DEMOCRACY, ACCOUNTABILITY AND THE ENEMY CALLED by Selikem Timothy Donkor

Governmental authority exists purposely to ensure state efficacy and to protect the well-being of citizens[1]. It is without doubt that the elective principle in any democratic state is there purposely to ensure that elected representatives in government are made accountable for their official acts done while in office. This system of accountability is ensured in two folds. First through the electoral processes, and secondly, through checks and balances that exist among the various organs of government[2]. The following paragraphs discuss the systems of accountability under the 1992 Constitution essentially from a democratic angle.

 

THE 1992 CONSTITUTION AND IT’S SYSTEM OF ACCOUNTABILITY

The system of accountability under the 1992 constitution comes in two folds. First, it allows for citizens under Article 42 of the 1992 Constitution to hold elected officials accountable for their deeds[3] periodically in parliamentary and presidential elections. Through this lens, at the end of a term of 4 years[4] , citizens go to the polls to elect new officials to occupy governmental positions; parliamentary and presidential. Through this, representatives whose deeds are deemed desirable by the citizens are maintained. Those whose deeds fall below the expected metric are removed from office and newly elected representatives replace them. This serves as a psychological check system on these representatives. This is because they are made aware of the fact that , in order to continue to serve in their various official capacities , they need to commit to performing their duties diligently, in a manner that ensures the welfare of the people and meets their expectation. This form of accountability I shall refer to as the Post-Act Accountability. The framers of the constitution, knowing that this system of accountability is Post-act[5] , established a second system of accountability. Under the second system, certain governmental organs, are charged with the responsibility to check and ensure the efficiency and effectiveness of other organs in the performance of their responsibilities. This often is done through procedural constitutional processes which shall be mentioned and discussed in detail in the later paragraphs. I shall denote this form of accountability as the Pre-Act Accountability. Though there are numerous systems of checks and balances under the 1992 Constitution, the current writer will limit himself to checks and balances of the legislative body. This is due to the fact that, the system of accountability being dealt with is one founded on the elective principle. Since parliamentarians are representatives of the people, their checks and balances are here indirectly deemed to be the of votes the people

 

POST-ACT ACCOUNTABILITY AND ITS SEEMING INEFFECTIVENESS

Post-Act Accountability is an inherent institutional framework in every democracy. This mode of accountability affords citizens the right to elect their own representatives, who on their behalf, perform the task of government. Through this, elected representatives are held accountable periodically through elections to either remove them from office or maintain them. Under the 1992 Constitution, Article 42  affords all citizens[6] the right to vote. The Constitution then establishes the Electoral commission[7] whose functions as outlined under Article 46 of the 1992 Constitution includes the conduct and supervision of public elections. In the case of presidential and parliamentary elections, they happen periodically every 4 years as provided under Articles 66 and 113 of the 1992 Constitution respectively. Though in 5th BC in Athens[8] , elections were deemed to be an effective system under the Solonian government to ensure accountability, today its effectiveness has been limited and undermined. This is due to the fact that, the error which the election purports to correct would have happened before the established periods for election become due. Thus, government officials and elected representatives can afford to commit  errors intentionally to enrich themselves. And even where they are removed from office, the harm would have already been done and their personal benefits already gained. It follows naturally, that elections are not adequate schemes for ensuring accountability.

In another respect, the effectiveness of the elective principle as a concept of accountability has been undermined. Though citizens continue to exercise the power to elect, political actors have devised means to wiggle their way into political office with campaigns, bribery and lobbying among other things. Election as a mode of ensuring accountability, has thus lost its essense as a means of ensuring accountability. Though people still throng in their numbers to vote, the process has been undermined because voters cast their ballot based on branded items such as rice, and other essentials distributed by political aspirants prior to elections.

