The 1992 Constitution of Ghana
A constitution is simply a supreme legal document that spells out how an Entity or Country is to be governed through aggregates of fundamental principles or established precedents on Political, Economic, and Social matters of the Polity or Organization or Entity.
It includes considering past experiences and future issues or thoughts as well as considering the history or experiences of other similar entities or Countries and coming out with provisions as binding forces on the authorities and all persons throughout the Country.
The first amendment of the 1992 Constitution was in 1996 and no amendment since the first one in 1996. So, the year 2010 saw a giant stride to make what may be termed as an attempt to overhaul the 1992 Constitution and not a simple amendment as was done in 1996, but due to our brand of cheap talk without walking the talk, the situation remained abeyance or kept lingering to date.
Due to the dragging of feet on the matter over Five Million Dollars was wasted in the attempt to make a massive amendment to the Constitution by traveling Nationwide, outside Ghana to collate views and on several meetings to look into the views.
This could be regarded as an absurdity act, similar to an attempt to annul a marriage that has endured over 30 years but due to a crazy ideology by a silly man in a search for what he termed as a fit-for-purpose wife, he has not been able to get a woman to replace the very respectful, hardworking, submissive and cooperative wife. Hmm, as of date, we have not succeeded in the amendment of just a single or one provision after the 13 years when we initiated action to amend the Constitution.
Sometimes, we hear from some of our respected compatriots, speak on the need to take urgent action on this report of the Constitutional Review Commission but the discussions made by such persons on some of the provisions were sometimes found to be at variance with most of the recommendations made in the Report.
Thus, the suggestion that they have not read the very good work in the Constitutional Review Commission’s Report of Professor Atuguba and others we once again may cause a waste of national funds, our brand, to once again add cost to cost by setting up another Constitutional Review Commission (CRC).
Based on the wide research works by the CRC on the Constitution of a lot of Countries and views from Scholars in Political Science and Constitutional Scholars and a review of previous reports on the democratic dispensation of Ghana and other Countries, let me it very clear that the Professor Atuguba’s report truly affirmed the appointing authority of the President of Ghana as the Head of State, Chief Executive, and Commanding in Chief of the Armed Forces of Ghana for Constitutional vacant Offices including that of the Chief Justice, Chairperson of Constitutional Bodies like the EC, NCCE, CHRAJ and other National Policy making Offices excluding Office of Hon MPs.
Professor Atuguba and others' report even attempted to add cost to cost by additional layers of appointment or doing things just as the creation or the addition of the Office of Special Prosecutor to our political lexicon without any good results after 7 years of enactment by Parliament.
They wanted an addition to the President’s Appointment lists with the possible creation of an additional budget line for an independent Emolument Commission with Office accommodation and supporting staff, vehicles, monthly emoluments, etc, instead of a temporary committee to be organized every four years at the tail end of a regime as in the Constitution which I regard as cost-effective.
Let me make it openly that the Appointing Authority of the President was further endorsed in the unconstitutional Government white paper which reflected a one-man show by then President Mills when he reviewed the views of the majority of the citizens as collated by the Commission.
Hence President Mills arrogated himself as an appellate Court and reviewed the report of the Constitutional Review Commission, which had the powers of a superior Court.
Maybe he thought he could do so because instead of getting Parliament to use the Provisions under Chapter twenty-five of the Constitution, he used an alien or illegal or wrong procedure by invoking Section (1) of Article 278 of the 1992 Constitution which deals with incidents of public interest and change of the boundaries, or creation of new regions etc.
God is Great, he has taught us a lot of lessons and he is teaching us with a lot of lessons but we have still refused and are refusing to change our attitude including a review of incidents and taking lessons from some of the incidents including the national Disasters (Environmental, Economic, Financial including, Judgment debt, Debt Restructuring etc.) we have gone, we are going through and we may go through because what has happened before will happen again as said in the Bible.
Ghana has been to the IMF over 10 times for bail-out. We had more than 12 Spillages at Akosombu and Kpong Dams, and the yearly flooding due to the Spillage at the Bagre Multipurpose Dam has become part of our environmental disaster and economic disaster due to the spillage at this Dam which is being used as a source of irrigation for farms producing tomatoes which we spent over 2 million Dollars monthly in the importation of tomatoes from Burkina Faso.
