It appears to me that everything that the framers of the 1992 (Fourth Republican) Constitution assigned a chapter to is very important in public interest and one of those constitutionally created persons or things is the Council of State which is enshrined in Chapter Nine (9) of the Constitution. This chapter has four (4) articles, stretching from Article 89 to Article 92.
The primary purpose, object or mandate of the Council of State is provided for in Article 89 (1) of the Constitution and it reads, “There shall be a Council of State to counsel the President in the performance of his functions.” Membership of the Council of State is clearly spelt out from clause 2 (a) to 2 (d) of Article 89 broken down as follows:
- Those appointed by the President in consultation with Parliament
- A former Chief Justice
- A former Chief of Defence Staff of the Armed Forces
- A former Inspector-General of Police
- The President of the National House of Chiefs
- 10 regional representatives (and henceforth 16 regional representatives with the creation of 6 new regions) elected in accordance with regulation made by the Electoral Commission under Article 51 of the Constitution. These regional representatives are usually elected by an electoral college made up of two representatives of each of the districts in the region, duly nominated by the District Assemblies. Note that Article 51 cited ut supra states, “The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”
- Eleven (11) other members appointed by the President. This is where the President may appoint his cronies or political party faithful into the important body called Council of State and make it nothing but a rubber stamp he chooses to do so.
Per the constitutional formula provided for in Article 89, the Council of State has been a 25 member presidential advisory body since 1993. What is alarming however is that majority (14 or 56%) of the Council of State members are people appointed by the President except the regional representatives and the President of the National House Chiefs. This is where the Constitution creates room for a “job for the boys” appointment into the Council of State by any President, hence political opponents of the party in power tend to argue that the Council of State is not being neutral or being used as a rubber stamp by the President.
In fact, the Constitution makes the President of Ghana the number one person in the land, taking precedence over all other persons in Ghana as provided for under Article 57 (2). In view of this provision and many others which make the President very powerful, appointment of majority of the members of the Council of State should not have been constitutionally left at the pleasure of the President who has the power to manipulate Council of State and may interfere in its decisions if he so chooses to do.
In plain terms, the Council of State is the Board of Directors or Board of Governors for the Office of the President or the executive arm of government. The question therefore is that, why must the CEO (the President) and not the shareholders (Ghanaian voters) be the ones to appoint members or majority of members of the Board of Directors (Council of State)? The formula provided for in the Constitution for the appointment of the Council of State Members makes most of the members become adherents of the President, if they were not already, and they are likely to dance to his tune or vote in his favour on an issue before the advisory body. Again, if the President chooses to disrespect the rule of law principles, he can choose to ignore the Council of State on some issues.
As such, I would rather we the people elect all the members of the Council of State and insulate their tenure of office to go beyond the four year term of a President. The cure for this is to amend Article 89 (5) of the Constitution which states, “A member of the Council of State shall hold office until the end of the term of office of the President unless - (a) that member resigns by writing signed by him and addressed to the President; or (b) becomes permanently incapacitated; or (c) is removed from office or dies.”
Much as Article 89 (2) (a) and 2 (d) mandate the President to appoint 14 members of the Council of State, Article 89 (5) (c) and Article 89 (6) equally mandate the President to remove any of the 25 members of the Council of State from office for a stated misbehavior or his inability to perform the functions of the office due to infirmity of body or mind but with prior approval of Parliament. Even that, we know that per Article 78 (1) of the Constitution, majority of Ministers of State are appointed from the midst of Members of Parliament. Aside that and since 1993, the majority in Parliament has always been members of the ruling party so the President has another power there over the Council of State members.
It is clear from the foregoing that the Members of the Council of State are appointed at the pleasure of the President who has the power to even remove them from office, including those he has not appointed into office. Yes, the President of the National House of Chiefs and the regional representatives that are not appointed by the President can also be removed from office by the President.
While addressing the Parliament of Ghana on his visit to the country, the immediate past American President, Barack Obama said, “Africa does not need strong men, it needs strong institutions.” The Council of State is a very important creature of the 1992 Constitution but the same Constitution weakens the Council by virtually leaving the appointment and removal from office of the members at the pleasure of the President who is counseled by that same body.
As if that is not enough, the Council of State goes home with the President so the tenure of office of the Council members is not constitutionally insulated hence most of the members may choose to dance to the whims and caprices of the President. Remember that 14 members of the Council especially 11 of them whose qualifications are not defined by the Constitution are appointed by the President and the rest of the members (the Chairman and the 10 regional reps) can also be dismissed by the President with approval of Parliament whose majority members come from within the political party in power since 1993.
Even within the functions of the Council of State enshrined under Articles 90 and 91 of the Constitution, there are avenues for the President and other bodies to choose to accept or not to accept the recommendations of the Council of State. For example, Article 90(1) of the Constitution states, “A bill which has been published in the Gazette or passed by Parliament shall be considered by the Council of State if the President so requests.” The underlining factor is that if the President does not request the Council of State to consider a published bill in the Gazette, then the Council itself has no say under the circumstance even if it has a view.
Article 91 (3) of the Constitution also states, “The Council of State may, upon request or on its own initiative, consider and make recommendations on any matter being considered or dealt with by the President, a Minister of State, Parliament or any other authority established by this Constitution except that the President, Minister of State, Parliament or other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause.”
Methinks that the Council of State is an important institution of state created by the Constitution so the creator itself should have clothed the Council with more powers to advise the President and other legal persons without fear of intimidation and without favour.
With the foregoing in mind, the question remains unanswered that mustn’t Ghanaians rather elect all the Council of State Members and insulate their tenure of Office (6 years for example) so they become an independent advisory body beyond presidential control? This should mimic the arrangement within most chieftaincy institutions across the nation whereby stool or skin fathers or kingmakers are not people chosen or manipulated anyhow by the chief. The Constitution makes it so easy for a President who decides to abandon rule of law principles to ignore the powers of the Council of State and manipulate it.
Until Chapter Nine (9) of the Constitution is reviewed to further empower the Council of State more than the power it wields currently, the Presidents of Ghana may choose to disregard the relevance of the Council of State in deepening our democratic dispensation under the Fourth Republican Constitution.
Author: Philip Afeti Korto
Email: [email protected]