PRE-ACT ACCOUNTABILITY

Seeing the inadequacy of the elective principle as a scheme for ensuring accountability, modern democratic nations have put in place other systems to ensure accountability. One of the most profound systems seen under the 1992 Constitution is the power of Parliament to ratify certain acts of the executive before they become legally binding. This power is guaranteed under Articles 75,181 & 268 of the 1992 Constitution. Article 75 of the 1992 Constitution deals strictly with the ratification of treaties entered into by the executive arm of government before they attain the status of law under domestic law to be enforced. In the case of Martin Amidu v. Waterville & others[9] the court noted that without ratification by Parliament, actions done under a treaty agreement are deemed void and amount to an illegality in law. This has ensured that  government officials are prevented from entering into treaties that are obnoxious to the financial and economic state of the country. The scope of Article 181 of the 1992 Constitution was also defined in the case of Attorney General v Balkan Energy Ghana Ltd and 2 Others.  In that case, it was intimated by Date- Bah JSC[10] that the purpose of Article 181 of the 1992 Constitution is to ensure transparency and openness in financial agreements which the government enters into with international organizations. In an article written by Gbadegbe Faisal[11], it was stated that this provision was to correct a historical lapse under the 1960 constitution. The then Nkrumah Government took loans with very high interest rates which placed the country in a bad economic state. To prevent the reoccurrence of this phenomenon, Article 181 came into being, to ensure that parliamentarians who are the direct representatives of the people, have an input in national loan or financial agreements to ensure that such agreements are not inimical to the state’s interest. Article 268 applies to ratification of agreements that affect the natural resources of the country. In the case of John Ndebugre v. Attorney General & Another[12] the court noted that such mineral agreements if not ratified pursuant to Article 268 & 75, are void. The court speaking through Atuguba JSC, stated that the purpose is to ensure that the state resources are not relinquished without adequate benefits to the citizens. The various articles and cases as discussed above  show without a doubt, the importance of the power of Parliament to ratify some acts, agreements and deeds of the executive before they take effect. It ensures that the executive does not turn the office into a profit making venture. Even in situations where they do, Parliament can through scrutiny expose the bloated nature of such financial agreements.

 

BRIBERY AS AN OVERPOWERING ENEMY

Just recently, Ghanaian news outlets published articles and write-ups on an alleged act of bribery and corruption under the Mahama Administration [13]when it entered into the 2015 energy deal with a certain Turkish energy company. In the aftermath, we see the resignation of Asante Berko, the then managing director of Tema Oil refinery. Asante Berko was alleged to be the master mind of the said bribery scheme[14]. In the plaintiff’s statement of case before the District Court of New York, it was stated that the defendant, Asante Berko, bribed a certain number of parliamentarians to facilitate the ratification of the energy agreement as entered into by the Mahama Government and the Turkish energy company.

As discussed above, the purpose of the power of Parliament is to ensure accountability and transparency in agreements entered into by the executive. But per the facts and allegations[15], international organizations are able to bribe their way into ensuring that the oversight role of parliament is undermined such that, the bloated and unfair deals entered into by the executive arm of government avoid scrutiny. This leaves our democratic structure undermined since the most instrumental system of checks on the government is undermined. Thus, harm which could have been circumvented is carried out and can only be corrected when periods of elections come. But as shown above, even the instrument of election as a system of checks and accountability is today rendered ineffective due to the vote-buying strategies invented by political actors.

 

CONCLUSION

Typically, in essays  where lapses are identified, a good writer would suggest adequate measures to curb and cure those lapses. But the current writer, is in breach of the orthodox demands since he cannot foresee any practically means to immediately battle these lapses. He shall to this extent, allow himself to drop his pen and leave the remedies to the reader.

 

 

End notes

[1] Article 1 of the 1992 constitution

[2] Here, because the fountain of the accountability is the elective principle, the check and balance system shall be limited to parliamentary representatives who are more or less, representatives of the electorates and thus, their system of check indirectly is that of the electorates

[3] Ransford Gyampo & Graham, Constitutional hybridity and constitutionalism in Ghana

[4] Articles 93,113 and 66 of the 1992 constitution

[5] It happens after the act has been done

[6] Persons above age 18 who are registered- See Abu Ramadan v. Electoral commission & Attorney General- Writ NO- J1/14/2016

[7] Article 43 of the 1992 constitution

[8] Bertrand Russell, History of Western philosophy. P 35, the rise of Greek civilization

[9] WRIT No. JI/15/2012

[10] Ibid

[11] Article 181(5) of the 1992 constitution of Ghana and its implications on international commercial transactions

[12] No. J1/5/2013

[13] The legitimate government in office from 2012-2016. The happening as alleged is in 2015

[14] Securities & Exchange Commission v. Asante Berko (2020)

[15] Facts as alleged by the plaintiff in the case of Securities & Exchange Commission v. Asante K. Berko (2020)