My interest in the ex president's ex gratia award is not derived from the appropriateness of its content but the importance of building a constitutional precedence that is not inimical to the constitutional development of our nation as a young democracy.
Therefore, I have chosen to look at the legality of the suspension of the award and its review.
Many people have been discontent with the award. However justified our discontent may appear, we should not lose sight of its legality and appreciation of the fact that a review, amendment or even repeal- where possible, can only be made where it is consistent with the 1992 constitution of Ghana or any other law consistent with it.
It is worthy of note that anything done in connection with the ex-gratia award which is inconsistent with the 1992 constitution would be unconstitutional.
1.THE LEGALITY OF THE AWARD
It is fairly obvious that the authority of the president to establish the committee is not disputed neither is that of parliament to approve of it in the various discourse. However to provide an eloquent understanding of this note, we shall have a brief look at the legality of the committee and the award. The relevant constitutional provisions as regards the right of the former president to retirement benefits and its constitutions are 68 (3) (4) and 71 (1). Article 68 (4) of the 1992 constitution provides that the president on his retirement shall receive a gratuity in addition to pension, equivalent to his salary and other allowances and facilities prescribed by parliament in accordance with Clause 3 of this article. The effect of this provision is that, when a president leaves office he is entitled to retirement benefits which are not too different from his salary whiles he was in office, in addition to other allowances and facilities. Consequently, Mr. John Agyekum Kufour having left office on the 7th of January as president of the Republic of Ghana has a legitimate right to these retirement benefits.
As regards the constitution of the benefits, Article 71 provides the president with the authority to establish a committee with the jurisdiction of making recommendations in respect of 'salaries" includes allowances, facilities and privileges and retiring benefits or awards' available to the ex president. However, the finality of the procedure as regards, the legitimate constitution of the award is dependent on article 68(3), which prescribes parliamentary approval for the end of service benefit of the president. The conjunctive effect of articles 68(3) and 71(1) is that, the president before he leaves office has the constitutional mandate to establish a committee to make recommendations with respect to his retirement benefits for parliamentary approval. The recommendation can be rejected, varied or accepted by parliament- as it is only a proposal for their consideration. However, if parliament approves of it, in accordance with article 106 (1) of the constitution- 'The power of Parliament to make laws shall be exercised by bills passed by parliament and assented to by the President', the bill (recommendation) become a law of the land which is enforceable by a court of competent jurisdiction.
Therefore, the package of the award having been duly made by a committee- the Chinery- Hesse Committee established and authorised in conformity with articles 68(3) and 71(1) of the 1992 constitution became enforceable as a law of the Republic of Ghana once parliament approved of it and Mr. Kufour in his capacity as president, assented to it. As a result, the material terms of the law, vested in the identified class of beneficiaries- former presidents including Mr. J. A Kufour, rights which are enforceable by the courts of the land with competent jurisdiction.
2. CAN THE AWARD BE SUSPENDED OR REVIEWED?
The contentious issue is whether or not the package of the award can be reviewed and if it is susceptible to a revision, the extent to which it can be made. Article 68 (9) of the constitution stipulates that 'The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime.' This provision, however patently obvious it appears has received varied interpretation. There does not seem to be a contention about the fact that the pension and facilities available to the ex president should not be varied to his disadvantage during his life time. However, the contention has been about when the pension payable to him and facilities become available. The issue as to whether the president has the jurisdiction to review the award very much rest on the interpretation of the word 'available' under this provision.
Some legal experts have posited that the retirement package and facilities only become available when they are released to the ex president by the responsible authority. However, it is my humble opinion that the pension payable to the ex president and facilities become available to him immediately his term of office ends. This opinion is formed against the backdrop that, article 68(4) of the constitution provides ' On leaving office, the President shall receive a gratuity in addition to pension, equivalent to his salary and other allowances and facilities prescribed by Parliament in accordance with clause (3) of this article.' The key phraseology in this constitutional provision is 'on leaving office'. The tenure of office of the former president ended on the 7th of January. He therefore left office on the 7th of January 2009. Consequently, from that day he is considered by law as a former president (retired) of the Republic of Ghana. Therefore, the retirement benefits and all other facilities awarded to a former president by the constitution of Ghana became available to him on the 7th of January 2009. Once the facilities have become available, the law under article 68(9) precludes any person on the land (including the sitting president) from varying them to his disadvantage. This explicitly means that, the facilities and pension payable to the former president cannot be decreased in size, form or even both but can only be increased from the 7th of January 2009.
In the light of this, it is clear that, not only would a variation of the package of the ex gratia award amount to an unconstitutionality but even the suspension of the award. The suspension is also unconstitutional because it has also caused a variation of the date when the facilities are meant to be available to him. Therefore, if for instance, the former president under the package is entitled to a car on leaving office, the car is suppose to be available to him on the 7th of January- when he left office, in accordance with the constitution. The suspension of the package has denied him the enjoyment of that right from the due date and as a result, the variation of his entitlement under the law.
In the light of the above, it is amply lucid that not only would any downward or down-sizing review of the ex gratia award of the former president be ultra vires and unconstitutional but the suspension of the enforcement of the package itself is also a breach of the specified provisions of the 1992 constitution.
Nana Agyei Baffour Awuah ESQ
BA(HONS), PGDL, PGDLP,LLM,
Barrister at Law of Lincolns Inn.
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