The river Volta divides Ghana and Burkina Faso into Upper Volta and Lower Volta. Those in the Upstream are making use of River Volta to improve their economy and provide jobs but those in the Lower Stream are not making good use of the Lower Volta for Multipurpose projects like Hydroelectric Power, Irrigation, Fish production especially tilapia, transportation to change the Goggisburg economy or the economy fundamentals of Ghana.
We went through a long period of Dumsor in the past and may still go through Dumsor, food security is a problem, and issues of flooding from river Volta at Akosombu Dam and from the Bagre Dam to maintain the integrity of the Akosombu Dam and Bagre Dam and heavy rains/ River Volta continued to be causing excess water yearly with the resultant flooding at the lower stream of River Volta and perennial flooding in areas in Oti Region, Brong Ahafo, and the North respectively.
Hmm, we also had Dumsor for not less than three years in Ghana. Our Country is also confronted with a disaster called Small Scale Mining due to a bad law on Small Scale Mining by Parliament. We also recently added a judgment debt of 140 million Dollars to our crisis.
Due to various issues especially the hardship, some of us are calling for a Military coup despite the cruelty at experienced during the Military rule maybe we have either forgotten our experiences during military regimes or some of us do not read the history of our nation.
So, once in a while, due to our foolhardiness, God sometimes gives us a picture or lesson of what may happen in a Military Rule with the example of the Ashaiman attack by the Ghana Armed Forces with air support, the recent attack in Bawku by personnel of National Security.
Bob Marley the Reggae Maestro lives on with his Concrete Jungle, I Shot the Sheriff/Every Day the Bucket Goes into the Well, one day the bottom ‘go’ drop out. So, the 1992 Constitution which anchors the Fourth Republic must be protected, and make amendments when necessary.
Thanks to God for the very hardworking Hon Mr. Samuel Ablakwa for championing the cause of his people due to the failure of NADMO to seize the initiative as the National Disaster Authority hence for the coordination of Disaster issues including receipt and distribution of relief, their special area of Interest or perfection. The media too are not covering the problems nationwide otherwise effectively for us to galvanize support for victims nationwide.
Sammy should do well to hand to NADMO and set up a monitoring team and as Hon MP, he should continue to be appealing for support for the other areas in the Volta Region to halt the blame game and ask for investigation for us to know the true state of things and give good advice because some of the people are blamable.
Resettlement was done for 80,000 people in 1964 though it was poorly done in a rush manner including cash payment for those who opted for relocation. Dr Nkrumah did it in a rushed manner to finish the Akosombu project by 1966 as if he was aware of the coup ahead.
In 1977, General Acheampong personally ensured over 7,000 people at the Downstream of Akosombu at Kpong area were well settled in before he started the project. Flt Lt JJ Rawlings added the underutilized 20 million Dollar Avayime Rice Project for the usage of the project and some of the settlers at Downstream.
NDC under President Mills also encouraged the relocation of some affected persons when spillage by VRA was done in November 2010. Let me state that it was in the year 2010 that VRA came out with a Disaster Management Plan. Meaning none existed before 2010 or poor handing over and taking over the process by Officials. This needs to be corrected and NADMO should ensure Institutions have Disaster Management Plan and submit copies to her.
Shockingly, some of the Irrigation Dams until 2018 did not have Emergency Management Plans, so one may wonder whether NADMO is really in existence despite its creation in 1996. NADMO please wake up Wake up.
Please with the unwarranted calls for the jettison or the call for the Military to overthrow the 1992 Constitution for no good reason, let me add matters on the Military as a Constitutional Body, and the related problem of the crisis which occurred at Ashaiman and the call for the state of Emergency at the flooded areas before going back to main subject for this submission which are related to the governance of Ghana.
The first state of emergency was done in 2007 by President Kofour at the Upstream of River Volta or Northern parts of Ghana, because we did not ask for external support not much was received from the International Communities or externally, even not much internally.
I think a mere announcement of a State of Disaster by NADMO or the Government and making a formal request for external and internal support and designation of the Coordination/receiving point or Account is the way to go and not a State of Emergency by law is to make the Government to internally mobilize resources including temporary confiscation of needed assets, amend laws by Derogation process to provide a free hand to the Military and Police to operate etc. Foreign assistance is by request.
