COVID-19: AN OPPORTUNITY FOR PARLIAMENT TO SHOW WISDOM by Inkum Isaac Arko

It would be a deliberate cliché for me to bombard readers with the catastrophe caused by the coronavirus in our world, listing how it has gravely infested not just human beings, but economies and the public safety of nations. Nonetheless, this pandemic presents an opportunity for institutions to show tact, vision and wisdom. One of such institutions is the Parliament of Ghana. The purpose of this article is to express my opinion, however broad, on why I think our incorporeal enemy: COVID-19 presents the Parliament of Ghana an opportunity to show wisdom.

In Ghana, our Constitution 1992 carefully details the role of Parliament in our country. The whole of chapter ten is dedicated to treating the nature of the Legislature we have in Ghana. Article 93 states that (1) “There shall be a Parliament of Ghana which shall consist of not less than one hundred and forty elected members. Clause 2 of article 93 is even more important, “Subject to the provisions of this constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.”

Nana S. K. B Asante also known as Nana Susubribi Krobea Asante, Omanhene of Asante Asokore, who was the Chairman of the Committee of Experts which drafted proposals for the 1992 Constitution of Ghana on page 32 of his lecture titled “REFLECTIONS ON THE EVOLUTION OF THE 1992 CONSTITUTION OF GHANA” made an interesting remark, worthy of recall. He wrote, “Parliament under the Fourth Republic has grown in stature as an effective legislative body and as a forum for serious national deliberations.”  I could not have stated it in a much decorous way as he did. To corroborate that, I would make reference to Prof Abosti’s statement in his book titled, “CONSTITUTIONAL LAW OF GHANA, TEXTS, CASES AND COMMENTARY”. On page 106, he also elaborated on the legislature, “The legislative power of government is vested in Parliament. Parliament’s power in this regard is constitutionally derivative and regulated and is accordingly limited in scope. In other words, Parliament’s power and capacity to make laws is subject to the overriding limits imposed by the Constitution which acts as a barometer in determining the validity of laws it passes.” These propositions referenced testify that the role of the legislature in every constitutional set up is so crucial. The 7th Parliament of the Republic of Ghana led by the Speaker, Honourable Professor Mike Ocquaye, came into existence on 7th January, 2017. Ever since, this Parliament has seen to the approval of budgets and making of laws that are needful to help advance the course of democracy and constitutional development of the country.

In the wake of this pandemic, citizens have been observing physical distancing, washing of hands with soap under running water, and applying sanitizer to prevent themselves from contracting the coronavirus. However helpful these hygienic practices have been, they have not curbed the spread of the virus. This has compelled governments all over the world to activate various degrees of lockdown. It means under the Ghanaian law known as the Restriction of Imposition Act, 2020 (1012) citizens are supposed to stay home. The dictates of this order do not countenance public gathering and the carrying out of any public activity. Majorly, it has caused an indefinite hiatus in the work of the Electoral Commission which from the beginning of the year had slated some activates to be carried out in preparing for the 2020 Ghana elections. More so, all activities of the National Identification Authority have also been halted for the sake of observing the “stay home” regime. It is as a result of such indefinite hiatus in public activities of the institutions mandated to see to organizing the nation for the 2020 elections which has ignited a legal debate amongst the citizenry on what happens to this year’s election if by 7th December 2020, we still have not conducted both the presidential and parliamentary elections. The question has been, WHAT IS GOING TO HAPPEN?

There are two scenarios we have to consider. The first is, if this pandemic should linger on to an extent where it eats into our national elections’ timetable, to the point where we would not be ready to hold elections by 7th December 2020, then we would be confronted with a unique situation in Ghana. The second is, if this pandemic by dint of Grace should be extinct or the curve should flatten incredibly enough for things to quickly resume its normalcy, then I suppose the Electoral Commission and other institutions could still go ahead and work within time for us to have the national elections. For the sake of hypothetical analysis, my focus is on the former.

A lot has been said recently about how if there are no elections on 7th December, 2020 and the current Government’s tenure of office ends, we would have no President, and no Parliament. This is simply stated in the Constitution of Ghana. In article 66(1) of the constitution titled: “Term of office of the President”, it states, ” (1) A person elected as President shall, subject to clause (3) of this article, hold office for a term of four years beginning from the date on which he is sworn in as President.” President Akufo Addo came into office on 7th January 2017. It means come 7th January, 2021, his four-year constitutional mandate will be over and he cannot be President until there has been an election to re-elect him. Also, the 7th Parliament of Ghana came into office on 7th January, 2017. In article 113(1) titled: “Dissolution of Parliament”, it states ” Subject to clause (2) of this article, Parliament shall continue for four years from the date of its first sitting and shall then stand dissolved.” Calculatedly, it is obvious that the tenure of office of the current Parliament will be over, come 7th January, 2021. As for Parliament, there are certain conditions provided for by the Constitution under which Parliament can extend its four-year term. Those conditions are stated in 113(2) of the constitution to be precise. This scenario if it should happen would be an unprecedented situation in our country’s election calendar. Can you imagine this? No President, no Parliament? The machinery of government will grind to a halt and this burden would add on to the overwhelming pandemic situation. There has been diverse legal analysis as to what would happen if the scenario presented should be our reality in the coming months. I will attempt to explain some of them.

