Our democracy — 40 years on: reviewing the 1992 Constitution

One of the mandates of the Constitution Review Consultative Committee (the Committee), is to among other things, advise on the best procedure for the amendment of the 1992 Constitution.

Here is why this mandate is crucial.

First, the 1992 Constitution is the supreme law of Ghana and any other law found to be inconsistent with any provision of the 1992 Constitution shall be void to the extent of the inconsistency, (art 1(2) of the Constitution).

Secondly, a person who (a) by himself/herself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates the 1992 Constitution or any part of it, or attempts to do any such act, or (b) aids and abets in any manner any person to do so commits the offence of high treason and shall, on conviction, be sentenced to suffer death, (art 3(3) of the Constitution).

Thirdly, all citizens of Ghana have the right and duty at all times to defend the Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts that unlawfully suspends or overthrows or abrogates the Constitution or any part of it,  and do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated.

The effect of all of the above is that any changes to any single provision of the Constitution must be lawful.

So what is lawful change to the Constitution?

The Constitution provides within itself, its own procedures of changing any of its provisions, if for any reason, that provision no longer serves the people well.

The lawful means of changing any or all of the provisions of the Constitution is by amendment.

Although the Constitution empowers the Supreme Court to interpret it, interpretation is not intended to “amend” the Constitution.

Rather, interpretation is intended to “give effect to” the Constitution.

Interpretation by the Supreme Court is therefore not an “amendment procedure.” 

How is amendment achieved then? 

The Constitution provides two ways by which you can amend it:
1. Through an Act of Parliament (for non-entrenched provisions); or 
2. Referendum (for entrenched provisions).

What does the CRCC recommend as the best way to amend our Constitution?

Our recommendation

A comprehensive review of the Constitution. By discussing and debating together, and reaching a consensus.

This Committee will thus: (1) put all of  the recommended amendments on public platforms for discussion; and (2) provide avenues for further deliberations, debates and discussion, before finalising our report.

To achieve this, the Committee adopted the below methodology:

Methodology for this Current Review

The methodology we choose to enable us to do this together is by:
• Desk Review/Research • Consultations  • Clause by clause review of the entire Constitution in the light of the above and the submissions and proposals received
• Drafting •Further Consultations • Finalisation of Drafts • Technical Drafting • Editing • Comprehensive advice on Amendment Procedure • Final Report

When we resolve to amend the Constitution, we must consider which ones fall within entrenched and non-entrenched provisions, and pursue accordingly.

For the ones that fall within non-entrenched provisions, these may be amended pursuant to an Act of Parliament.

For the ones that fall within entrenched provisions, and so require a referendum, we recommend that each bill must be voted on separately.  

This gives the people of Ghana, the opportunity to reflect on the effect of each amendment, and decide whether or not they want it. 

Summary

Below are some of the proposed amendments and innovations of the current review.

1. Emoluments: Determination of the Conditions of Service of Some Public Officers by the President, (i.e., Article 71 Holders)    
2. The Committee recommends that the emoluments of article 71 holders must be determined  pursuant to a pre-determined formula.
3. This pre-determined formula is to be set by an Independent Emoluments Committee (IEC), composed of institutional representation as follows: the Public Services Commission, Trades Union Congress, Ministry responsible for Finance, Audit Service and Fair Wages and Salaries Commission.
4. The mandate of this IEC shall be to prescribe an emolument formula for the emoluments of article 71 holders.
5. The emoluments of article 71 holders shall thereafter be determined pursuant to this formula, without the need to set up any further committees in the future. 
   The institutions shall nominate their representatives and the President shall appoint them.
   The emoluments of this IEC shall be similar to sitting allowances applicable to public Boards and Committees, and the IEC is to be dissolved after setting the pre-determined formula.
6.  The formula shall thereafter be managed by the Fair Wages and Salaries Commission.
7. This avoids the continuous setting of committees to determine the emoluments of article 71 holders, which in itself is another charge on the public purse.

2. NDPC
All of the submissions received on the National Development Planning Commission (NDPC) express the objective that: the NDPC must be independent defacto and dejure; inclusive in composition; able to adapt and revise the national development plan; national in character, etc.

To achieve the above objective, we recommend an amendment to the composition of the NDPC to include a  representative each from: civil society organisations; all political parties that have attained at least five per cent votes in national elections; University Teachers Association of Ghana (public universities); Private University Teachers Association; Technical

Universities; Trades Union Congress; two representatives from National House of Chiefs one of whom must be a woman; Ghana Federation of Disability Organisations; the Director General of NDPC; private sector, the Minister responsible for Finance;  the Governor, Bank of Ghana; the Statistician-General; one Regional Planning Officer from each region; and such other persons, not exceeding five, as may be appointed by the President having regard  to their knowledge and experience of the relevant areas and roles pertaining to development, economic, social, environmental and spatial planning.

The various bodies will nominate their representatives and they must have relevant expertise.

The tenure of the members of the NDPC shall be 7 years non-renewable, and shall not be coterminous with that of the President.

Functions

We recommend to include the following to the existing functions: The Commission shall:
a. Formulate a long-term National Development Plan taking into consideration the resource potential and comparative advantage of the different districts of Ghana for approval by Parliament.

b. Revise the National Development Plan every 10 years or such earlier period as may be approved by Parliament by two-thirds majority of all Members of Parliament.

c. Monitor, evaluate and co-ordinate development policies, programmes and projects and submit an annual report to Parliament.

d. The other provisions on functions to stay.

3. President should pay tax.

This is a brief summary of some of our recommendations.

The details of these recommendations are contained in our Report, which will be made available to you in due course.

Stay tuned for the next publication on our other proposed recommendations.

Get involved.

It is our country.

Send your proposals or comments to: and  currentconstitutionreviewgh@gmail.com or constitutionreviewconsultative@gmail.com
 Subject: Constitutional Review.