Two things immediately jumped up at me. Firstly, this was an immediate opportunity to address my peer reviewer’s “admonition” that my opener should have balanced the expose with some prescriptive narrative of the way forward. Little did I know that my sheepish defence of “subject of another piece” would be put to the test almost instantly? So here I have to put my pen to paper to deliver the promised piece as our second conversation.
Alarming observation
The second and very alarming observation from the chairman’s press conference was the statement that it was the government’s white paper, rather than the report itself, that was driving the process of implementation. And remember, the President is the government and the government is the President, hence the admission that it is the President, not the people, who is exercising his dictatorial powers to oversee how we can make our Constitution better for those in whose name and on whose behalf the President exercises the powers of government.
Let me make it clear that this absurd situation is not President Mahama’s doing. As a matter of fact, the review committee was established by our departed and dearly loved and missed ‘Asomdowhen’ in January 2010. It was Egya Atta who received the committee’s report and published the White Paper on it on June 15, 2012. The only tenuous connection with our current President is that his executive secretary enjoyed the same title to the CRC. However, I must stress again that what has started now has more to do with the stipulations of our current constitution than any “diabolical collusion”.
Insofar as the review committee failed to produce a draft bill for possible amendments to the Constitution, as set out in its terms of reference, the CRC failed in its job. But this is no bad thing for its failure may turn out to be the saving grace for getting the much-needed changes to our Constitution to see the light of day, especially the absolute and imperative need to a achieve a better balance between the President & Parliament, the exercise of the respective mandates of action andoversight, both in our name and on our behalf.
As far as I know, not a single one of us the people has officially sighted the CRC report, although I concede that some may have intercepted copies in transit.
Instead, what we have been allowed to see is the government’s White Paper on an action done in our name but concealed from us. Therefore, the President is still driving the Constitutional Yutong bus without us the passengers knowing the destination we are all headed for.
From the “one hand tied behind our back” road map of the White Paper, it is hardly surprising that the CRC, appointed solely by the President, lacked the boldness to tackle issue let alone make any serious attempt to make proposals to moderate the awesome power of the presidency. Apart from the ridiculous suggestion that the President should pay taxes on his emoluments, and making assurance double sure that no President could serve for more than eight years in total, the CRC left the status quo intact, which means everything will change and everything will remain the same and Ghana will continue to live with the dictator president.
There is, however, a silver lining streaking through the dark clouds of the process announced by Prof. V. O. Dankwa at his press conference. The very constitution that we are seeking to amend holds the key to the better vehicle we must travel on to find a solution that will be acceptable to all, and more importantly, pass the stiff benchmarks required to confirm that the overwhelming majority of the people will endorse the changes.
The provisions governing amendments to Ghana’s current constitution are contained in Chapter 25 of the Constitution, titled ‘Amendment of the Constitution’. Article 289 (1), states ‘Subject to the provisions of the Constitution, Parliament may, by an Act of Parliament, amend any provision of this Constitution’ The rest of Chapter 25 classifies the provisions of the Constitution into two, namely ‘entrenched provisions’ and ‘non-entrenched provisions’.
The Constitution then sets out the processes for the amendment of each class of provisions.
Super majority
The primary difference in the process of amendment between the two classes of constitutional provisions is that while an amendment of an entrenched provision must secure the approval of a super-majority (75 per cent) of voters in a national referendum (with a minimum voter participation rate of 40 per cent of registered voters), amending a non-entrenched provision requires the approval of only a super-majority of legislators.
It is the subjugation of Parliament’s power to the provisions of the current constitution that leads to the classical “catch 22” scenario, which states that Parliament holds the power to amend; however, its powers are bound by the provisions of the current constitution; the provisions of the current constitution gives the President exclusive powers to initiate an act which can help him dip its hands into the public purse of Ghana (Art. 108 (1); Parliament has no independent powers to dip into the public purse (act 108 (ii); therefore Parliament can only exercise its powers without the grace and mercies of the President.
But, before we all throw our hands up in despair, the same provisions for amending our Constitution provide the way forward. The requirement of a 75 per cent YES vote in a national referendum of more than 40 per cent of registered voters suggests that it will be almost impossible to change an entrenched clause unless that change enjoys consensual support of the majority of the people. Likewise, the requirement that changes to a non-entrenched clause must have the support of 75 per cent of Parliament also points to the expectation of the presentation of a consensual bill to Parliament.
This is why I am of the view that if we are to make real our desire and wishes to tweak our Constitution at age 21, which we must, otherwise why spend so much money and engage in the widest possible consultation, we need to find a pragmatic way of dealing with the “President proposes and Parliament disposes” challenge.
My suggestion is that the President must reconstitute the existing implementation committee into a single executive and parliamentary implementation committee.
This committee must be headed by the chairman of the Legislative & Constitutional Affairs Committee; with Prof. V. O. Danquah as Vice Chair. Its membership must be of the entire Parliamentary Committee and a reconstituted membership of the existing implementation committee drawn from bodies generally recognised as being concerned with the generality of the people’s welfare instead of parochial partisan advantage.
“Hu ma ni so ma me enti na atwee mienu nam”. To wit “it is the need to keep the dust away from each other’s eyes which makes it paramount for deers to move around in pairs”. If we are serious about making real and meaningful upgrade of our Constitution, we will only get there if we bring together the executive and Parliament from the word go.
The CRC should have done that but did not. The implementation process has no other way to travel if we are to keep the dust of executive manipulation from our eyes.
By Dr Charles Wereko-Brobby/Daily Graphic/Ghana
