The President's Duty to Appoint the EC Chair: The Law and Politics of Article 70(2)

Popular use of the judicial process in Ghana to resolve constitutional controversies that emerge in our everyday politics lags significantly behind the ample opportunity presented under the 1992 Constitution for citizens to bring such cases. 

At the same time, however, contemporary Ghanaian political and public discourse is saturated with “law talk,” with almost every political controversy quickly taking on the character of a free-for-all legal dispute, complete with legalese and the binary posture of courtroom disputes.

The reverse is also true: Nearly every legal/constitutional controversy in Ghana these days quickly assumes a political, or more accurately, a partisan, character, with popular opinion on the disputed issue often divided along binary, partisan lines.

The latest issue in Ghana to assume this character concerns the constitutional question of the appointment of a successor to the office of the chairman of the Electoral Commission, following the mandatory retirement of the incumbent Dr. Kwadwo Afari Gyan.  The popular legal controversy generated by this event implicates a one-sentence, 24-word provision of the constitution, namely clause (2) of Article 70.  It reads: “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman, and other members of the Electoral Commission.”

A heated political and legal debate has ensued as to who wields the decisive power in this instance: the President or the Council of State.  A subsidiary question concerns what process, if any, must inform the “advice” of the Council of State in this matter.  I propose in this short piece to offer my perspective, as a teacher of constitutional law, on these important questions.

When “Advice” is Not Just Another Piece of Advice

Much of the popular debate generated by Article 70(2) concerns the presence in that provision of the word “advice”.  We commonly understand the word “advice” to mean a thoughtful suggestion or admonition given to a person by another to help or assist the advice-recipient in deciding on a course of action. 

This common understanding and usage of the word “advice” has, naturally, coloured the popular legal debate about the meaning of Article 70(2).

Complicating matters further is the fact that we have come to see the Council of State as merely an “advisory” body, one with presumably no power to bind those to whom it must render “advice”.  In reality, while the Council of State is an advice-giving body, it is not merely an “advisory” body—certainly not in all instances. One such instance where the Constitution does not intend that the Council of State be treated as merely an “advisory” body is in the matter of the appointment of a person to a vacancy on the Electoral Commission.

It is important to note, at the outset, that the formulation or phrase “on the advice of” is a term of art with a long lineage and well established meaning in the common law tradition. When in past Ghanaian constitutions the Governor-General (1957) or the President (1969) was to make certain appointments "on the advice of the Prime Minister", it was understood without disputation that the designated appointment-maker was duty bound to carry out the advice.  Indeed, the word “advice”, when it is used in that context, does not stand alone. 

The temptation to assign it a literal meaning is heightened when we isolate the one word from the rest of the phrase in which it is embedded: “shall, acting on the advice of the Council of State, appoint”.  In the common law tradition the command that one shall "act on the advice of" another has a clear meaning; it leaves no discretion to the person to whom the advice must be rendered. 

The Queen of England, for instance, performs many duties "on the advice of the Prime Minister".  That indeed is where we get the phraseology which is now part of our own Ghanaian constitutional tradition. Similar language occurs in the constitutions of other common law jurisdictions, and they are understood in the same way outlined here.

For the avoidance of doubt, additional textual support for this reading of Article 70 (2) may also be garnered from Article 91 (1), which describes the general advice-giving function of the Council of State.  There the language that is employed in reference to those appointments that the President or any other authority must make “acting on the advice of the Council of State” is even clearer: It describes them as appointments that must be made “in accordance with the advice of the Council of State”. 

Thus, the phrases “acting on the advice of” and “in accordance with the advice of” are used in the Constitution to mean the same thing, namely, that the advice given in those instances is binding advice.

Where our constitution does not command the President to act in accordance with the advice of a designated body, it usually obliges him to act "in consultation with" the designated body. This is the case with all of the appointments the President must make pursuant to Article 70, clause (1), which include appointments to the Public Services Commission and the Lands Commission.

