Amending constitution must be accompanied by inculcated values — Prof. Nana S.K.B. Asante
There have been numerous calls by jurists, civil society organisations, academics, constitutional experts and politicians for a review of the 1992 Constitution. Some have even gone to the extent of calling for a new constitution, describing the 1992 Fourth Republican Constitution as not fit for purpose.
Emmanuel Ebo Hawkson (EEH), a Senior Reporter of the Daily Graphic, interviewed Prof. Nana Susubribi Krobea Boaten Asante (S.K.B), the eminent scholar, constitutional expert, lawyer and international arbitrator who played a major role in the drawing of the 1992 Constitution.
Prof. Nana SKB Asante, who is the Paramount Chief of Asante Asokore, was the Chairman of the Committee of Experts that drafted the constitutional proposals that led to the promulgation of the 1992 Constitution.
His views centred on the evolution of the 1992 Constitution, his role, how the constitution has helped the development of the country and whether there is the need for a review of the constitution.
Excerpts of the interview are published below.
Emmanuel Ebo Hawkson (E.E.H): Prof. Nana, how did you come to be involved in the drawing of the 1992 Constitution?
Prof. Nana Susubribi Krobea Boaten Asante (S.K.B): The regime at the time decided to transition to constitutional rule. The PNDC had been in power since December 1981. I happened to be an official of the UN in an organisation known as the UN Centre on Transnational Cooperations,which used to give technical assistance to developing countries in their dealings with multinational organisations.
I came to Ghana for a conference in 1989. In the course of the conference, I met the late Justice D. F. Annan and the late Captain Kojo Tsikata. I made them aware that there was international concern about when Ghana would go back to constitutional rule.
They disclosed to me that they were already thinking of a process. The first phase was a survey, which showed that Ghanaians preferred the multi-party system of government. The second phase was the establishment of the Committee of Experts, which I chaired to draft constitutional proposals. That was in 1991.
We drafted the proposals in barely two months. Our proposals went directly to the Consultative Assembly without any amendment or modification by the PNDC. Even though the Bar Association did not participate, there were more than 30 lawyers from different organisations in the Consultative Assembly.
E.E.H: Nana, sorry for interrupting, but please why did the Ghana Bar Association boycott the Consultative Assembly?
S.K.B: They said that the representation was insignificant; I think they were given about one and they thought they deserved more slots, but some of us did not think it mattered because there were other lawyers. The Consultative Assembly discussed our proposals together with previous constitutions and came up with a final constitution within six months.
Emmanuel Ebo Hawkson (left), Daily Graphic reporter, in the interview with Prof. Nana Susubribi Krobea Boaten Asante
E.E.H: Did your committee propose the transitional provisions?
S.K.B: No, the transitional provisions was another matter altogether. Those came about due to special negotiations between what was known as the legal committee of the PNDC headed by Justice Annan and certain chairmen of the committees of the Consultative Assembly.
They were not part of the proposals of the Committee of Experts, neither were they fully discussed in the Consultative Assembly. Someone one day stood on television that I was brought to protect the military junta and that was why I included the transitional provisions; this is totally absurd.
I recall when I was in the UN, I met General Obasanjo then the military Head of State of Nigeria. When he heard that I would be involved in drafting constitutional proposals for Ghana, he said military regimes were always reluctant and hesitated to hand over power because they did not know what would happen to them. So they required some kind of protection.
That is the rationale for the immunity sections of the transitional provisions. However, we must understand that the immunity provisions were in the 1979 Constitution and previous constitutions. It was nothing novel, but I want to state that my committee was not involved in drafting the transitional provisions.
E.E.H: What happened to your proposals?
S.K.B: Some of our proposals were rejected by the Consultative Assembly. These included an Executive President and a Prime Minister, proportional representation, expanded and more effective form of the Council of State, more like a second chamber of Parliament.
There was also more effective role for chiefs in local governance and a decentralised system of government, where the DCE will be elected by the assemblies and not appointed by the President. They rejected all those.
E.E.H: What were the principles for the proposals drafted by your committee?
S.K.B: The committee of experts was mandated to draft the proposals on certain basic principles. These were Executive President elected by universal adult suffrage, Prime Minister who will command majority in Parliament, MPs elected by universal suffrage, emphatic guarantee of human rights, directive principles of state policies, a non-partisan government system, independent judiciary and a free and independent press.
I thought that this constituted a liberal constitutional order. Notwithstanding the fact that some of all proposals were rejected, I thought the basic elements were there. The two documents – the finalised constitution and the transitional provisions — were submitted to a referendum and were overwhelmingly approved.
E.E.H: Our constitution has been in existence for more than 30 years, do you think that it is fit for purpose?
S.K.B: To answer that question, we have to ask what was the basic element informing the writing of the constitution. These were the free media, independent judiciary, election of President and MPs by Universal Adult suffrage.
They did not accept the idea of a Prime Minister and an Executive President because they thought there should not be two lions in one hole, which was simplistic.
These basic liberal constitutional principles were embedded and have in fact been translated into action and earned us the enviable reputation of being an oasis of constitutional and democratic stability in a very turbulent region. You cannot say that the constitution has not served its purpose; it has served its purpose. This does not mean that everything is perfect.
E.E.H: The constitution has been in place for 30 years, do you think it requires amendment to help the development of the country?
S.K.B: The point I would like to make is that the expectation of amending the constitution has been exaggerated. In my humble view, you do not get development by just amending the constitution. You do not get constitutionalism by amending the text. It must be accompanied by some inculcation of values.
If you look at the history of many countries, the economic takeoff did not happen when there was a liberal constitutional order. In doing a review, you must think of development and all that.
The second point I would like to make is that when you think of amendments, it should not only be the text or language. I feel strongly that it should not merely be the language or the text of the constitution; it should also be about the values. It is my strong belief that merely amending the text without a complete evaluation or reassessment of constitutional tenets and value would not lead to what we want to be.
The loopholes in the constitution will be exploited against the principles towards the efforts of partisanship or aggrandisement of power, unless they are restrained by something, which are the values.
Let us take the simple case of accepting electoral results. I do not see any constitutional provision which says that people must accept results. Constitutional provisions are there for giving validity to persons and parties who win elections, but if one says I do not accept someone who has been declared as a winner, there is no constitutional provision to stop this. What can stop it or reduce the tension that characterises our elections are if we inculcated constitutional values and principles.
E.E.H: Some of the advocates of constitutional review base their arguments on the power given to the President to appoint as many ministers that he deems fit. Should we not review the constitution to change this?
S.K.B: You might be right but that will not resolve the situation. Ok let us put a cap on the number of ministers appointed by the President. The President can decide to still go ahead and appoint many people, not necessarily as ministers but rather advisors and special assistants.
This is exactly what happened when President Kufuor wanted to appoint a Prime Minister and they said it wasn’t in the constitution, so he appointed Mrs Chinery Hesse as Chief Advisor and J.H. Mensah as Senior Minister. The solution is therefore not to place a cap, but for us to develop our constitutional values so that we get to a point where the President would not feel the need to appoint many ministers.
Another issue is that we should amend the constitution to cap the number of justices of the Supreme Court. We have a Supreme Court that has a very wide jurisdiction, in not only constitutional cases but also civil cases.
The court does not only deal with constitutional cases but a myriad of other cases. In this regard, if you cap the number of the justices, you are restricting the manpower to effectively deal with these cases, which ultimately enhances the justice delivery system.