Why the recent appointment of EC Chairperson by the President was unconstitutional (3) by Prof. Kwadwo Mensah
Appointment to the Electoral Commission under Article 70(2) of the 1992 Constitution – Why the Recent Appointment of the Chairman of the Commission by the President was Unconstitutional (3)
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Open thou mine eyes, that I may behold wondrous things out of thy law – Psalm 119.18, The Bible. King James Version
Introduction
So far, we have argued that if Ghana wishes to appoint ideal Commissioners, we have to adopt the ideal procedure. However, none of the values and principles of the ideal procedure and the procedure itself can be implemented if they cannot be supported by the text of Article 70(2). So the question is: can we find textual support for the ideal procedure in Article 70(2)? I argue here that if we use just a literal interpretation of the words of Article 70(2), we can find fulsome textual support for the ideal procedure. To prove this we
Unpacking Article 70(2): “Advice” and ‘“acting on” the advice of…’
Article 70(2) requires the President to “act on the advice” of the Council of State when appointing Electoral Commissioners. How should we interpret Article 70(2)? To properly interpret Article 70(2), we must analyze the words “advice” and the phrase ‘“acting on” the advice of…’
Prempeh in his Article, The President’s Duty to Appoint the EC Chair: the Law and Politics of Article 70(2) defined “advice” as “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.” However, in order to fully appreciate the meaning of Article 70(2), we also have to pay close attention to a central understanding of the verb to “advise” which is that an advisee – the person being advised – is not bound by the “advice” of the advisor – the person proffering the “advice” - and so the advisee can reject the “advice.”
Where an advisee cannot reject the “advice” of the advisor, the supposed “advice” is not really “advice” but an “order” or a “command” stated in a polite form. So, when a policeman “advises” a driver who has stopped at a “No Stop” sign to move on, the policeman is really ‘ordering” the driver to move on, even though he uses the word “advice,” because the driver cannot “reject” the “advice.”
On the other hand, in ordinary English, when a person states that he has ‘“acted on” advice’, he means that he - the advisee - has completely accepted the advice – of the advisor - and has done what the advisor recommended. The phrase “acted on advice” is never a substitute for the phrase “considered the advice” and so they cannot be used interchangeably.
So it cannot be the case that an advisee ‘“acted on” the “advice”’ proffered and yet rejected the “advice.” It would, indeed, be a very wrong way of stating that one considered an “advice” and rejected it, if one states that “I received the advice, acted on it and rejected it.” The proper way to describe one’s actions in such a situation would be to say that “I received the advice, considered it and rejected it” or say simply that “I rejected the advice.”
So it would seem that when the word “advice” is used alone, it pulls in one direction – it suggests freedom on the part of the advisee to reject the “advice” - while when it is used along with the phrase “acting on” it pulls in the opposite direction – it suggests that the advisee has no choice but to act completed according to the recommendations of the advisor.
I believe that a proper interpretation of Article 70(2) must pay close attention to both the word “advice” and the phrase ‘“acting on” the advice,’ and yet they do not seem to be reconcilable.
But in fact they can be reconciled. The key to understanding Article 70(2) is to recognize that there is no limit on the number of times that the President can receive advice from the Council of State. Under the separation of powers doctrine, the Council is the exclusive recommender of Commissioners and it “advices” the President by recommending potential Commissioners to the President.
The President, however, is not a marionette of the Council; he is not bound to accept the Council’s “advice.” He can reject the Council’s “advice,” and he can reject the Council’s “advice” for as many times as he finds the Council’s “advice” to be unacceptable to him. This explains why the recommendations of the Council are mere “advice” to the President.
However, if he rejects the Council’s advice, he is not allowed to go ahead and appoint a Commissioner. This is because he can never be a recommender. So, the process of selecting a Commissioner must start again and the Council must make another recommendation to the President.
So, when the President appoints a Commissioner, it would be because the Council has recommended a nominee who is acceptable to him. It is then that the President would be ‘“acting on” the “advice”’ of the Council of State as required by Article 70(2).
The Due Process Argument: Article 70(2): The Logical Interpretation
The analysis I have made of Article 70(2), could be stated in argument form in a manner familiar to students of symbolic logic.
- Argument A
If X is an Electoral Commissioner, then he was nominated by the Council of State and by the Council of State alone;
X is an Electoral Commissioner,
Therefore he was nominated by the Council of State
Argument A, is an example of what in symbolic logic, is called the modus ponens argument. It shows that it is a necessary condition for becoming an Electoral Commissioner, that one should be nominated by the Council of State and the Council of State alone. Argument A also shows that the Council is the exclusive nominator of Commissioners.
Combined with the other parts of Article 70(2) as interpreted by the ideal procedure, we also note that recommendation by the Council of State is only a necessary condition for one to become a Commissioner. It is not sufficient because the President must also approve the recommendation. Recommendation by the Council and endorsement of the recommendation by the President are the sufficient conditions that have to be satisfied before one can become a Commissioner.
