The Meaning of Article 108

An interesting debate has ensued following the President’s indication of his refusal to assent to the Criminal Offences (Amendment) Bill, 2023, the Criminal Offences (Amendment) (no. 2) Bill, 2023, and the Armed Forces (Amendment) Bill, 2023 (the “Bills”). The President gave his indication in a letter to the Speaker dated 28^th November, 2023 and followed it up with a memorandum to the Speaker, pursuant to article 106(8) on 12^th December, 2023. The President cites article 108 as his basis for refusing to assent to the Bills. Specifically, the President states that because the Bills impact, or has financial implications for, the Consolidated or other Public Funds, it must be introduced by the President or on his behalf. Conversely, the Bills may not be introduced by a private member’s bill.

The Bills in question were each introduced by Francis Sosu, the Honorable Member of Parliament for Madina, in 2021 as a private member’s bill and were published in the gazette, referred to Committee, subject to public hearings, subject to parliamentary consideration, and were subsequently passed in August 2023. They abolish the statutory death penalty, substituting with life imprisonment, and criminalize the activities of individuals claiming to be witch doctors or witch-finders, imposing custodial sentences for such offences. It is on record that the President gave his assent to the Criminal Offences (Amendment) Bill, 2023 in August 2023. Thus, it is already law, the President’s communication notwithstanding. Thus, the balance of the debate deals with the other 2 Bills.

The President’s case is that the Bills carry significant financial consequences for the Consolidated Fund due to the associated costs of incarceration, sustenance, and healthcare for those who will be convicted under these bills to serve sentences when they become law. Incidentally, the death penalty has not been carried out in Ghana for close to four decades. Thus, the death penalty bill merely acknowledges that reality.

Article 108 merely says only the President, or someone acting on his behalf, can introduce a bill, which in the opinion of the person presiding, makes provision for “(i) the imposition or alteration taxation or (ii) the imposition of a charge on the Consolidated or other Public Funds; or (iii) the payment, issue or withdrawal from the Consolidated or other Public Funds of any moneys not charged on the Consolidated Fund or any increase in the amount of that payment, issue or withdrawal; or (iv) the composition or remission of any debt due to the Government of Ghana.”

In spite of the clarity of the article, some have misconstrued it to mean only the President, or someone acting on his behalf, can introduce a bill that has financial implications. Therefore, they argue that a private member bill cannot impose a financial cost directly or indirectly.

This construction dates to the Speakers of the earlier parliaments who even applied it to private member motions. As a result, Lee Ocran’s motion for the removal of algae in the marine waters in the Jomoro District went nowhere. A similar fate befell Nitiwul’s motion requesting Parliament to investigate the offer and acquisition of Merchant Bank by Fortiz Equity Fund Limited and other matters.

There are at least three problems with this interpretation. First, it offends the plain meaning of article 108. The article says nothing about financial implications. It says something about the actual imposition of tax, charges, etc. The bill must specifically impose a tax or a charge. It must not be left to speculation.

Second, the interpretation leads to absurd effects. It effectively says only the President can introduce any bills, since all bills indirectly have a financial implication (even my typing this message has financial implication since I could be earning $$ from frying and selling eggs). The effect of this interpretation is to emasculate parliament, the arm of government that is vested with the legislative power. The interpretation dispenses with private member bills and motions.

This myth has been perpetrated and perpetuated largely because the partisan parliament is often happy to witness the silencing of the minority, since private member bills often come from that side of the house. Rather, than stand for Parliament’s power to make law, the majority have historically sided with the Speaker to silence the minority and to weaken the institution.

Third, article 108 can be traced to earlier constitutions and statutes. For instance, section 16 of Act 300 provides that “Except with the recommendation or consent of the President signified thereto, the Assembly shall not proceed upon any Bill, motion or petition which, in the opinion of the person presiding, would dispose of or charge the Consolidated Fund or other public thereon, or impose, alter or repeal any rate, tax or duty.” Language identical to article 108 can be found in articles 85 & 90 of the 1969 & 1979 Constitutions respectively.

In turn, these provisions are borrowed from UK, where the matters discussed in article 108 collectively give rise to the term “money bills.”

