Parliament, countervailing force for effective governance (2)

Although the 1992 Constitution provided wide powers to Parliament, it is considered to have also limited the institution in many ways. For instance, whereas legislative power is vested in Parliament, Article 108 imposes some restrictions in the area of tax legislation and laws that have financial implications on the Consolidated Fund.

In exercising its power-of-the-purse function, Parliament’s Public Accounts Committee (PAC), which examines the audited accounts of government showing the appropriation of sums granted by Parliament to meet the public expenditure, lacks prosecutorial powers or ability to implement its recommendations.

This is because prosecution is at the instance of the Attorney-General who is an appointee of the Executive branch for which the PAC is exercising oversight.

The constitutional requirement to have majority of ministers selected from among MPs, also limits the legislature.

MPs’ desire for political favour

Powerful as Parliament is intended to be, it struggles to impose itself as a co-equal branch of government.

Many MPs are unable to be assertive in their parliamentary functions because of individual ambitions to court the executive’s favour for appointments to ministerial and other positions.

This tends to further entrench what is considered the excessive powers of the Executive President and portray Parliament as subservient to the executive branch.

Some have argued that although the requirement to appoint majority of ministers from Parliament is by itself not the problem, considering that many Westminster-style jurisdictions still function effectively, the personality of those appointed in Ghana becomes the issue, as they are unwilling to stand for principles that are opposite to the interest of the Executive branch.

The Minority Leader described this as “an unhealthy loyalty to the executive [which creates] a passive Parliament always ready and wanting to yield to executive influence.”

There is also observed, the rather worrying trend where MPs are appointed to Boards of Public Institutions as members or chairpersons of such boards.

This gravely affects their independence when called upon to exercise their oversight responsibilities over such public institutions in Parliament.

Lack of financial autonomy
Although Parliament is vested with the power to approve the National Budget and annually pass the Appropriations Act, the constitutional provisions that require the Executive to determine Parliament’s budget, creates constraints that subjects the Legislature to the Executive.
Parliament has consistently complained of being under-resourced and this affects its output.

However, the report of the Constitution Review Commission opined in page 187 that “no constitutional amendment to provide more resources to Parliament can be fruitful if Parliament continues to grovel at the feet of the Executive in exchange for political favours.”

The processes leading to election of MPs have been found to be one of the reasons why the legislature is unable to live up to its expectations. Securing the ticket of one’s political party during party primaries is very expensive.

This gets compounded by the cost of running for the main elections once the internal party processes are over.
Even with the few who are fortunate to be elected as independent MPs, the lack of a deep pocket affects a genuine ambition to serve as the people’s representative.

Research on the Cost of Politics in Ghana, published in 2018 by the Westminster Foundation for Democracy and the Ghana Centre for Democratic Development (CDD) found that on average, candidates needed approximately US$85,000 to successfully compete to become an MP.

This situation has been identified, by Mr Harrison Kofi Belley in his work entitled “Parliamentary Turnover in Ghana’s Fourth Republic: Perspectives of Members of Parliament” as a contributing factor for the high attrition rate in Parliament, as many MPs when elected, focus a lot of time on private businesses to restock their financial vault rather than focus on day-to-day parliamentary business.

Even after elections, MPs continue to bear financial burdens placed on them by their constituents, including being called upon to support funerals, pay school fees of their constituents, cater for hospital bills of party executives, and even privately fund developmental projects such as schools, boreholes among many others.

This affects the efficiency of MPs and is considered “a great risk to candidates’ debt profile” and may increase the chances of political corruption and affect MPs ability to effectively discharge their responsibilities.

Human capacity challenge
There are no minimum academic or skill-based qualifications for entry into Parliament, therefore persons of whatever background, once they can garner the most numbers at the party primaries and/or main elections, can become MPs.

This does not only affect the quality of debate on the floor of Parliament, but also the level of human capacity needed for the thematic tasks assigned to various parliamentary committees.

This is considered to contribute to the attrition rate in Parliament. It also affects the pool from which the President can appoint ministers.

Excessive partisanship
Partisanship along the lines of political affiliations, ethnicity and regional allegiance have over the years affected the quality of work in Parliament.

These have impacted the diligence and level of scrutiny exercised during vetting of candidates for national appointments or debates on important matters of public interest.

They get compounded by unnecessary intrusion of political parties in Parliament, as party officials are increasingly dictating the path that MPs must take in their parliamentary decisions, with whips breathing down the necks of individual MPs. In recent times, these have led to unfortunate physical exchanges in the hallowed Chamber of Parliament.

Failure to use powers
In the face of the many powers the Legislature wield, successive Parliaments have failed to draw on these in ways that makes the institution a countervailing force for effective governance.

Until recently, the constitutional authority of Parliament to censure ministers had not been exercised.

When the censure process was triggered in 2022 against the Finance Minister, Ken Ofori-Atta, many applauded about 80 MPs from the ruling NPP when they also called for the head of the minister.

This was however short-lived, as the censure motion failed and the 80 or so MPs made a U-turn on their earlier position, and arguably making a mockery of the resolve of said NPP MPs to follow through with their demands when compared to what happens in jurisdictions such as the United Kingdom with their ‘1922 Committee.’

The ‘1922 Committee’ is a group of backbenchers in the UK Parliament which provides a platform for them to discuss their views independently of the leadership of Parliament and to hold duty-bearers accountable.

The quality of vetting that Ministers-designate are subjected to, and Parliament’s seeming unwillingness to signal to successive Presidents the need to cut down on the number of appointees they submit for approval are other examples.

To this end, MPs join citizens to complain in the media about the huge number of Ministers and Supreme Court Justices, when they have the power to cause the Executive President to pull breaks on these appointments.

