UNIVERSITY OF GHANA- SCHOOL OF LAW
The policy rationale for the creation of the council of state has become otiose therefore the
Council of State must be abolished to save state resources
To what extent, if any, do you share this view?
On the 7th of January 1993, the constitution of the 4th republic of Ghana came into force. Not just a piece of text but a living document that established the framework of Government and served as the supreme law of the land, protecting the fundamental human rights and liberties of its citizens. The document was and remains a landmark in its own right, and established the key organs of government including the Council of State among others.
The 1992 Constitution in Article 89 establishes the Council of State, and empowers it to counsel the President in the discharge of his functions. It further states in Article 91 that “the Council of State shall consider and advise the President or any other authority in respect of any appointment which is required by this Constitution or any other law to be made in accordance with the advice of, or in consultation with, the Council of State.”
The first question is raised with respect to the composition of the Council of State, with the president empowered by Article 89(2) d to appoint to the council 11 members. This number forms close to 50% of the entire composition of the Council and may create a sense of loyalty to the president, potentially affecting the quality of advice of the council and ultimately causing the latter to act as a “rubber stamp” for the ruling government.
In the case of Richard Dela Sky and Samuel Atta Mensah v. the AG which brought into contention the issue of article 44 (6), the Supreme Court ruled that the President was not bound to follow the advice of the Council of state in appointing qualified person(s) to the Electoral Commission should a vacancy be created.
More pressing is the issue of emoluments made available to finance the activities of the 25 member Council of State which during the 5th Joy FM Thought Leadership Debate in 2015 was estimated to cost the taxpayer GHC320, 000 per month, a substantial amount that by no means can be put to better use.
In deciphering the true intent of the framers of the 1992 constitution, one would not be wrong in construing the body’s sole mandate be exercised within the boundaries of an advisory capacity, taking a literalist approach to interpreting the provisions stated in Article 89 of the 1992 constitution.
The irony here is, if article 91 breathes life into the functions that operationalize the Council of State, section 91 (3) of that very same provision creates a limitation which states;
“except that the President, Minister of State, Parliament or other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause”.
To conclude, the inclusion of the aforementioned caveat is indeed the Trojan horse that beguiles the Council into assuming a role that seemingly makes a difference, but essentially cuts its umbilical cord delivering a blow reminiscent of that of a coup de grace.
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