Amending constitution we don’t deserve

The framers of the Fourth Republican Constitution did not get much wrong. They delivered to us, under the circumstances, a document that was considerably forward-looking and certainly workable.

However, the framers made two basic mistakes: (i) they gambled on us being a reasonable people, and (ii) they completely failed to anticipate how incredibly, extremely and debilitatingly partisan we would become.

The result is that instead of following the constitution, we have perfected the art of ‘being smart’ in dribbling around and distorting its provisions. When faced with the mess that we have created, we adopt the typical strawman stance, and blame the document for the mess.

So, right now, the excuse for all our failures is that the constitution does not work, and that we should amend it.

I agree that certain provisions of the constitution need to be looked at, simply because with the passage of time, there is the need for new thinking and some tweaking of its provisions. My position, however, is that this document is workable.

We can live with this constitution for a very long time, if we respect and follow the provisions, until we are able to amend it. But the constitution is not the reason why we are how, what and where we are.

I have, literally, tens of examples, but permit me to illustrate and expand my point with just a few of them.

Parliament

The framers of the Constitution imposed at least two mandatory, legislative obligations on Parliament. One, under article 22(2) is that ‘Parliament shall, as soon as practicable after the coming into force of this constitution, enact legislation regulating the property rights of spouses’ [my emphasis.]

More than three decades later, our Parliament has not complied with this, apart from some minor provisions relating to land, which were smuggled into the new Land Act.

Two, under article 181(5), Parliament was to make ‘necessary modifications’ to the loan approval regime under article 181, to apply to international business and economic transactions that the government is a party to. To date, nothing. And so, there have been cases where the government has entered into such transactions, breached them and then attempted to set up its own failure to present the transaction to Parliament as its defence.

We have been embarrassed both in our courts and at international arbitral tribunals over these. STILL NOTHING.

The result is that Parliament has abdicated its responsibilities in these matters and ceded its legislative function to the Supreme Court. And because ‘nature abhors vacuums,’ the Supreme Court has accepted the challenge and is gleefully engaged in ‘judicial legislation’ and amendment of its own ‘legislation’ on the matter, based on the ‘accident of litigation.’

Thus, in cases such as Mensah, Boafo, Quarson, Arthur and Adjei, the Supreme Court has imposed and then amended grounds for sharing property between spouses. And in cases such as Faroe Atlantic and Balkan, the Supreme Court has ‘legislated’ on which transactions require parliamentary approval and which do not, while literally begging to do what the Constitution expects of it.

In Balkan, an obviously exasperated Date-Bah JSC, after answering what he called the ‘argumentum ad absurdum’ propounded by defendants’ counsel, implying the word ‘major’ into the provisions, and then laying down an ‘interim’ but non-conclusive test, then said ‘It is therefore imperative that Parliament takes up early the challenge of framing the modifications to article 181 needed to give greater certainty and clarity as to what categories of international business or economic transactions to which the Government is a party come within the ambit of article 181(5).’

That was on May 16, 2012. We will soon celebrate the 11th birthday of this imperative pronouncement. Still NOTHING.
So, what do we do? Let’s amend the Constitution! To say what?

Constitutionally independent bodies

Yes, we have a very powerful presidency, and taking away a little of its powers might help. In 1969, we sought to whittle the powers of the president by, among others, identifying areas of governance where we do not want any political interference, and then creating bodies or offices that would be completely independent of the executive and the legislature, subject only to the Constitution and the Courts.

Over the years and in subsequent constitutions, we have maintained and added to these bodies: Electoral Commission, Auditor-General, CHRAJ, NCCE, Media Commission, and to some extent, the Lands Commission.

These, I would argue, have the same level and quality of independence as the judiciary.

Yet, we have sat down for their independence to be completely eroded by the Executive and Parliament. The most affected is the Auditor-General, which has now been effectively demoted to a simple agency of government.

Parliament is claiming a supervisory role over the Auditor-General, and its leaders protest loudly against the decision of the Supreme Court in OCCUPYGHANA v Attorney-General, which asserted the independent powers of the Auditor-General to disallow and surcharge. As we speak, the powers of the Auditor-General to disallow and surcharge are effectively clipped.

And it is not only the Executive and Parliament that are to be blamed. Largely, the people who have been appointed to that office have shown precious little to no fortitude in asserting their independence.

The only one who tried to do so was then conveniently branded a ‘holiday-dodger,’ then a ‘foreigner’ and then an ‘age-cheat,’ and was finally hounded out of office, with nary a whimper, whinge or whine of protest from either Parliament or the opposition parties.

Civil Society organisations that rushed to court in protest are still waiting for a date to be set for judgement. Any successor to that office will become compliant, because ‘he who does not know death’s looks, should observe sleep.’

It beggars belief that instead of ensuring that the independence of these bodies are respected and protected so that they can do their work efficiently and effectively, we want to amend the constitution!