Those calling for a Military Coup to change the Constitution and State of Emergency for flooded areas are failing to understand the lessons God gave us at Ashaiman where the Military acted as if they were shooting a film with helicopters on search and rescue, destroy operation to put the fear of God into affected persons or areas or the situation at Bawku which one may say should be in State of Emergency area.
I will deal with this matter as a lesson to us from God under why the President must appoint the CDS, the Service Commanders, and the IGP why the call for a coup as envisaged by me has incapacitated the President, and why the call for a state of emergency not the best in my next article on National Disasters.
The solution to all the above problems of Ghana is not part of the Constitution but poor leadership or bad governance since 1993 for not embarking on projects planned before the year 1700 to use the Volta Basin to solve the weak macroeconomics fundamentals, food insecurity, the Dumsor, hence the avoidance of the 140 million Dollars judgment debt.
Likewise, the reduction of the flooding in Ghana due to the spillage of the Bagre Dam. One of the remedial actions is the need for the establishment of multipurpose Hydroelectric Projects and Irrigation Projects at Pwalugu, Savelegu, etc. There must be something very wrong with our Leaders, they cannot think far.
We made ugly noises about improving our economy so we came out with Komenda Sugar Production Series. Hmm, It will remain a national embarrassment to us or an albatross on our neck or a white elephant because for whatever reason we woefully failed to think properly so that we can establish Sugar Production Series and hydroelectric power Stations in the North along the lower River Volta as a vehicle for solving our Goggisburg economy and reduce the flooding from Burkina Faso through River Volta by the simple use of the economy principle of Comparative Advantage in economy development as at Section 2b of Article 87 of the 1992 (2) (b) Constitution.
Like the Report of the Constitutional Review Commission which may be under the attack by mice by now, we rushed and established a Sugar Production Series at Komenda without using the audit reports of the NLC regime on the uneconomical or wasteful Ghana Sugar Estate Company established by Dr Nkrumah, without the project in line with basic economy principles.
Due to our poor appreciation of Constitutional matters otherwise our deceit, dishonesty, hypocrisy, incompetency, we are putting our problems on the 1992 Constitution thus we failed and failing to appreciate that the Constitution established an efficient Constitutional Economy Management Team.
This is so, when the framers of the 1992 Constitution through God’s provided wisdom of the CPP through the NDC and NPP with different economic and political ideologies, so to ensure efficient economic and social development of Ghana, they ceded the Economy Planning Wing of former Ministry of Finance and Economy Planning and established the National Development Planning Commission at Article 86 of the Constitution which alienated the Vice President of Ghana as member of the Constitutional mandated Economy Management Team.
Through our deceit, dishonesty, hypocrisy, and incompetency attitude, we have established a tea-drinking party under the Office of the Vice President since 1993 thus demoing our trademark always adding cost to cost by creating parallel institutions.
At this point, Hon Haruna Iddrisu, then Minority Leader had to speak for additional money for the Office of the Vice President an Office which has been sidelined by all regimes since 1993 with some VPs reportedly attempting to resign.
God is great, Hon Mr. Alan Cash, a former member of the Tea Drinking Economy Management Team is going to say it all. President Nana Addo even unknowingly disclosed something very close to an issue of sidelining of Dr Bawumia, when he proclaimed that an economy messiah was/is one of the NPP’s Primary Presidential Candidates.
Dr Bawumia was very smart when in 2017 he mentioned the names of members of the Tea Party dubbed as Economy Management Team. So, Hon Alan Cash on a different vehicle will speak on why he woefully failed as a Minister of Trade and Industry. Hmm, 2024 is going to be a very interesting year because the CONSTITUTIONAL TRUTH shall drop in Ghana like a Bomb (Bob Marley Lives on), the organization decides everything.
NPP therefore needs to be well organized with Dr Bawumia, a mere driver mate or spare driver who has made a mark as against previous Vice Presidents from the late His Excellency VP Ekow Arkah to him.