 

ACTIVATION OF EMERGENCY POWERS

There are those who have argued that the pandemic offers the President the opportunity to declare a state of emergency as stated in article 31. Article 31 has 10 clauses, laying out the processes by which the President can declare a state of emergency. Clause (1) of 31 states, “The President may, acting in accordance with the advice of the Council of State, by Proclamation published in the Gazette, declare that a state of emergency exists in Ghana or in any part of Ghana for the purposes of the provisions of this constitution.” We have to note that for the declaration of state of emergency to be valid, it has to be deliberated and receive the endorsement of Parliament as stated in clause (3) of Article 31. That means there could be a situation where Parliament, after deliberation, decides that the Proclamation of state of emergency should not remain in force. Whichever way it swings, there is the thinking that once the President declares a state of emergency and the declaration is validated by Parliament, the President can extend his four-year period beyond what is mandated in Article 66 (1).  I shudder to think how this would not lead to disagreements even by the minority in Parliament which is a make-up of the opposition party, if a state of emergency should be declared at this time of the year. I say so because we are in an election year, with a very high stake for election and any attempt of the ruling government to prolong the term of office of the President beyond the stipulated four year period would raise controversies, irrespective of the reason why the declaration of a state of emergency has been proclaimed. For instance, if the President were to declare a state of emergency sometime in the first year or second or even third year of his tenure of office, certainly that would not create much controversies since by then the President would be three or two or a year shy from his tenure of office. But in such a scenario, the timing is a factor. Irrespective of how grave the thing causing a state of emergency could be, once that state of emergency is declared in a time where we are left with few months to election, some members of the opposition or Ghanaians could raise issues, arguing that the President wants to use the state of emergency to prolong his stay in office beyond the four year period. Yes, it is true that a proclamation of the state of emergency has to be deliberated by Parliament as to whether it has to be accepted or not, at the end of the day, it boils down to a majority of all members of Parliament as stated in Article 31(6) (7). Currently, the New Patriotic Party which forms the government has 169 seats in Parliament. The National Democratic Congress which forms the opposition has 106 Members of Parliament.

In such matters, the Majority in Parliament alone can constitute a “majority” stated in Article 31(6) (7). Albeit it will be constitutional, it could still resurrect controversies and misunderstanding amongst the majority and minority members. At a time when we need peace and co-operation, and unity, we should not permit the slightest action to rob us of that unity, especially in a time when we are already battling a pandemic. To look at the flipside, I have read a paper written by Selikem Donkor, a learning colleague, who has carefully analysed this issue. According to him, the President cannot use Article 31 to extend his four-year period when it is due. He argues that the then Parliament of Ghana passed the Emergency Powers Act 1992, and per sub section 2 of section 5 of that Act, government could suspend the operation of a law within a state of emergency. He concluded that the word “Law” deployed under the aforementioned section is exclusive of the constitution and “even if it was intended to mean the power to suspend the constitution. I shall here contend that parliament does not have the power to suspend or authorize the suspension of any part of the constitution and to that extent, that power is nugatory. On this ground, emergency powers, if granted, do not suspend Art 63 and to that extent, upon the expiry of 7th January, the term of office of the president shall duly become vacant whether or not there is a state of emergency or otherwise.” If this reasoning is anything to go by, then activating emergency powers would come with its legal complications and controversies.

ACTIVATION OF ARTICLE 57(2) and 60(11)

Article 57 which is titled, “The President of Ghana” in clause (2) gives us a certain hierarchy of leadership. It says, “The President shall take precedence over all other persons in Ghana; and in descending order, the Vice President, the Speaker of Parliament and the Chief Justice, shall take precedence over all other persons in Ghana.”

