The and character of any democratic system of governance are largely hinged on how effective the various arms of government operate as prescribed by the constitutions of the stated country/countries. In other words, the basis for any good government is largely dependent on how the three arms are positioned. These are the executive, legislature and the judiciary.
Depending on the governance system of a given country, a constitution may define in explicit terms, any such job description as it relates to the executive, the legislature and the judiciary to be succinctly independent from each other; or state, whether the executive should derive its legitimacy from the legislature. The latter proposition has constituted a major ambiguity in interpretation, despite the fact that the system has stood the test of time in a major democratic setting as the United Kingdom and other related countries that have adopted the system.
That longevity of the Parliamentary or the Westminster system is seen more as a triumph to cover-up for every possible crack there is, in the regime. But of course, none can have a perfect system, so we tend to stay with the one that partially meets our expectations. The two—Presidential/Executive and Westminster/Parliamentary, are the world’s acclaimed democratic systems that are being adopted by many countries. In other jurisdictions too, the model has become a major aid conditionality of the West.
A country that rebuffs such western democracy suffers the risk of aid refusal or cancellation. That gives an inkling about the high demand of the two systems of government. However, in recent times, the constitutions of certain African countries seem to be altering, especially, for those practicing the American Presidential system of government. For instance, the Republic of Uganda’s, clearly defines that the country’s governance system is modelled on the US’ Executive system with overwhelming powers to the President.
The preamble to the country’s governance system, pre-supposes that the Executive, Legislature and the Judiciary operate as three distinctive arms of government. The spirit behind the positioning of the three arms of government in Uganda’s constitution is to ensure effective checks and balances. But in practice, that does not seem to be the case. Legislative powers are vested in both the Government and the National Assembly, as Ugandans refer to their Legislature.
The leader of Government is also the Executive President and he/she is mandated by the constitution to pick his/her Cabinet from the Legislature. The Ugandan constitution stipulates that the cabinet is “appointed by the President from among the elected legislators. The prime minister, a member of parliament assists the President in the supervision of the cabinet.” So the Ugandan system of government is not particularly, hinged on any one of the two globally acclaimed systems of government— the Presidential/Executive or Parliamentary/Westminster types.
Ghana’s system of government is synonymous with that of the Eastern African country. The 1992 constitution of Ghana came into effect on January 7th, 1993 as the supreme law of the West African country. The constitution provides for a Presidential system of Government with distinctive power sharing among the Executive, headed by a President; a Legislature/Parliament and an independent Judiciary. In the spirit of the framers of the constitution, this is about the surest way of ensuring checks and balances among all the three arms of government.
On the face value, the stated model clearly shows that the Ghanaian governance system is premised on a Presidential or Executive presidency. It’s however, established over the period that in practical terms, Ghana is one of the emerging member of the comity of the “Hybrid” political system. Although unstated, the “Hybrid” system has been adopted by countries who believe the new model will address the flaws in the established two systems of governance. The hybrid is often not stated anywhere in the constitution and only comes out in the course of prosecution of a democratic political administration.
In fact, the Ghanaian constitution is unequivocal on the type of government the country should practice: that’s and Executive President with Parliamentary Democracy. Thus, the distinction between the two arms is clear. Yet, the functions of the President negate any such distinctive power sharing in the constitution. The constitution offers a clear example of how the functions of the President overlaps into that of the Legislature. A professor of law and political science, Mike Oquaye, in his submission to a Constitution Review Commission (CRC) urged the Commission to do a “thorough job to ensure the removal of ambiguities from Ghana’s 1992 Republican Constitution.”
“In amending this Constitution please tighten the screws; don’t take anything for granted,” Prof Oquaye told the Commissioners when the CRC held a hearing on party politics in Accra under the auspices of the Institute of Economic Affairs (IEA) and added “the Constitution must be an instrument for political, social and economic engineering and so we must ensure that there are little ambiguities as possible.” Prof Oquaye was one-time Speaker of Ghana’s Parliament. Ministers of State are appointed by the President with the prior approval of parliament. Not only that. Ministers are also appointed from among members of parliament.
