Rethinking article 68(5) of the 1992 constitution

The President of Ghana is, under the law, the first gentleman of the land and he takes precedence over all other persons in Ghana. He is given that recognition and the position are given a Constitutional blessing. He is indeed the Head of the State of Ghana and the Commander-in-Chief of the Ghana Armed Forces.

In the State Architecture, he is probably the most powerful person, since he is the one person the voting population of Ghana has elected and given the state powers.

In leading the development agenda of the Government in such capacity, revenue is needed to provide for the necessary infrastructural development of the country. Governments all over the world raise revenue from varied sources including taxation. Indeed, taxation is one major source of revenue for most, if not all Governments. It is therefore a civic duty for every citizen to honour his or her tax obligation, after honestly declaring his or her income.

Failing to do so comes with sanctions. The President, under the 4th Republican Constitution, is however exempt from the payment of taxes on the income he earns from the State. By Constitutional and Legislative arrangements, therefore, any income, allowances, and benefits that the President receives from the State are not subject to tax. The author of this article seeks to examine some recent events, the historical or constitutional basis for this arrangement as against the present legal framework of this arrangement, the reasons for this arrangement we have as a country, and explore the need to rethink this position of the law and conclude that the time has come for the President of the Republic to pay tax on his income from the State.

Some Recent Events

At the 2021 Ghana Bar Association Annual Conference held in the Regional capital of the Upper East, Bolgatanga, the President, H.E. Nana Addo Dankwa Akufo-Addo (as is the custom) was in attendance. The theme for the 2021 Bar Conference was “Ensuring an Increase in Revenue Mobilisation through Taxation for the purpose of Accelerated National Development: The Role of the Lawyer”. The President in his address to the conference reiterated that based on some findings made by his government, lawyers were not paying their taxes as required, and he proceeded to criticize lawyers for advising their clients to manage their affairs in a way and manner that reduces their tax obligations.

What the President referred to is Tax Avoidance; a lawful, legitimate, and legal process, as opposed to Tax Evasion, which is unlawful and must not be countenanced. The President in his address at the opening ceremony, inter alia, had this to say “…I would have to point out, that if this campaign you are undertaking would be successful, you would have to start from home. Mr. Outgoing President of the Bar, I am afraid there is no easy way of putting this. You’ll have to start by getting members of the bar to pay their taxes.

The record of lawyers in paying taxes has been historically poor. It is unfortunate but a most unpleasant fact, that members of the profession in our country have not been known to set good examples when it comes to paying taxes. They appear to think that being members of the learned profession puts them above compliance with everyday civic duties like paying taxes. It is embarrassing that lawyers are often on the top of the list of those who flout our tax laws...They use their expertise to avoid paying taxes.” The author was happy that the learned Tax Expert Dr. Ali-Nakyeah Abdallah when he got the opportunity to address the Conference in one of the Continuous Legal Education (C.L.E.) sessions, made the point forcefully that there was nothing wrong with lawyers managing their affairs and advising their clients to do so to reduce their tax obligation.

In recent times, the President’s foreign travels have generated much controversy with regard to how much the state spends on such travels. It is alleged by the Minority in Parliament, that the President uses one of the most expensive Private Aircraft and the State pays an amount of about £14,000.00 per hour on those travels. Attempts have been made to get the Minister of Finance and others to respond to Parliament’s queries on this exorbitant expenditure but all such attempts have failed. The last we heard, we were told those details were matters of national security and hence, cannot and ought not to be disclosed. But essentially, these expenses are borne by the poor taxpayer's money.

For the first time under the 4th Republic, the budget of the Government has been criticized by the majority of the citizens and has suffered from some controversy regarding its rejection or approval by the House of Parliament. The core of this issue among others is the supposed introduction of a 1.75% E-levy to be charged on electronic transactions, in addition to the already 1% cost charged by the operators. This has generated a myriad of debates in the country. This has led to unfortunate events in the House of Parliament, which is a matter of public record. It is within this background, that the author undertakes this exercise to examine the issue of the taxation of the emoluments of the Presidents of Ghana and argues that the time has come for the Constitutional and legislative exemption on the emoluments of the President to be reconsidered.

