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What does Ghanaian Constitution say about coup d’etats?

BY: Mirror Lawyer
Military coups and seizing power by the barrel of the gun had negative effects on the economic, social, political, educational and cultural life of the people

Dear Mirror Lawyer, I have heard on the news recently about talks and suspicion of coups to destabilise the Presidency. Can you educate me on what the Ghanaian Constitution says about coup d’etats?

Mawueli Afenyo, Mataheko, Accra.

 

Dear Mawueli, Coup d’etat is the violent overthrow of the mandate given a government by the people of a particular country before the expiration of the constitutionally permitted term.

In the history of Ghana, we have had no less than three successful coups which brought the smooth functioning of democratically elected governments to an abrupt end and installed in place the military juntas. These military officers were never elected by the popular will of the people, but claiming to be the voice representing the people, overthrew elected regimes and by the use of the force of the gun installed themselves into office as the rulers.

They in many instances took over the executive, legislative and some quasi-judicial powers of the country and ruled with iron hands for many years without involving the people in the governance process. In many cases, the military juntas had no idea whatsoever about the governance process and worsened the living conditions of the people rather than improving what they sought to change.

Military coups and seizing power by the barrel of the gun had negative effects on the economic, social, political, educational and cultural life of the people. Arising from that, the framers of the 1992 Constitution decided that for the country to progress in the democratic path that it had chosen to ensure stability, economic development, good governance and the citizens’ participation in the election of who they wanted to govern them, military coups should be outlawed and be a thing of the past.

The whole rationale is that however bad a government is perceived to be, in a democracy, the citizens are to be patient and wait for elections and decide whether to maintain, change or re-elect a government. No group of people any longer should have the power to be watchdogs and arrogate unto themselves the right to decide when a government must stay in power and when to be removed forcefully.

According to Article 3(3) of the 1992 Constitution, any person who by himself or in concert with others by any violent or other unlawful means suspends or overthrows or abrogates the Constitution or any part of it, or attempts to do any such act; or aids and abets in any manner any person who overthrows or attempts to overthrow commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

 The Constitution, further, provides that all citizens of Ghana shall have the right and duty at all times to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred above and to do all in their power to restore this Constitution after it has been suspended, overthrown or abrogated. Such persons or groups of persons who suppress or resist the suspension, overthrow or abrogation of the Constitution commit no offence.

The provision further states that where a person who resists the unlawful overthrow is punished for resisting by the coup makers, the punishment shall, on the restoration of the Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment. Where a person resisting the perpetrators suffers any punishment or loss, the Supreme Court shall on application on behalf of the person award him adequate compensation, which shall be charged on the Consolidated Fund.

In the case of NPP vs Attorney-General [1993-94] 2 GLR 35, the Supreme Court explained the legal effect of that provision in the following words:

“Article 3(4) of the Constitution, 1992 conferred two separate and distinct rights on Ghanaians: first, the general right and duty under Article 3(4)(a) to defend the Constitution; and second, the particular right and duty under Article 34(b) to resist anyone committing or attempting to commit or aiding and abetting anyone to commit any violent overthrow of the government or the Constitution as prohibited by Article 3(3). But the defence of the Constitution did not necessarily need to be a defensive action against persons coming within Article 3(3).

“Indeed, the Constitution might be defended against the government. In the instant case, since the celebration of December 31 as a public holiday with carnivals, route marches, etc. would have the tendency to glorify the coup d’état of December 31, it would not only be unfair to those who were adversely affected by the coup but had become impotent to resort to court action by reason of the indemnity provision of Section 34(2) of the transitional provisions of the Constitution, 1992 but would weaken the people's resolve to enforce their right or perform their duty under Article 3(4), and would in the result undermine and subvert the Constitution, 1992.

“Accordingly, even though the celebration might not be a violent means of subverting the Constitution, 1992, it surely was an unlawful means under Article 3(4)(a). Such conduct would clearly be inconsistent with the duty to defend the Constitution and would be clearly against the letter and spirit of the Constitution.”

In the words of Francois JSC:

“By its sovereign will, the people of this country have chosen a multi-party system of government to regulate their affairs. The fact that they chose a new direction and a new system of governance is the clearest pointer to change. In charting a different course, the democratic path, the people of this country took a solemn step away from what was immediately prevailing. Viewed in this light, it is idle and illogical to hold that the old order has yielded place to nothing new.

“Especially when the new order is diametrically opposed to the old which it supplanted. Looking then at the letter and spirit of the Constitution, 1992, we can hardly fail to conclude that the sum total of its provision demonstrates unequivocally an estrangement from the old order, and betrays a consanguinity rather with past constitutional regimes than with what it immediately displaced.”