CDD-Ghana/Friedrich Naumann Foundation Liberal Lecture
STRENGTHENING THE LIBERAL ROOTS OF THE 1992 CONSTITUTION: AN AGENDA FOR REFORM
Modern projects in constitutional governance are overwhelmingly based on a tradition of neo-liberal democratic philosophy under which the interests of the individual as an agent and end-target of governance initiatives represents an overarching value and goal. To this end, contemporary governance can be said to be welfarist in approach under which political and constitutional accountability continue to be championed as normative values underpinning the polity of democratic governance. This not only reinforce the legitimacy of government and thereby reduce the governance deficits normally inherent in autocratic rule, but also represents a marked shift from state centrism in political decision-making to a focus on the individual as an embodiment of a quantum of rights, interests, and aspiration reflected in the larger political structure and government.
While the ultimate goal of any regime of liberalism remains the protection and promotion of the interests of the individual, constitutional liberalism presupposes a set of values and underpinning structures and institutions designed and operationalized in a manner to advance those interests. In this regard, the liberal roots of a constitutional regime are those core values and philosophy inspiring its design as a bastion of right protection, individual advancement, and political responsibility or accountability. Significantly, the liberal tenets of Ghana’s constitution also provide critical thresholds and baselines for the attainment of constitutionalism as well as reinforce the values of responsible governance at the centre of which is the interests of the individual.
The 1992 constitution mirrors neo-liberal constitutional ideals incorporated into the fabric of the institutions, structures and systems forming the bedrock of the constitution. Yet the practical operationalization of these ideals continues to be sub-optimal at best due to the perennial gulf obtaining between proclaimed values and actual institutional and governmental behavior. In many ways, the values of constitutional liberalism has been undermined by subtle, but deep seated negative political sub-cultures coupled with the dysfunctional exploitation of constitutional institutions for parochial political ends. The question; why do we need to strengthen the liberal roots of the constitution, should invariably be answered by reference to the need to address the ‘’practical discrepancies’’ plaguing the operation of the constitution by reason of which there has remained a manifest disjuncture between intended constitutional values and the application or enforcement of those provisions. Beside the ‘legitimacy deficit’ difficulty that is created as a result of the continued lack of enforcement of the liberal values of the constitution, the lack of an active regime of enforcement of these values in themselves provide spaces for the perpetuation and near justification of an illiberal ideology.
This paper seeks to address the imperatives of strengthening the liberal values of the constitution within the context of the developing constitutional regime. It would end with a consideration of proposals for reform.
II. LIBERAL VALUES UNDER THE 1992 CONSTITUTION
The constitution contains a set of principles and ideals forming a ‘value system’ intended to form the bedrock for the attainment of the goals of the constitutional regime. These ideals are essentially rooted in neo-liberalism as a value ideal designed to assure responsible governance and constitutionalism. Constitutional liberalism within the context of the 1992 constitution is thus a value system that permeates the entire constitutional order characterized by periodic and routine transparent elections under the aegis of an independent electoral commission, respect for fundamental human rights and individual autonomy, strict adherence to the rule of law and the principles of separation of powers, as well as reinforcing the tenets of accountability in the deployment of national resources.
The liberal values of the constitution represent a balancing of state power exemplified in the constitution through the structures, institutions, and guaranteed powers accorded government on the one hand, and respect for individual rights and the spheres created thereby for his freedom of action without interferences from the state not warranted by law, on the other. In this regard, constitutional liberalism under the 1992 constitution is generally designed to avert the erosion of individual rights occasioned by the exercise of state power through the deliberate or implicit limitation of action on the part of government coupled with the installation of mechanisms of checks, oversights, scrutiny and review systems and processes. While broadly reflecting global trends in governance reform mainly taking place in the developing world, the incorporation of liberal values in the constitution represents a reaction to critical historical experiences of misrule usually resulting from the opportunistic use or deployment of power (PDA)
These values in many respects therefore reflect a desire to establish a constitutional regime in which the need for a strong and effective government would be counterbalanced by the overarching interests of the individual as the end target of the services of government. This is even the more so given the experiences of the constitutional history of Ghana, and the perennial tendency on the part of government to claim greater spaces in its relationship with the citizen. Thus, from the 1960s to date, the political dynamic of government-citizen relationship has been characterized by an unhealthy rivalry and joggle for rights-based space and sphere of autonomy in which government invariably employs repressive tactics in the resolution of emerging disputes bordering on individual autonomy and state powers. While democratic institutions such as the judiciary have always existed with the professed aim of holding the balance between the citizen and the state, the Ghanaian judiciary especially has demonstrated a marked ambivalence and sometimes near reticence in protecting the rights of the citizen against vested state interests and negative institutional culture.
The liberal values enshrined in the constitution in theory provide definitive space for the realization of individual rights and the prospective attainment of the aspirations of the state and people of Ghana. Yet much of these liberal values are in themselves non-textual in character inspiring the very foundations of the constitutional text and providing the needed policy context for their application. Thus as generally agreed and indeed expressly mentioned in the constitution, the text of the constitution is both animated and reinforced by its spirit which represents the philosophy and policy underbelly motivating the adoption of specific text provisions contained in the constitution.
