Consule, Consilium, et Actum (Consult, Advice and Act) – An Exposition On The Law Surrounding Advice Given To The President – PART 1 By Kwame Adusei And Kwadjo Bediako

The Fourth Republican Constitution of Ghana remains, in our modern history, the longest reigning constitution. It is rightly so, as it is inspired by the toil of Ghanaians through decades of political unrest, tyranny, and abuse. Thus, it has been carefully crafted to take cognizance of our difficult past and lead us into a better future of democratic rule. However, much like all human creation, it is not perfect.

Goldsmith CJ said that ‘No constitution can work if it is not understood and experienced by the people’. This authoritative statement quickly brings to mind the oft-quoted dictum of Sowah JSC in the popular case of Tuffour v. Attorney-General that the constitution ‘embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.’ Hayfron-Benjamin JSC also vouched for the historical aspect of a constitution when the learned judge said in N.P.P v. Attorney-General (31st December Case) that “the 1992 constitution is the sum total of our hopes, disappointments, experiences, aspirations and expectations as a nation. If we therefore forget the historical development of our Constitution, 1992 then we fail to recognise that it is a living organism capable of growth.”

The 1992 Constitution stands as a refined reflection of 1960, 1969 and 1979 constitutions. Under the 1960 Constitution which was amended in 1964, the President was given enormous powers to make all appointments. Notable among this plenary power of appointment is the 1964 constitutional amendment which gave the President the unlimited power to appoint and remove judges of the superior courts of Judicature.  The exercise of this power by the then President Nkrumah resulted in the removal of Chief Justice Arko Korsah and Adumoa Bossman JSC following the dissatisfaction of the President on the Supreme Court’s decision in State v. Otchere. In fact, in the Article ‘Forgive us our trespasses’ the judges in the RE Akoto case have been described by the astute Professor of Law, Kofi Kumado, as timorous souls.  

Thus, as was expressed by the 1968 Akuffo-Addo Constitutional Proposals in paragraph 3, Ghanaians have faced so much tyranny and oppression that that we will not allow our political sovereignty to reside so precariously in one man. Our collective resilience is adequately reflected in the preamble to the 1992 Constitution. As a people who have been oppressed, it was ensured that from the establishment of the 1969 Constitution that, buffer institutions existed to check and limit the powers of the president. Some of these institutions have been the Council Of State, the Ombudsman (now CHRAJ), the Judicial Council, National Media Commission and  the Public Service Commission. In this wise, the 1992 constitution requires that certain appointments and other functions be done by the President in accordance with the advice of, in consultation with, or acting on the advice of the aforementioned institutions. The present writers therefore seek to analyse the legal effect of these phrases as used in the constitution for the purpose of placing the powers of the President in check and ensuring constitutionalism.

The first part of this article will specifically focus on the phrase “in accordance with the advice of”, whereas the second part will focus on the phrases “in consultation with” and “acting on the advice of”, and will end with a brief reflection of the powers and relevance of the Council of State.

Chapter 9 of the 1992 Constitution provides for the Council of State. Article 89 enjoins the Council of State to counsel the President in the performance of his functions.  Article 91(1) charges the Council of State to consider and advice the President in respect of any appointment which is required by the Constitution or any other law to be made in accordance with the advice of, or in consultation with, the Council of State. However, the Council of State may on its own or upon request, make recommendations on any matter being considered or dealt with by the President according to Article 91(3). The downside of this provision is that President will not be required to act in accordance with any recommendation made by the Council of State.

One of such functions of the Council of State under Article 91(1) is seen at article 71(1) where the President is enjoined to determine the salaries and allowances payable to the Speaker and Members of Parliament, Chief Justice and other Superior Court Justices… on the recommendations of a committee appointed by the President, acting in accordance with the advice of the Council of State. The construction of Article 71(1)(b) arose as an issue in Emmanuel Noble Kor v. Attorney-General & Another.

The facts of the said case was that President Mahama approved the implementation of the report of a Presidential Committee on the emoluments of the Superior Court Judges, subject to a variation that “Gratuity shall be calculated as four months consolidated salary for each year (or fraction thereof) served”. The Plaintiff challenged the power of the President to vary the said report and contended that the President is strictly bound by the advice of the Council of State in the determination of the said emoluments.

The Supreme Court refused the argument and held, per Atuguba JSC that, once the committee is set up upon advice of the Council of State, it (Council of State) ought not to play any further role. It also would be incoherent and awkward for the Council of State to give any advice to the President with regards to the emoluments because the same committee, which is to be set up by the President on the advice of Council of State, is to make recommendations for the emoluments of members of the Council of State. On the issue whether the President could vary the recommendations of the committee, it was held that President is not inflexibly bound by the recommendations of the Committee otherwise the power conferred on him to determine those emoluments would be otiose. Gbedegbe JSC in his concurring opinion was of the view that when the recommendations are submitted to the President as the appointing authority, the constitution leaves to him alone the determination of the emoluments and so it is a matter left to the discretion of the President. The court added that the President’s variation should neither contravene article 127 (5), nor exceed reasonable bounds.

The court in effect held that the phrase accordance with the advice of as used in Article 71(1)(b) merely conferred a discretion on the President. This specific discretion simply had to be exercised in a manner which will not disadvantage the concerned persons and will not be manifestly reasonable.

Simply put, the phrase accordance with the advice of gives the President the power to do whatever he pleases, within the confines of the Constitution.