It took over two and half decades for Parliament to start admitting Private Members Bills. This ended the culture of leaving the power to set the legislative agenda of State entirely in the hands of the Executive.

Some have however argued that the 7th Parliament’s resort to a Resolution to decide to admit Private Members Bills, can be overturned by subsequent Parliaments, hence the need to consider enshrining it by passing a law that clarifies the scope for private members bills.

Parliament’s inability to prioritise the adoption and passage of gender-sensitive legislation in conformity with the Constitution has also been sharply criticised.

This is in line with the imperatives of Article 22(2) requiring Parliament to “enact legislation regulating the property rights of spouses” as soon as practicable.

Parliament conveniently leaving part of its obligations on Loans under Article 181 to the Judiciary to always interpret, remains a concern. How the number dynamics in the current Parliament has not made it possible to stop the Executive from bringing loan agreements to Parliament and demanding their immediate approval without time for the necessary due diligence as has been the case in the past, still beats the imagination of many people.

This is said to have contributed to the debt crisis the country now faces. How Parliament has allowed the ballot snatching and invasion of Parliament by soldiers on January 7, 2021 to go unpunished, including making it possible for people to get away with excuses on who ordered soldiers into the Chamber, is another example.

It is contended that the Executive cannot be blamed for the actions and inactions of the Legislature because there are enough constitutional provisions empowering Parliament to be a countervailing force and provide a balance.

However, Parliament itself fails to be assertive and in most instances, simply yields to Executive influence/dominance.

Recommendations
Many provisions of the 1992 Constitution on the mandate of Parliament are recommended for amendments.

These include amending Article 78(1) to free the hands of Presidents from appointing majority of Ministers from Parliament; amending Article 94 to provide for minimum academic qualifications and skill sets for entry into Parliament; amending Article 11(7) to allow Parliament to reject a Constitutional Instrument or Legislative Instrument by a simple majority and not by the current two-thirds threshold; and amending Article 104(4) to enable secret voting on matters relating to appointments, national security and approval of budgets.

Other structural changes to the Constitution are proposed, including to allow for the regulation of behaviour of Parliament such as to make it possible to have career MPs, hence incentivising people to stay longer there to help positively shape Ghana’s legislature.

The suggestion to make the position of Speaker of Parliament one that is held by an MP, and to separate the tenure of the Executive from that of Parliament to make room for the introduction of mid-term elections for some parliamentary seats, have also been considered as steps that may bring some urgency to the work of MPs.

Beyond constitutional changes, it is proposed that due consideration should be given to legislative and administrative changes that may be required to improve Ghana’s governance architecture.

This should include a comprehensive review of the Standing Orders of Parliament to provide for the voting records of MPs, better ways to account for MPs attendance, to appraise their performance, and to make MPs and the Institution of Parliament - including the Parliamentary Service - better accountable.

Another area worth a comprehensive relook is the committee system in Parliament. Reforms such as pruning down the number of MPs in each committee, increasing the number of committees chaired by MPs who are not members of the ruling party, and opening up most committee sittings to the public should be prioritised.

Professor Kofi Kumado, in his book, ‘A Handbook of the Constitutional Law of Ghana and its History’ put it subtly when he argued that “[W]hile it may be admitted that Parliament has worked the committee system admirably, it is not an exaggeration to state that more can be done, especially in terms of overseeing the work of the government.

But it is undoubtedly the output of the committees which makes it possible for Parliament to meet many of the targets. However, the lack of visibility in the work of the Committees robs Parliament of much of the credit it should enjoy from the public.”

To achieve better dividend from the work of the PAC, it is proposed that prosecution should be pursued to sanction improprieties arising from the Auditor General’s Report.

This could be done in liaison with the Judiciary. Another way is to have the Office of Special Prosecutor to take up all cases arising from Parliament’s work on the Auditor General’s report.

Electioneering processes that affect the effective functioning of Parliament should also be evaluated and reformed. This includes proper regulation of campaign financing; creating constituencies based on equal population quotas and not simply to increase the number of seats in Parliament; and relooking at the level of the President’s involvement in appointing the Chair and members of Electoral Commissioners i.e. reducing the President’s role and power in making such appointments and increasing Parliament’s role in this regard.

Perhaps the current hung Parliament comes at a good time to build broader consensus on matters of national interest. These include taking bold decisions on the conversations around capping the number of Justices at the Supreme Court, mindful of the need to review the law so that some cases terminate at the Court of Appeal to reduce the workload at the apex Court.

Blocking excessive number of ministerial appointments and discouraging ministerial reshuffles without bringing back reshuffled ministers to Parliament for vetting are also worth considering - to prevent the situation where people are vetted with specific focus on serving in a particular ministry, only for them to be moved to other ministries that are completely unrelated in mandate to the ministries their vetting focused on.

Conclusion
After three decades under the 1992 Constitution, it has become clear that it has served the purpose for which its framers designed it – which is to provide political stability to the country.

Newer challenges and occurrences have however exposed the insufficiency of the constitution; hence it is time for a comprehensive and critical review of same to make it a development document.

The twin challenges of creating what has been described as “an imperial presidency” and an increasingly weakened Parliament that appear to cede its birth right to the Executive, require urgent attention and constitutional actions.

Parliament in recognising that it still has the potential to entrench itself as a countervailing force for the country’s effective governance, must be willing to play a key role in the reform processes. These are necessary to free the institution from the shackles of excessive partisanship that has plagued it.

Our country needs to change for the better, and Parliament is a key stakeholder in that exercise. In the words of John Pym, an English politician who helped establish the foundations of parliamentary democracy, Parliament is to this country that “which the soul is to the body. It behoves us therefore to keep the facility of that soul from distemper.”