The wishes that never became horses: A case of Ghana’s constitutional review

On April 28, 1992, when Ghanaians took the path of democratic rule with the 1992 Constitution as its guide, I was a toddler and the only laws I knew were those my parents made for me, laws I was too young to make sense of.

I did not witness the military disruptions of various constitutions after independence, but history books and news journals have documented the gruesome dark era of military rule which was marked by suppression of freedom, authoritarian rule, and disregard for human rights.

For these and other factors, I appreciate the value of constitutionalism and subscribe to the school of thought that the 1992 Constitution has done the country some good, having birthed the Fourth Republic which has been the longest and most enduring republic in our nation’s history. It has been 30 years of uninterrupted stability and constitutional governance.

Ghana has witnessed smooth transfers of power from a governing to an opposition party on three separate occasions. In instances where election results became contentious, the parties went to the Supreme Court to seek redress, something that would have been only a dream under military rule.

However, as the world evolves, it is only a step in the right direction that the constitution is reviewed to serve the present generation. This is because the circumstances that influenced certain provisions have changed.

I am not referring to the unilateral decision by power-drunk leaders to amend the constitution to extend their term of office until even death gets fed up and yanks them off the seat of power like other African countries are witnessing. I am pointing to an inclusive and well-planned review that would help the democratic processes of the country.

Sadly, the result of the first comprehensive constitutional review exercise has ended up like various researches done in the country. It is gathering dust.

Yet, there are intermittent calls for a review of the constitution especially on the recent occasion of the 30th anniversary of the 1992 Constitution.  Public office holders, notably the president, is accused by civil society groups of abusing their powers.

It is about time we decided on what we want, make a strong case and push for it. And what a better way to start than to act on the constitutional review process we have spent so much money, time, and energy on.

The 2010 constitutional review and recommendations

The late president, John Evans Atta Mills, set up a nine-member committee to review the 1992 constitution after 18years. An amount of 6million dollars was spent on this exercise after consultations and 50,000 public submissions. However, there has been no implementation of the recommendations after 132 months of this exercise.

The committee that was set up recommended that the National Development Planning Commission (NDPC) be entrenched to bind all successive governments, enforceable at the instance of any individual or institution.

It suggested that end-of-service benefits or ex gratia should be paid to existing presidents as determined by an independent emoluments commission.

The committee also recommended that the president pays taxes on his salary to serve as an example to the citizenry.

The committee also recommended that the council of state is maintained as an advisory board to the president, parliament, and the judiciary on issues of national importance but the number must be reduced from 25 to 5.

It was recommended that chapter 24 of the constitution be reviewed for an effective declaration of assets by public officers and the verification of these assets by the Auditor-General.

The commission also proposed that the Commission on Human Rights and Administrative Justice (CHRAJ) be given the rights and access to verify and monitor assets declared without any cause for wrongdoing. Unfortunately, this particular proposal was rejected by the government in the white paper.

This is one of the amendments I gladly support due to instances in the past where public officers have amassed wealth for themselves. The recent one is the PPA boss, Adjenim Boateng Adjei, who became cedi, dollar and euro accounts -owner with huge amounts of cash flows after taking office. The declaration of assets can help curb these practices as it will put public officers on their toes.

On the Judiciary, the committee recommended that the composition of the judges at the supreme court be amended to provide for a maximum of fifteen justices and non-entrenched under Article 128(1).

And for a female like me, I would push for affirmative action any day. That is why the recommendation for the constitution to be amended to involve more women in political party activities to promote national integration is highly welcomed.

With respect to the local government, the election of the MMDCEs has become a topical issue for some time now, but the constitutional review makes room for that. In that review, the committee recommended that parliament be empowered to develop a structured mechanism for selecting MMDCEs and also electing them.

The government did not accept the recommendation on the basis that there is no future for partisan elections at the district and sub-district levels. The government indicated that arguments for a nonpartisan local government outweigh that of the partisan local government hence the rejection.

I beg to differ, last year’s election was a true reflection of this case. There were many who caused mayhem because they were not in favour of the MCE or DCE nominees appointed by the president.