Let me record that since 1993 available feasibility reports on possible Mini Hydroelectric Power Stations and Irrigation Projects for Rice and Sugar Production in Ghana made by the regimes of the late General Acheampong, the PNP under President Liman, in his New Deal, the PNDC (including my view on Komenda not a good place for sugar production when I was the Commanding Officer of the former Ghana Armed Forces Farms, hence a custodian of confiscated lands and assets in Central Region and Tema, Tamale etc some of the assets then under Hon Mr. Joseph Yieleh Chireh, then one of my bosses at the PNDC secretariat.
There was/is also the 2007 report on Sugar Production in Ghana by the Government of Brazil through Embrampa, and the 2010 Sugar Production report to then President Mills by Cargill International. The 2013 and 2014 Sugar Production Project reports by Japanese and Moroccan Companies during the regime of President Mahama. So, we are good to go to change the Goggisburg economy.
The Jospong Group has responded with an initiative for massive rice production. Ghana may need an investor to invest 500 million Dollars in these projects in the North.
Enter the 1992 Constitution, it is very shocking when you hear some of the discussions or cheap talks on why the Constitution should be amended. Among such talks were/are (a). The Constitution was made to satisfy a Military Dictator, in the person of the then Chairman of the PNDC, namely Flt Lt JJ Rawlings, these persons have no good knowledge of the Political History of Ghana the source document of the 1992 Constitution as the 1979 Constitution and that Flt Lt JJ Rawlings was not happy with the Constitution.
The President’s appointing authority is too much (3). The President should not appoint the Chief Justice and other members of the Judiciary. The most ridiculous were the comments from some scholars of Political Science and Lawyers who should be in a better position to tell us why the situation is so.
It is envisaged that they have rather demonstrated their true colors or gross ignorance on the matters, so they supported wrong sentiments made by two Senior Police Officers including COP Kofi Boakye who wrongly called for the amendment of the provisions to oust the President as the appointing authority for the IGP (COP Number One) and others in the Police.
They even added the need for ousting the President from appointing the Chief of Defence Staff and service Commanders.
Firstly, let me one more time say that the 1992 Constitution was not made to please then Chairman of the PNDC, namely then Flight Lieutenant JJ Rawlings but it was based on our political history, the framers of the Constitution simply tweaked or fine-tuned the 1979 Constitution.
Let me also make it clear that the attempt to return to Civilian Rule in the Fourth Republic started in 1983. It then reached a crescendo level in 1990/91 due to both internal and external vehement pressures that culminated in the establishment of the 1992 Constitution which anchored the Fourth Republic of Ghana.
So, the birth of the 1992 Constitution which anchored the Fourth Republic of Ghana was saturated with blood, tears, and sweat of many patriots who died battling against Military dictatorship.
Some dead Patriots who prayed for a return to Civilian Rule in the Fourth Republic and thus battled against Military dictatorship include BBD Asamoah, Professor PAV Ansah, and Professor Adu Boahen. Furthermore, were Editors of the following papers before 1993 (a). Ashanti Pioneer, (b).
The Christian Chronicle, (c) Legon Observer, (d). Catholic Standard. My Boss, the late Kyeremah Djan in an alleged Coup in October 1985. He was my boss as the Chairman of the SRC’s Entertainment Committee of UST (Now KNUST) that was when I was the Chairman of the Republic Hall Entertainment Committee.
Persons in the Military who reportedly attempted to see to the return to Civilian include Lieutenant Kenneth Korah, Halidu Carlos Giwa and others in the November 1982 attempted Coup. Likewise, one of my best friends and mates in Navrongo Secondary School, by name Lieutenant Peter Achana (the lone Ranger).
The Framers of the 1992 Constitution were fully aware that no condition is permanent. For example, The Onassis, Rockefeller, and Belly Gate are no longer the number one richest family in the World.
So, the framers, saw that provision for the amendments of the Constitution was/is sine qua non for the growth and development of the Country with time, so they provided room through provisions for the amendment of the Constitution in Chapter 25 from Article 289 to Article 292.
In a Democratic Government or Dispensation with a Presidential System of Government like the USA, Ghana, Kenya, Nigeria, etc. the whole Country is the Constituency of the President and the Presidential Candidate elect is the one who will win at least 50 percent. In case of Ghana, it must be at least 50 percent plus one vote.
