President Nana Addo Dankwa Akufo-Addo
Constitutionalism is a process where limitations are placed on the exercise of governmental powers. One of the key principles of constitutionalism is the principle of separation of powers, and this principle serves as checks and balances between the various arms of government.
Despite this separation, for government to continue to run there must be harmony between the various arms of the State. Under Constitution 1992 the legislative power is vested in the Parliament of Ghana.
The general practice over the years was that it was only the executive that could sponsor a bill to Parliament. This was the case until the 7th Parliament led by Prof Mike Oquaye where the provisions of Article 108 was operationalized giving way for Members of Parliament other than the President to sponsor bills to Parliament.
In the 8th Parliament, there has been several private members bills sponsored by Members of Parliament, among them are the Criminal Offences (Amendment) Bill 2023 and Armed Forces (Amendment) Bill 2023.
In the last days of the 3rd session of the sitting of the 8th parliament, there has been a clash between the President and the Speaker as to the true and proper interpretation of Article 108. The President has refused to assent to the private members bill stating that will cause a charge on the consolidated fund hence a breach of the law.
Article 108(a)(ii) of the Constitution says;
Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the President
(a) proceed upon a bill including an amendment to a bill, that, in the opinion of the person presiding, makes provision for any of the following
(ii) the imposition of a charge on the Consolidated Fund or other public funds of Ghana or the alteration of any such charge otherwise than by reduction; or
The provisions in clause (a) seem very clear and need no interpretation, that it is the preserve of the person presiding and that person alone who can determine whether a bill imposes a charge on the consolidated fund or other public funds. In the case of BOYEFIO v NTHC the Court established the principle that where the law clearly specifies or directs on the procedure to do a thing only the procedure must be followed.
The grant of such discretionary power to the person presiding is however not unfettered, in fact, it is governed by Article 296 of the Constitution which enjoins the person to be fair and candid and anyone who disagrees with the use of that discretionary power can have a remedy in Court in the form of a judicial review.
The question now is under what law is the President relying on to refuse to assent to the private member's bill? Article 108 never mentions the President nor invites him to be part of persons who determine what constitutes a charge on the consolidated fund that is exclusively left to the person presiding.
In clause (a)(ii) of Article 108 the question that begs for interpretation by the Supreme Court is what constitutes a charge on the consolidated fund? What was in the minds of the framers of the Constitution? A literalist will construe the word ‘‘charge’’ to mean anything that has monetary value. The question then will be, can there ever be a private members bill with no cost to the state? What about the cost of printing the bill? Interpretation of the Constitution must not lead to an absurdity, in fact, the Court in the case of Tuffour v AG said the Constitution has both letter and spirit and capable of growth hence one is expected to be liberal and look at the times and the aspiration of the people when interpreting it.
In my view, such charges like feeding persons on life imprisonment are incidental and may not be the kind of charge the framers of the law envisaged. In any case, persons on death row are already fed by the State since no President has assented for their execution hence one wonders what money the President purports to save for the State.
What then is the solution to the President’s refusal to assent to the bill? Should the Supreme Court be invited as an arbiter or Parliament can rely on Article 106(10) to pass the bill into law by a resolution of Parliament?
There is a clear distinction between laws made under Article 106 and 108 and what a President can do when he receives a bill from Parliament. Whereas the President can veto and refuse to sign a bill emanating from him under Article 106 (7) under Article 106(12) he has no such powers to decide whether to assent to a bill coming under Article 108.
Article 106 (7) to (10) of Constitution 1992 states that where a bill passed by Parliament is presented to the President for assent, he shall signify, within seven days after he refuses to assent to the bill, unless the bill has been referred by the President to the Council of State under article 90 of this Constitution.
(8) Where the President refuses to assent to a bill, he shall, within fourteen days after the refusal
(a) state in a memorandum to the Speaker any specific provisions of the bill which in his opinion should be reconsidered by Parliament, including his recommendations for amendments if any; or
(b) inform the Speaker that he has referred the bill to the Council of State for consideration and comment under article 90 of this Constitution.
(9) Parliament shall reconsider a bill taking into account the comments made by the President or the Council of State, as the case may be, under clause (8) of this article.
(10) Where a bill reconsidered under clause (9) of this article is passed by Parliament by a resolution supported by the votes of not less than two-thirds of all the members of Parliament, the President shall assent to it within thirty days after passing of the resolution.
These provisions however do not apply to the private member’s bill or bills coming under Article 108.
In Article 106(12) the law says the provisions of clauses (7) to (10) of this article shall not apply to a bill certified by the Speaker as a bill to which the provisions of Article 108 of this Constitution apply; and accordingly, the President shall give his assent to any such bill when presented for assent.
What Clause 12 means is that the President does not have any discretion to decide whether or not to assent to a bill coming as a private members bill he is mandated by law to assent to it.
In conclusion it is clear that the President by law does not have the locus to determine what constitute a charge on the consolidated fund, that power is exclusively for the Speaker or the person presiding and anyone who disagrees with how such a power is used may go to Court for Judicial review.
Secondly what constitute a charge in my view is not a charge that is incidental.
Again, the President does not have a discretion as to whether or not to assent to bills coming under Article 108 because the law imposes on him a mandatory responsibility to assent to such bills.
Finally, the President’s Lawyer and legal advisor, the AG and the AG department have been key in contributing to all these private members' bill during their various consideration stages hence one wonders who is advising the President not to assent to them.