Due Process: The Ideal Procedure and Enhancing Participation by Ordinary Citizens in the Affairs of State as a Canon of Constitutional Interpretation in Article 70(2)
The literal and the logical argument deal with the explicit part of Article 70(2) – the part that deals with the institutional relationship that exists or should exist between the Council of State and the President. We must now deal with the implicit part of Article 70(2) - the relationship that exists or should exist between the Council of State and the general Ghanaian public.
We have already indicated, the primary purpose of the 1992 Constitution is to build a decent society based on liberal democratic values. The spirit of liberal democratic values must therefore flow and be promoted throughout the 1992 Constitution. Consequently, it ought to be a canon of constitutional interpretation of the 1992 Constitution, that unless, it is expressly stated that liberal democratic values ought not to be promoted in a particular part of public life, it is to be assumed that liberal democratic values are to be promoted in that part of public life.
Participation is a sine qua non value of liberal democracy. Consequently, enhancing participation by the general citizenry in the affairs of Ghana is a requirement of Ghanaian public life. So, even when it is not expressly stated, in a particular Article of the Constitution, that the public ought to participate in decisions affecting that aspect of public life, it must be assumed that the general citizenry have to participate in that aspect of public life so that we can realize the fundamental objective of the 1992 Constitution, which is to create a liberal democratic society.
Again, unless it is expressly stated that the public ought not to participate in the realization of the object of a particular Article, it is to be assumed that the public must participate in the realization of the object of that Article. The burden of proof is therefore on the person who wishes to prevent the general public from participating in the realization of the object of the Article to show beyond a reasonable doubt why the public ought not to participate in the realization of the object of that Article. Let us call this the canon of active public participation in constitutional interpretation.
As a canon of constitutional interpretation, the canon of active public participation undergirds Article 70(2). Consequently, it has to be assumed that the Ghanaian public has a right to participate in the nomination of Electoral Commissioners. This is because Article 70(2) does not explicitly state that the public cannot participate in the nomination of Electoral Commissioners.
The Ghanaian public must therefore participate in the nomination of Commissioners, unless a skeptic of public participation can prove beyond a reasonable doubt that it would be inimical to the development of a liberal democratic society if the public were to participate in the nomination of Electoral Commissioners.
We have already shown why this will be impossible to do. We have argued earlier on that the public must participate in the recommendations of the Council if we are to counter-balance the inherent pro-executive bias of the Council otherwise the Council will find it difficult to recommend ideal Commissioners.
Conclusion
In this essay I have argued that the object of Article 70(2) is to ensure fairness in national elections in Ghana and that this is linked to the fundamental objective of creating a liberal democratic society in Ghana.
In order to protect and promote substantive values such as fairness, liberal democratic societies allocate power to different public institutions, so that public power is not abused. So, when one institution is given the primary power to achieve a particular purpose, other institutions are given power to regulate the primary power; so that that primary power is not used arbitrarily. Allowing the public to participate in important issues that affect the polity is another mechanism that is used to prevent misuse of public power. Participation de-concentrates power and makes it less likely that it would be abused.
This is the object of Article 70(2) of the 1992 Constitution. To guarantee substantive fairness in the conduct of national elections Article 70(2) separates the power to appoint Commissioners by making the Council of State the exclusive recommender of Commissioners. It also makes the President the appointer of Commissioner. As appointer of Commissioners, the President is the regulator of the Council of State’s recommending powers.
Through this power to regulate the powers of the Council of State, the President can reject a person recommended by the Council of State, if he thinks that the nominee is not an ideal Commissioner. This, forces the Commission to focus narrowly on ensuring that the persons it recommends to President are ideal Commissioners; this prevents or minimizes the ability of the Council to abuse its powers.
Article 70(2) also implicitly requires that the public participate in nominating Commissioners. Public participation helps the Commission to nominate ideal Commissioners and also minimizes their tendency to act arbitrarily.
My education has been the results of the hard work of many people that I have been lucky to meet in the course of my life. I take this opportunity to thank three such people who taught me at Achimota Primary School. I also dedicate these essays to them. They are Mrs. Violet Heward-Mills, who taught me in Class 1, 1968-1969, Mrs. Cudjoe, who taught in Class 2, 1969-1970 and Mr. SH Annor, who taught me in Class 5&6, 1972-1974. I remember him with a lot of affection.
Eugene Kwadwo Mensah, is a Professor of Law at the Chonnam National University, Gwangju, South Korea. He was formerly Head of Business Department – now School of Business – at the University of Cape Coast.
Mr. Mensah is a Barrister at Law and Solicitor of the Supreme Court of Ghana and a Member of the New York Bar
Email: [email protected]
Read Part one: Why the recent appointment of EC Chairperson by the President was unconstitutional (1)
Read Part two: Why the recent appointment of EC Chairperson by the President was unconstitutional (2)