Statutory gerrymandering

The constitution seeks to ensure that only the Electoral Commission (EC) can create constituencies. It lays down both the period and substantive considerations for doing so, so that Ghana would be protected from the rampant, partisan gerrymandering that occurs in places such as the United States.

But the political class cleverly provided in statute (inferior law) that no person can belong to two district assemblies. Smart. And so, getting to the constitutional seven-year cycle, the Executive and Legislature may simply create districts so that some MPs become members of more than one assembly.

Then the EC is forced to create separate constituencies to accommodate this. In spite of the framers’ good intentions, Ghana has become the gerrymanderer’s delight. And the answer? Amend the Constitution. To say what?

Article 71

We debate the gravy and cream that article 71 has become. Yes, it provides for payment of end-of-service benefits. But where does it provide for the fantastic sums that are always decided literally on the midnight of every presidential and parliamentary term?

The political class has, once again, cleverly conspired to postpone the determination of their conditions of employment to the very end of the term.

Then the committee is set up, which then is forced to consider the emoluments, taking into consideration the economic conditions at the end of the term and not the start.

The committees then recommend huge emoluments, which are then applied retrospectively so that the beneficiaries take home huge sums of money as a mix of ‘back pay’ and ‘ex gratia.’

We have sat down to allow such shenanigans to go on for three decades and instead of simply stopping it, we want the constitution amended.

Number, judges

Should we provide a number-cap for the number of judges we appoint to the Supreme Court? The supposed answer is ‘yes,’ to stop a president from appointing 5,000 SC judges.

But wait a minute. Has anyone taken the time or made the effort to check the volume of work that those judges do? For the longest time they had no legal assistance.

These ladies and gentlemen read the fat volumes of case bundles by themselves, did their own legal research, drafted their own legal opinions and read them. I remember being in the SC and seeing a judge read his judgement written in his hand, from a brown ‘Ghana Schools’ exercise book with the Ghana map at the back for good measure.

Meanwhile our SC has several jurisdictions (appellate, original, supervisory, special, etc), each of which continuously churns out cases. And they must hear them all, because unlike the US Supreme Court, they don’t have the luxury of choosing which cases they will hear or not hear.

Worse, we demand from them a Rolls-Royce-quality service and provide for them a tricycle budget!

Where is the research to show that with the volume of work, we need a limit on the numbers? What if we amended to provide a cap and then found that they are overworked? Then we amend again to change the cap?

The framers, it appears to me, had hoped that Parliament would reasonably use it approval powers to stop a president who sought to pack the court for no reason.

Parliament, I would argue, may refuse to approve appointments if it believes that they are superfluous or unnecessary, considering factors such as the volume of work. We should have the statistics: How many cases have been filed over the past 30 years? How many have been determined at both interlocutory and final stages? What is the average turn-around time of a case before the SC? How many pages of judgements have been written? What critical number of judges do we need there to ensure proper delivery of justice at that level? I have heard it said that ‘what you measure is what you get. What you can’t, won’t or don’t measure, is lost.’

Parliament is entitled to demand from the President and Judicial Council, evidence that judges that are being appointed are necessary. On this, Parliament has failed again, and abdicated the gatekeeping role that the framers gave to them.

We have not measured the volume of work, but we want to amend the constitution!

Amend?

Yes, the constitution provides for amendment. Non-entrenched clauses require a super-majority of Parliament (two-thirds) to enact. Entrenched clauses require 40 per cent of the voter population voting, 75 per cent of whom must vote ‘yes.’

That is almost impossible to pull off right now because of how evenly divided the leading parties are, and how intractably partisan they are. So, the constitutional review process went south when power changed hands. The attempt to elect DCEs and stop the joke of non-partisan district level elections went pear-shaped because the parties couldn’t be of one mind.

The only successful amendments were in 1996, because there was virtually no opposition in that Parliament because of the boycott, and consequently the ruling party had more than the super majority.

And among the key amendments made in 1996 were securing gratuities for MPs, securing two-year contract extensions for retired public servants, and removing the Vice-President as the chair of some security services!

I could cite several other examples of ways in which we have conspired to ignore or dribble the constitution. Of course, some parts need amendment. But for the most part, what is required is simple common sense (unless, of course, common sense is overrated in these parts) and a desire to be more proactive in how we apply the document. We have conspired to weaken this workable document.

Yet, it has been the longest lasting constitution in our history. Yes, it requires tweaks. But we definitely can work with this until we summon the partisan unanimity to amend it. Pipe dream!

No Constitution can defend itself. Neither the paper nor the black letters on it can rise up and whip us into line. We must respect it and do our best to protect and defend it.

The framers gave us a good document that we have shown we don’t deserve. So, by all means, let’s amend it, so we deserve it less.

Methinks the first amendment required is the amendment of the Ghanaian. If we can’t work with this document, we will fail even a constitution that is drafted from heaven and delivered to us by fire and by thunder, and etched in gold on tablets of stone.

They call me Ace.

The writer is a lawyer