How Far Should Separation of Powers Go By Victor Azure

The 1979 constitution of Ghana marked the first time Ghana adopted a strict separation of powers model. Under this constitution there was a strict separation of functions and personnel among the arms of government. For example Members of Parliament who had been appointed as ministers by the president had to vacate their seats. This led to an interesting development. President Hilla Limann’s budget for the 1980 fiscal year failed to be passed by parliament for the first time in Ghana. Many reasons have been ascribed to this failure. Among these views are that, a strict separation of powers was not suitable for the African political terrain, others blamed it on President Limann’s inexperience and ineffectiveness as a politician, lack of party discipline in the ruling party at the time has also been cited by others. But a more reliable explanation from a systems point of view is that for the first time in Ghana the patronage of the head of state over the legislature was dislodged. This called for a new currency for political dealings, patronage, perhaps, was to be replaced by consensus building through a rational decision making process, a quality that was never honed in the turbulent politics that preceded 1979 dispensation. The response to this episode under the 1979 dispensation by the 1992 constitution has been intriguing. The framers of the 1992 constitution determined that to avoid the misfortune of President Limann, among other considerations such as cost of running the government and avoiding the situation where appointed MPs lose their seats, it was important to bring the executive and legislative branches closer, hence the hybrid constitutional framework which falls midway between the American presidential system and the British parliamentary system.  There are two sides to separation of powers, on the one hand, where strictness is high (USA) a lot depends on consensus building to get anything done and on the other hand where the separation is indistinct (Ghana), a lot depends on the goodness of those in power and the checks and balances designed to prevent overreach. In this post in intend to provoke some debate as I explore how well the two conceptions of separation of powers is serving both countries.

The concept of separation of powers and its corollary—checks and balances seeks to (1) allocate power and assign functions to the arms of government; in part to avoid too much power in the hands of one person or group of persons and to achieve efficiency in government and (2) it has also been about putting in place mechanisms to correct potential abuse of power and jurisdictional overreach. But these responses can create their own problems such as (1) a strict separation that can lead to gridlock (when the government is paralyzed over discord between its branches) and (2) an indistinct separation can lead to too much power for one arm. In practice, every constitution apart from parliamentary systems have to grapple with this balance between the executive and the legislature in particular.

The blues of strictness

The American government has been shut down for almost a month now, the longest in its modern history. A government shutdown in the American sense refers to a situation in which Congress (parliament) fails to pass a sufficient appropriation bill to fund the federal government. It can also happen when the president vetoes or refuses to sign such a bill. An appropriation bill is a legislation designating specific funds for government department’s agencies and programs. In the current situation, the President of the United States and his party will not accept an appropriation bill sent from the lower house of Congress controlled by the opposition party which does not provide an amount of 5.7 billion dollars for the President to build a wall on the southern border of the country to curtail illegal immigration. The opposition party on their part do not believe the wall is the right solution to the problem identified and will not include the money in their appropriation bill. The law makers won’t give the president what he wants and the president won’t sign what they bring, the government has no money for anything else apart from essential services, hence the government shutdown. In effect, a shutdown means that all non-essential workers will be furloughed (compulsory leave of absence) and salaries will not be paid until the government reopens. Over 800, 000 federal workers are victims of the government shutdown. Even worse, the parties do not appear to be approaching a consensus any time soon. Crestfallen, in a recent tweet, the US president said his country was on a rudderless ship heading for disaster and wished his citizens good luck. The president may have to resort to extraordinary powers to override the need for consensus. He also risks setting a dangerous precedent.

Seeking the right balance

It is not far-fetched to surmise that the framers of the 1992 constitution of Ghana specifically set out to avoid the type of gridlock that is attending the American government. Perhaps, they were determined to avoid the misfortune that has befallen the US president and President Limann in 1980. In many ways that has been achieved because, even if a Ghanaian president has a minority in parliament, the constitution still gives him a lot in terms of patronage power to ensure that his will is done, at least, constitutionally. In normal times, there is no way a minority can hold the government to a standstill, at worst, opposition MPs in Ghana can only walk out in disagreement with the government. In the attempt to avoid gridlock in its crudest form, did the framers of the 1992 constitution necessarily create something better? Kwasi Prempeh (now Professor) offers an interesting critique of the 1992 constitution’s governmental structure, specifically the nature of the executive, he wrote:

Overall, the power and authority vested in the president under the 1992 constitution is simply too much for a bad president to have and yet too much for a good president to need. Moreover, the constitution imposes few constraints on the exercise of his authority and powers. Instead of credible checks and balances, the constitution has imposed on the president a good number of advice givers in the form of advisory bodies, notable among which is the 25-member council of state.

If the American structure is painfully slow and prone to deadlock, it can also be said that the Ghanaian structure is highly precarious. The consensus requirement can mitigate the damage of a ‘bad’ president, but the Ghanaian structure of minimal consensus rests on the assumption that every president will be ‘good’. The politics of the two countries reveal that these are not safe grounds to perch. However, there are specific attributes of the two countries, Ghana and the USA that informs the choice in what to prioritize; efficiency or consensus. First, Ghana is a unitary state with a very centralized government structure. A government shutdown in Ghana will bring life to halt. But the USA is a federal republic and its over 350 million citizens live under capable state governments who are not paralyzed by the federal government shutdown. Second, it may be argued that the USA has built its democratic culture over centuries whereas Ghana is just starting out, it will take time to build a culture of consensus building in the body politic.

Yet, another important inquiry is this: If the Ghanaian structure of a less strict separation of powers gives too much power to bad president and even much more than required by a good president, has the American structure created a situation where neither a good president or bad president have enough power? Is one better than the other? Why should a president who got elected to build a wall be prevented from building a wall? Also, should a president get to decide everything because he won an election? At its core, the doctrine of separation of powers as propounded by Montesquieu is a response to tyranny—oppression by any person or group of persons with governmental power. The American Revolution was a rejection of tyranny and perhaps this is reflected in their choice of a structure that prevents too much power for any branch of government. Ghanaians have been running from tyranny too, from forcing an end to colonialism to enthusiastically bringing down every successive regime that took the consent of the people for granted. But how far should a people run from absolute power (tyranny) and at what cost?