Using ‘Imperfect Scale To Balance ‘Imperfect System – The Case Of Ghana’s Constitution

The country has a ‘bogus’ political system (imperfect system) bequeathed to us by our colonial master-Britain- where someone sits somewhere and call the shots. After independence, the system didn’t change even though attempts were made to sanitise the system by the introduction of an ‘imperfect scale’ called the Constitution which was to eradicate the absolute power concentrated in the hands of an individual ‘one show system.’

Even though Ghana is said to be practicing a democratic governance concept dubbed: ‘Separation of Powers’ which is Executive, Legislature and Judiciary, a good look at the 1992 Republican Constitution shows otherwise. So I ask myself, are we truly practicing this concept?

Separation of powers can be defined as a concept used to ensure that all arms of government work separately without interference and concentration of power in one hand. The purpose of the doctrine is to check the growth of absolute power in the hand of an individual or group of individuals.

History has shown that with absolute power concentrated in the hands of an individual or a few people, there is the tendency that they will use the power negatively or in other words use the power against the liberties or rights of other individuals or the majority of persons.

Major proponents of this concept are Baron de Montesquieu and John Locke; however, the concept has been given a modern flavour by the United States of America (USA) with James Madison being the major advocate on American soil.

Under the 1992 Constitution, the three primary functions are vested in a distinct body. Executive power is vested in the President- Article 58(1), Legislative power is vested in Parliament- Article 93(2), and Judicial power is vested in the superior and inferior courts- Article 125(3).

Though these three organs of government are distinct, the framers of the 1992 Constitution were influenced by the element of checks and balances, therefore, provisions were made in order to promote interdependence of the organs of government.

Contradiction
The ‘imperfect scale’ (1992 Constitution) makes it mandatory for the President to hand-pick majority of ministers of state from Parliament under Article 78(1), nominate Speaker of Parliament, Chief Justice etc. Meanwhile, the President is elected separately from Parliament for a period of four years and does not depend on them for his continuous stay in power as stated in Article 57-88.

The President is not part of Parliament but is expected to give sessional address at the beginning of a session and during the dissolution of Parliament – Article 67.

Bills are initiated by the Executive but Parliament goes through its procedures which look more of a ‘Proof-reader’ kind of thing and subsequently approve and the President also assents to all bills to become Acts. If he does not assent it, Parliament can only revert it by two thirds majority vote – Article 106(10). Meanwhile, one of the core functions of Parliament is to enact laws yet it is the executive which initiates bills and other stuff.

The above-mentioned points do not make the relationships between the organs of government, President and Legislature independent. Let’s not forget that majority of ministers (parliamentarians) who form part of the executive are the same crop of people who draft all the documents that come to the House and nechodamusly turn around to scrutinise what they themselves have put together.

Currently 26 out of the 36 or so substantive ministers are all Members of Parliament (MPs), as for the deputies they are uncountable and all this people are the very same people who sit and approve what they put before the August House.

Legislative control of the Executive
The President nominates ministers however, they are subject to vetting and approval by Parliament under Article 78(1). Again, the executive initiates all fiscal policies but Parliament has the sole prerogative to authorise the use and rising of money Articles 174-178.

The executive enters into treaties and negotiations on behalf of the country but all these need parliamentary gratification (Article 181(loans) & Article 78(treaties). Parliament has power to begin impeachment proceedings on stated grounds under Article 69. They can also vote to censure a minister for misconduct – Article 82.

Yes, all these portions of the 1992 Constitution are there but what do we see? Will the same people (MPs) who are ministers or wanting to be ministers raise their voice let alone vote against the president’s decisions? Hmmmmmmm your guess is as good as mine.

Judiciary and the Legislature
Judicial appointments which are done by the executive also depend on legislative approval as well as the position of Chief Justice. The Judiciary on the other hand can also declare an act of parliament unconstitutional. So where is their independence? As the saying goes when your mouth is in some one’s kitchen you can never have the boldness to criticise him/her.

Judiciary and the Executive
Judges can also be removed from office on stated grounds by the president – Article 146 and the president also exercises the prerogative of mercy which is the highest form of judicial decision – Article 72. So in all of this where do we stand?

It is not suprising that several institutions, groups and individuals have called on successive governments to take steps to address the issue of dividing and conquering the dangers of concentrating power in one arm of government. After all, those who will lead the change or campaign are the same people profiting from the system.

In the early years of the republic that has now grown to be known as the world’s best democracy, the United States, the founder fathers realised the importance of dividing the spoils and splitting them equally to ensure that no one arm or function of government enabled the other to have utmost power.

The United States philosophy for over 400-year-old democracy has undergone changes, adjustments, and eventual deductions and that is what Ghanaians are demanding of our political system.

A perfect political system is where the legislature is clearly set and defined apart from the executive and the judiciary having complete autonomy when it comes to the dispensation of the law. These structures however, small or big, may go a long way to protect the ordinary Ghanaian while providing room for the government to operate without hindrances.

I am of the view that at a point in our growing democracy (25 years of uninterrupted democratic governance) where the executive holds more than half of government power, the function and considerable performance of substantive duties from the other arms are controlled and bottled.

Both previous and recent vetting of ministers and other public office holders is a clear example of what it means to have separate institutions managing different functions of the state. There are instances when members of the Parliament’s Appointments Committee appear before it as minister designates, and in those instances due to familiarity, the public doesn’t get the sort of scrutiny and value they deserve.

Unlike the American system where members of the executive are removed from the legislature, they don’t have the right, power or opportunity to do government bidding in the house of congress; in our case parliament.

They stay to make the core functions of lawmakers happen without excessive influence and that is potent enough for an avenue where they co-exist and work hand-in-hand. And that is to help foster two main principles; first, protect the separation of powers which is the philosophy upon which the federation is built. And secondly, prevent congress from conspiring to create offices or increase federal officials’ salaries with the expectation that members of congress would later be appointed to these posts.

Conclusion
In conclusion, the 1992 Constitution can be said to provide four appreciable levels of separation of functions and personnel of the three organs of government. However, there are various provisions promoting checks and balances, ensuring cooperation and interdependence and making the executive have control and bottle other arms of government.