Thus, article 108 is saying that only the President can introduce a money bill. Further, the person presiding, not the President, has the final word on whether a bill is a money bill. It matters very little whether the President agrees with that opinion.

What then is a money Bill?
A money bill is a “public bill which in the opinion of the Speaker of the House of Commons contains ONLY provisions dealing with all or any of the following:

the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund or the National Loans Fund, or on money provided by Parliament or the variation or repeal of any such charges;

Supply; the appropriation, receipt, custody, issue or audit of accounts of public money;

the raising or guarantee of any loan or the repayment thereof; subordinate matters incidental to those subjects or any of them.”(See section 1(2) of Parliament Act of UK).

Erskine May explains that “For a bill to be certified by the Speaker as a Money Bill, it must have the SOLE purpose of creating or extending the scope of a charge on public expenditure.”

May explains further that “even if the main object of a bill is to create a new charge on the Consolidated Fund or on money provided by Parliament, the bill will not be certified if it is apparent that the primary purpose of the new charge is not purely financial.”

The effect of the “sole purpose” is evident from May who notes that “the Tax Credits Bill in the 2001-02 session was not certified on the basis that, although it established two new tax credits, it also made changes to the administration of child benefit and guardian’s allowance.” That is, the tax was not the sole purpose of the bill.

Thus, this notion that article 108 bars private members from initiating bills because they can only introduce bills that have no direct or indirect financial implications is just the Ghanaian instrument for emasculating parliament so they can turn around to blame the Constitution for making the president too powerful.

The ordinary, purposive, and pragmatic meaning of article 108 is that a private member cannot introduce a bill whose sole purpose is to impose a tax, a charge, or to raise or remit a loan.

This article does not in any way give the President supervisory jurisdiction over Parliament’s legislative functions and power. Nor does it even remotely suggest that only the President can introduce a bill that has financial implications.

The financial implication angle is indeed shocking since every conceivable bill will have some financial implications, if only because bills must be printed, committees must meet, the AG and civil society must be engaged, etc.

If it must be said, a bill to bar death penalty or to bar the persecution of “witches” does not impose a tax, or a charge on the consolidated funds. Nor does it compose or remit a loan. Such a bill is not a money bill and must not be decorated as such!

There are other grounds that I have previously raised that will question the refusal of assent in the case at bar. I need not to repeat them.

However, I must comment briefly on article 106. Unlike article 108, which deals with a specific type of bill, article 106 deals with the mode of exercising legislative power. It applies to all bills (private or public bills, private member or government bills, urgent or normal bills, etc.) considered by parliament but does not extend to bills to amend the Constitution (see articles 290 & 291).

Article 106 indicates that chieftaincy bills must be referred to the national house of chiefs before introduction into parliament; bills, other than money bills, must have an explanatory memorandum and be published in the gazette for at least 14 days; bills must be referred to the appropriate committees, etc.

It also gives the President the power to refuse assent to certain bills but such assent must be given within some very strict timelines. For instance, he must signify assent within 7 days. If he signifies that he won’t assent, he has only 14 days to state in a memorandum to the Speaker any specific provisions of the bill which in his opinion should be reconsidered by Parliament, including his recommendations for amendments if any.

The essence of these timelines is that bills ripen into acts if the President does not conform to them. For instance, in USA, “if the president declines to either sign or veto a bill – that is, he does not act on it in any way – then it becomes law without his signature (except when Congress has adjourned under certain circumstances).”

This interpretation will, of course, shock some Ghanaians who culturally believe that timelines, including those in the Constitution, are mere suggestions.

But strict adherence to the timelines and the automatic ripening into law are devices that are necessary to prevent a President from needlessly delaying a bill from becoming law. Otherwise, a president who cannot override a veto (see below) will simply fail to assent to a bill, thereby “imprisoning” the bill. The delay will then have the effect of a de facto veto-proof device. It is because of this that a bill automatically ripens into law after the assent window.

Of course, even where the President timely and lawfully exercises a veto (i.e., an effective refusal to assent), parliament, under article 106(10) can set it aside with a resolution of 2/3 of its members in a reminder that it is parliament, not the president, that is seized with legislative power.

Article 106 also tells us that the President can’t veto his own money bill (article 106(12)). This is just stating the obvious!

#SALL is the cardinal sin of the 8th Parliament.

Da Yie!