24.11.2010 Feature Article


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First and foremost, I have had to always grapple with the practicality of the legal theory of sovereignty of the people. Let's go straight to the supreme law of the land of Ghana. The preamble to the 1992 constitution of Ghana starts with the following words: “IN THE NAME OF THE ALMIGHTY GOD WE THE PEOPLE OF GHANA…” (Presupposing that all Ghanaians believe in God, I do but do we all?) And goes on to state other things which I will talk about later in this piece.

Now the question I keep asking myself is that is it really the people of this wonderful country of Ghana who adopted, enacted and gave unto ourselves the 1992 constitution? Hmmm that's a question that can be answered in the affirmative only in theory; practically it is a BIG NO. Those who really know the history of Ghana especially the time period in which the constitution was promulgated will bear witness to suggestion that those were very difficult times. Don't you wonder if the people of Ghana who were old enough to vote in the referendum which brought this constitution into existence really knew the provisions in them? I bet you that most people voting had only one thing on their mind a yes to the constitution mean a BIG No to military rule and so a yes it was. Unless the person who opposes my suggestion that the good people of the country at that time knew about the elaborate structure and plentiful provisions found in the document. I bet you some people voted without even knowing about a full provision in the constitution. The transitional provisions especially the indemnity clauses provide a good example. They simply voted for a democratic form of government that only constitutions like ours could provide at that time.

Please make no mistake about I am not in any way suggesting that this constitution is not a good one it sure is a great piece of work and I do say a big thank –you to all those who worked hard and all those who contributed in anyway however small it may seem to the 1992 constitution being drafted and enacted, but one thing remains clear a lot of those who voted for our supreme law had quite a limited knowledge about its provisions. That I think is not arguable.

Again one thing is also not arguably, and that is by virtue of this same constitution “WE” the people of Ghana are sovereign. The first article of the constitution says so, and it means that seriously we wield a lot of power. It means at least in theory that our constitution is not sovereign. It is the supreme law of the land but it is still subject to the collective will of the people of Ghana. This to me means at least in theory the people of Ghana can make for ourselves a new constitution without there necessarily being a military intervention in the governance of our country or even a foreign invasion which disrupts governance. I know this sounds quite strange but a typical example of what I am talking about it what has happened in Kenya with the promulgation of a new constitution via referendum on the 31st of July, 2010, this new constitution of Kenya effectively abrogate the old one, a classically practically representation of the theory that the constitution is still subject to the supreme will of the collective sovereignty of the people upon whose authority it is promulgated.

The Constitutional Review.
The president of Ghana, His Excellency Prof. John Evans Atta mills on the 11th of January 2010, inaugurated a nine (9) member constitution Review commission (CRC) this commission comprising by very eminent and proven citizens of this country is chaired by Prof. Albert K. Fiadjoe a man who needs no introduction in the legal circles, a distinguished academic and one of the foremost legal experts that the country has. The commission derives its mandate from Constitutional Instrument 64 (C. I 64). The terms of reference of the commission are basically three (3) and I would summarize them as follows;

1. To ascertain from the good people of Ghana their views on the operation of the 1992 constitution , in particular its strength and weakness

2. To articulate the concerns of the people of Ghana on amendments that may required for a comprehensive review of the 1992 constitution

3. To make recommendations to the government for consideration and provide a draft Bill for possible amendment to the 1992 constitution.

My Views and Opinions on Specific Aspects of the Constitution

Some of the views I am about to express are calls for amendments others are to initiate intellectual debates on the concepts of constitutionality, rule of Law and democratic principles within the Ghanaian context. Let us begin then on our journey through this wonderful book called the 1992 constitution.

a. Equality before the law? Beat me too
Article 17 of the constitution is headed, Equality and Freedom from Discrimination.

17(1) reads “All persons shall be equal before the law.” Beautiful isn't it? But does it practically? let's compare this provision to 57 (2) which states that “The President shall take precedence over all other persons in Ghana; and in descending order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take precedence over all other persons in Ghana.” On hand, the constitution is telling us that we are all equal but in another breadth our supreme law is telling us there other person take precedence over others. I really don't know the full extent or practical effect of article 57(2), does it mean that every our existence is subject to the president's existence and likewise for the others in the order stated? So that in any cataclysmic occurrence the safety of the president is more important than the lives of any of us? Well one thing is clear though the president, vice –president and the rest in the order stated all come before us and as such we are not all equal before the law( in practice).

b. Please you cannot sue the president. period. Yep, the president is not liable for any civil or criminal proceedings whiles in office.

Article 57(6) of the 1992 constitution states “the President shall not while in office as president, be personally liable to any civil or criminal proceedings in court.” In the case of New Patriotic Party v. Rawlings and Another [1993-1994] 2 GLR 193-220 a case which was decided by the supreme court during the early years of this constitution, Abban and Bamford – Addo JJSC were of the opinion that by virtue of Article 2(1) (b) the president could be personally liable for acts done by him or his agent which contravenes the 1992 constitution. Amua – Sekyi shared the same opinion and was of the opinion that “We do not need a petition of right or a notional defendant like the Attorney-General before we can exercise our democratic right of calling an erring President to order under article 2 of the Constitution, 1992 which only commands him to obey any order or direction this court may give, but also makes his failure to obey any order or direction a ground for his removal from office.” Abban j however was of the opinion that even under the circumstances of challenging the acts of the president under prerogative writs or under Article 2, the right defendant is still the Attorney – General. The law is well settled by the case of MARTIN ALAMISI AMIDU v. JOHN AGYEKUM KUFUOR, THE ATTORNEY-GENERAL, JAKE OBETSEBI-LAMPTEY, and ELIZABETH OHENE AND JOSHUA HAMIDU [25/04/2001] CIVIL MOTION NO. 8/2001 that the right person to be sued under such circumstances is the Attorney- General and not the president.

