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Appreciating rule of law

The first article of the Constitution of the Republic of Ghana 1992 states unequivocally, “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this constitution,” and provides further, “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

This means that ours is a democracy anchored on constitutionalism and the supremacy of the constitution. 

That is why I have been baffled by comments of some Ghanaians about the recent Supreme Court decision on the unconstitutionality of the Electoral Commission (EC) organising the district-level elections on an instrument that had not matured into lawful regulation.

Arguements

On the basis of the claim by the EC that the country had spent GH¢300 million on the botched exercise and will require an additional GH¢90 million to complete the exercise after the ruling of the highest court of the land, some individuals who profess to be apostles of constitutionalism and democracy have criticised the lawyer who took up the matter of the unlawful conduct of the EC, Mr Affenyo Markin, for causing that huge loss. Some have equally argued that the decision of the court should have been informed by public interest considerations.

All these beg the question, for if the EC had acted legitimately, there would have been no need for anyone to seek the intervention of the court. 

We, as a people, organised a referendum to adopt the 1992 Constitution which provides that anything or action that is carried out not in accordance with the provisions of the constitution is void. We did not say that such acts are voidable, but void and which means of no legal effect. Lawyer Affenyo Markin merely acted to test and give meaning to the legal injunction of the supremacy of the constitution.

Rule of law

As has been noted by Dr Martin Luther King, “Injustice anywhere is a threat to justice everywhere.” He notes further, “All we say to America is true to what you said on paper. If I lived in China or even Russia or any other totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. 

But somewhere I read of freedom of assembly. Somewhere I read of freedom of speech. Somewhere I read of freedom of the press. Somewhere I read that the greatness of America is the right to protest for right.”    

There is a creeping culture of impunity against the rule of law when it suits certain political interests. For instance, whilst some Ghanaians complain that our President is clothed with too many powers, in certain situations, where there are countervailing provisions to contain the authority and powers of the President, we complain that the President is being undermined. Two examples will suffice. No one controverts the power and authority of the President to nominate persons for appointment as Ministers of State or as District Chief Executives. 

When the President makes the nominations and there are agitations against the decision, there are murmurs that the President is not being offered unfettered hands to exercise his authority. That is legitimate and proper.

However, when either Parliament or the district assemblies attempt to exercise their inalienable rights to reject such nominees, such actions are misrepresented as if a mutiny has been committed against the powers and authority of the President. That is improper and subversive of constitutionalism and the rule of law.

In the case of Parliament and the passage of constitutional or legislative instruments, the law is clear. When the authorities at Korle-Bu Teaching Hospital started charging new fees during the pendency of the instrument to authorise the fees, many complained about the illegality.  

Some did not take it kindly after the management of the hospital came out to defend their illegal action on the presumption that they understood the process to mean 21 days. 

Ghanaians should not suggest that the EC should be treated differently. The EC has more experience of interacting with Parliament in the passage of instruments and must have a functional appreciation of the processes. It has been in court severally over such matters as the demarcation of electoral area boundaries.  

 The Supreme Court has given legal certainty as to what a legitimate instrument must be. If we cannot appreciate the ruling, we should not spurn it. We must learn to appreciate and give meaning to the rule of law.

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