Constitutional basis for the present legal framework

Under the law, the President does not pay taxes on the income he earns from the State. The Conditions of the Office of the President of the Republic of Ghana is provided under Article 68 of the 1992 Constitution. The President receives salary, allowances and other facilities from the State. The law provides that “The President shall receive such salary, allowances and facilities as may be prescribed by Parliament on the recommendations of the committee referred to in article 71 of this Constitution” . ”Relative to tax, the Constitution provides that, “The salary, allowances, facilities, pensions and gratuity referred to in clauses (3) and (4) shall be exempt from tax” . Under the Constitutional arrangements therefore, the income of the President from the State, is exempt from tax.

The Income Tax legislation also makes similar provisions exempting the President from the payment of tax on his income from the State. The Act provides, inter alia, that “The following are exempt from tax (a) the salary, allowances, facilities, pension and gratuity of the President in accordance with Article 68(5) of the Constitution.” Therefore, under the Income Tax Act, any income the President earns from the State by way of salary, allowances, facilities, pensions and gratuity is not subject to tax.

Historical Antecedents on the Taxation of the Emoluments of the President

A review of Ghana’s previous Constitution reveals that the position regarding the payment of tax by the President has been oscillating. Under some of the earlier Constitutions, the President was not exempt from tax, while under others, the President was exempt from paying tax on his income from the State. Ghana has had a total of four Republics: the 1960 Constitution being the first from 1960 to 1966; the 1969 Constitution, the second, from 1969 to 1972, the 1979 Constitution, the third, from 1979 to 1981 and the current 1992 the fourth. Each of these republics has its own Constitution with provisions on this subject matter.

The 1960 Republican Constitution on the salary and allowances of the President provided as follows, “The President shall receive such salary and allowances, and on retirement such pension, gratuity and other allowances, as may be determined by the National Assembly” .”. It continues thus “The salary and allowances of the President shall not be reduced during his period of office”. Such salaries and allowances are chargeable to the Consolidated Fund. The 1960 Republican Constitution was silent on the exemption of tax on the emoluments of the President, implying that such emoluments were subject to tax, just like that of any other citizen.

The 1969 Constitution also made provisions on the emoluments of the President. Article 36(3) provided that “The President shall receive such salary and allowances and on retirement such pensions, gratuity or other allowances as may be prescribed by Parliament, in respect of all of which he shall be exempt from direct taxation.” Under the second Republic, therefore, the emoluments of the President were exempt from taxation.

The 3rd Republican Constitution of Ghana provided thus on the President of Ghana “The President shall receive such salary and allowances, and on retirement such gratuity or other allowances, as may be determined in accordance with the provisions of article 58 of this Constitution.” The said salary and allowances are charged to the Consolidated Fund. It also provided that the salary, allowances, and privileges enjoyed by the President were not supposed to be varied to his disadvantage whether while he held office as President or during his lifetime including when he leaves office. On the Conditions of Service of the President, the law provided thus, “The President shall not, while he continues in office as President (a) hold any other office of profit or emolument whether private or public and either directly or indirectly; (b) hold the office of the chancellor or head of any university in Ghana” .

It provided further that “The President shall not, on retiring from office as President, hold any office of profit or emolument except with the permission of Parliament, in any establishment either directly or indirectly, other than that of the State.”

By a combined effect of Article 44 and 55 of the 1979 Constitution, as well as Article 19 of the 1960 Constitution, one can conclude that the Constitution was silent on whether or not such salary, allowances, and facilities earned by the President from the State was subject to tax. The Constitutional Review Commission however found that the 1960 and 1979 Constitutions did not exempt the President from payment of tax on his salary and other perquisites. This implies that under the 3rd Republican Constitution, the salary and other emoluments of the President were subject to tax. The Commission of Experts which drafted the 1992 Constitution did not extend the requirement for payment of tax under the 1979 Constitution. It is suggested that the Committee of Experts also considered this as part of the idea of inducing the President to leave office when his time was due.

On the whole, a review of all the Republican Constitutions seems to show that, 1957 (Order in Council), the 1969 Constitution, and the 1992 current Constitutions have sought to exempt the President from taxation on his or emoluments. It is rather the 1960 and 1979 Constitutions that did not and rightly so exempt the President from taxation on his or her emoluments.