Politics like Religion or Culture is simply a way of Life. So, like the Major Religions, we have the Capitalist's way of life as propounded by Adam Smith with the NPP claimed or perceived to be the followers of Adam Smith. Then we have the Socialist's way of life as by Karl Marx with the NDC, CPP, etc. as the followers.
The Constitution of Ghana spells out how the Government of Ghana or the life of the Country should be organized. Hence, the Constitution tells that the Sovereign Powers of a Country reside with the people of the Country who by-election delegate various powers to two (the Legislature and the Executive) of the three coequal Lateral Arms of Government namely the Judiciary (with Judiciary powers), the Legislature (with Legislature powers) and the Executive with Executive Power, these three Arms share sovereign power through what is termed as Separation of powers with checks and balances.
In 1670 the Executive Arm of Government found it necessary for the creation of executive bodies as Constitutional Bodies some say as Independent Executive Bodies like the Electoral Commission, CHRAJ, NCCE, Central Bank, etc as in the 1992 Constitution to be constituted as the fourth Arm of Government but with independent executive powers thus enjoying Independence in the making of policy decisions by the principle of separation of powers. Hence, the Constitution is made of four Arms of Government, the Legislature, the Judiciary, the Executive, and the Independent Executive or Constitutional Bodies.
The President as Chief Executive and Appointing Authority.
The Constitution is therefore a political document with rules and regulations enacted by the Electorates in a Referendum for a Democratic dispensation in which by a National Election, the electorates delegate the Executive Powers to the President for the day-to-day running or managing of the Government Machinery.
Hence the executive powers or authority of the State is delegated by the people to the Executive Arm with the President as the Chief or Head of Executive. Hence the Executive unlike the Judiciary and Parliament remains in post 24/7, whilst the Judiciary and Parliament on recess hence the Executive does no go on recess.
By the 1992 Constitution, the Executive Power is only transferred or delegated to the Presidential Candidate who wins 50 percent plus one vote, who must be confirmed by the Chief Justice before the Hon MPs. So the President, as the Head of the National Executive and the Leader of his Political Party, if won on the ticket of his political party, exercises the powers conferred on him by the Nation otherwise, the 50 percent plus one vote of voters and through the principle of Majoritarianism, the majority carries the day, so the President must have a say on who appoints persons to occupy Constitutional vacancies in Constitutional creatures other than the elected Hon MPs, some of whom he can also nominate to occupy Ministerial vacancies as required by the 1992 Constitution.
So, on assuming Office, the president unless directed by the Constitution as in the case of the Media Commission, he or she as the President exercising executive powers on behalf of the people must appoint all persons who are also to exercise or wield Constitutional executive powers in their Realm, on the behalf of the citizens.
Implying that the appointment of persons to occupy Policymaking offices of the Constitutional Creatures is done by the Presidential Candidate with Fifty plus one vote, this is symbolic
Indicative.
Appointment of the Chairman and others for Independent Executive Bodies
By the Constitution of Ghana, the Appointment of some key personnel of Constitutional Bodies or Independent Executive Bodies is shared with the Council or State in an advisory role or Consultation with the Council. No third layer for the appointment not like the situation in Nigeria where the President’s appointees require confirmation of Parliament (Senate) as in Nigeria.
In the Constitution of Nigeria, the Chairman and members of any of the Executive Bodies so established shall subject to the provision of the Nigeria Constitution be appointed by the President and the appointment shall be required to obtain the confirmation of the Senate.
Section 1 of Article 156 of the Constitution of Nigeria makes an interesting point that needs the attention of Ghanaians, that no person shall be qualified for the appointment as a member of the Executive Bodies if (a) he is not qualified or is disqualified for election as a member of the House of Representatives, now to qualified to be elected as a member of the House of Rep you must be a member of a Political Party or sponsored by it. So, does it mean that a party man can be appointed to be a member of the EC in Nigeria?
Appointment of IGP, the CDS, and Service Commanders. The President is the Chief Executive Officer of Ghana and he is responsible for National Security including internal security maintaining law and order and dealing with external enemies, so common sense dictates that he must have a free hand to select a team from the high echelons of Security of the National Leaderships to help him to do his work effectively and efficiently since loyalty to him is key.
So, the President must appoint the IGP, CDS, and others as in the Constitution. Experiences of Presidents in the America War, the Second World War, and the Falkland War (the Iron Lady Margret Tarcher) speak volumes on why the President must appoint Commanders loyal to him.