The question I have always asked myself is that, does this mean that the president's wife can never while the president is in office initiate proceeding in court for a divorce. Though Article 57(5) has not yet been interpreted by our supreme court based on facts relating to such a circumstance or based on facts that would aid us get the full extent of the provision under other related situations, I am of the opinion that from the wording of this provisions and the rationale behind it( which is preserving the dignity of the office of the president and prevent unnecessary suits ) it seems that she cannot. Again, another question which comes to mind is that, does this however mean that the president can initiate any legal proceedings against any person just like any ordinary person? And can the person counterclaim, it seems the provision gives room to the president to sue but since a counterclaim is like a claim in itself then the defendant cannot. Funny, isn't it?

c. If You Are Below 40 Years, You Cannot Be President Of Ghana.

Article 62 states that “A person shall not be qualified for election as president of Ghana unless – …

(b) He has attained the age of forty years” emphasis mine.

Now , I really do not have any real issue with the other qualifications stated by Article 62 , as to citizenship by birth and that a person who vies for the position of a presidency should have the qualifications that one needs to have to be a minister as stated in Article 94 . Now my issue is why placing the age limitation to 40 years? Is it because of the cliché “life begins at forty (40)”. It is my humble opinion that there is no real basis for this limitation. If it could be places at the same age as that of the qualification of a member of parliament then I am sure it would be in place. I am sure that history is ripe with examples of a lot of people below the age of 40 some even below 30 who have excelled in leadership. Indeed if a young person who is below age 40 years is able to “deceive and/or charm” more than fifty percent of the voter population to vote him/her to the high office of the president of Ghana then what better reason could there be to make such a person president. I believe apart from the other qualifications, all the rest should be left to the electorates. If they believe that a young person (below 40 years) should be president so be it. I think that the whole electioneering process has its mechanism for eliminating people who cannot be president. If a person “survives” all these then maybe he deserves to be president. I can mention a thousand and one people who achieved incredible feats including leadership whiles they were below 40 years but I will mention only two for want of space and time, my lord and savior Jesus Christ did all the wonderful things he did as well as dying for all our sins .Also, the legendary Dr. Martin Luther King jr who has a holiday celebrated in the United States of America in his honour was a leader extraordinaire even before he attained forty years . Some are born leaders.

d. Why Don't We Take A Second Look At Jury Trials?

Article 19(2) of our constitution provides to the effect that whenever a person is charged with an offence the punishment of which is death or life imprisonment and the said offence is neither high treason nor treason then such a person is to be tried by a judge and jury. Ostensibly, this is to make sure that such a person is tried by his/her peers with regards to the factual basis of his crime at least to make sure in the minds of like-minded people that his actions presents the actions of someone who deserves to be imprisoned for life or to suffer death. However, in my humble opinion, the “experimentation” of jury trial in Ghana has proven that it does more harm than good in the criminal justice delivery. There are a lot of reasons why I come to such a conclusion but I will summarize the important ones as follows;

i. Most often because of the technical nature of the criminal process, the juries do not appreciate the issues before them and rather base their decisions or findings based on media reportage and personal sentiments. Sometimes the members of the jury will be sleeping during the trial and fail to pay attention when evidence is being given. The caliber of juries who are ultimately selected are also sometimes not the best for the finding of fact.

ii. Again, jury trails lead to a lot of unnecessary delays and cost. First they are paid allowances for the work they do. Again, for example in a murder trial that the verdict is supposed to be on a basis of unanimous decision, just one vote less means a “Hung jury” which in effect means that the whole process is a waste and all the time used in pursuing the case is wasted. Furthermore when there is a change in the judge trying the case, the whole trail has to begin “De novo”.

iii. Again, in Ghana, we practice the criminal assizes system, so that there is a criminal session during which certain crimes are tried. This in effect results in a lot of delays as unlike other summary trials which can begin immediately after investigations, such trails have to wait go through committal proceedings before when the criminal session begins trial commences.

This is just a tip of the iceberg and any conversation with someone conversant with the criminal justice system will present the reader with more problems which derogate this system of criminal justice. Indeed, I think it is high time we take a look at jury trails in Ghana.

In concluding this piece I would want to say that this enquiry into the working of the 1992 constitution is an important exercise and we should all contribute towards making the constitution a better document for our governance. There are a lot of issues I may not have talked about due to time and space constraint but I know other good citizens will do so through different channels. Indeed, I know there have been a lot of submissions to the CRC. It is my hope and wish that this process is successful. LET US ALL STRIVE TO LIVE IN CONFORMITY WITH THE LAWS OF THIS LAND AND PURSUE DEVELOPMENT FOR OUR DEAR NATION GHANA THROUGH CONSTITUTIONAL GOVERNANCE.

Konadu Kwadwo Joseph
[email protected]

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