“THE MYTH OF SEPARATION OF POWERS; THE TROUBLES OF A DEVELOPING DEMOCRACY” by Jonathan Abotiwine

SEPARATION OF POWERS AND THE CONSTITUTION

“The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress” per Mr. Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer[1]

Separation of powers as a constitutional concept is indispensable in the effective governance of a nation. This truth is attested further in the context of democratic and constitutional governments. The concept of separation of powers is an anchoring tenet of constitutionalism. The three arms of Government as established under the 1992 Constitution of Ghana have designated roles. These roles when viewed critically overlap and necessitate collaboration between the various arms of government. It is reasonable thus to suggest that our constitution is modeled after Justice Jackson’s exposition of the subject matter as opposed to Justice Black’s definition which paints a picture of strict separateness of the various arms of government. The executive authority of Ghana is vested in the president by Article 58 of the 1992 Constitution. The Legislative authority is vested in parliament in accordance with Article 93 of the same Constitution whereas the judicial power is vested in the Judiciary as prescribed by Article 125. A cursory glance at the framework suggests some form of independence. The interdependence however takes the forms of collaborations and interrelations between these distinct arms of government as further provided by the Constitution. For instance, the appointment of the Judges is an executive act. The appointment of Ministers under Article 78 requires a majority of legislators to form a part of these appointments among so many other instances that portray interconnectivity of these organs.

THE GHANAIAN PROBLEM

In recent times, contemporary issues have propelled me into an inquisition into the very significance and practicability of the refined form of separation of powers that has emerged as the global model of ideal governance. I will situate my analysis in the context of the uproar about the imposition of TV license and its attendant issues and also on the recent brouhaha over the renaming of the University of Mines and Technology, Tarkwa to the George Grant University of Mines and Technology.

TV LICENSE SAGA

For a while the Ghana Broadcasting Corporation has been emphasizing, reemphasizing and almost overemphasizing their resolve to embark on a nationwide collection exercise of what they term a mandatory TV license’. The legislation that this entire drive hinges on is a colonial piece that was drafted at a time when technology was too new a thing to be predicted, it is therefore no surprise that a careful read of Television Licensing Decree, 1966 (NLCD 89) uncovers a primitive text that lives decades behind reality. For a better appreciation of my point, I will reproduce a portion of section 13, the Interpretation Section of the Act verbatim:

television receiving set” means an apparatus constructed solely for the reception of pictures (with or without sound) transmitted by radio.”[2]

The definition produced above obviously covers television sets that existed at the time. It is understandable because the only reason such devises were procured was for the reception of television signals. Their utility was spent beyond that purpose. Today millions of television sets that are manufactured with the capability of signal reception are also crafted for a variety of other functions. Smart televisions are the order of the day. Television sets come with High Definition Media Interface (HDMI) ports which allow variety of external connections that could have nothing to do with receiving radio signals or motion pictures as captured in the definition. In our University environment, the only reason most students bring TVs to school is to play games, which involves connecting such screens to the console. Nothing more tickles some students about owning a TV. It therefore shocked and angered many when the Director General of the GBC Dr. Kwame Akuffo Anoff-Ntow stated that the licensing regime was set to include mobile phones and other such devises capable of receiving TV signals. Even more damning was the shabby excuse of the Information Minister, Mustapha Hamid that the Government was not aware of the directive to the Judicial Service for the setting up of special courts for prosecuting defaulters

Let’s head to the bit about separation of powers and how all of this could have been avoided. Parliament is the legitimate law-making organ of the County. NLCD 89 is an Act of Parliament. TV license became a legal possibility because the Executive arm of government executed their policy direction by the requisite legislation. The law creates and destroys everything. If the Akufo-Addo-led Administration and the Board of GBC felt the need to generate more revenue from television sets of whatever nature or functionality and other smart devices capable of receiving TV signals, the way to do it was to head straight to Parliament for an amendment of the existing legislation. Parliament makes the law, and GBC executes, And oh before I forget, GBC did not just attempt doing what Parliament should have done. Their Director General attempted an interpretation of the Act. It was a feeble attempt that went terribly wrong. I can understand why his people let him hang all by himself.   

 

GEORGE GRANT UNIVERSITY OF MINES AND TECHNOLOGY, WHERE’S THAT?

You know what irks me about the ongoing debate about the renaming of the University of Mines and Technology? “It’s just a name” How could you even say that? Just a name? The name is the entity. Let’s take a look at the Act establishing the University.

  1. Establishment of the University of Mines and Technology

(1)  There is hereby established by this Act a University of Mines and Technology, Tarkwa. (2)  The University is a body corporate with perpetual succession, a common seal and may sue and be sued in its own name[3]

So there you have it, the University as named is a distinct legal personality, an artificial person as a matter of fact. Even Human beings who are not creatures of the law, but are arguably controlled by the law every day, don’t just pop a new name in the face of everybody when they will. There’s a standard process. How much more an artificial person whose breath comes from the gazette? The name of the University is an integral part of the entire legal framework. The President does not have the power to change the name of an institution created by law. He simply does not have that power. I’m not interested in whether the ‘new name’ has political connotations or not. I’m also not concerned that some individuals feel the named individual doesn’t merit the honor. I’m concerned with the usurpation of power by the executive arm of government. The process is simple, if the executive feels like changing names when there are a myriad of other relevant things to do, they should lay the proposal before parliament who alone have the power to tinker with what has already been passed into law by the same house. It is legally incorrect for the president to change the name of an institution created by law. It’s simply as wrong as having a neighbor name your child. That is invalid. As far as the law is concerned, and that is really all that should matter, there is no such University as the George Grant University of Mines and Technology.

CONCLUSION 

I’ll borrow the words of Acquah JSC in the renowned case of NPP v AG (31st December Case)[4]; “by the political question doctrine, it is meant that where the Constitution allocates power or function to any authority, and that authority exercises that power or function within the parameters of that provision and the Constitution as a whole, a court has no jurisdiction to interfere with the exercise of that function, then I entirely agree that the doctrine applies in our constitutional jurisprudence. For this is what is implied in the concept of the separation of powers. But if by the doctrine, it is meant that even where the authority exercises that power in violation of that constitutional provision, a court has no jurisdiction to interfere because it is the Constitution which allocated that power to that authority, then I emphatically disagree.”

Systems increasingly do not work in our domestic setup due to our disregard for the very basic things. Constitutional concepts like separation of powers will have no practical effect if we go on ignoring the right way of doing things. As the Good Old Book puts it: “Give back to Caesar what is Caesar’s and to God what is God’s.” Everything has its designated place. Interdependence does not mean stepping into domains that belong to other arms of government. If that were the meaning Justice Jackson intended, we would have all just been better off with the watertight compartments analogy by Justice Black.

[1] 343 U.S. 579 (1952)

[2] Section 13,  Television Licensing Decree,  NLCD 89

[3] Section 1 of the University of Mines and Technology Act, 2004, Act 677

[4] [1997-98] 1 GLR  227 – 281