The conventional judicial meaning, at least in Ghana, associated with those appointments the President must make “in consultation with” a designated body is that, in those instances, the decisive power lies with the President. (Conversely, where a designated body is charged with making an appointment, “in consultation with the President”, as in the case of the National Media Commission in respect of appointments to boards of state-owned media companies, the decisive power rests with the appointing body, not the President). 

This is by no means a universally agreed meaning of the phrase “in consultation with”.  An alternative interpretation of the expression “in consultation with,” adopted in some jurisdictions, including India, is that it requires “concurrence” (or consensus) between the two bodies or persons charged with consulting about the assigned matter. The interpretation adopted in Ghana (for the phrase “in consultation with”) is, however, reasonable and in keeping with the constitutional design and intent.

In short, there is a clear and substantive difference, in terms of where the decisive power is located, between appointments that must be made “on the advice of” a designated body and those that must be made “in consultation with” another. 

Thus, in the case of appointments to the Electoral Commission, which the President must make “acting on the advice of the Council of State,” the decisive power lies with the Council of State.  The President’s role in the appointment is simply a formal one.

Nothing stops the President, of course, from informally indicating his preferences to the Council before the Council renders its advice. Indeed nothing stops anyone from doing same. And one hopes the Council, charged with this task (but without a constitutionally mandated process by which it must undertake its task), will device a sound and transparent process to enable it obtain input and recommendation from a wider public. But once the Council has rendered its advice the President is duty-bound to act as advised.

Some Queries, Counter-Arguments, and Rebuttals

I have read or heard various reactions and objections to the foregoing view of Article 70(2).  I shall try to respond to them in turn.

One counter-argument I have heard is that a reading of Article 70(2) that draws on the established understanding of the expression (“shall act on the advice of”) in common law jurisdictions is inapplicable to the Constitution of the Fourth Republic because, the argument goes, our Constitution is not a Westminster or parliamentary-style constitution.

The very simple rebuttal to this point is that, there is no reason why the command to make a certain appointment “on the advice of” a designated body must mean one thing when addressed to a specific appointment-maker under a Westminster constitution (like we had in 1957 and 1969) and mean a totally different thing when addressed to a designated appointment-maker under a presidential-style constitution.

There is nothing about a presidential-style constitution that says that the President may not be subject to the binding advice of some other body or entity.  It is a matter of what the specific constitution in question says.  Thus, for example, in Ghana’s 1960 Constitution, which was a constitution clearly designed for a President who was to be a “monarch of all that he surveyed,” there is no instance where the President is commanded to make an appointment “acting on the advice of” any other person or body. 

The writers of that constitution knew very well that the philosophy undergirding the 1960 Constitution did not admit of the notion of an omnipotent President being duty-bound to act as advised by another body or entity.  Thus, the 1960 Constitution dispensed completely with presidential advice-givers, as it did with any phrase commanding the President to do an act “on the advice of” another body or entity. 

Despite all of its flaws, the 1992 Constitution, like the 1979 Constitution before it, does not install in office a President who is nearly as omnipotent as the occupant of that office was under the 1960 Constitution. Under our current constitution, the President’s freedom to act is constrained in appropriate instances.  One of those instances is where he must make certain appointments as advised by the Council of State.

It is clear that many of us have a hard time wrapping our Ghanaian minds around the very idea of a President being compelled to submit to the advice of some other body.  It is an indication of how much we still remain wedded to the idea of a monarchical president and of how far our cultural and socialized conceptions of the Presidency continue to lag behind the policy of checks-and-balances that is designed into parts of our current constitution.

Another argument I have heard is usually posed as a rhetorical question: “Why now”? The point of that question is to suggest that, past Presidents and Councils of State may have carried out their respective roles under Article 70(2) contrary to the position I have articulated and, therefore, the argument goes, why do it differently now. 

A quick response to that query is that, the current vacancy in the chairmanship of the Electoral Commission, coming in the aftermath of the first-ever presidential petition litigation in 2013, is bound to generate exceptional interest and controversy.  It is, therefore, not surprising that Article 70(2) has come under exceptional scrutiny this time around.  But beyond that obvious fact, a lack of transparency in the process of appointing commissioners to the Electoral Commission in the past has not afforded us an opportunity to know what transpired in the past or how past Presidents and Councils of State have carried out their respective roles under Article 70(2). 