This is intriguing in the sense that majority of the ministers are supposed to be picked from parliament. Meanwhile, the President is expected to seek parliamentary approval before he/she selects his ministers. Instantly, the impulsive reaction of any observer of Ghana’s political scene is likely to be: “Approved by who? Same MPs, majority of who are on line to become Ministers of State? Who will the MP-ministers be accountable to? Parliament or the President? Obviously, the President, as the practice has been since Ghana embarked on her Fourth Republican journey in 1993.
Why Ghana’s constitution creates constitutional despots and ambiguity
From the standpoint of some political observers, operational details of Ghana’s constitution do not only breed constitutional despots, but also creates serious ambiguity in the minds of people than the intended promotion of good governance that democratic practices have come to be associated with the Presidential system of government. These constitutional watchers believe the 1992 Ghanaian constitution was drafted to protect a single individual and his assigns who superintended over the sordid military regime that preceded the inauguration of Ghana’s Fourth Republican Constitution on January 7th, 1993.
This viewpoint is strengthened by an entrenched clause that states that the former Ghanaian military leader or anyone of his subordinates, cannot be prosecuted on the basis of the actions they undertook during their military junta era. The constitution stipulates that the President of the Republic shall not be liable to proceedings in any court in the performance of his duties or functions for any act committed which otherwise would have garnered prosecution, if the acts were committed by an ordinary or regular Ghanaian. Again, while in office the President shall not be liable to any or criminal proceeding in court. Civil or criminal proceedings can only be proffered against the President after three years of ceasing to be President.
The constitution is also positioned to allow that military leader to continue with his dictatorial rule under the guise of multi-party democracy. This is because the entire governance structure, as the constitution stipulates is/was weaved around the then incoming military leader, who from all indications was well prepared and positioned to jettison his military garb for civilian clothing at all cost, although his military colors failed to fade off. Therefore, it didn’t shock many connoisseurs that the opposition at the time, rejected the outcome of Ghana’s premier election of the Fourth Republic.
They documented every rigging evidence in a book titled “The Stolen Verdict”. After being sworn in as President of the Republic, the said military leader was goaded on by certain provisions in the constitution to still operate like a dictator in civilian cloth. Aside he appointing his cabinet ministers from parliament, the President also had the powers to appoint heads of statutory state institutions like Commissioner of Human Rights and Administrative Justice (CHRAJ) and deputies; the Auditor General; the District Assembly Common Funds Administrator among other statutory public service entities.
Also acting on the advice of the Council of State, the President appoints the chairman of the Electoral Commission, Deputy Chairmen and other members of the Electoral Commission. All senior security officers, the Chief Justice and all other Justices of the Supreme Court are appointed with the express advice of the Council of State. But how independent is the advisory body—The Council of State? This is a body that the sitting President appoints two-thirds of its members. During a constitutional review discussion, major political parties called for immediate ceiling on the number of ministers to be appointed from Parliament.
Others suggested that the system should totally be scrapped to make way for proper separation of powers. That will require an amendment to Article 78 (I). According to the provision, “Ministers of State shall be appointed by the President with the prior approval of Parliament except that the majority of Ministers of State shall be appointed from among members of Parliament.” The recommendation to amend Article 78(1) was also supported by Dr. Papa Kwesi Nduom, a regular participant in Ghana’s presidential elections thus: “I was more effective as minister when I did not double as MP than when I held both offices simultaneously.”
Dr. Nduom was MP from 2005 to 2009 during which he partly served as minister of state. He also believed another way of sanitizing the constitution and limit the powers and the role of the President, is to amend to Article 68(5) to allow the President to pay tax. In his opinion, the President must set example by paying tax in order to justify taxation of the citizenry. According to Article 68(5), the salary, allowances, facilities, pensions and gratuity of the President “shall be exempt from tax.” So the legitimate question that has always been asked is “where is the checks and balances that the Ghanaian constitution seeks to achieve?
It’s not surprising that many Ghanaians, particularly, professionals and other identifiable bodies have been at the forefront of the call for immediate constitutional amendments to curb both the ambiguity and the draconian powers of the Ghanaian Head of State (President).
Interestingly, every President that has come after the military-civilian President has used same provisions in the constitution to strengthen their hold on the political administration of the country.
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