Constitutional Review Commission 2010

In the year 2010, the President of the Republic at the time, H.E. J.E.A. Mills commissioned a Constitutional Review Commission (CRC), whose mandate was to consult with the people of Ghana on the operation of the 1992 Constitution and on any changes that need to be made. The CRC was also tasked to present a draft bill for the amendment of the 1992 Constitution in the event that any changes are warranted. The issue of taxation of the President’s emoluments came up for consideration before the Constitutional Review Commission in 2010. The main dimension of the issue was whether the salaries, emoluments and other facilities paid to the President should remain untaxed or whether the President, as the first citizen of the land, should pay taxes as an example to others in a nation that finds it very difficult to increase its tax.

The Commission received various submissions with diverse views. According to the Report of the Commission, a good number of submissions called for the status quo to remain. They advocated for the keeping of the state of events where the president’s emoluments are not taxed. According to this view “, the job of the President is really tasking and he must be motivated with tax reliefs. The President was also likened to a traditional ruler or a king. In ancient times, kings exacted taxes from their subjects and did not pay taxes themselves.

Therefore the President should be exempted from paying taxes on his emoluments. ” On the contrary, a number of submissions also called for the departure of the current state of affairs and advocated for the taxation of the emoluments of the President. To the Report of the Commission, “The reason given in support of this position is that the President, as the number one citizen in Ghana, must set a good example for others to follow. Where the President does not pay taxes on his emoluments, it gives enough reason to evade or avoid taxes. It is argued that widening the tax net in Ghana has been very difficult and requiring the President to pay tax will encourage Ghanaians not to evade or avoid tax”.

Is submitted the author, that between the two views, the view that the President ought to pay taxes is more convincing, accords with common sense, and in sync, with the times we find ourselves in as a country. Equating the democratically elected President to a monarch or King and using that to justify the exemption from tax is not in the least convincing. The demanding or tasking nature of the work of the President is not a good justification for not paying tax on his income. Neither should tax exemption be used or seen as a way to induce the President from leaving the office where it is in the interest of the Nation or when he is done serving his term. On the contrary, being the number one citizen, Commander-in-Chief of the Armed Forces, one who takes precedence over every other citizen in Ghana, the least one could expect is that such a person also contributes his quota to national development through tax. It is the view of the author that, this will send a positive signal to the citizenry and will encourage tax payment.

The Commission made these interesting findings and observations. In paragraph 109, it said “The Commission observes that the deliberations of the National Constitution Review Conference on this issue concluded that the President should pay tax on his salary and emoluments as this would set a good example for the rest of the citizenry ”. It further observed thus “…the Committee of Experts which drafted the 1992 Constitution did not extend the requirement of taxation to the emoluments of the President. Instead, it endorsed the remunerations of the President, including the salaries, allowances, pensions, and retirement benefits contained in Article 44(3) - (8) of the 1979 Constitution. It further suggested that these benefits should not only be available to the President upon his retirement from office, but they should also be available to him upon resigning his office. The reason, according to the Committee, was to induce the President to resign his office when it is in the public interest to do so.” In paragraph 111 of the Report, the Commission observed thus “… the 1979 Constitution did not exempt the President from the payment of tax on his salary and other perquisites. Thus, one would wonder why in adopting the model provisions of the 1979 Constitution, the Committee of Experts did not follow that Constitution’s direction on the payment of tax by the President. Perhaps, the Committee of Experts also considered this as part of the idea of inducing the President to leave office, where it was in the interest of the nation. In the minds of the framers of the 1969 Constitution, the President represents the majesty of the State, and there was the need to avoid pressure being brought on the President through control over his privileges and remunerations.” The author is of the view that the exemption of the President from tax has no solid justification and hence the arrangement under the 1979 Constitution was one that ought to have been considered and adopted at the promulgation of the 1992 Constitution. It was therefore welcoming to note that the Government White Paper on the CRC Report accepted the recommendation that the President should pay tax on his salary and emoluments as an example to the citizenry and a reflection of the principle of equality before the law.

The Report of the Constitutional Review Commission 2010 also made the following finding and observation in paragraph 112, “The 1957 and 1969 Constitutions exempted the President from paying taxes on his emoluments. The 1960 and 1979 Constitutions did not exempt the President from paying taxes on his emoluments. It is possible therefore that the Committee of Experts drew inspiration from the 1957 and 1969 Constitutions. This is because, as in the case of the 1979 Constitution, the 1960 Constitution did not exempt the President from the payment of tax and this position did not change with the 1964 amendment of the 1960 Constitution. The 1969 Constitution however exempted the President from payment of tax on his salaries, allowances, and other emoluments. Similarly, section 5(4) of the 1957 Ghana (Constitution) Order in Council exempted the salary of the Governor-General from tax. The Order in Council was made in connection with the country’s attainment of full independent status under the 1957 Independent Constitution of Ghana which enabled the Queen of England to make an Order in Council under section 5(2)” .