In Ghana, the Appointments of the IGP, the Chief of Defence Staff (CDS), Service Commanders, and the Director General of Prison are done by the President acting in consultation with the Council of State. I recommend for clarity on whether the appointment shall be done among members of the Police and Armed Forces for the IGP and CDS respectively or in the case of the Service Commanders, the Constitution should be made to read among members of each Commander’s particular Service.
All the Personnel of the Police and the Armed Forces are armed, which is why in some countries like Nigeria the Police are called Police Force the Police are armed so that they can perform their security duties efficiently.
The elected Civilian Authority must control the guns of the security agencies to prevent untoward acts. So, the operational use of armed personnel of the Armed Forces should be determined by elected civilian authority to prevent incidents like what happened in Ashaiman. So, we need to rewrite this permission in any amendment by Parliament.
Considering the state of armed robbers, the IGP should be free with the operational use of armed security personnel to deal with armed robbers.
Officers and men must be subordinated to civilian authority, the President or his delegated Officer or person in the Region. Unless under an emergency, so unless under an emergency, the President should determine the operational use of the Troops otherwise by his Regional Minister within the Region.
Although the loyalty of the Military or Security personnel is to the Constitution, it is also to the President the Custodian of the Constitution since a Coup to overthrow the President may imply the overthrow of the Constitution as well.
It should be noted that the appointment of the CDS etc must be the President, so that loyalty will be accorded to the appointing Authority, the President. Since he has the option to choose anyone within the Military with Regional Balance in mind as the CDS.
Loyalty is two ways, so the President must have trust in the nominee for CDS, IGP, etc to help him in executing his Constitutional mandate including maintenance and enforcement of law and order, the role of the executive.
So, the Police and the Military are also Constitutional Executive Bodies, hence The constitutional Authority or the Authority to the role is the elected Civilian Authority Head, and is the President and not a group or neutral panel to select Miss Ghana or MD for Ghana Commercial Bank or Headmaster of a SHS or VC of University.
This should not be a matter for making ugly noises about.
In Nigeria, the Constitution at Section (1) (a) of Article 215 says that the appointment of the IGP of Nigeria is subject to provision at section 216 (2) on the advice of the Nigeria Police Council and to be done from amongst serving members of the Police Force. This gives clarity on the appointment.
The Constitution of Nigeria at Article 218 (1) speaks of the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation and the power of the President shall include the power to determine the operational use of the Armed Forces of the Federation. Hence, one may say that operational use of the Military requires the approval authority of the President.
Hence, the situation in Ashaiman where we saw some Military personnel supported with aircraft especially helicopters could not have been possible in Nigeria without the approval of the President. Since the President shall determine the operational use of the Armed Forces of the Federation. So, we need to fine-tune our Constitution to read the same as in the Constitution of Nigeria.
State of Emergency and State of Disaster so that the Minister of Interior,
A state of Emergency (SoE) has the legal authority under Article 31 of the 1992 Constitution with the President as the appointing authority to determine and declare SoE when the life of the nation is under threat by war/by internal enemy or external forces or due to a serious disaster.
It allows the Executive to use maximum resources and troops without recourse to Parliament to deal with the problem since enforcement of the measures is necessary. It also allows modification of a law to facilitate security operations by a process called Derogation for modification or suspension of a specific law, rights are modified or curtailed. It also allows seizures of assets needed for dealing with the problem.
State of Disaster is recommended to be enacted by Parliament through insertion in the Disaster Management Act of 1997 or so to enable the effective coordination and management of national disasters by NADMO.
The Independence of the Judiciary /Selection of the Chief Justices etc The Chief Justice is the Head of the Judiciary, the Speaker is the Head of the Legislature, and in a Presidential system, the President is the Head of State, Head of Government and Head of National Executive.
As the Head of State, Head of Government and Head of National Executives, the Leader of his Political Party, and the custodian of the 1992 Constitution, the President is the person delegated with National or Constitutional Executive powers by the people, especially the 50% voters plus one voter, must act on behalf of the Electorates or citizens in the appointment of all persons who are to exercise Constructional powers other than MPs in all the three Arms of Government and Constitutional Bodies.