Aftermath of review

Unfortunately, most of the selected recommendations listed above were not accepted by the government at the time.

After these recommendations, the government released a white paper stating the recommendations they have agreed to review and the ones they rejected.

As expected, the government did not accept that the NDPC be entrenched to bind all successive governments, enforceable at the instance of any individual or institution. The government claimed it would only be an opportunity for subsequent governments to be tied down by the interests and policies of a particular political party.

I would have agreed to this except for the fact that I believe the proposals by the NDPC should not be the sole decision of the political party in power but a team of experts to draw a plan that would fit into the interest of the nation, not the ideology of a particular political party. In the absence of a recommendation like this, the country will continue to suffer the fate we are seeing now with abandoned projects scattered across the country.

The Fourth Estate recently published a story on abandoned projects in the country. One that stood out for me is the Community Day Senior High School project that has been generally stalled when the National Democratic Congress (NDC) lost power in 2016 to the New Patriotic Party (NPP). Construction of some of the schools was not completed before the NPP came to power and some of the uncompleted buildings are serving as ghost classrooms and farmlands for others. That is just one of the many examples of the projects left unattended to by the current government due to a change in power and until the NDPC is structured well, we will continue to suffer this fate.

Also, the suggestion for the end of service benefits or ex gratia to be paid to existing presidents as determined by an independent emoluments commission was welcoming news for the government. Who would reject money when they do not have to work for it except that in this case, whoever decides how much should be given to these former presidents is chosen by the president in power?

This, in effect, means that the decisions taken favour the person in power or all article 71 holders in office at the time. The Centre for Democratic Development (CDD) report, published in July 2014 on the constitutional review process wondered how “independent” an emoluments committee could be when it is appointed by the same executive.

The report stated that “matters relating to the emolument of public officers occur too infrequently to have a dedicated permanent commission in place – particularly when there is a Fair Wages Board engaged in the determination of public sector wages.”

I perfectly agree that establishing committees to right the wrongs continuously adds to the mess the country is in since recommendations proffered by these committees are hardly implemented, just like the 2010 Constitutional Review Commission.

I do not think honouring our public office holders for their service is wrong, but the money they are paid during their tenure is enough to give them a comfortable life when they retire. An independent emoluments commission would be the best to decide on an amount that will not put a strain on the nation’s coffers.

The Commission also recommended that the president pays taxes on his salary to serve as an example to the citizenry. The government accepted this recommendation on the basis that it will depict the perfect saying of everyone being equal before the law. The mention of taxes reminds me, and I am sure everyone reading this would also be angered at the thought of the president not paying taxes at a time when people are already feeling burdened by the introduction of the electronic levy tax.

Under the legislature, the constitutional review committee recommended that an independent body be set up to determine the conditions of service of all public holders, including members of parliament.

Under the Judiciary, the committee also recommended that the composition of the judges at the supreme court be amended to provide for a maximum of fifteen justices and non-entrenched under Article 128(1).

And for a female like me, I would push for affirmative action any day and time. That is why the recommendation for the constitution to be amended to impose women-oriented on political parties to promote activities that promote national integration is highly welcomed.

Is this what the country needs after a thirty-year-old survival?

The government at the time, led by the late Evans Atta Mills established the Constitutional Review Implementation Committee to see to the implementation of the recommendations. After ten years, nothing has been heard of that committee or the implementation of the recommendations made. Thirty years on, it has become necessary to amend the constitution to suit the current conditions.

At a lecture to commemorate 30 years of Ghana’s constitutional democracy, the Executive Director for the CDD, H. Kwasi Prempeh, said the 1992 Constitution had served the country well in the area of Ghanaians choosing their own leaders into political office, but when it came to serving the people after being elected into office, it had become a different ball game.

“I think our Constitution has been great, excellent on the rules of entering and exit but not so great when it comes to the rules of play”, he stated.

This confirms the fact the existing constitution has not been effective and more needs to be done to ensure that. It must not only be about a review but a commitment to implement what is to be reviewed.

We cannot have a living document acting as a dead goat.