CONSULE, CONSILIUM ET ACTUM (CONSULT, ADVICE AND ACT)- PART 2 by Kwame Adusei and Kwadjo Bediako

The previous part of this discussion (which can be accessed here) has sought to examine some provisions which confer upon some buffer institutions powers to limit the President in our present constitution. Recourse is taken to some specific phrases that are used in such provisions. With regards to the phrase “acting in accordance with the advice of” as used in article 91(1), it was clarified in Emmanuel Noble Kor v. Attorney-General & Another that it merely confers a discretion on the President to choose to follow the advice given or not, within the confines of the constitution. 

This part will focus on the effect of the phrases ‘acting on the advice of’ and ‘in consultation with’ as they appear in the 1992 Constitution.

ARTICLE 144(2) provides that the President shall appoint Supreme Court justices acting on the advice of the Judicial Council, in consultation with the Council of State and with the approval of parliament. ARTICLE 128(4) A person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity and is of not less than fifteen years’ standing as a lawyer.

The case of Ghana Bar Association v. Attorney-General & Judicial Council came before the Supreme Court for the interpretation and enforcement of Article 144(2). The plaintiffs contended that under article 144(2), the President is bound by the advice of the Judicial Council in the appointment of Supreme Court judges and that any appointment made by the President, which does not strictly follow the advice of the Judicial Council therefore becomes null, void and of no effect. The Supreme Court held that the involvement of the Judicial Council, Council of State and Parliament in the appointment process is meant to be restraint on the appointing power of the President.  

Although stating that the President could make no appointment to the Supreme Court without first receiving a recommendation by the Judicial Council, the court went further to create a distinguish between the restraining effects of the two phrases, ‘acting on the advice of’ and ‘in consultation with’. Thus, they can be differentiated such that the restraining effect of the advice of the Judicial Council on the President is greater than the consultation to be made with the Council of State. Accordingly, if the advice of the Judicial Council is not flawed on the requirements of article 128(4), a consultation with the Council of State cannot warrant rejection of the Judicial Council’s adviceby the President. However, if in consulting with the Council of State, the President unearths information, which can unsettle Judicial Council’s recommendation under 128(4), he may reject their recommendation even against the advice of Council of State.

It would seem from the forgoing that the advice of the Judicial Council remains unimpeachable save as by reason of Article 128(4). However the crux of the Supreme Court’s holding in this case was that although the phrase to ‘act on the advice of’ puts greater restraint on the President, he is not strictly bound by the advice of the Judicial Council as was contended by the plaintiffs. Thus, the phrase “acting on the advice of” also did not bind the President unequivocally, and he still had some discretion.

The effect of this phrase became a subject of some debate in Ghana during the series of processes which eventually led to the removal of the Chairperson of the Electoral Commission, Mrs Charlotte Osei and her deputies. Article 44(2) provides that the Chairman of the Electoral Commission shall have the same terms and conditions of service as a Justice of the Court of Appeal. Article 146 sets out the procedures involved in the removal of Justices of Appeal and by operation of Article 44(2), the same procedures apply to the Chairperson of the Electoral Commission. In summary, Article 146 requires the receipt of a petition by the President and the referral of the same to the Chief Justice by the President. The subsequent clauses of article 146enjoins the Chief Justice to determine whether the said petition, on its face, presents a prima facie case, after which a committee should be set up to investigate the petition. Our focus is on Article 146(9) which is to the fact that in every case, the President shall act in accordance with the recommendations of the committee. In fact, by letter dated 20th July, 2017 the President received a 27-point petition pregnant with allegations of misconduct against the EC Chairperson. The petition which was to trigger the full impeachment processes under Article 146 was forwarded to the Chief Justice who also set up the aforementioned committee. In a statement signed by the Minister of Information on 28th June 2018, it was stated that the committee recommended the removal of the Chairperson from office and that pursuant to Article 146(9), the President, acting in accordance with the said recommendation had directed thatthe services of Mrs Charlotte Osei were no longer needed.

One would have thought that the decision in Ghana Bar Association v. Attorney-General & Judicial Council had laid down the principle which would make the President not strictly bound the recommendations of the committee. However, in delivering his speech to the Ghanaian Committee in Mauritania, President Akuffo Addo, while seeking to justify the removal of the EC Chair indicated that though the decision was a painful one, he was restrained as he had no choice but to act in accordance with the law. It becomes quiet clear from the foregoing that whereas the decided case by the Supreme Courthas in one way given the president a discretion, the President, on the other hand has treated the phrase as leaving him with no choice in some situations. The current writers would leave this matter to the better judgment of our dear readers. 

At this point the phrase “in consultation with” will be specifically considered.

Our analysis has been on where the President is enjoined to make consultations. At this point, particular attention is given to where the President is rather to be consulted for advice and whether the appointing authority under such circumstance will be bound by the Presidents advice or consultation. The best authority is the case of National Media Commission v. Attorney-General where the Supreme Court was invited to interpret and enforce Article 168 of the 1992 Constitution. The said Article 168 simply provides that The National Media Commission (NMC) shall appoint the chairmen and other members of the governing bodies of public corporations managing the state -owned media in consultation with the President. 