It may well be that, past Presidents and Councils of State established some working arrangement that departs from what a fair and proper reading of the Constitution would require.  If so, it is still not late to ensure fidelity to the language, policy, and principle embedded in Article 70(2).

The Constitution does not cease to be the supreme law of the land merely because some past practice may have departed from it.  Moreover, a President and a Council of State are not bound by acts of their predecessors that are shown not to be in conformance with the Constitution; it is to the Constitution, as the supreme law of the land, that the President and Council of State are each bound. 

The Fourth Republic is still young and the constitution still untested in many areas. Thus, regardless of what past practice has been in this area, the fair and sound reading of Article 70(2), not some past practice, is what must govern the selection of the next chairman of the Electoral Commission.   

A third counter-argument I have encountered in this debate is that, none of this matters because, after all, the Council of State, as constituted under our Constitution, cannot be expected to disagree with, or cannot ignore the preferences of, the President to whom most of the Council’s members owe their offices.  Of course, this empirical observation or skepticism about the ineffectiveness of the Council of State is not a legally-sufficient response to a constitutional argument. 

There is indeed reason to believe, given the manner of the composition of the Council of State and our own culturally and historically ingrained deference to our "imperial" President, that, a Council of State charged with rendering binding advice to the President may well end up allowing itself to be imposed upon by the President, thereby subverting the constitutional design. 

The answer to that concern, however, does not lie in dismissing the constitutionally mandated scheme as inconsequential or superfluous. 

The more appropriate remedy for that concern is for the Council to demonstrate its good faith compliance with the Constitution by adopting and following a clear, credible, and transparent process in fulfilling its constitutional duty of selecting a person to fill the vacancy in the Electoral Commission.

This brings me to the fourth, and, in my view, the most sophisticated of the arguments I have encountered in response to the reading of Article 70(2) that I have articulated here. That argument is that, even if the President is duty-bound to carry out the advice rendered by the Council of State, it still leaves unresolved the “form” the advice must take and the “process” that must be followed. This indeed is an important and substantial point, which deserves a well-considered response.  And it is to that, that I turn next.

How to Implement Article 70(2)

Article 70(2) is, of course, silent on the form and the process by which the Council of State must undertake its assigned task.  But that omission does not mean we are in a hopeless constitutional vacuum or that any form or process will pass constitutional muster.  At the minimum, the Council’s advice must be communicated in written form to the President.

This way there will be a record of the Council’s fulfillment of its constitutional duty and also a basis to confirm that the President has complied with the constitution by making the appointment in conformance with the Council’s advice. 

It has been argued that the Council need not make its “advice” public.  This argument is based, again, on a misconception of the nature of the “advice” involved here. Secret advice would be permissible if the Council’s advice in this instance amounted to a mere suggestion or recommendation, which the President could consider but was free to disregard in favor of other suggestions. If that were the case, it would indeed be improper for the Council

to disclose its advice, as that might place undue and unwarranted pressure on the President to accept the nonbinding advice rendered by the Council. But, as explained earlier, the “advice” contemplated by Article 70(2) is not a mere suggestion or recommendation; it is a decision of the Council that the President is duty-bound to carry out.  In that regard, disclosure is necessary, in order, again, to ensure that the President’s dutiful compliance with the advice rendered is a matter of public knowledge.

In short, secrecy in this matter will not be compliant with the spirit of the applicable constitutional provision. Where, as here, the Council’s role is decisive and the President’s merely formal, the Council cannot fulfill its task in secret, as, in that circumstance, there would be no way of telling if the Constitution has been complied with or disregarded by the President.  Since the obligations the Constitution imposes on designated bodies and officeholders are enforceable by means of a lawsuit, pursuant to Article 2 of the Constitution, the performance or non-performance of such obligations must be a matter of public knowledge, so that if a citizen believes there’s been a violation an appropriate suit can be brought.

