Speaker As President

It is only when it is dark enough, can you see the stars. Dr Martin Luther King.

Last week, Parliament enmeshed itself in a sterile, unproductive, needless and avoidable debate, as to what was the appropriate time to swear in the Speaker of Parliament to take over the responsibilities of the state as acting President, as required by the Constitution.

The Constitution under Article 60 (II) provides that “where the President and the Vice President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be”.

Then Article 60 (12) states that “the Speaker shall, before commencing to perform the functions of the President under clause (II) of this article, take and subscribe the oath set out in relation to the office of President”.

These provisions are clear and unambiguous. So, why should there be a debate. There is Article 59 which mandates the President to inform Parliament anytime he travels outside the country.

It states that “the President shall not leave Ghana without prior notification in writing, signed by him and addressed to the Speaker of Parliament”.

This means that at all material times, Parliament must be aware of the whereabouts of the President when he travels outside the country.

At what time and for what reason can the requirement of travelling be construed as an inability of the President to perform his official functions?

When the President travels on official assignment outside the country, in much the same way when he travels outside Accra, to any part of the country does that in itself or anyway constitute an inability to perform his official functions.

Alternatively, is it the position of the law that the official functions of both the President and the Vice-President are limited to the territorial areas of the country.

Thus, in what capacity does our President engage with the outside world beyond our borders including attendance at UN and AU summits, as well as official and state visits to other countries.

When we come to the Vice-President, the Constitution provides two processes for him to act in the stead of the President. In the first instance, the Constitution under Article 60 (8) states that “whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the functions of the President until the President returns or is able to perform his functions”.

This level of acting does not require the Vice-President to be sworn-in before he acts. It suggests that there is some form of temporary limitation of the President. The provision equally makes a distinction between travel and inability to perform a duty.

The second process of the Vice-President acting is provided under Article 60 (6) which states that “Whenever the President dies, resigns or is removed from office, the Vice-President shall assume office as President for the unexpired term of office of the President with effect from the date of the death, resignation or removal of the President”.

Article 60 (9) states that “The Vice-President shall, before commencing to perform the functions of the President under clause (6) of this article take and subscribe the oath set out in the second schedule to this Constitution in relation to the office of the President”.

It might have been for a good reason that these different approaches were provided for by way of changing political authority in the nature of personalities holding the designated offices.

Therefore, if it was the intention of the framers of the 1992 Constitution that whenever both the President and Vice-President travel outside the country for official duties, they are deemed unable to perform their official duties, that would have been made explicit to formally induct a second President.

It is imperative that words are given their plain and simple meaning. It is hard to stretch our imagination to the point that when the President travels outside the country, irrespective of the objectives of the travel, he is deemed unable to perform his official duties, for which reason, a replacement has to be found in formal ways.

But it cannot be said that the fault lies with the current parliament. It was the Third Parliament of the Fourth Republic which set the precedence when the then Speaker Mr Peter Ala Adjetey was sworn-in one dawn to act as President since both President John Agyekum Kufuor and Vice-President Alhaji Aliu Mahama were outside the country on official duties.

Thereafter, two individuals took the matter to the Supreme Court, but they were persuaded from pursuing the action on the assurance that the process would not be repeated in future.

Perhaps, if the matter had been pursued in Court, we would have had a determination as to whether travelling outside the country constituted an inability to perform official functions.

Perhaps, I would appeal to Dr Bondzi Simpson, who was counsel in that suit to pursue a public interest litigation to put the matter to rest, otherwise we must regulate the travels of our President and the Vice-President, such that both of them would not leave the country or be absent from the country around the same period.

The fact is that in such matters, we need definitive determination from the Courts to straighten the path. As may be noted, before 1996, Dr Obed Asamoah, as the Attorney-General challenged the National Media Commission to seek redress from the courts if it felt that it had superior claim to the authority of the President in the appointment of Chief-executives for the state-owned media. He claimed the power and authority rested with the President.

The NMC on the other hand, claimed that it was clothed with the power and authority and only needed to consult the President. The matter went to court in 1996 and in 2000, the Supreme Court ruled in favour of the NMC. Since then the matter has been resolved and put to rest.

Again, in 1997, when the National Democratic Congress administration held the position that Ministers of State carried over from the previous government did not need any approval from Parliament, the New Patriotic Party went to Court.

In the end, the court ruled that although prior approval was not a term of art, nonetheless, Parliament had to give its approval to such ministers of state before they could function as such. That is also history.

Similar to the provisions on Ministers of state is that of the appointment of district chief executives. The DCE must be approved by not less than two-thirds majority of the assembly members.

The understanding is that when the assembly is constituted, all appointments that require approval of the house must be placed before the new assembly.

However, because the matter has not gone to court, we have a situation where DCEs approved by one assembly are foisted on the new assembly without their consent.

Thus come December 28, 2010, there will be district level elections, we must live to see whether the current DCEs would continue in office without the prior approval of the assemblies which would be constituted in 2011.

Another area is that, whereas the regulations governing the appointment of DCEs, require that nominees obtain at least 50 per cent of the votes cast to warrant a second round and/or two thirds vote to be confirmed at a go and that those who fail to get the vote must be withdrawn, President Mills has renominated a number of them who did not qualify under the law, who have been confirmed and are serving as such. Again, the precedent was set with the renomination of Nana Akwasi Agyeman as the Metropolitan Chief Executive for Kumasi, who was thoroughly rejected on his first appointment.

Subsequently, majority of the assembly members were reported to have petitioned President Rawlings to bring him back and he won overwhelmingly to become the MCE.

So, the only option is perhaps to test the law. We need to know whether travelling overseas means unable to perform a duty.