Act 936 And The Problematic Provisions - Part I

On 27^th October, 2016, parliament passed into law the Local Governance Act of 2016, Act 936 and it was assented to by the President on 20^th December, 2016. The Act reviewed, amended and consolidated some major legislations affecting local governance and decentralisation in the country. A careful analysis of Act 936 brings forth some grave concerns. The Act appears to have been rushed and did not get the needed consultation with relevant stakeholders before its passage. I maybe wrong but that we have already amended portions of it less than two (2) months of it coming into being gives reasonable credence to my assertion. As you may be aware, on 31^st January, 2017, parliament amended subsection 9 of section 10 of Act 936 and paved the way for the revocation of the appointment of the 30% Government Appointees to the District Assemblies. Some may say this is a partisan political move but truth must also be told. The appointment of the 30% Assembly persons has long taken a partisan political twist.

Apart from that amended section which the Minister for Local Government and Rural Development described as problematic during her vetting, there are others which I also find disturbing. Not only do some of the provisions appear problematic but have actually turned upside down laws, conventions and practices known to govern the public services of Ghana since the advent of the 1992 republican constitution.

First to look at is Section 67 (1) of Act 936. It states “The President shall, in accordance with article 195 of the Constitution, appoint other staff of the Local Government Service that are necessary for the proper and effective performance of the functions of the Service.” Ordinarily, there is nothing wrong with this provision. And in fact, it is more consistent with the constitution. But upon a careful analysis and reading section 67 (1) with other provisions of the Act, two problems become apparent. The first is that the drafters or should I say parliament did not mean to say “...APPOINT OTHER STAFF OF THE LOCAL GOVERNMENT SERVICE...” but rather appoint other staff OF THE OFFICE OF THE HEAD of the Local Government Service. One can conclusively come to this conclusion if you look at the context in which 67 (1) is situated and also reading sections 66 (1), 75 (2), 76 (2), 79 (2) and the other sections that make provisions for appointments into the Local Government Service.

To be clear with the above assertion, one needs to note that there is a difference between “Office of the Head of Local Government Service” previously known as the Local Government Service Secretariat (LGSS) and “Local Government Service”. The former is a subset of the latter and hence appointing staff into the latter covers that of the former. The second problem is a derivative of the first. The omission of these six (6) words (i.e. of the office of the Head) in the crafting of section 67 (1) has created room for conflict, confusion and/or contradictions because the president is appointing staff and at the same time the Head of Service too is appointing as is evident in sections 75 (2), 76 (2), 79 (2), and 175 (3). It is also important to note the language of sections 194 (2) and 195 (2). Whiles section 67 (1) says “The President shall...” these two other provisions uses “The President may...”. Yet all are appointments into the Local Government Service.

Placing all the above in the context of the 1992 constitution and what pertains in the Public Services of Ghana raises much bigger problems. The question is, is it in the place of the Head of Local Government Service to appoint staff of the Local Government Service especially Category “A” and “B” as known in the Public Services of Ghana? I will attempt to answer this question by looking at the 1992 republican constitution and some provisions of the Public Services Commission (PSC).

Act 936 clearly recognises Article 195 (1) of the constitution which states “Subject to the provisions of this Constitution, the power to appoint persons to hold or to act in an office in the public services shall vest in the President, acting in accordance with the advice of the governing council of the service concerned given in consultation with the Public Services Commission.” Any other time the constitution makes provision for appointments to be made by other persons in the public services other than the President, the responsibility falls on the governing board and not the Head or CEO or Chairman or Managing Director or whatever the case maybe. The only exception being Article 148 where appointment to judicial office is vested in the Chief Justice but even that is subject to the approval of the President. The Clerk and other staff of the Parliamentary Service are appointed by the Parliamentary Service Board not the speaker of Parliament or one other individual (See Article 124 (4)). Other officers and employees of the Electoral Commission are appointed by the Commission and not the Chairman of the Commission or the electoral commissioner (See Article 53). Other relevant provisions in the constitution to this effect are Articles 170, 189 (2), 226 and 238 which deals with appointment of staff of other public service organisations.

Following carefully the provisions of the constitution on this matter, one would realise that there is a clear intention to desist from vesting power of appointments into the public service to individuals heading public service organisations. Taking heed from the constitution, the Public Services Commission has meticulously provided for how appointments should be done in the Public Services through various circulars and recently, the Human Resource Management Policy Framework and Manual for the Ghana Public Services. The provisions by the Public Services Commission in accordance with its mandate attempts to give meaning to words “acting in accordance with the advice of the governing council of the service concerned given in consultation with the Public Services Commission” as contained in Article 195 (1). The provisions clearly put the appointment of Category “A” and “B” posts in the hands of the President. Even for posts below Category B, the Head of organisation only issues the appointment letters but the appointment is done by the governing boards. In fact, in the Civil Service which until recently the Local Government Service was part, it is the Civil Service Council that offers appointments and not the Head of Civil Service.

It is in the light of the above, that I find Section 75 (2) and other such provisions of Act 936 explicitly vesting power of appointment in the Head of Local Government Service quite problematic. In the face of Article 195 (1) of the 1992, Section 75 (2) of Act 936 mandatorily states “The District Co-ordinating Director SHALL (emphasis mine) be appointed by the Head of the Local Government Service on the advice of the Council acting in consultation with the Public Services Commission.” I stand to be corrected but I see section 75 (2) and the other such provisions as void.

I recognise and appreciate the provisions of Article 195 (2) of the 1992 constitution and the language of this provision cannot be used to justify this apparent inconsistency. It is a discretion given to the President and that discretion, in my considered opinion, cannot be legislated away by an Act of parliament just like that. If the framers of the constitution had wanted to give parliament the power to legislate such discretionary power of the President away, they would have expressly said so. Rather, it says “The President MAY (emphasis), subject to such CONDITIONS AS HE MAY THINK FIT (emphasis), delegate some of his functions under this article by DIRECTIONS IN WRITING (emphasis) to the governing council concerned or to a committee of the council or to any member of that governing council or to any public officer.” Discretion varies as the conditions dictate and the discretion of one president cannot be binding on the other even though they are both expected to be fair and candid. And this, Article 195 (2) recognises.

Not even the Public Services Commission Act of 1994, Act 482 attempted to legislate away this power and discretion of the President. Section 8 of Act 482 which talks about appointments of Public Officers maintains the provisions of Article 195 of the constitution and adds in section 8(3) that the governing councils of the public services shall consult the Commission in matters of appointments of persons to hold office in the relevant public services except otherwise provided in the Constitution.

To conclude, let me make it clear that I am one of those with the view that the President virtually appointing everyone in the Public Services is awkward and non-productive. But I will also be the last person to advocate for such powers to be taken from the President and given to an individual as Act 936 seeks to do. And if the above is anything to go by, then Osagyefo Kwame Nkrumah should be turning in his grave by now because this is not what he meant when, on that faithful day, he said “...after all, the black man is capable of managing his own affairs.”

Just trying to be a citizen; not a spectator. I shall be back!

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