This structure brings into focus the three arms of Government: The Executive (President and Vice President) Legislature (Speaker) and the Judiciary (Chief Justice). A section of thinkers have reasoned into this provision and concluded that if come 7th January, 2021, the four-year term of both the President, Vice President and the Speaker would have elapsed, then the fourth man on the hierarchy is the Chief Justice and therefore the Chief Justice can act as President for the period until such a time that elections can be scheduled. This call has been vehemently disputed by many and I can appreciate why. As a country, we have been presented by such a situation before. I refer to an article published by Kojo Akoto Boateng of Citi FM, six years ago. In that article titled, “Presidency of Ghana left vacant”, the facts were that the then President John Dramani Mahama had travelled to Nigeria to hold talks with the then President Goodluck Jonathan concerning the Boko Haram situation. Also, his Vice, then Paa Kwesi Amissah-Arthur of blessed memory, had travelled to the United States’ city of Houston, to attend an international summit on oil and gas. Meanwhile, the then Speaker of Parliament, Edward Doe Adjaho had also travelled to Korea on an official visit. So, per the facts, all the three persons who are supposed to take precedence in Article 57(2) were out of the country. Of course, it is not unconstitutional to have all three persons traveling outside the country at the same time. Perhaps it is something that the framers did not look into and provide a provision to prevent that situation. When it happened, the then Minority Leader in Parlimament, Osei Kyei Mensah Bonsu when asked as to whether the Chief Justice, who was in the person of Her Ladyship Georgina Woods could be sworn in as acting President, this is what he said “if the three [the President, the Vice President and the Speaker of Parliament] of them are absent, there cannot be any other acting president; that is the language of the constitution”. He went on to say that  “No, the constitution doesn’t make any such provision; in the pecking order of personalities of importance the constitution talks about the President as the first gentleman of the state and then in that descending order you have the Vice President, the Speaker of Parliament and the Chief Justice in that descending order” He added a final bit to his assertion, “with respect to who assumes the presidency in acting capacity, the constitution stops at the speaker of Parliament and does not go further to the Chief Justice. There is no provision in the constitution that allows for the Chief Justice to act in the absence of the President, the Vice President, and the Speaker of Parliament”. Then then Minority leader of the then Parliament who is now the current Majority leader of the current Parliament emphasised that there is a statute that provides for the Chief of Defence Staff to take control in a war situation in the case where the three personalities are absent. However, Freddy Blay, who was once a former first deputy speaker of Parliament shared a view that the first vice speaker of Parliament could act as President in the absence of the President, Vice President and the Speaker of Parliament. These will be in reference to a situation where their term of office has not elapsed, only that they have traveled and are unable to perform their functions. The situation we may be confronted with would be sui generis. This would be a situation where the term of office of the President, Vice President, Speaker of Parliament and even the deputy speakers would have elapsed. On the hierarchy, the only person whose term of office would be in session would be the Chief Justice. Per what we have seen, the only time the constitution makes reference to someone performing the functions of the President in his absence is Article 60(8) and 60(11). For more emphasis, see Asare v. Attorney-General [2003- 2004] SCGLR 823-847. Can the Chief Justice in a peculiar situation where the time of office of the President, Vice President, the Speaker of Parliament and all his deputies have elapsed act as the President of Ghana? This would call for some interpretation from the Supreme court as to the phrase “take precedence over all other persons” in Article 57(2). If the phrase “shall be deemed” in Tuffour v Attorney General (1980) GLR 637 had to go all the way to the Supreme court for clarity, then why not “take prececence over all other persons”.

ACTIVATION OF ARTICLE 113

There are those who have also made reference to the reliance on article 113(2) for Parliament to extend its own four-year period. But this can only happen when Ghana is engaged in a situation of war. It is explicitly stated. War is different from a pandemic and in no way can article 113(2) be relied on in this situation. This pandemic would fall under public emergency which is stated in 113(3). However, 113(3) needs the presence of a president to recall or summon the Parliament that has been dissolved. In the event where there would be no President, 113(3) is dead on arrival.

ACTIVATION OF RESIDUAL POWERS 298

The 1992 Constitution clearly states in Article 298 that “Subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this Constitution or otherwise, there is no provision, express or by necessary implication of this Constitution which deals with the matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with.” In my humble opinion, Parliament has the keys to unlock the answers to all that we have been brainstorming about. It is within their mandate to exhibit wisdom and present to the nation the way forward in the event where this pandemic should linger on and vitiate our election timetable, putting us in a situation where come 7th January, 2021, there would not be a President of Ghana. They have from now till 6th January, 2021 to demonstrate wisdom in bringing finality to this issue. I trust Parliament to wisely use their august house to do what 298 says, making sure they do not do anything that will contravene any of the provisions in the 1992 Constitution. I will recall what Nana S. K.B Asante said “Parliament under the Fourth Republic has grown in stature as an effective legislative body and as a forum for serious national deliberations.” This is their opportunity to demonstrate wisdom in the midst of this pandemic and if they do, I can assure them of a new chamber.