Rejoinder: Separation of powers under the 1992 Constitution; A return to source is the answer. by Samuel Kissiedu

A response to Victor Azure’s article, “How Far Should Separation of Powers Go”.

Before I start, I would like to state emphatically that a reader who has not read Victor Azure’s article should quickly do so and revert.

I would now proceed from where my colleague ended his piece which is, “…but how far should a people run from absolute power (tyranny) and at what cost?’’

BACKGROUND OF THE 1992 CONSTITUTION

As a result of internal and external pressures for a return to constitutional rule, the National Commission for Democracy (NCD) established by the Provisional National Defence Council (PNDC) carried out a series of public seminars and consultations with the aim of soliciting the views of individuals and organizations on the nature, scope and content of the future constitutional order between 5th July and 9th November 1990.

This resulted in the publication of a NCD report entitled “Evolving a True Democracy” which was presented to the Government on 25th March 1991. A major finding in this report was a popular preference for a multi-party democratic system. This led to the establishment of the Committee of Experts, chaired by Nana Dr. S.K.B. Asante in May 1991 to draw up and submit to the PNDC draft proposals for a draft Constitution. The Committee submitted its Report to the Government on 31st July 1991.

The third stage was the inauguration of the Consultative Assembly on August 25, 1991. The Consultative Assembly completed its assignment and handed over the draft Constitution to the PNDC on 11th March 1992. The Draft Constitution, together with the Transitional Provisions was subjected to a referendum on April 28, 1992 and was overwhelmingly approved by Ghanaians. The Constitution was enacted on 8th May 1992 and gazetted on 15th May 1992. It came into force on 7th January 1993.

A COMPARATIVE STUDY OF THE CONCEPT OF SEPARATION OF POWERS UNDER THE 1979 AND 1992 CONSTITUTION

The Ghanaian Constitution, 1992 defines the fundamental political principles, establishing the structure, procedures, powers and duties of the government, structure of the judiciary and legislature, and spells out the fundamental rights and duties of citizens.

The 1979 Constitution of Ghana, the predecessor of the 1992 Constitution, adopted the American model of the concept of Separation of Powers. Thus establishing a Presidential system of government where each arm exercises power to the exclusion of the others and no member of one arm of government belongs to the other. The renaissance of constitutional democracy in the Fourth Republic gave rise to the Constitution, 1992 which embraced the hybrid system of separation of powers. The hybrid system in the 1992 Constitution has been disapproved as being an unusual hybrid system, which has bred the cliché, “a system where the minority have their say and majority have their way” and as such does not augur well for the body politic of the country.

This hybrid system of the 1992 Constitution has resulted in executive supremacy, a rubberstamp legislature and a partially independent judiciary which is inimical to our democracy. What then is the answer? Is it a return to source, which Kwame Gyekye terms as Sankofaism? And by return to source, I am making reference to the model of separation of powers that we had under the 1979 Constitution.

The 1979 Constitution resembled the American model because the executive authority was vested in the President who was assisted by a Vice-President as was provided in articles 45(1) and 47(1) respectively. The 1979 Constitution also provided for a Cabinet to assist the President in determining the general policy of the government in article 63. Under the 1979 Constitution, the executive also consisted of Ministers of State appointed by the President from among Members of Parliament who resigned as MPs upon their appointment pursuant to article 65(2) of the 1979 Constitution. Although the 1979 Constitution did not last for long, it is recognized as the Constitution that launched a rigid form of separation of powers in Ghana.

The current Constitution in force in Ghana, the 1992 Constitution, adopts a hybrid system of government. It also follows the American model by establishing an executive President in whom the executive power is vested as provided in article 58(1). The position of the Vice President is maintained by the Constitution, 1992 in article 60. The President is also assisted by the Cabinet to determine government’s general policy in article 76. However, traces of the Westminster model is seen in the mandatory constitutional requirement that, majority of the Ministers of State appointed by the President must come from among Members of Parliament, thus, article 78(1).

The constitutional provision that allows the vice president and non-MP ministers to participate in proceedings of Parliament (article 111), is also characteristic of the Westminster model. The legislative power is vested in Parliament pursuant to article 93(2) while the judicial power is vested in the judiciary pursuant to article 125(3). The hybrid system under the 1992 Constitution upsets the viable system of separation of powers in Ghana.

As to reasons why the Committee opted for this model of separation of powers as distinct from the one under the 1979 Constitution, particularly, the provisions in article 78, the little explanation I gathered from Nana Dr. S.K.B. Asante’s public lecture at the first Annual Legon Law Lectures was that under the previous Constitution, there was some friction between the Ministers of State and Members of Parliament which resulted in the Ministers sometimes refusing to be answerable to parliament, even when summoned. So this insertion, regardless of its steep ramifications, was to bring some form of cohesion between the executive and the legislative arm of government. Thus to propagate some level of tolerance between the two arms of government and also to ensure that Ministers of State are accountable to parliament, something they cannot at this point run away from since majority of the Ministers will come from the Parliament. Financial constraints was also cited as part of the reasons for the insertion.

It is sad to say that, that was a very easy way by which Parliament became a mere rubberstamping mechanism used to pass any laws, whether obnoxious or otherwise, for political expediency. This is because majority of the Ministers of State come from the legislature– making them to belong to the two arms of government. With Ghana being a de facto two-party state, and with the government in power always having the majority of Parliamentarians, the consequences cannot be over emphasized. Simply put, any obnoxious laws that the government in power wants to pass will come true with very little resistance. As my colleague Victor put it, all the minority can do at best is to walk out of Parliament in disagreement with the government.

THE WAY FORWARD??? 

I cannot but agree with the report of the Constitutional Review Commission which claims the Constitution has over-concentrated power in the Executive Presidency, a move which has weakened Parliament, created avenues for interference in the work of the judiciary and fuelled patronage.

Let’s not forget the words of Justice Jackson in the Steel Seizure Case that, “while the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate dispersed powers into a workable government. It enjoins separateness but interdependence, autonomy but reciprocity”. As a matter of fact, the 1992 Constitution enjoins no separateness and autonomy.

Let’s also not forget of the words of Lord John Acton that, “power tends to corrupt, and absolute power corrupts absolutely.” The Ghanaian experience is evident as it appears that the powers wielded by the Executive have on countless occasions been used to interfere with the activities of the Judiciary and the Legislature.

The writer is of the opinion that a return to source, thus, the model of separation of powers under the 1979 Constitution, is the answer and if Ghanaians have no means of emancipating from the political ideological domination by the west which suggests that democracy is the right way to go (like Francis Fukuyama argues in his paper, “The End of History and the Last Man”), then a strict approach of the doctrine must be used and we should be ready to pay for the price that comes with it like the workers of the US federal government are paying for.

END.