Stemming a tide

So far, the level of dissent demonstrated by activists and supporters of the National Democratic Congress(NDC)  against nominees for appointment as district chief executives has been far and few between, muted or contained this year as against what we witnessed in the past.

It may well be that those so far rejected by the assemblies were not popular with the party fanatics or footsoldiers.

Even the demand from the Tema Traditional Council  for an indigene to be appointed as chief executive has been measured as we wait to see the next line of action.

The  President, based on the power and authority vested in him by the law, has made his choice and appointed the person about whom the council had premonition and decided to speak out against, thus he has acted in spite of the feelings of the chiefs and people of Tema.

Now, everybody is justifiably upholding the fact that the President is performing his duty legitimately and lawfully and must not be undermined by party supporters or concerned citizens.

That is as it should be, such that the President is not hindered from exercising a basic function of appointment as a constitutional duty.

This is important and imperative because even in situations where  the President has to consult others identified in the Constitution, before taking any action, since consultation is not a term of art,  the President takes responsibility for such duties and obligations.

He is not bound to endorse  the recommendations of the consulting body.

In the case of the nominations of district chief executives, the full force of the state security and coercive powers are usually deployed to safeguard the decisions of the President, thus helping to contain or reduce the impact of dissent from derailing the process.

It means that every effort is made to give meaning and legitimise the choices of the President.

But that is where our hypocrisy about respect for the rule of law and due process begins to crumble.

Chief Executive

 Article 243 (1) of the 1992 Constitution provides that, " There shall be a District Chief Executive for every district who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the Assembly present and voting at the meeting".

The Constitution provides two layers towards the appointment of the district chief executive.

First, the person must be appointed  by the President and then approved by the assembly.

But whilst public officials would do everything to give meaning to the powers of the President , they do everything to pervert and undermine the will of the representatives of the people at the grassroots levels. 

Where the President appoints those with unconditional support of party footsoldiers, assembly members seem to have no discretion to  vote against such an appointee.

Where appointees accepted by party fanatics are  rejected by the assembly members, hell usually breaks loose as if the assembly members have acted criminally.

Some public officials and party loyalists equate any  rejection as  a snub or disrespect of the President, but not working according to the law.

The problem is diffused as we have seen it from every one of the governments under the Fourth Republic.

Under President Kufuor, I had the privilege to openly express my views under my column,  describing  as not only unlawful but subversive of constitutionalism and democracy, the tendency where government officials, in particular, the Minister or Deputy Minister of Local Government, attended  approval meetings for district chief executives with dismissal letters of government appointees in their pockets.

Thus depending on the outcomes, government appointees to the assemblies were maintained or removed instinctively instantaneously.

However, the coercive and security powers of the state are not usually deployed to protect  assembly members who are left vulnerable and exposed to the bestialism of the party hoodlums

Many times, they are subjected to violent physical assault whilst security personnel look on passively.

Often after the act, no one gets arrested or prosecuted, but if the rule of law and democracy are to triumph, assembly members are to be protected as the first layer of elected representatives of the people towards their functional development.

 Two-thirds majority

Seriously, it is far easier for appointees to get approval if they are perceived to be competent and capable by the assemblies because all that is required is for the necessary quorum to be formed and thereafter, to secure a two-thirds majority of those present and voting.

At the same assembly level, the Presiding member is required to secure not less than two-thirds majority of all the members of the assembly.

A concomitant of the process is that where the nominee secures half of the votes of those present and voting, the candidate has the privilege of going through a second round of voting.

The position of the law is that if the candidate fails to get half of the votes at the meeting, that nominee must be withdrawn. However, as part of the subversive intrigues, the President is sometimes inelegantly encouraged to renominate such individuals after a lapse of time.

It happened to Nana Akwasi Agyemang under an NDC administration, when he failed to get the 50 per cent mark at the first voting.

He was temporarily withdrawn and after some time, renominated to be voted for again as the chief executive of the Kumasi Metropolitan Assembly.

I wrote about it and pointed out what I considered to be a subversive act.

I condemned the stealth with which he was smuggled or stolen back into the process but my advocacy went  without support.

Stem the tide

My position is that as we go through the process, we must  do everything to stem the tide.

We must motivate ourselves and each other to give meaning and respect both parts l of Article 243(1)  which emphasise the power and authority of the President to nominate a candidate for approval as a district chief executive, as well as the portion which empowers the district assemblies to approve or reject appointees.

We must stop the practice of deliberately scorning and doing everything possible to undermine the other part which puts the approval within the domain of the assembly. 

Accordingly, the protection that the state offers to give meaning to the powers of the President must be the same when it comes to the assembly members because they both derive their power and authority from the same article in the 1992 Constitution.

As the good book says, it is the same God who said do not kill, who also said do not steal.

Thus whether you steal or kill, you have broken the law.

If the law wanted to make the approval by the assembly members inferior or subservient to the appointment power of the President, it would have said so with certainty.

Act 243(1) is clear and unambiguous.

We must respect the spirit and letter of the law.

Therefore, we must ensure that no nominee who in the first instance secures less than half or in the second round fails to get the required two-thirds, of the votes cast by members of the assembly present  and voting, at any meeting for the purpose of approving a district chief executive must be brought back.

We need to give meaning to both the spirit and letter of the law, and secure the balance between the power and authority of the President to nominate and the right of the assembly to approve or reject the nominee.