CABINET SUBVERSION OF THE COLLECTIVE WILL: The President (late John Mills) relied on a constitutional mandate (Article 278) to produce the Constitution Review Commission of Inquiry Instrument, 2010 (C.I. 64). This birthed and backed the CRC in its year long work. On the strength of Article 280, he later issued a White Paper on 15th?June 2012. But can it be said that on this special occasion, Cabinet did/has not attempted to subvert the collective will? Coup! Cabinet torpedoed the collective will by its half-hearted handling of the CRC report. Yes, it accepted over 90% of the recommendations, but it is equally evident that the few rejected form easily the most fundamental, thoroughly significant aspects. Any surprise that key civil society groups, individuals and politicians are now staging counter-coups? The coalition of CSOs that has the IDEG and IEA, as well as 2012 Presidential Candidate of the CPP, Dr. Abu Sakara demand that the Constitution Review Commission Implementation Committee – CRCIC halts the concluding processes until what they insist is the urgent but missing issue of the ?winner takes all? syndrome is addressed. There is also the respected litigious U.S based Prof. Stephen Kweku Asare who cries that Parliament?s role has been usurped and that the CRC and all it has done is a?nullity.
THE WILL PRE-DATES THE COMMISSION: The CRC was inaugurated by President Mills on the 11th?of January 2010. Truth is, this wasn?t his idea. But he takes credit for showing he had a listening ear and decided to take care of a major concern earlier expressed variously by many. The CRC acknowledges this when it says its establishment ?was an outcome of many fervent calls by Ghanaians to fine-tune the Constitution in order to advance the key democratic gains made since the return to constitutional rule on 7th?January 1993.? Perhaps the African Peer Review Mechanism (APRM) might be rightly credited with being the body that was first to present a formal document in 2005 outlining the many shortfalls in the constitution needing change. Of course, concerns about the large size of Cabinet, MP?s doubling as Ministers ? an obvious set up that undermines effective legislative check on the Executive, calls for a Public Prosecutor independent and separate from the Justice Minister were not new. In fact, President John Kufour committed himself to the process in an AU meeting in Khartoum in 2006.
WHAT BROAD CONSULTATIONS?:?The CRC had arguably one of the finest legal brains in the country with sufficient international standing in Prof. Albert Fiadjoe as its Chairman plus a solid team.? They held consultations in all 170 districts, did follow-ups, visited homes, attended meetings and gatherings of various interest groups. They met ex-presidents and vice president, sitting and retired judges, sitting and ex-speakers of parliament, organised labour, party leaders, et al. Held regional and national consultations, sought the views of our kith and kin abroad and concluded with a huge national symposium.
THE NATIONAL WILL IN A 1000-PAGE REPORT: The 6.7 million dollars investment gave us what is now the biggest socio-political database ever in the country?s history. Over 57 sessions, over 83,000 submissions, SMS and varied new media platforms employed?towards?transforming a political constitution to a developmental constitution. The President received the document on 20th?of December 2011.?The report contains the will, dreams, hopes and aspirations of the people for what should be their new Ghana. They spoke loudly, among others, that they wanted the job of prosecutions taken away from the Justice Ministry. The CRC rightly echoed the proper interpretation of Article 88 that it takes a simple?administrative action?(not amendment)?to decouple the position of the Minister for Justice and Attorney. Is there an explanation why this ideal has not been done as yet?
THE CHERRY-PICKING WHITE PAPER COUP: The report contains recommendations on every aspect of all the critical issues that attracted the mountain of oral and written proposals ranging from why Ghanaian presidents who get hefty ex-gratia do not pay taxes, why MMDCE?s are not elected, to reducing the period of pre-trial detention from 48 to 24 hours. Government, for instance, accepted the recommendation for the President to pay tax on his/her salary and emoluments just as is required of every citizen. It is curious why and such retrogression in efforts at advancing fundamental human rights, freedoms and justice to reject the proposal to reduce the pre-trial detention period from 48 to 24 hours. A?suspect?might still be kept that long upon arrest before he is produced in court. It means the police officer on a frolic of his own, who assumes unlawfully the job of a debt collector and forces a criminal character upon a purely civil-commercial matter, can still maliciously arrest his powerless prey a day or two before the weekend or a public holiday and to either grant him police enquiry bail or produce him before a court well beyond the limited time without fear of any sanctions. Why reject the wisdom of the people in their desire to make the National Development Planning Commission – NDPC independent and its development policy plans bidding on all successive administrations?
THE COUNTER-COUP NO.1: First, Prof. Stephen Kweku Asare, a man I admire for his crusading constitutional battles at the Supreme Court that have brought benefits to the nation, is convinced the CRC was dead at birth and all it has done ought to be declared unconstitutional and?void ab initio. I have had the privilege of listening to his arguments and privately reading his dossier. He contends mainly that the Article 278 power upon which the President set up the CRC has been misread and misapplied to clothe the President with power he does not have. The relevant clause is effectively that the President can by constitutional instrument ?appoint a commission of inquiry into any matter of public interest?. Prof. Kweku Asare argues strenuously that this power does not extend to a lead Executive role for the purposes of reviewing the constitution, and that the Executive has usurped exclusive parliamentary powers. I wish he would go further and exhibit his characteristic litigious drive to make this point at the Supreme Court. But I am afraid I am fortified in my reading of the law that such a move would be a vain experiment. That the locus or very legal foundation of the CRC and the CRCIC would have escaped Prof. Albert Fiadjoe, Dr. Raymond Atuguba, Gabriel Pwamang and the many other sharp legal brains who worked on the Commission or consulted for it is also difficult to contemplate.
