Amending Ghana’s Entrenched Constitutional Provisions

Ghana’s 1992 Constitution is widely regarded as one of the country’s most enduring democratic achievements. One reason for its resilience is that it deliberately makes certain provisions --- known as entrenched provisions --- exceptionally difficult to amend. These provisions protect the foundations of the constitutional order from political convenience or momentary majorities.

Recent public debate has reopened questions about how entrenched provisions may be amended, what role Parliament and the people play in that process, and whether a former President who has already served two terms --- particularly former President John Dramani Mahama, could lawfully seek re-election if aspects of the Constitution were amended. This article examines these issues carefully, drawing on Ghana’s Constitution, comparative constitutional practice, and established legal principles.

Understanding Entrenched Provisions in the 1992 Constitution

Entrenched provisions are constitutional clauses deemed so fundamental that they cannot be altered by Parliament acting alone. They are listed in Article 290(1) of the 1992 Constitution and include provisions relating to:

• The sovereignty of the people;
• Fundamental human rights and freedoms;
• The structure of the state;
• Presidential tenure and eligibility (Article 66);
• The independence of the judiciary; and,
• The constitutional amendment process itself.

The framers of the Constitution intended that these provisions be insulated from manipulation by transient political forces. As constitutional scholar Dr. Raymond Atuguba has previously observed, entrenched clauses reflect “the people’s direct ownership of constitutional fundamentals, not Parliament’s delegated authority.”

How Entrenched Provisions Are Amended: The Constitutional Steps

The procedure for amending entrenched provisions is set out in Article 290 and differs sharply from the process for ordinary (non-entrenched) provisions.

The steps are as follows:

1. Initiation of a constitutional amendment bill in Parliament;
2. Mandatory referral to the Council of State for advice (Article 290(2));
3. Publication of the bill in the Gazette, followed by a minimum six-month waiting period before further action;
4. A national referendum, at which at least 40% of registered voters must participate; and at least 75% of the valid votes cast must approve the amendment (Article 290(4));
5. Passage by Parliament; and,
6. Presidential assent.

[Note: It is important to clarify a common misunderstanding. The 75% threshold applies to voters in a referendum, not to Members of Parliament. Parliament does not vote by 75% to amend entrenched provisions; it is the Ghanaian people who must endorse such changes by an overwhelming margin].

Does a Referendum Decide When an Amendment Takes Effect?

A referendum answers only one constitutional question. Do the people approve the proposed amendment? It does not automatically determine the commencement date of the amendment; or decide who benefits from the amendment. The text of the amendment itself must specify when it comes into force; and whether it applies prospectively or retrospectively. In Ghanaian constitutional interpretation, there is a strong presumption against retroactive application, particularly where political rights, eligibility, or tenure are concerned. This principle aligns with long-standing common-law doctrine and Supreme Court jurisprudence emphasizing legal certainty and fairness (see Republic v. High Court (Fast Track Division); Ex-parte Electoral Commission).

The John Mahama Question: Can a Former Two-Term President Run Again?

At the heart of current debate lies Article 66(2) of the Constitution, which states plainly: “A person shall not be elected to hold office as President of Ghana for more than two terms.” President John Dramani Mahama served a first term from 2012 to 2017, and now serves his second term from 2024 to 2028. He became the first president in Ghana’s political history to be elected to a non-consecutive second term. Under the current Constitution, which limits a president to two four-year terms regardless of whether they are successive or separated, he is ineligible for re-election in 2028. The key legal issue is whether a subsequent constitutional amendment --- for example, extending the presidential term from four to five years, would allow him to seek re-election.

The legal position is that changing the length of a term does not reset the number of terms served. A term remains a term, regardless of duration. Courts across jurisdictions consistently reject attempts to relabel or restructure the same office in order to evade term limits. Unless an amendment explicitly states that, “Terms served before this amendment shall not be counted,” the presumption is that past terms remain valid; and the amendment applies only going forward. Without such express language, a former President who has already served two terms remains constitutionally ineligible.

Why Rawlings’ Case Was Fundamentally Different

Comparisons with former President Jerry John Rawlings are frequently made, but they are legally misleading. Rawlings governed Ghana under military and transitional regimes prior to 1993; became President under a new constitutional order established by the 1992 Constitution; and served his presidential terms entirely within that new constitutional framework. The adoption of the 1992 Constitution marked the beginning of the Fourth Republic, effectively resetting the constitutional clock. Courts treat such foundational constitutional moments differently from amendments within an existing constitutional order. John Mahama’s presidency, by contrast occurred wholly within the Fourth Republic; and involved no constitutional rupture or new republic. In constitutional law, a new constitution resets eligibility; an amendment does not.

Comparative International Experience

Several countries provide instructive examples of how courts and societies respond to third-term efforts:

• Colombia (2010): The Constitutional Court blocked a referendum that would have allowed President Álvaro Uribe a third term, holding that term limits protect democratic alternation and constitutional identity.
• Malawi (2009): Courts ruled that prior presidential terms counted even after constitutional amendments, rejecting reset arguments.
• Zambia (2018): The Constitutional Court held that even a shortened term still constituted a “term” for eligibility purposes.
• Uganda and Rwanda: Where term limits were removed or reset, the process involved sweeping constitutional overhauls, intense political contestation, and long-term democratic controversy.

The global lesson is consistent. Attempts to circumvent term limits are among the most destabilizing constitutional disputes.

Would a Third-Term Attempt Trigger Legal Conflict or Civic Tension?

Almost inevitably. If a former President who has served two terms were to file nomination papers immediate legal challenges would be mounted, the Supreme Court would be required to interpret Article 66, and the electoral process could be overshadowed by uncertainty. Such a scenario risks polarizing public opinion, undermining confidence in the electoral process, and ultimately strain Ghana’s otherwise strong democratic reputation. This is not an argument about personalities; it is about constitutional predictability.

Is It Unconstitutional to Advocate Otherwise?

Advocating for constitutional reform is legitimate in a democracy. However, misrepresenting what the Constitution currently permits is not. When lawyers, politicians, or commentators assert that a former two-term President may lawfully contest again without an explicit constitutional reset, they risk misleading the public. Persistent misstatements can weaken constitutional culture and normalize unlawful interpretations. The Constitution may be amended --- but until it is, it must be obeyed as written.

My Thoughts
Ghana’s constitutional framework is unambiguous. Entrenched provisions require direct approval by the people, not parliamentary arithmetic. Presidential term limits are fixed safeguards, not flexible guidelines. Amendments do not quietly erase constitutional history. Rawlings’ case is not precedent for Mahama. Any third-term attempt would almost certainly provoke legal and political turbulence. The Constitution is not a partisan instrument. It is a national covenant, one that must be approached with restraint, honesty, and respect. I call on all Ghanaians to study the 1992 Constitution, ask all the tough questions, discuss with family, friends and relations, and help others understand what is going on. The 1992 Constitution is the bona fide property of Ghanaians, it is not for politicians. My plea is that when we talk about the Constitution, let’s be very sincere and truthful because the Constitution is a sacred text whether we like it or not.

References
Constitution of the Republic of Ghana, 1992, Articles 66, 290

Constitutional Court of Zambia, Dan Pule v. Attorney-General, 2018

Malawi High Court, In re Presidential Eligibility, 2009

Prempeh, K. “Presidential Term Limits and Constitutionalism in Africa”

Republic v. High Court (Fast Track Division); Ex parte Electoral Commission

Supreme Court of Colombia, Judgment C-141/10

FUSEINI ABDULAI BRAIMAH
+233208282575 / +233550558008
afusb55@gmail.com

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