The Constitution and our chiefs – can a sitting chief serve in an interim or permanent Ministerial position?

As we all know, Dr Mills has recently appointed a number of caretaker Ministerial personnel and in the case of the Finance Ministry, a three-person team. The appointment of a chief with extensive business experience - Togbe Afede Aso XIV (MBAYale; BSc, School of Administration University of Ghana) and, clearly qualified for the position, is currently causing controversy. In a taste of how closely every decision of Dr Mills will be analysed in the years ahead, it is already being argued that the new President has started violating the Constitution. The argument made is that chiefs cannot be appointed to Ministerial positions. This statement is in fact not correct. I set out below the legal arguments which show that Dr Mills has not done anything wrong.

Before I set these arguments out though, it is important to note that a strong political argument can be made that having sitting chiefs as Ministers, apart from Chieftaincy Affairs perhaps, risk too many conflicts of interest. A chief who would be Minister probably has to choose – stool, skin or Ministerial office.

The political point having been made, let us now see whether Constitution allows a chief to be appointed Minister. We will see as we go along that initially the Constitution sharply limits the roles that a chief can play in national politics. A chief – unless they abdicate - cannot be a Member of Parliament and they cannot engage in party politics. An interesting exception is then created – they can be a Minister provided that in addition to being a chief, they have the qualifications to be appointed to that particular portfolio. As to whether they are qualified, that is for Parliament to decide.

Prohibition 1: Only people qualified to be Parliamentarians can be Ministers

Article 78 (1) is the key provision. It reads
Ministers of State shall be appointed by the President with the prior approval of Parliament among members of Parliament or persons qualified to be elected as members of Parliament , except that the Majority of Ministers of State shall be appointed from among members of Parliament.

Prohibition 2: A chief cannot be a Parliamentarian or take part actively in party politics

Article 93(4)(c) makes matters worse as it states that a chief cannot under any circumstances be a Member of Parliament. The result, at first glance, is that under the powerful combination of 78(1) and 93(4)(c) a chief cannot be a Minister as a chief cannot be a Member of Parliament. Matters are made even worse by Article 276(1) which reads:

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.

A chief can however be appointed a Minister
It is Article 276 (2) which is of help to any chief appointed to a Ministerial position. It reads:

Notwithstanding clause (1) of this article and paragraph (c) of clause (3) of article 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified.

What does Article 276 (2) actually mean?
It is clear from the material set out above, that the crucial word is 'notwithstanding'. The rules of legal analysis require that judges, lawyers and all other decision-makers apply the ordinary or conventional meaning of a word when trying to make sense of Acts of Parliament, Constitutions or international agreements. Let us see where this approach leads us.

What is the ordinary or conventional meaning of the word notwithstanding?

The ordinary meaning of the word notwithstanding is said by a number of dictionaries to mean:

• in spite of;
• despite;
• without prevention or obstruction from or by;

The dictionary used here is the 1913 Webster's Dictionary. It has been picked at random and can be consulted electronically at http://onlinedictionary.datasegment.com/word/notwithstanding

Making sense of the Constitutional provision
When any of the above meanings is substituted for the word 'notwithstanding', we get the following interesting results:

• Despite clause (1) of this article and paragraph (c) of clause (3) of article 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified.

• In spite of clause (1) of this article and paragraph (c) of clause (3) of article 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified

• Without prevention or obstruction from or by, clause (1) of this article and paragraph (c) of clause (3) of article 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified

Conclusions – legally sound but perhaps politically unwise – chiefs can be Ministers

Clearly a strong argument can be made that Togbe Afede falls within the exceptions created by Article 276(2) and it can be seen that Dr Mills has kept within the words of the Constitution. The law may be on the side of Dr Mills and Togbe Afede. As to whether it is politically wise for a chief to take up a Ministerial position is however another matter. An interim or caretaker position clearly poses far fewer problems – for a full Ministerial position though, abdication appears to be the most politically sound move to make.