COUNTER-COUP NO.2: Now let?s examine what the coalition of CSOs under the platform Civic Forum Initiative (IDEG, IEA, et al) insist is the most important element not addressed by the CRC or the CRCIC and which necessarily must be addressed before the CRCIC submits the finished work (note that the CRCIC has already submitted this finished work) for amendments through Parliament and a Referendum. But first, is their claim fact, because seemingly unknown to the Coalition what they demand has been dealt with in various forms in the report:
- There is specific reference in the report about the urgent need to check political polarization manifested in the ?winner takes all? syndrome which is blamed for rise in corruption, bribery, and violence because political parties do want to use all means possible to win elections. Some participants even suggested the abandonment of the current system of governance for various other alternatives including a certain OMANDOCRACY ? (i.e. in Asante Twi meaning love for country). Government in its White Paper accepted recommendations for various actions, administrative and legislative to check winner takes all. The CFI has also wants closed sessions for electioneering campaigns as one of the measures to deal with the rising tide of politicization of every issue. But this also has already been recommended and accepted and amendment of the Political Parties Act expected eventually for the purpose. The measure with reference to the specific subject of ?winner takes all? may be said to be inadequate, nonetheless.
- Proposals of practical efforts at removing ?winner takes all? are littered all over the report. They are manifest in recommendations to, literally speaking; clip the wings of the president. Recommendations at page 282 on recruitment and appointment of public officers are all aimed at delivering this goal. There is the recommendation for the President to only appointment political appointees like presidential staffers, ministers and a couple others while various other heads of public entities are left to the Public Services Commission or boards and corporations. There are obvious safeguards in the accepted recommendations for the appointments of heads, deputies and in some cases members of independent constitutional bodies like EC, CHRAJ, NCCE, Auditor-General be appointed by the President in consultation with the Council of State and subject to parliamentary approval with a ten year non-renewable tenure of office for some of the heads.
- The recommendation at page 67 for a multi-partisan NDPC so that each of the major political parties will send a representative with relevant professional expertise to the NDPC. Plus the rejected recommendation to make the commission’s long term economic policies binding on all successive governments, and for citizens to have the right to sue a government for not enforcing them.
- Again in the recommendation, what is the purpose of requiring the President to now appoint only five instead of eleven of the 25 member Council of State, and for what purpose is the recommendation for the President cease selecting who chairs the Council, as has been the norm, but rather to relinquish and hand over that role to the elder statesmen and women of that body?
- The recommendations to make the offices of the MMDCEs partly largely elective which is also partly rejected by government including a rejection of the proposal for chiefs to design the criteria for their active participation in the President’s appointment of 30% of members of the district assemblies.
ULTIMATELY: Contrary to the impression that the CRC report is silent on how to deal with the winner takes all syndrome, I humbly submit that enough has been planned to start the process to deal with the ?winner takes all? syndrome in the report. It is a fair and good start if the CRC?s recommendations are fully implemented. But just imagine what would be left of this syndrome if local level authority is made elective and devoid of the dilution government is seeking to introduce to the recommendations. There certainly shall be no ?winner takes all? for the NDC government in districts where opposition parties like the NPP do well in competitive free and fair elections. If the current campaign by the named CSOs is for a structural change in the current executive presidential arrangement, and I have heard them suggest Proportional Representation system, then I invite them to consider Prof. Larry Diamond of Stanford University?s observation. I put the question to him and he simply asks the campaigners what sort of Proportional Representation they are advocating as a better alternative to deal with the so called ?winner takes all?. He then invites them to observe what a poor democracy South Africa is practicing Proportional Representation.?I hold the view, respectfully, that the bigger and more appropriate pressing demand to make now is to insist that Cabinet is not allowed to whittle down or subvert the collective national will and aspirations as captured in the CRC report through its White Paper. The final work may have effectively left the desk of the CRCIC leaving it (may be) with no legal authority to further deal with the draft in the manner being sought. But isn?t there the option of supplying a supplemental if recalling the draft from the Council of State and Parliament are non options? Members of Parliament could also be brought onto the course of the citizenry to uphold and firmly secure the collective popular national will.?For the amendment process to receive greater legitimacy and acceptability, it ought to be more a legislative/parliamentary and not a seeming illegal executive one imposition.?The peoples? counter-coup ought to find expression in law and ought to succeed without further delay. It is a shame, though, that the Ghanaian people know nothing or very little about the contents of the drafts for Parliament and for a Referendum later this year or early next year, and it has to be said that the CRCIC is failing badly in this regard. But more critically, which draft contains the 41 entrenched provisions, and which draft contains the 56 non-entrenched provisions slated for amendment, and is it the CRC?s draft bills or drafts freshly done by the CRCIC/Cabinet and by what authority? Coup!
By: Samson Lardy ANYENINI, Attorney @ Law/Host of NewsFile