A careful study may reveal that the President, besides nominating or appointing the Chief Justice and others in the Judiciary he also as the Leader of his Party, nominates or shares in the nomination of the leadership of his Party in Parliament.
Also, as the leader of his Party, he shares power in the nominating of a person to be elected as the Speaker of Parliament by Hon MPs. The recent interference of the Leadership of the NDC Party in the change of leadership of the Minority Group tells of the spread of the octopus tentacles of the President everywhere in the executive presidency system.
So, the President shares power in the appointment of the Chief Justice with others including Parliament the people’s representatives. The Chief Justice too, as the Head of the Judiciary or his Rep must confirm (somehow appoint) the President by swearing in the person as President-elect before he takes Office as President, and this is done before Hon MPs as the Reps of the people to help in the confirmation process of the President. This may be regarded as a system of checks and balances.
The chief Justice plays a part in the removal of the President and the President acts as a vehicle for the removal of the CJ and Justice of the Supreme Court and the Chairmen and Deputies of the Independent Executive Bodies.
The Independence of Constitutional creatures should therefore not confuse us, it is among others, about their independence in the decision-making process on behalf of the electorates and to do so they are guaranteed secured office, good and secured emoluments, functions and removal process are Constitutional provisions, which are known to them, their loyalty is to the Constitution by Oath of Allegiance to the Constitution, which represents the will of the people. So, they may be failing their Oath if not acting properly.
So let me say that the appointing of Policy Making Officers with executive powers emanates from the constitution and the Constitution makes the President the Head of the Executive and Head of State hence, so, he must have a say in appointing persons to fill a constitutional vacancy.
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Unlike the Constitution of South Africa in which the President is elected among members of Parliament but in Ghana and other Countries, the President is elected directly by the electorates. The Speaker of Parliament since he or she is elected by members of Parliament from among members or persons outside but qualified to be MP, the Speaker most often comes from the Majority Group in Parliament.
So, when the President is elected on the ticket of a political party and he is regarded as the Leader of the Party, this makes him have a bigger say in the election of the Speaker and the leadership of his Party in Parliament.
There is a very serious misconception of the term Independence in a Political Governance system. Among others, it means, secured tenured of office by the Constitution, good and secured emoluments, removals are by Constitutional provisions, independent in decision making.
For example, the EC has decided that Ghana Card is going to be used for the registration of voters and so submitted to Parliament a Constitutional Instrument (CI) to mature by 21days unless defeated by two-thirds of members present to get the EC to effect and by the principle of separation of powers, the only way to get the EC Team to change their mind is when the CI is defeated in Parliament by two-thirds of the vote of members present.
The Constitutional language or expression on Supreme Court appointments gives justices life time appointments, hence independence from the Executive and Parliament. So, this meets the concept of Independence.
Independence, also means in some cases the Governor of the Bank of Ghana is not subject to insubordination to a cabinet minister though the Governor of the Bank of Ghana and the finance minister are responsible for the economy and Finances of the Country through Monetary Policy and Financial Policy respectively and the Minster may play an advisory role in the appointment of the Governor of the Central Bank
The appointment of the Chief Justice of a Country is a contentious
Constitutional or political decision since in a Country say Ghana there is the need for Regional Balance and we need to factor that power emanates from the electorates or Sovereignty or power resides on the people, hence it has political implications. , So the matter is not an academic decision or a neutral selection panel for a Miss Ghana Contest.
It is political because the Citizens by the principle of Majoritarianism rule (majority carries the day) of the Fifty percent voters plus one voter to the side of the President, made the people through the President, their elected National Chief Executive to appoint whoever takes a Constitutional Appointments when a vacancy exits other than a vacancy like MP’s Seat which need a direct election by the Electorates.
Those speaking that the President has too much power must be educated that Sovereign Power resides with the people and the President is only exercising a delegated power from the Voters in the Majority carries day system to appoint on their behalf when there is a vacancy for persons to take Constitutional duties other than duties of MPs.
Politics is a way of life, so the seemingly lifetime appointment of the CJ of a Country is an event of chief significance in the politics or the way of life of the Country. This is so due to the enormous power of the supreme court which encompasses the highest appellate Court with judicial, to some extent binary executive powers (since the Court sometimes looks into the Policymaking decisions or the reasoned judgments of independent Executive Bodies like the EC, etc), as well as the constitutional interpretation powers with some kind of Legislative Powers thus through some kind of law-making or constitutional amendment powers by ruling on constitutional or legal matters.
