Constitutional impediments to good governance

The review of the 1992 Constitution is inevitable.

What the Constitution represents for Ghanaians, and in what light we should treasure it, has been expressed in various dicta of judges. In Tuffuor v Attorney-General [1980] GLR 637 at 647, the Court of Appeal, sitting as SC, said, per Sowah JSC:

“A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress.

It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountainhead for the authority which each of the three arms of government possesses and exercises.”

The statement of Sowah JSC encapsulates the scope of what our Constitution exists for, and what it means to us. The first question which falls for determination is: What is to be done when Constitutional provisions are causing dissonance within the Ghanaian society?

Since we have learnt that the Constitution contains our “aspirations and…hopes for a better and fuller life”, it means whenever we notice incongruency between the Constitution and the reality on the ground, we must pause and effect the desired change for the Constitution to remain relevant in our national development.

Based on the quoted dictum, I share my opinions with readers.

Council of State

Article 89 (1) mandates: There shall be a Council of State to counsel the President in the performance of his functions.

One, they shall deliberate on Bills passed in Parliament or gazetted, at the instance of the President.

Two, they shall advise the President on appointments to be made by him.

Three, they shall endorse prisoners to be released on a presidential pardon.

Lastly, they may express their opinion on any matter that they consider fit for information and appraisal.

I find this Council a costly and unnecessary appendage to the Presidency. The best persons to counsel the President are experts in their fields of experience who know the mind of the President, his vision and limitations, and would then advise on how best a matter could be addressed or carried across to the people.  

A bolus of persons as the Council of State (Articles 89-92) shall lack that intimacy with the President to effectively advise him on the actualisation of his vision or plans. Secondly, the President has his inner cabinet of ministers with whom to confer on matters of state and who would definitely counsel him on what is best to be done: when, how and by whom.
Thirdly, the Council of State is a huge financial encumbrance on the treasury of the State and must be abolished.

Presidential elections

Article 63 (1b) stipulates that a presidential candidate must be nominated for election by not less than two persons who are registered voters in each district assembly! What is the essence of such absurdity?

 No one could be President of Ghana without national acceptance and duly voted for. The sheer wastage of paper and energy and time and money for such an incongruous exercise beggars description!

I recommend we amend (1b) of Article 62 to read: nominated by seven members of his Constituency who are persons in good standing, and above forty years. The average Ghanaian knows the expression “persons of good standing”: no criminal records; tax-compliant; educated; of a certain social or public stature; and morally unimpeachable.

If the Electoral Commission (EC) wants to discourage frivolous candidates from wasting the nation’s time, it could fix a qualifying sum that would automatically eliminate such persons.

Since the EC is empowered to determine the laws for the elections, then this could be amended for the 2024 elections.

Appointment of ministers

Article 78 (1) directs the President, in his appointments, to bear in mind “that the majority of ministers of state shall be appointed from among members of Parliament”.
There are two drawbacks here.

Firstly, the ministers are part of the Executive and NOT the Legislature. Their functions are different. When a Minister must be present in Parliament to deliberate on national matters, with all the enormous time spent on such deliberations, when would he get the time to attend to the ministerial duties for which he has been appointed?

Secondly, ministers of state would be paid as ministers. But being parliamentarians too, they would be drawing pecuniary benefits from that position as well. Does this make sense? Ghana is wasting egregious sums of money on redundancies and unnecessaries, and we are complaining there is not enough money to pay local debts!

Article 78 (1) must also go! Ministers must not be parliamentarians. They can always be summoned to Parliament to answer questions, and then go back to office!

Censorship    

Article 21 (1c) says: All persons shall have the right to freedom to practise any religion and to manifest such practice. Article 162 (2) states: Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.

I submit that that these two articles explain why sorcery, magic and hideous, dehumanising practices, such as ritual murders and sexual aberrations, are becoming rampant in Ghanaian society, and why violent films are shown very often on Ghana’s TV networks, without as much as a growl of disapproval from anybody.

Further to this, pictorial advertisements enticing persons to recourse to supernatural means of attaining riches are pervasive and boldly advertised on billboards. Censorship existed up to 1992, and films were censored before they were shown.

The essence was to protect the social conscience of Ghanaians from overt violence and sexual immorality while at the same time safeguarding children from subtle subconscious influences that could affect their adult life, or implant negative, undesirable habits in them.

Secondly, not all sorts of materials were aired on the radio. Ghana is destroying the very foundations of a nation with such licentious freedom. Censorship must come back. And, may I add: Ghana must stop that infantile and ludicrous copying of Western values, in the name of democracy!

Land Ownership

Article 257 (1) prescribes: All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people of Ghana.  Article 267 (1) states: All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage.

Ghana’s Constitution upholds feudalism in this 21st century! The control of land by the stools is the source of the innumerable chieftaincy disputes and occasional bloodbaths in the country.

 It is, undeniably, the source of the litany of land cases in our courts. Lastly, the law has frustrated our physical planning and development, created slums, devastated our forests and upturned the ecological balance, of which galamsey is an excellent example. All lands must be nationalised, and properly planned!

Term of Presidency

Article 66 (1 & 2) prescribes a term of four years for the presidency, and reelection for another term of four years. In Ghana, the first year of the presidency is used to analyse the governance of the previous government and to discover its hidden distortions.

The subsequent years entail looking for finance for governance. Soon, the four years are gone. Nothing much is achieved. I suggest a term of five years, for a ten-year period, to enable much to be done by the President, without rush and panic decisions to mollify the public.

The articles mentioned above are some of the impediments to good governance in Ghana.

The writer is a lawyer.
E-mail: akwesihu@yahoo.com