A more interesting question has to do with the sequence or process that must be followed by the Council in reaching its advice.  It has been suggested that, Article 70(2) is not breached if the Council were to present the President with two or more candidates out of which the President would select one for appointment. Per this suggestion, the Council’s “advice” could take the form of short list of candidates and, as long as the President appoints one of the candidates on that list, no damage is done to Article 70(2).

This, in fact, is a very clever argument.  But while it may appear to be consistent, literally, with Article 70(2), it is, in fact, not consistent with the principle and policy that informs Article 70(2).  As I have demonstrated previously, the command in Article 70(2), that the President shall appoint the chairman of the Electoral Commission, “acting on the advice of the Council of State,” means that the Council has the decisive role in the selection of the appointee, while the President plays a formal role. 

An arrangement in which the Council presents the President with a list of candidates, out of which the President must choose one for appointment, will convert the President’s role in the making of the appointment from being merely formal, as the language of Article 70(2) contemplates, to being decisive—or, at least, as decisive as the Council’s.

A primary reason why giving the President more than a formal role in this process does damage to the constitutional design is the nature of the office/vacancy to be filled. It being an office whose occupant, in charge of the conduct of our politically competitive national elections, is expected to be politically neutral and independent (and be perceived to be so), a process of selection that grants the President a decisive, rather than a formal, role in the appointment will not comport with the policy and objective intent behind the EC's constitutionally designed neutrality and autonomy. 

Requiring the President to act, instead, on the nomination made by a body deemed to comprise "statesmen and stateswomen", who are constitutionally presumed to be above partisan politics, is the approach that best accords with the constitutional policy and design. (Let's put aside for the moment, what opinions we may have formed about the utility of the Council of State based on our experience in the Fourth Republic).

An alternative suggestion that has been put forth, or at least one that I have also encountered, goes in the opposite direction: The President could present the Council of State with a list of candidates, out of which the Council would make the final selection and submit it to the President as its “advice” for appointment.  In other words, the President would solicit the “advice” of the Council on the President’s preferred list of candidates. Again, this approach appears technically okay until you subject it to closer scrutiny.

Of course, the President must be free to submit a list of candidates to the Council, as long as other interested parties have the same opportunity to make recommendations to the Council on the same matter.  As long as the Council is not constrained to select a candidate from the President’s list or to limit itself only to the President in sourcing recommendations for consideration, I see no problem with this alternative suggestion.

However, if, under this alternative approach, the Council of State is limited to considering only the President’s list of candidates, then, again, it makes the President’s role in the appointment more decisive than formal.  That way of proceeding will amount to the President “advising” the Council, to the exclusion of all others, on who it must consider and, by extension, on how the Council must exercise its constitutional prerogative. 

It is roughly equivalent to the President “nominating” the candidates, leaving the Council with the task of “approving” the final nominee. But under Article 70(2), it is not for the President to advise the Council on who it must consider for appointment; it is for the Council to advise the President on who to appoint and for the President to act on that advice.

In sum, the process that best comports with the spirit of Article 70(2) is one where the Council of State, using a transparent process, elicits recommendations, opinions, and nominations from a wider public or stakeholders, undertakes its own internal screening and consideration of the candidates, selects the nominee in accordance with the Council’s decision-making procedures, and communicates its nomination (“advice”) to the

President in writing. It then becomes the President’s constitutional duty, at that point, to appoint the person nominated by the Council of State.

A big part of the confusion that surrounds the meaning and implication of Article 70(2) is the fact that, in general, we tend to think of the President as possessing or exercising an appointment "power" in every instance where he or she must make a certain appointment required by the Constitution. However, it is important to draw a distinction between those instances where the President exercises an appointment "power" and those instances where he is required only to perform an appointment "duty". 

The President can be said to have an appointment “power” in respect of all the appointments listed under clause (1) of Article 70.  However, when it comes to making appointments to the Electoral Commission, pursuant to clause (2) of Article 70, the proper view is that the President’s role is in the nature of an appointing duty, not an appointing power.