aggrieved health sector employees may seek for judicial review in the form of constitutional interpretation at the Supreme Court as it happened in the cases cited ut supra regarding the GES, GHA and Civil Service employees. Should this happen in the health sector, employees whose organizations are not mentioned under Article 94 (3) (b) of the Constitution may win the suit against the MOH and this may lead to more judgment debts.

Advisedly, therefore, if this piece comes to the attention of the MOH, the authorities may want to review the said circular in line with Article 94 (3) (b) of the Constitution and the cited Supreme Court decisions in the matter.

I hold the considered view that perhaps the MOH authorities were not aware of the Supreme Court decisions regarding the subject matter under discussion or even if they were aware, it was lost on them at the time the circular was being drafted. It is true that the MOH does not wield unfettered power hence their decisions are not above judicial review. As such, it is better that the circular is reviewed to reflect the provisions of Article 94 (3) (b) of the Constitution.

We should remember persistently that Article 2 (4) of the Constitution,1992 provides that failure to obey or carry out the terms of an order or direction made or given by the Supreme Court regarding matters of constitutional interpretation shall constitute a high crime under the Constitution and shall, in the case of the President or the Vice-President, constitute a ground for removal from office under the Constitution.

It is thus a serious offense for any ministry to issue a circular that departs from interpretational decisions already made by the Supreme Court, methinks. ~Asante Asana~

Philip Afeti Korto
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