This Article was Inspired by Prof. Henry Kwasi Prempeh and STAR Ghana’s Programme Director , Amidu Ibrahim Tanko. It was first published on July 1st 2014.
It has come to IMANI’s notice that the Chairman of the Constitution Review Implementation Committee, Prof. Emmanuel V.O. Danquah suggests that it is too late for institutions to make inputs into the bill for constitution review[http://www.myjoyonline.com/news/2014/June-10th/constitution-review-committee-rejects-late-submissions-says-it-cant-suspend-process.php]. IMANI is by this publication urging a second look at what is being proposed for amendment and that time can only be of essence when the right set of laws are made for a citizenry that is hopeful for prosperity under a set of well organised rules . IMANI is not convinced that the amendment process in its current form will be beneficial to our democracy.
An essential characteristic of any well-established democratic dispensation is its ability to adapt to changing trends and needs of the governed. The most developed and advanced democratic and political dispensations of our time were not the best of fits at inception, but evolved making the goals of the past, present and future generations crucial to any well-meaning democracy.
Ghana’s political and economic evolution was no different; after colonialism, the geopolitical structure of the country evolved through military and intermediate democratic regimes until the fourth republic which has been characterised by relatively stable political and economic environment. During this journey to constitutional rule, we have been presented with opportunities to make drastic changes for which posterity will eternally hold us accountable. One can think of the repeal of the criminal libel law to enhance freedom of the press and recently the right to information which many lawyers fear will not be beneficial to citizens in its current form.
One such rare opportunity is burgeoning; the amendment of entrenched provisions bill, to make amendments to the 1992 constitution, and we appear to be misrepresenting and misconstruing constitutional stipulations, as well as neglecting historical antecedents and international best practices to further reform our democracy and deepen citizen participation in our democracy and most importantly set precedence for generations unborn that this land was once occupied by far seeing beings.
The proposed Bill is the outcome of a process of constitutional review which began in January 2010 with the appointment by then President John Atta Mills of a nine-member Constitution Review Commission (CRC), pursuant to the Constitution Review Commission of Inquiry Instrument, 2010, C.I. 64. The CRC submitted its report to the Government on December 20, 2011, following which the Government issued a White Paper in June 2012 accepting most, and rejecting a few, of the CRC’s recommendations for constitutional amendment. In October 2012, President John Mahama appointed a five-member Constitution Review Implementation Committee (the “Implementation Committee”) to undertake the preparatory steps, including drafting the appropriate bills, necessary to implement the recommendations of the CRC. In March 2014, it was reported that the Implementation Committee had submitted a draft bill for amendment of the Constitution to the Attorney-General. President Mahama later announced that his Cabinet was set to approve the draft Bill at its March 27, 2014 meeting.
Summarily, the Bill proposes changes to thirty-four (34) entrenched provisions of the Constitution and inserts seven (7) new entrenched provisions, which covers ten (10) different chapters of the 1992 Constitution. Given this background and context, fundamental issues relating to the inclusivity and representation of the governed throughout the process beyond ‘referendum’, and the inherent procedural challenges be they deliberate or unintended, have to be critically reviewed and considered in order to avoid setting a wrong precedence for constitutional reform and further move forward our democracy.
The Bill is Craftily Suspicious, process is non-inclusive and sidelines Parliament
The memorandum accompanying the Bill, which takes it spirit from article 290 of the 1992 constitution proposes the following stages prior to the passing of the Bill: referral of the Bill to the Council of State by the Speaker of Parliament for advice, following receipt of advice, the bill will be Gazetted and cannot be introduced in parliament for six months after which the referendum will be held (at least forty percent of the persons entitled to vote, voted at the referendum and at least seventy-five percent of the persons who voted cast their votes in favour of the passing of the bill), sequel to which it will be passed by Parliament and assented to by the President.
It appears from the position of article 290 that the role of parliament and effectively the public is a passive or “rubber stamp” one throughout the process. This interpretation is very dangerous on several fronts; the overbearing influence of the executive from its proposition of the Bill, through the setting up of CRC and the CRIC to the advice from the Council of State, and assent by the President. It would appear that the referendum presents the governed with an opportunity to participate in the process. Though it is expressly the case, in practice the proponents of the Bill could malign the process via “logrolling”- packaging or lumping together several disparate proposed amendments into a single amendment bill to be voted upon as a single issue.
A critical look at section (2) of article 290 reveals that a more than passive role is reserved for Parliament and by extension the public in the process. Parliament is empowered and required to “consider” any Bill for amending an entrenched provision (after the Council of State has had the opportunity to review and advice upon it). There is no reason to require or empower Parliament to “consider” a Bill other than to give Parliament, at the minimum, an opportunity to make or provide substantive input for revising or modifying the original Bill. It should be noted that, Parliament’s power to propose amendments to a Bill is a necessary incident to, and thus necessarily implied in its power to “consider” a Bill. It need not be expressly stated. However, where the Constitution intends to deny Parliament its inherent revision or amending power in relation to a Bill, as in article 108 (pertaining to financial matters), it is necessary for that limitation on legislative power to be expressly stated. The fact that article 290(2) also requires Parliament to solicit the “advice” of the Council of State before proceeding to consider an amendment Bill lends further support to our understanding of the active role Parliament is expected to play in the amendment process. Again, there is no point in requiring the Council of State to render its advice on the Bill or Parliament to obtain the advice of the Council of State on an amendment Bill if Parliament is without power to act on it.
