The constitution of the republic is a fusion of the Presidential system and the Parliamentary system
Our leaders continue to quote that famous statement made by President Obama during his state visit to Ghana to support their call on our governments to allow our institutions to operate freely, interestingly, you hear our politicians quote verbatim this statement when in opposition. I think the time to take a critical look at certain provisions in our constitution is now. The constitution needs serious amendments.
The constitution of the republic is a fusion of the Presidential system and the Parliamentary system, it must therefore lie between flexibility and rigidity to give it the character we claim it is. It is the fundamental characteristic of the English Constitution that it has evolved continuously without any such revolutionary changes as to necessitate its restatement in a single instrument establishing a constitution. We picked the Presidential aspect from the American constitution which is contained in a document containing articles (written constitution).
Framers of our constitution took into consideration the political situation at the time of writing the document and captured certain provisions into it to avoid possible disruption of the system. We were transiting from a military rule with its inherent dictatorial tendencies therefore, there was the need to manage the transition with extreme care and dexterity to help bring all the forces to the middle zone to actualize the fourth republic dream. The indemnity clause, excessive power guaranteed the executive and other provisions in the constitution were inserted to smoothen the transition. Powers guaranteed the executive by the constitution partially, makes the President as powerful as a military leader. If we really want this dispensation to survive all the political weathers, then we must quickly start taking a second look at the document.
The colonial government drafted a constitution which suited their operations in the colony. The Gold Coast colony was administered by the Governor, assisted by an executive council constituted by letters Patent and Royal instructions and composed of the colonial secretary, the Attorney General, the treasurer, the director of Medical Services and the secretary for native affairs who were ex officio members and other persons appointed under Royal Instructions.
Laws of the colony were made by the Governor, with the advice and consent of a legislative council constituted by the Gold Coast Colony Order- in - Council. When drafting a constitution, framers take into consideration (cognisance) the prevailing situation in the country and how the constitution can effectively respond to possible pressures. I don't think Chairman Rawlings and his men would have accepted to move the country into a constitutional rule if the drafters left out the indemnity clause. The indemnity clause featured in all constitutions drafted under the watch of our past military regimes and it was for a strategic purpose obvious to all.
Leaders in opposition make strong statement which captured the feeling and concerns of their supporters. Such expressions are made as a result of alleged misuse of state power by the incumbent. This was what President Rawlings said after leaving office. "When we allow them to win these elections, we would continue to suffer and our children will also suffer”. (2008)
Nana Akufo-Addo in opposition, also made strong statement to express his frustrations and that of his supporters.
“We exhibited a taste of our warring at the Atiwa By-Election. Let all understand that our party was founded by men of gallantry. The founding fathers of this party which today has become the biggest political movement in Ghana, were not men who hid under beds; therefore, the nerves we have in us will come to bare in the 2012 Election which will be “All Die Be Die”. “All Die Be Die”
President Mahama who just left office also expressed his disagreement over how the current administration was (is) handling his appointees and party supporters and he told his appointees in a meeting that he was going to protest vehemently to Nana Akufo-Addo.
We are going through all these challenges and witnessing these 12th century jokes because of the nature of the constitution guiding governance in the country. The constitution can easily turn a fair minded person into a dictator because of the excessive power it confers on the executive and the unlimited control the executive commands over all the institutions of state.
The kind of separation of powers being practiced in Ghana is not what Baron de Montesquieu propounded. State power is overly centralised as if we are operating a Monarchical system of government. The independence of the arms of government especially the Judiciary and legislature is not real. The judiciary which is generally seen as the most important arm of government, has been rendered ineffective and weak by the constitution, the executive operates as a supreme arm displaying opulence. There is nothing like Checks and balances to regulate activities of the various arms of government.
The Judiciary
One critical hitch we must immediately cure to forestall confidence in the judiciary is the appointment to the supreme court. It is dangerous, primitive, shameful and senseless to appoint persons who have coloured themselves politically to the supreme Court. It is shameful, and unacceptable. I pray that the current President who is a kingpin when it comes to the legal issues, will transit this nation from this backwardness into the decent zone. Presidents since 1992 have taken advantage of the authority guaranteed them by the constitution, to appoint cronies and political allies to fill that powerful office (space) and the most primitive aspect is that people who have contested Parliamentary elections on the ticket of political parties are appointed to the supreme court.
In the United Kingdom, the procedure for appointing a Justice to the supreme court is reviewed intermittently but the processes still appear complex because of the importance they attach to this noble office. The appointment process lies in the domain of the judiciary. The Lord Chancellor convenes a selection commission. The President of its judicial council has to nominate a senior judge from anywhere in the United Kingdom but must finalise the arrangement in collaboration with judicial appointment board in Scotland and that of Northern Ireland and Wales and who is a senior judge is clearly defined at paragraph 60(1) of the Act and a person may only be selected if he meets the qualifications set out at section 25. If, following the consultations the Lord Chancellor is satisfied with the recommendations made by the selection commission, the candidates name is forwarded to the Prime Minister who, in turn, forward it to the Queen who makes the final appointment.
In Canada, certain requirements must be met before the Prime Minister can recommend a judge to the supreme Court. Conventional considerations such as geographic requirements, years of service as a judge of a superior court or as a member of a provincial or territorial law society are factored into the processes. In 2006, there were certain amendments initiated by Stephen Harper and it required nominees to undergo three hours of questioning before an all party House of Commons committee, in 2010, the bilingual clause was introduced because of the Quebec connection and it is that, judges are to hear cases in both official languages (French and English) without an interpreter.
So you see the seriousness states attach to nomination of Judges to the supreme Court
The issue about the Attorney General is another critical point we must look at. How independent is the Judiciary if the executive with all the other powers conferred on him,is the one who appoints the Chief Justice in consultation with a council of state made up of persons he nominates and others nominated on party lines.
Heads of our Security Institutions
This is another critical area we must apply the amendment tool. At this point of our democracy I don't see the reason why appointment of heads of our institutions must be made by the executive and why heads of our security institutions must change after every change of government. Institutions who hold sensitive state information must operate independently and must be allowed to operate according to their stipulated rules and regulations. The constitution must be amended to protect their tenure in office and their operations to avoid the nasty scenes we see in the country. Gradually, these institutions are being neutralised by the politicians rendering them ineffective and mere surrogates.
I will continue in my subsequent write-up but my sincerest position on this issue is that, Nana Akufo-Addo must show the way, he must prove that he is really the law kingpin his admirers celebrate daily by helping to remove the hitches enumerated. He must avoid appointing his known cronies to the supreme court and I also respectfully plead with him never to give us a CJ who is politically tainted after the newly appointed CJ. The independence of the judiciary must be protected at all times to help sustain the respect the judiciary command in the country. The democracy we are enjoying can only thrive smoothly if we allow such sensitive state institutions to operate freely, and independently.