The CJ like other justices of the Supreme Court has one vote during the ruling of a Court. But the CJ is primus inter pares or first among equals therefore he exercises exclusive leadership role as the presiding officer of the Court and as the Chief operational officer or manager of the Court and head of the judicial arm of government.
The appointment of the Chief Justice is by the President in Ghana and he even shares the responsibilities of appointment with the Judicial Council, the Council of State, and Parliament in the case of the CJ.
In some countries, Nominees for CJ can be selected from the ranks on the bench or from outside the Court each way is based on the view of the President with some advantages and disadvantages. The criteria that the President may use is contingent on policy and sometimes political consideration as well as the need to select a person with excellent professional qualifications, unquestionable integrity, leadership quality, judicial philosophy, and the implication of the appointment that is the potential decisive effect on the Court's ideological balance as well as the past ruling of the Court will be upheld, overturn, modified, etc.
Sometimes the President needs to check, if it may be complicated if one of the Justices of the court is elevated, if so, this will require the President to nominate a person from outside as a replacement to the CJ.
Choosing someone from outside may be a more desirable option to the President if he sees no clear potential candidate leader or unifier among the court’s current associate justices. When he realizes that justices are highly polarized or antagonistic to each other such an appointment might only worsen divisiveness within the court.
1n 1969 President Nixon selected Warren Burger as a circuit court judge as CJ He indicated one of the Justice of the Supreme Court, felt it would not be in the best interest of the court to appoint a sitting judge on the court to CJ because the special role of the CJ has to play as a leader of the Court it will be difficult to take a man from the Court and put him above others. So, he recommended him to select someone outside the Court.
The view of a nominee for the CJ on constitutional issues, and the future direction of the court on major legal and constitutional questions matters very much. Also, judicial philosophy counts in the appointment.
A Supreme Court justice of the USA by the name of Felix Frankfurt before he became one, he defined the qualities of a person to a member of the judiciary to be nominated to the Supreme Court to include his breadth of vision, his imagination, his capacity, for disinterested judgment, his power, to discover and suppress his prejudices, statesmanship, and gifts of mind and character.
External political factors play in determine in the selection, this includes the President’s policy preferences, possible ideological divide, the current composition of the current Court, chance of receiving approval from Parliament which is the litmus test in Parliament counts. Process of Selection–Thorough investigation into the background Oath - Constitutional oath at Jubilee House and Judiciary oath at the Supreme Court.
Let me stress that, the Chief Justice of a Supreme Court must be able to perform successfully as the CJ since the occupant must able to perform various roles including as the Head of the Judiciary, when present, he or she shall preside over the Sitting of the Supreme Court, and responsible for the administration and supervisory of the Judiciary as hence, the CJ must be a constitutional scholar, a Judicial Advocate Consensus builder, and a statesman.
In Ghana, the applicant must be of high morals, character, and proven integrity and must not of less than fifteen years of standing as a lawyer. But in the USA, which is one of the fountains of democracy, it is claimed no formal list of qualifications for the job, not even a requirement that the person must be a lawyer. In Nigeria, Kenya, South Africa.
In Nigeria, the Appointment of a person to the Office of the CJ of Nigeria shall be made by the President on the recommendation of the National Judiciary Council subject to confirmation of such appointment by the Senate. Same as in Ghana by Parliament since we do not have a Senate.
To sum up, as stated Nominee for the office of the Chief Justice can be selected from the ranks on the bench or from outside the Court with 15 years of experience as a lawyer. Each way is based on the recommendation of the Judiciary Council and the views of the President with some advantages and disadvantages.
The criteria the President may use as stated is contingent on policy and political consideration, hence his party executive’s opinion may be considered thus may include Regional Balance as well as the need to select a person with excellent professional qualifications, unquestionable integrity, and leadership quality.
In the USA, issues of judicial philosophy and the implication of the appointment have potentially decisive effects on the Supreme Court’s ideological balance as well as whether past rulings of the Court will be upheld, overturned, modified, or otherwise by the nominee.