A gist of the plaintiff’s case was that the President, purportedly acting in consultation with certain authorities other than the (NMC), was appointing chairmen, chief executives and other members of the governing bodies of public corporations managing the state-owned media under article 195(1). The plaintiff commission which took the position that under article 168, it was the proper authority to make such appointments in consultation with the President instituted action at the Supreme Court for a declaration to that effect and to quash the said appointments made by the President on grounds that it was unconstitutional.

In a unanimous decision written by Atuguba JSC (as he then was), the apex court held that on a true and proper interpretation of the clear provision of article 168 the authority to appoint the chairmen and other members of the governing bodies of public corporations managing the state-owned media was exclusively the National Media Commission acting in consultation with the President. 

On the issue of indefinite vacation and other executives who had been removed by the President, the Supreme Court quashed such actions, holding that by virtue of the provision of article 297(a), it was clearly the authority which had power to appoint a person to hold an office in the public service that had the power to confirm or to withdraw the said appointment or take disciplinary measures over him. In the circumstance it was the National Media Commission acting in consultation with the President that was entitled to exercise the powers set out in article 297(a) in relation to any such chairmen, chief executives and other members of the governing bodies of such public corporations managing the state-owned media. It is also necessary to note that the Supreme Court added that Article 168 accorded with the overall objective of securing the independence and freedom of those public corporations from governmental control, and to interpret it otherwise would not only be doing violence to the language of the article but also subverting the intentions of the framers of the Constitution, 1992.

Once it has been held in the earlier cases that the President is not inflexibly bound by the advice and recommendations given to him, the reasonably inference that the present writers would make is that where, as in the instant case the President is to be consulted, then the appointing authority (here the NMC), would also have some discretion and not be bound by the President’s advice or recommendation, provided that the National Media Commission or the appointing authority acts within the confines of the constitution.

From the foregoing analysis, it would seem that the various institutions and persons whose advice and consultation are required for the performance of certain duties of the Presidentcannot hold the President bound by their advice. The cases of Ghana Bar Association v. Attorney-General & Judicial Council and Emmanuel Noble Kor v. Attorney-General & Another are the authorities to support this proposition. The National Media Commission v. Attorney-General case however ensures constitutionalism since the limits on the President’s power of appointment under Article 168 was clearly drawn by the Supreme Court. 

The writers at this point will focus on the Council of State in particular and the non-binding nature of its advice. 

Much inspiration is taken from a very educative article in the Festschrift, A Commitment to Law, Development and Public Policy written in honour of Nana Dr. S.K.B Asante. The said Article, ‘Ghana’s Council of State; Free and Fit to Council?’ written by Julia Ayetey, makes an attempt to critically examine the powers of the Council of State and the Council’s relevance to our governance. 

The learned writer describes Ghana’s Council of State as a modern version of the Council of Elders that exists in many African tribes. The verisimilitude of the two institutions owes to the fact that the members of the Council of State are enjoined to swear the oath of secrecy under Article 89(4) and their meetings are held in camera. The argument against this comparison is that in the traditional custom, the elders play more than just an advisory role. They are powerful to the extent that a chief who consistently ignores their advice is sanctioned, thereby ensuring informal checks and balance. She therefore described the Council of State as a ‘lame duck’ institution owing to the non-binding nature of its advice. Furthermore, the learned writer described the Council of State under the 1992 Constitution as much weaker than that envisioned by the Committee of Experts because it has no judicial or quasi-judicial functions which is contrary to recommendations of the Asante Committee of Experts. This is a sentiment which seems to be shared by many others including Nana Dr. S.K.B Asante (see hand-out of 2017 annual Legon Law Lecture by Nana Dr. S.K.B Asante)

While acknowledging that Article 91(3) (as discussed in part 1 of this article, which can be accessed here) has paradoxically contributed to the view that the advice of the Council is never binding, the writer stated also that in certain circumstances the advice of the Council of State may be binding on the Presidentsince Article 91(3) is limited to only advice given under that particular clause, that is advice which is given on the motion of the Council of State itself. Thus, seeing that in Article 91(3), ‘recommendations’ of the Council is the word used, the framers intended that ‘advice’ as seen is phrases such as ‘in accordance with advice of’ and ‘acting on advice of’ (for example as seen in article 70(2)) to be binding on the President. However, our analysis in this part of the article has discarded this assertion since the Supreme Court has held that the President is not bound by the advice. 

As found by Prof. Aaron M. Oquaye, the Council of State is undermined and rendered redundant in terms of checks and balance since almost all of its members are appointed by the President; a power which can be easily abused to compromise the required independence of the institution. This is in sharp contrast with Consel d’Etat of France in terms of both its independence and power. In 2010, the Constitutional Review Commission set up by H.E John E. Mills observed that the Council of State does not enjoy good reputation in Ghana. The Commission recommended that the role of the Council of Stateneeds to be comprehensively reviewed.

This article has sought to extensively analyse the import of constitutional provisions which require that the President, under certain circumstances, to perform his functions acting on the advice of, or acting in accordance with the advice of, or in consultation with mentioned institutions or persons. With aid of decided cases and constitutional provisions it has been pointed out clearly that the President is not inflexibly bound by such advice and recommendations. The nature, composition and function of the Council of State has also been briefly analysed and the conclusion that the current writers would draw is that the non-binding nature of the advice of the Council makes it more or less a tooth-less bulldog served with a bowl of bones or perhaps a mere rubber stamp to the dictates of the President.