Section (4) of article 290 makes a provision which appears to limit the role of Parliament in the process. This interpretation however falls apart upon a critical analysis of the sequence of events prior to the passing of the Bill. Section 4 of article 290 provides in part that, “After the bill has been read the first time in Parliament it shall not be proceeded with further unless it has been submitted to a referendum held throughout Ghana . . . .” This provision can only be triggered after the Bill has been considered by Parliament (under section 2) and, then, published in the Gazette for a period of six months (under section 3). In effect, there is a clear logical sequence to sections (2), (3), and (4); section (3) occurs after section (2), and section (4) after section (3). What section (4) means, then, is that, once the Bill has gone through those earlier processes outlined in sections (2) and (3), no further legislative action on the Bill is warranted; the Bill is now in final form, ready to be put to a referendum. Parliament’s duty at that stage is a purely procedural one; it must subject the finalized Bill to a First Reading but no more—indicating that, no further substantive change or legislative action may be taken on the Bill at that stage.
One central issue that the proposed Bill seeks to amend is the marginalization of Parliament in terms of balance of power and to aid it to effectively undertake its legislative responsibilities. It is defeatist in principle and practice and on a scale of good governance if the process for passing the Bill effectively renders Parliament ineffective in making contributions to the process following the receipt of advice from the Council of State.
As mentioned earlier, the process of constitutional review has been driven, from the beginning, solely by the executive. The decision to initiate a review of the constitution was a decision of the President; the appointment of the nine-member constitutional review committee was the President’s decision; the decision to accept or reject portions of the recommendations of the CRC was a decision solely of the Government; the Implementation Committee was appointed singlehandedly by the President; and the draft Bill that is now ready for consideration is submitted in the name of the Government by its Attorney-General. Following the control of government by just one political party in our dispensation, a constitutional review process that is initiated and driven entirely by the president and appointees of the president risks being perceived or characterized as a non-inclusive, partisan or single-party project, and ultimately be counterproductive. The population of Ghanaians and civil society who feel excluded from having a rightful say in determining the final content of the amendment Bill could mobilize and campaign against approval of the proposed amendment.
Finally, it is standard practice in nearly every established and contemporary constitutional democracy for the national legislature to play an influential and a substantive role in amending the constitution. In some cases, the legislature has the right independently to initiate the process of constitution review and amendment. In others, it shares this right with the executive through passage of legislation setting in motion the process of constitution review and appointing a commission. However, regardless of who initiates the process, the common practice is that, at some stage in the amending process the legislature must enter the picture and play its deliberative and substantive role in developing, reviewing, or proposing changes to the proposals for amendment, both as to entrenched and non-entrenched provisions. Thus, any plan to amend entrenched provisions of the 1992 constitution without substantive input from Parliament on the draft Bill will be extremely inconsistent with international best practice in the area of constitutional amendment.
Another precarious issue bothers on logrolling separate and unrelated amendments into a single Bill for a referendum. The current proposed amendments, all of which are almost unrelated in subject matter and their possible effect, and affecting 10 different chapters of the constitution does not create the necessary room for each and every amendment to be considered on its own merit. Consequently, voter will be compelled to vote to approve an amendment that he or she does not support but which is interlocked with another provision that the voter strongly favours. Whether it is so intended or not, this sort of strategic manipulation of voter’s choice in relation to a proposed amendment does not comport with a plain or purposive reading of the relevant part of article 290(2). As is currently drafted, the Bill the Government proposes to place before the people of Ghana in a referendum to approve certain amendments to the Constitution comprises multiple proposed amendments. In all, as previously noted, the Bill seeks to make changes to 34 existing entrenched provisions and add 7 new such provisions, together with related consequential and transitional amendments. A look at section (2) of article 290 reveals that, the provision requires “a bill to amend an entrenched provision,” not a bill to amend several, unrelated provisions. In other words, each proposed amendment must stand (or fall) on its own merit; it must not be tied together in the same amendment bill with other unrelated proposed amendments.
The Way Forward
In the light of the above and for the purpose of setting the right precedence for constitutional reform in Ghana, and to ensure an inclusive system of governance which empowers Parliament to play an active role in our governance system, clear consideration must be given to Parliament as an institution to make inputs and also invite civil society groups to also make inputs into this Bill, in order to draw on the general expertise of the public. Going forward, several amendments proposed and contained in the Entrenched Bill should be separated into different amendment Bills, each Bill covering only one amendment or a cluster of related amendments. As a sovereign nation which exists in a global political sphere, it is important that issues relating to grey areas of democratic practices, we learn from best practices from across the international community, in order to develop for ourselves a democratic system of governance that will stand the test of time.
This Publication Has Been Aided by an Associate of IMANI. For interviews, please contact IMANI’s Research Coordinator, Patrick Kwabena Stephenson on 0243336819