Analysis Of The Call For Amendment Of Article 78

...Of Ghana’s 1992 Republican Constitution

Akoto in Kumasi: Kojo, I vehemently disagree with your panelist. Article 290 is still relevant; we don't want the majority manipulating things like “a presidential term”. So there should be no amendment.” Don’t make a mistake; this is one of the hundreds of text messages received by the JOY FM’s Super Morning Show programme on July 18, 2006 concerning a call to amend article 78 of the 1992 republican constitution.

Clause 1 of this article specifically state “ministers of state shall be appointed by the president with the prior approval of parliament from among members of parliament or persons qualified to be elected as members of parliament, except that majority of ministers of state shall be appointed from among members of parliament.” This argument though not new indicates that article 78 negatively impacts the legislature’s ability to be a check on the executive. Hence Hon. Freddy Blay, Ghana’s first deputy speaker of parliament thinks it must be amended.


Just as many experts and listeners to the various arguments on the most popular morning show in Ghana agree to the view that article 78 must be amended; an equal number of experts and audience also think despite the limitations which necessitate a change, the time is not yet ripe for such amendment. However, this article examines the various arguments and offers the way out of this dilemma. But before then, a bit of background and history would be necessary.


To begin, some members of the 1991 consultative assembly spoken with by the writer indicate the origin of article 78 which is in the 1992 republican constitution. According to them, the article was taken from the 1969 and 1979 constitutions. Learning from the past experiences of military intervention as well as the 1979 Dr. Hilla Liman government’s experience in parliament where the said government’s budget was thrown out, the drafters of the ’92 constitution thought it wise for subsequent constitutional governments to have some level of facilitation in parliament regarding policy issues. In other words, there arose the need for the government to have majority of its ministers to from the legislature. That way, governments will not be humiliated again by over ambitious legislators by throwing out their policy proposals.


It is important however to indicate that at the time, members of the consultative assembly were of the view that Ghana should adopt a hybrid system of government. Unlike the 1969 Westminster model and the 1979 American Presidential system, the assembly thought is wise to have our own mix:- i.e. an executive president with majority of ministers from parliament who also perform their legislative functions. The advantages of this system rely on the strengths of the two systems (Westminster and Presidential). It can be said that this was a lazy way of finding solution to the problem. And to make matters worse, the entire chapter 8 of the constitution which contains article 78 has been entrenched making it extremely difficult, both legally and financially for any immediate amendments.


Meanwhile, it is common knowledge that despite the merits of the two systems they both have their limitations. But that is not to say that the limitations, biting as they may be, far outweigh the benefits of same. This is why it should have been necessary for the country to proceed with caution in dealing with such issues.

Yes, the rationale underlying the principle of separation of powers by an ancient English political philosopher John Locke was the division of legislative power between the King and Parliament of England. Many years later, a French political philosopher, Baron d’ Montesquieu also wrote as quoted in Encyclopedia Britannica that “liberty is most highly promoted when there are three branches of government acting independently of each other.” Other literatures also state that later American writers such Alexander Hamilton, James Madison and John Jay made their contributions to this topic. Evidence available has it that this was the principle around which the British and American constitutions were written. However, the French scholar, Montesquieu recognized the extremities of this principle and developed a complemental one called the Checks and Balances which allows each of the braches to serve as a judge of the other’s activities. This was not meant to override the importance of the first principle but to rather consolidate it.


From the foregoing background, it is pretty obvious then that the success of Western democracy is underscored by the Lockean principle of separation of powers and the Monstequieuean principle of checks and balances. I am tempted to believe that the drafters of our 1992 constitution made a mistake by adopting the form of hybrid system we have now. As a young and fragile country which was just emerging from another decade of unconstitutional rule, it was believed that this was the only way to secure the system, but I beg to differ.


Whilst people like the Hon Freddy Blay, first deputy speaker of Ghana’s parliament, Mr. Tony Forson, a legal practitioner and member of the consultative assembly as well as Hon. Alhaji Mohammed Mumuni, a former member of parliament and one time minister of state believe that the limitations of the current hybrid system is weakening the legislative powers of parliament and therefore needs to be amended, Dr. Tony Aidoo also a member of the consultative assembly and Mr. Kwesi Jonah, a governance expert think we need to exercise restraint and proceed cautiously. Although a lot of people may support both sides, I think there should be a way out of this. What baffles me most is why this article is entrenched in the constitution. It means that even though we all acknowledge the difficulties, there is nothing we can do about it especially due to the cost implications. But must we always accept such explanations to issues that affect the effective functioning of our democracy? For me, the answer is NO.


I am of the firm believe that the separation of powers among the braches of government is absolutely necessary; in fact even more so to Ghana, an underdeveloped country than to America, Britain and other western democracies. Corruption, wanton abuse of power, mismanagement, inefficiency, and nepotism are some of the ills that confront many countries in Africa including Ghana. The only way our democracy can be strongly rooted is to have an effective and efficient legislature, and the judiciary checking the powers and activities of the executive and vice versa. This calls for strict adherence to the two principles proposed by Locke and Montesquieu. We must not forget as a country, that these were the same principles that built the British and American democracy. We need this more in Ghana now than ever.


It is a noted fact that most parliamentarians appointed ministers of state think of their colleague parliamentarians as subordinates. This is partly due to the comfort and luxuries that go with their office. The enjoy free car, free fuel, free house, free water, electricity tariffs, telephone tariffs, a lot of allowances, free clothing, and even as some of the might wish “free girls and condoms for their leisure” whilst their colleagues in parliament even have to take loans before they ride in a car to perform their legislative duties; not to talk about lack of office accommodation. How do you expect this MP turned minister to reject a policy proposal from his boss, the president even if it is not in the interest of the state? It is simply not possible. In such circumstances, legislators become puppets for the executive. This needs to be corrected, and according Alhaji Mumuni “as a matter of urgency”.

As such, if Dr. Tony Aidoo and Mr. Kwesi Jonah identify themselves with the difficulties, then I think they have no point in essentially saying that the country is not ready for such amendments. In my view, the legislature must force the executive to introduce a proposal for this amendment. But since it is an entrenched provision, there are obvious cost implications because any such proposed amendment has to go through a referendum. In as much as I acknowledge the impediments, as some members of parliament who are members of the executive would not agree to the proposal, I think the choice is in the hands of ordinary Ghanaians. Ghanaians would be prepared to spend their tax monies for this exercise than for anything else.


But one may ask the question, what system of government will this be? Legitimate as this may be, I think the answer is simple. It is still the hybrid. Our president will still be elected; parliamentarians will also be elected by the people; but the president must be given the power to appoint all his ministers from outside parliament. This way, the principles of separation of powers and checks and balances will operate effectively. It will be very close to the American presidential system; but this is good. The executive can effectively be made accountable for its actions by the legislature when this system is put in place. Yes there may be limitations as no system is full-proof. But I think the benefits are very enormous and we need to consider this under a certificate of urgency. That way, our democracy will be more secured and entrenched. Therefore the call for amendment of article 78 must be supported by all.


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