January 7 is to commemorate the birth of the 1992 constitution so why the 1954 and 1960 constitutions? Acquah JSC (as he then was) in Republic v Tommy Thompson (no.2) [1996-97] SCGLR 484 at p 502 in describing the constitution opined “…a national constitution is a reflection of that nation’s history and the embodiment and the noble aspirations of its framers”. What this means is, the 1992 constitution is a reflection of Ghana’s history (which includes the period of 1954 and 1960). Example Articles 194 (establishes the Public Services Commission) 191, 196 of the 1992 constitution is a direct response to 51(2) of the 1960 constitution. And so though we may be making reference to those 1992 provisions, we would be also reflecting on the 1960 period where the President was vested with power to appoint, transfer or dismiss members of the public Services. Having established this link, I may now proceed.
Ghana’s constitutions are usually characterized into three viz Pre-Independence constitutions (1916,1925,1946,1951,1954); Ghana’s Independence (1957-Order-in-Council) constitution; and post-Independence constitutions (1960,1969,1979,1992). Nkrumah is linked with two of these constitutions; the 1954 Nkrumah constitution and the 1960 Republican constitution.
Nkrumah has always been described as a dictator and reference is always made to the 1964 Amendments which established a one party state in Ghana and also gave powers to Nkrumah to dismiss judges. I have taken the trouble to peruse Ghana’s constitutions especially the 1954 and 1960 to ascertain the validity of the dictatorship tag. I must note that although some provisions of the 1960 constitution gave too many powers to the President, it is no means conclusive to tag Nkrumah as a dictator considering the fact that all the other constitutions, from 1916-1992, gave enormous powers to the highest executive figure. Example the 1916 constitution cloaked Governor Clifford with powers to appoint all members of the legislative council. Yes! All! All the members in the council were his appointees and he still had powers to reject decisions of the council which he chaired ,Yet we have not thought it prudent to describe Clifford as a dictator. Anyway, after my perusal of the constitutions (1954 and 1960) I discovered that contrary to public notion, Nkrumah made key developments in our democratic journey and I shall in this piece bring to fore a few of them. The introduction of ; an all representative legislative assembly, proceedings against the state, Parliamentary privileges ,Presidential addresses and an expansion of our constitutionalism and human rights.
It was Osagyefo Nkrumah who introduced, for the first time, direct-election of all members of the Legislative Assembly. Under the 1916 Clifford constitution, all the 20 members of the Legislative Council (call it Parliament) were appointed by the Governor. Even when the elective principle was introduced under the 1925 constitution, the Governor still appointed 20 out of the 29 council members. The 1946 constitution and the 1951 Arden Clarke constitution did not save the situation although the latter made grave improvements. Example the 1951 constitution which gave rise to the first general election in Ghana (Gold Coast at the time) made provisions for electorates to directly elect only 38 out of the 84 members of the Legislative Assembly. That was why K.A Busia who lost the Wenchi seat to CPP’s Poku would still find his way into the Legislative Assembly through the “backdoor”. It took Osagyefo Nkrumah to do away with all other means of entry other than by direct elections. Nkrumah introduced the 1954 constitution which saw to it that all 104 seats were filled through a direct election. This democratic change introduced by Nkrumah has been maintained throughout our legislative or Parliamentary setup right to this day. Today, all 275 seats in Parliament are filled through direct elections and not through appointments or electoral colleges.
The second major change introduced had to do with proceedings against the state. Under this 1992 constitution, Articles 293 and 88 allow a person to,as of right; sue the government or the state. It should be mentioned that the current situation was nonexistent at Independence. The 1957-Order-in-Council stated unequivocally that “No Act/omission of Her Majesty/Governor-General be questioned in any court.” This read together with Article 15 thereof was to the effect that indeed no proceedings be taken against the Governor-General since the Attorney General’s jurisdiction was limited to criminal offenses. The raison d’etre for the bar against state proceedings is from the common law position that the Queen does no wrong (see Buobuh v Minister of Interior 2G.L.R 304. Nkrumah under the 1960 constitution and a subsequent legislation (Act 51) changed this obnoxious posture and allowed for proceedings against the state (terms and conditions applied). A person only required a FIAT or permission from the Attorney General to be able to commence state proceedings. In anyway subsequent legislation as exhibited in the case of Kuah v Ag 1 GLR481, would now only require a person “to notify the AG of a future action”. Today, a person may at will sue the state under Articles 293 and 88 and this current position flows from the major step Nkrumah introduced.
Parliamentary Privilege or freedom was firstly introduced by Nkrumah under the 1960 constitution .After Article 20 established the Parliament, 21 guaranteed freedom of speech,debate which shall not be questioned in any court. Subsequent constitutions adopted this provision and this has stayed with us throughout our constitutional journey to this day (see Article 115 of 1992 constitution).
Also the introduction of Presidential addresses and messages was one unique democratic feature introduced by Nkrumah. Article 25(1) of the Republican constitution mandated the President to,at the beginning of each session of the National Assembly, address the members of Parliament and indicate the policies proposed to be followed by the Government during that session . Clause 2 of same provision this time urged the President ,before each prorogation of the National Assembly, to indicate in an address to members the manner and results of the application of the policies of the Government during the preceding period and otherwise setting forth the state of the Nation. This provision provides for accountability and probity to the state through the National Assembly. What Nkrumah started has been with us through our constitutional journey and even today, the state of the nation’s address has become one of the highlighted events in our democracy.
Finally is the expansion of constitutionalism and introduction of the declaration of fundamental principle Human Rights. This point usually invites debates taking into consideration the infamous case of RE AKOTO. Prior to the Republican constitution, the 1957 constitution established freedom of religion, conscience and abhorred racial or communal discrimination. 31(5) thereof gave the Supreme Court powers to enforce these limited rights by invalidating any law contrary to the mentioned rights. This inbuilt repealing system was expanded under 42(2) of the Republican constitution by giving the Supreme Court the original jurisdiction to determine, not only the stated rights but, all matters; whether an enactment was made in excess of the powers conferred on Parliament or by under the constitution.
Also ,for the first time, the controversial Article 13 of the Republican constitution introduced some rights into the constitution which was unknown in previous constitutions. The article mentioned property rights, freedom of speech, movement,assembly, access to court amongst others. The only issue was whether or not this article, which was in a form of a declaration to be made by the President upon being sworn in, was justiciable? The crux of the RE AKOTO case was to determine whether or not this Article 13, which had for the first time introduced some new rights, was justiciable? The Court was of the opinion that Article 13 was not justiciable but only a moral obligation. This judgment has strangely further sullied the reputation of Nkrumah in the dictatorship tag and I find it so unfortunate. Fortunately, there has also been issues regarding the justiciability or otherwise of Chapter 6 (Directive Principles of State Policy) of the 1992 constitution yet the matter has remained a legal issue .It is frequently said that the RE AKOTO case was decided using a doctrinaire approach instead of a purposive approach to interpretation and that the court would have arrived at a different conclusion if it had adopted the latter approach. If this is anything to go by, I still do not understand why these legal issues would work to the disadvantage of Nkrumah. Whatever the case may be Article 13 for the first time introduced new rights which were unknown to previous constitutions.
In this piece, I have only brought to your attention five of the key democratic interventions introduced by Nkrumah into our democratic journey of which still features in this current 1992 constitution. Happy Constitutional Day!