Towards more relevant constitution

It struck me on Constitution Day last week, as I sat in my garden drinking cold beer, that our constitution is actually thirty years old. I was in final year at university when the Constituent Assembly to put the draft together was announced. I took a particular interest in the process because I was a political science undergraduate.

Of course, the Rawlings government did not just wake up and decided, in a spirit of benevolence, to bless us with transition to democratic rule. A number of local and international factors came together to mount pressure on the government. Finally, on March 6, 1992, Chairman Rawlings announced a timetable to civilian rule. There was speculation that he would simply shed his military fatigues, run as a civilian candidate and win.

Referendum

When it came to a referendum on the draft document in April 1992, the opposition elements were caught in a fix. They hated many aspects of the constitution, particularly the Transitional Provisions, and deep within their hearts they wished they could mount a vehement ‘NO’ campaign. But they were also smart enough to realise that if the draft document was not approved, it would be back to square one and the Provisional National Defence Council (PNDC) government would remain in place – at least for quite some time. This would amount to cutting their noses to spite their faces.

This was a prospect that they did not relish, so with the bitter taste of vinegar on their teeth, they gave the draft document their tepid blessing. It was ultimately approved by 92.59 per cent of the valid votes cast, paving the way for the lifting of the ban on political parties on May 18, 1992 and ultimately leading to the election of Jerry Rawlings in November that year on the ticket of the newly-formed National Democratic Congress(NDC) and the ushering in of the Fourth Republic on January 7, 1993.

Evolving document

If a constitution governs a state, and no state is frozen in time but rather is an evolving, dynamic structure, then it follows that a constitution cannot be seen, by any stretch of the imagination, as a frozen document, but rather responsive to the evolution of that society, and to reflect it accordingly. Amendments are an important tool, therefore, to ensuring that a constitution remains relevant to the society it governs. Of course, the danger is in running to tinker with it every few years, which would suggest that it was probably poorly drafted in the first place.

For instance, the American constitution has been in effect since 1788. It has been amended only 27 times in 235 years, with the Bill of Rights (the first 10 amendments) ratified just three years later, almost as an extension or appendix to the Constitution itself. What has happened is that in many instances, judicial interpretation of the ancient text of the constitution has decided many of American society’s fundamental issues that were not envisaged by the Founding Fathers, such as abortion, burning of the flag, prayer in schools, disability rights and others. Free speech, in particular, has seen its boundaries pushed and stretched in many hitherto unimaginable ways that did not require constitutional amendment.

Amending the 1992 Constitution

I believe that three decades on, every Ghanaian who is familiar, even if cursorily, with the text of our constitution, will be able to point out a thing or two that need change. Personally, my pet peeves are the lack of a defined upper ceiling to the number of judges on the Supreme Court, the requirement that the President must select at least half of his ministers from Parliament, the insistence that the Commission on Human Rights and Administrative Justice (CHRAJ) can only investigate matters that have been reported to it, and the lack of an Independent Emoluments Commission to replace the Article 71 emoluments process in the constitution.

To its credit, the Prof. John Evans Atta Mills government, in 2010, took some steps towards constitutional reforms with the inauguration on January 11, that year of a Constitutional Review Commission chaired by Prof. Albert Kodzo Fiadjoe, pursuant to the NDC’s 2008 electoral campaign pledge. The commission’s mandate was to ascertain and articulate Ghanaians’ concerns about the constitution and subsequently make recommendations to governments.

The commission submitted its report to government on December 20, 2011 and government subsequently issued a 48-page White Paper, accepting some of the recommendations and rejecting others. That is when the trail ran cold, and the report continues to gather dust. I think it is important to revisit this project and probably restart the whole process, as a lot of water has passed under the bridge the decade or so since the Fiadjoe Report was issued.

New constitution?

There are those who bemoan our current constitution as the source, or at worst, an abettor of all our governance ills – be it abuse of office, corruption or others. Their recommendation is as simple as it is radical – abolish the constitution and enact a completely new one relevant to our society.

I struggle with this argument for the simple reason that I am not sure if it is necessarily the entire text of the constitution that is the problem, even though some changes are necessary. As Cassius said to Brutus (in Shakespeare’s Julius Caesar) ‘The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings’.

In other words, we can have the most elegant, perfect constitution (if there is such a thing) that hits all the right notes, but which will not solve our issues if both citizens and leadership are weak and public integrity is absent. As it is often said, Ghana has some of the most beautiful laws known to man, with enforcement being our bane.

Constitutional territoriality

One of my favourite writers, particularly on constitutional issues, is the Executive Director of the Centre for Democratic Development (CDD), Prof. H. Kwasi Prempeh.

He argues that constitutional guardianship is first and foremost, an entitlement, indeed the duty, of every citizen and every public official, and that ‘importantly, every institution or office established under the constitution, be it the President, Parliament, Electoral Commission, Auditor-General, CHRAJ, the courts, etc., is entitled to assert and defend what it believes to be its rightful constitutional mandate and prerogatives’.

Ultimately, it is up to us, the people, to decide just how robust or insipid we want our constitution to be. A constitution that is fit for purpose is a matter of eternal vigilance and activism, and certainly not for timorous souls.

Rodney Nkrumah-Boateng,
Head, Communications & Public Affairs Unit,
Ministry of Energy,
Accra.
E-mail:rodboat@yahoo.com