Introduction It has been a general notion in Ghana that on the altar of neutrality to different political regimes, public servants should not be partisan in their dealings on the job. They are also not required to put on political party attire even in non-working hours. They must also not attend political party rallies or participate in primaries.
But in a democratic dispensation under the legal umbrella of the 1992 (Fourth Republican) Constitution, is the general notion described above applicable to all public servants? Even if it is applicable to all public servants, must known politicians who are appointed into Public Service organizations denounce their partisan political status?
In this article, we will find out who public servants are, and try to answer whether or not they can participate in partisan political activities while holding office as public servants. The article unfolds in two chronological episodes so that the reader is not bored with an unnecessarily lengthy piece.
The Supremacy of the Constitution and Power to Interpret the Constitution
Article 2 of the 1992 Constitution makes the Constitution the supreme law of Ghana and article 11 also confirms that the Constitution is the ultimate source of law in Ghana. Also, article 2 (1) of the Constitution clothes the Supreme Court (SC) with power to interpret the Constitution and give declarations about same. Article 2(3) of the Constitution mandates that people being directed by the SC under article 2 of the Constitution must obey the order or direction so given and carry it out. Failure to do so constitutes high crime and in the case of the President or the Vice-President, this shall become a fertile legal ground for his removal from office [Article 2 (4)]. It makes legal sense that the Public Services Commission (PSC) has no constitutional right to issue administrative directives that depart from any decision or ruling of the SC with regard to interpretation of the Constitution. Public Servants ought to know this.
Who Are Public Servants in Ghana? Article 190 of the 1992 Constitution lists public sector organizations that are referred to as the Public Services of Ghana. Notable among these state-owned organizations called the Public Services are the Ghana Health Service (GHS), the Ghana Education Service (GES), Ghana Statistical Service (GSS), the Prisons Service (PS), the Legal Service, the Judicial Service, the Civil Service (CS) and the Ghana National Fire Service (GNFS).
Employees or members of the Public Services of Ghana are referred to as Public Servants. Civil Servants or employees of the Civil Service are also public servants. However, one must avoid referring to all public servants as Civil Servants because it is not all Public Servants who are employees of the Civil Service.
A Public Servant of the GES or GHS is not a Civil Servant because he or she is not an employee of the Civil Service. Nevertheless, every Civil Servant is a kind of Public Servant. Suffice to say that all Civil Servants are Public Servants but not all Public Servants are Civil Servants.
Public Servants’ Participation in Partisan Political Activities: What is the Supreme Court’s Position?
In two separate cases relating to interpretation of the Constitution so far as the issue of whether or not public servants can participate in partisan political activities is concerned, the Supreme Court (SC) has determined or answered the question yes and no on the basis of both articles 190 (1) and 94 (3) (b) of the Constitution. We had already touched on article 190 in this piece so we will only cite article 94(3) (b) of the Constitution here.
Article 94 (3) (b) states, ”A person shall not be eligible to be a Member of Parliament if he is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service.” Having called the tenets of article 94 (3) to mind, it is now necessary to state the facts of the two cases that the SC used to answer the question whether or not public servants can participate in partisan politics or primaries while still holding office as public servants.
Can Public Servants Participate In Primaries While Still Holding Office As Public Servants?
In Kwadjoga Adra V. The National Democratic Congress (NDC) & 5 Others (Writ No. J1/13/2014), the Supreme Court (SC) answered yes to the question above, mindful of the tenets of article 94 (3) (b). The SC determined this case on 15th July 2015. The facts are that the 2nd Defendant (Paa Nii Lamptey) is an employee of the Ghana Highway Authority (GHA), a member of the NDC party and he was registered to contest as constituency chairman.
The 3rd Defendant (Ernestina Yawson) is an Administrative Officer with the Ghana Education Service (GES), specifically, with Swedru High School, a member of the NDC, who had registered to contest for the position of the constituency secretary.