Reasons for Rethinking Article 68(5) of the 1992 Constitution

In the final analysis, the Commission concluded and took the view and so recommended that the President ought to pay tax on his salary and emoluments as an example to the rest of the country, a position the author fully agrees with.

The author supports the view that the law must be amended to subject the emoluments of the President of Ghana to tax for a number of reasons.

1. Being the first gentleman of the land, it is just and fair that he leads by example by contributing his quota to national development. The President is privileged and enjoys a lot of largesse from the State at the expense of the taxpayer. It can be surmised that the President virtually does not buy any of the necessaries. He is accommodated by the State, chauffeured by the State, fed by the State, and even in some instances, their spouses are given some provisions, albeit by practice and convention. The least one would expect is for them to also pay some amount as tax to the national coffers.

2. The basis for the exemption from tax in the previous Constitutions is not justifiable and most unconvincing in the view of the author. In the 21st Century and in our democracy, one cannot equate the President who is duly elected to a monarch or king whose mode of selection is not the same. The Presidency is not for one who hails from an appropriate family or lineage, etc. It is for this reason that, exempting the President from tax on the basis of equating or likening the office to that of the King is almost untenable.

3. Tax exemption is not and cannot be an incentive to encourage a person for the daunting task of the Presidency. The author in no way doubts the tasking nature of the office of the President. But the law provides adequate largesse or packages that adequately corresponds to the sacrifices of the office. The exemption from tax is therefore not a good compensation.

4. The Government needs revenue to embark on infrastructural development of the Country. Every citizen must be prepared to contribute his/her quota and the President cannot and ought not to be exempted from this civic duty. He must actually lead the clarion call not just by words (as he did in the GBA 2021 Conference) but by deeds (when the laws so permit).

5. Another unconvincing justification from the literature is that the President is exempted from tax so that it will be easier for him or her to leave power when it is in the interest of the public so to do. One wonders what is meant by the national interest to leave office. But if it means leaving office after serving his term or after losing an election, the author is of the view that it does not warrant tax exemption to achieve this. In any case, after about 29 years of the 4th Republican Constitution, it remains to be seen if any President will attempt to overstay his term of office when his term has ended or has been voted out of office.

6. The Government White Paper on the CRC Report also agreed and supported the recommendation that the emoluments of the President must be taxed. It is fair to conclude that this position reflects the view of the Ghanaian populace and must be taken seriously.

The time has therefore come for us to Re-Think this aspect of the law. After almost three decades of the 1992 Constitution, the author calls for a rethinking of the Constitution and argues for some reforms.

Way Forward

The author is not oblivious of the fact that the provision of the Constitution under consideration falls under Chapter 8, which is part of the entrenched provisions of the 1992 Constitution. The amendment of such therefore requires a lot including having to go through a vote at a referendum. That in itself must not be a deterrent to re-thinking and consideration of the subject. This Constitution has served Ghana for about 29 years, next year 2023 will be exactly 30 years since we commenced this fourth Republican journey. The author is also not oblivious of the call in some quarters for Constitutional Reforms, which it is submitted is in order, after three decades. Deep introspection is required and must be had, to reflect on some provisions of the Constitution to consider, whether it still serves the hopes and aspirations of the people and if not, attempts made to make the needed reforms.

Fortunately, we have the CRC Report as a guide and the author proposes that could be the starting point for the conversation on the reforms and rethinking of portions of our 1992 Constitution.

The author agrees with the learned Justice Sowah that the Constitution is a living organism capable of growth and development. It is apposite to end this piece with the oft-cited dictum of Justice Sowah in the celebrated case of Tuffour v Attorney General “A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life”. He continues thus “the Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, legislature, and judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language therefore must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit to a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear in bringing it into conformity with the needs of the time.”

Conclusion

It is therefore the humble view of the author that, the time has come for the law to be reconsidered for the President, being the head of state and the first gentleman (lady as the case may be), to contribute his or her quota to national development through the payment of tax on the salary and emoluments they benefit from the State. After all, it is a maxim of equity, that he who seeks equity must do equity, hence the leader of the nation must be seen to be contributing his quota to national development by paying taxes on their emoluments.