The plaintiff’s (Kwadjoga Adra’s) case before the SC was that by virtue of the provisions of Article 94(3)(b) and Article 55(8) of the Constitution, the 2nd and 3rd defendants are not qualified to be Members of Parliament. As such, they did not qualify to contest for the positions of constituency chairman and secretary respectively in the NDC Party. Article 55 (8) states, “A political party shall not have as a founding member, a leader or a member of its executives, a person who is not qualified to be elected as a Member of Parliament or to hold any other public office.”
Chiefly, the essence of the plaintiff’s action was that the 2nd and 3rd defendants are Civil Servants and their inclusion in the list of candidates contesting in the constituency elections is inconsistent with articles 55(8) and 94(3)(b) of the 1992 Constitution, since they are by the said articles precluded from overt and active partisan politics. The plaintiff’s contention was that since the defendants are employees of the GES and the GHA respectively, they are Civil Servants and as such not eligible or qualified to engage in active political activities per the tenets of article 94 (3) (b).
Held: The SC ruled that members of the GES and the GHA are Public Servants but not Civil Servants because they are not employees of the Civil Service. The plaintiff (Kwadjo Adra) got it all wrong. The 2nd defendant ((Paa Nii Lamptey of the GHA) and the 3rd defendant (Ernestina Yawson of the GES) are not Civil Servants so they are not disqualified or precluded under article 94(3) (b) of the Constitution from contesting for executive positions in any political party. Consequently, the plaintiff’s action fails and same was dismissed.
By this ruling, the SC said that based on article 94(3)(b), some public servants can hold partisan political positions or participate in partisan political activities while others cannot. It means that workers of any Public Service not listed under article 94(3) (b) are not constitutionally banned from holding office and engaging in partisan political activities such as primaries.
Suffice to say that workers of the Ghana Health Service (GHS) just like those of the GHA and the GES are free to participate in partisan political activities including contesting in political party elections because GHS has not come under article 94(3) (b) of the Constitution.
What is the Public Services Commission’s Position on the Issue?
Contrary to the foregoing decision of the SC in re Kwadjoga Adra V. The National Democratic Congress (NDC) & 5 Others, the Chairman of the Public Services Commission (PSC) on 8th August, 2019 issued a circular No. AB677/678/01 and directed inter alia that “a Public Officer who intends to take part in active political activities, whether directly or indirectly, should first resign from the Public Service before taking the proximate step towards the realization of the ambition to be a Member of Parliament or engage in open party Politics.”
The foregoing directive by the PSC was equally circulated to the workers of the Ghana Health Service (GHS) and other Public Services not mentioned under article 94 (3) (b) of the Constitution even though the directive does not apply to them. Workers of the GHS have been asked to comply with the directive of the PSC on the matter.
The implications are that managers of the GHS and similar non-article 94 (3) (b) public service organizations may attempt to sanction a worker who flouts the PSC directive cited above. As a result, an enlightened and aggrieved employee will proceed to court and get a declaratory judgment or the court’s decision may lead to judgement debts or court fines payable by the organization to the state or to the employee.
Per article 2 (2-4) of the Constitution, the PSC itself may be sanctioned by the SC for giving such a crude directive to all Public Services in contravention with the SC’s rulings in the matter.
It is advised therefore that the authorities of the GHS and other Public Services not mentioned under article 94 (3) (b) of the Constitution should be cautious in enforcing the PSC’s directive cited earlier. This is because it can lead to judgment debts as stated earlier or it will be an avenue for employees to discipline or settle scores with their employers through the courts since no employer wields unfettered power.
Conclusion In re Kwadjoga Adra V. The National Democratic Congress (NDC) & 5 Others, the SC says that some public servants can participate in partisan political activities including primaries provided that the public service organizations they work for do not come under article 94 (3) (b) of the Constitution.
The next and final episode (episode 2) of this piece will answer the question whether or not Civil Servants and Local Government workers as well as members of the Ghana Police Service can contest in political primaries or participate in partisan political activities while holding office as public servants. Remain alert and be up to speed.
~Asante Sana ~ Author: Philip Afeti Korto. Email: [email protected]
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