The liberal values of the constitution could however be better understood and conceptualized from a standpoint of the text which provides a frame for gauging the scope of the liberal values championed by the constitution. For example, the right of liberty could be understood as being inspired by the value of autonomy and individual self-government, while the constitutional provisions on personal dignity is informed by a minimum threshold requirement of proper treatment of the individual in his dealings with the state, coupled with the state’s responsibility towards him in meeting the basic expectations of life for him.
On the other hand the tendency to adopt an overly textual understanding and interpretation of these provisions, as has sometimes been the case could spurn a benign inducement for constricting the scope of the liberal values shaping the constitution.
III. LOFTY IDEALS; ODD REALITIES
The routine disjuncture that exists between theoretical guarantees and the practical enforcement of legal provisions appears universally agreed. Yet in the case of the enforcement of the 1992 constitution, this situation appears even more pronounced. In his paper delivered to the GAAS, Fiadjoe demonstrated how this disjuncture not only lead to the defeat of legitimate expectations and ‘right capture’, but also that this could in fact reinforce a mindset accepting of the sub-optimal status quo. Constitutional guarantees, like the project on law reform in general, invariably has to deal with the problem of political commitment of the personnel and branches of government towards the realization of their set goals. On the other hand, the reality of the desire of government and institutions of state augmenting their power at the expense of individual rights and autonomy has meant that, the liberal ideals of the constitution has routinely been undermined and minimally enforced.
Thus, the scope and comparative application of the non-discriminatory provisions and fair trial rules in the constitution, for example, have witnessed scant or lukewarm enforcement. Public structures are not built with disability needs in mind and there subsists an implicit acceptance of social exclusion of the disabled and persons with special needs from social policy deliverables. In this regard, the very provisions of the constitution have become a façade for non-action towards the realization of the substantive content of those ideals enshrined therein. In other words, the inclusion of liberal ideals or values in the character of non-discrimination in the constitution also deceptively creates an impression that equates the provisions per se with regime perfection or Maslovian actualization.
Although the prevalence of democratic structures and guarantees of liberal ideals usually provide an inducement for the realization of a regime of constitutional liberalism, the practical realization of liberal values upon their guarantee presents peculiar challenges that do not bear a necessary relationship with the motivations for the initial adoption of these ideals. For example, the guarantee of free and fair elections as both a constitutional ideal and substantive guarantee may becloud issues of vote rigging, gerrymandering or redistricting, and other benign modes of political exclusion or under-representation from the decision making process. The same may apply to cases of access to justice in a regime guaranteeing of fair trial vis-à-vis problems of expensive and often non-understood judicial processes vis-à-vis the absence of legal aid. While these issues may be dismissed by some as representing nothing more than the very evolutionary experiences of a developing liberal regime, it stands to reason that the prevalence of liberal ideals in a regime tolerable of abuse and a lack of enforcement shields violations and this tends to undermine the justifications inspiring the adoption of liberalism as a regime foundation. The continued prevalence of capacious and unchallenged human rights abuses in our criminal justice system, weakened accountability in public service vis-à-vis official profligacy and general poverty, among others question the impact of the liberal roots of our constitutional regime on the day to day lives of the average Ghanaian.
The reality of the lack of commitment and enforcement of the liberal values of the constitution provide the background psyche for the acceptance of the less than par standards in government’s relationship with the citizenry. While this tendency creates a ‘value versus reality’ quagmire for the emergent constitutional regime in Ghana, the disjuncture provides spaces for the rationalization of violations or abuses of liberal values shaping the developing regime in Ghana. Thus, violations of individual rights upon police arrest has been routinely explained away on grounds of a lack of capacity and the institution having been overwhelmed by the large numbers of criminals it has had to deal with. Another example is the abhorrent conditions prevailing in the prisons, which has nearly been accepted as ‘normal’ given the lack of resources and the fact that being criminals, inmates are deserving of these conditions anyway. This has tended to recreate a new ethic and continue to reinforce an unintended sub-culture, which accepts abuse and violations and perpetuates a psyche of ‘idealism’ as far as striving for the attainment and mainstreaming of constitutional values are concerned. To use Fiadjoe’s expression again, this leads to a situation where the values ‘point in one direction, with reality pointing in the other’.
On the other hand, it may seem that the very structure and underlying rationale for the general tenor of the conferment of executive power under the constitution wrongly assume a political/constitutional culture respecting of the values and legal injunctions of limited and responsible governance. This however runs contrary to the preponderance of our constitutional history, which tells a story of innate tendencies on the part of political actors tending to claim greater latitudes in their interpretations of accorded power as opposed to exhibiting a desire to stay within the bounds of power. In this vein, the dynamics of the exercise of political power in all the three republican constitutional regimes preceding the fourth republic manifested instances of official or institutional abuse of power, coupled with the autocratic tendencies of military regimes to the other extreme. Significantly, the liberal values of the constitution are substantially situated within the context of the web of executive and administrative authority. Much of the power accorded appear objectively neutral, and further lack the requisite defenses against negative exploitation motivated by an entrenched political culture and ethos. The need to guard these governing values can therefore hardly be overemphasized.
IV. ENFORCING LIBERAL VALUES OF CONSTITUTION: BRINGING ACTION TO VALUES
Enforcing the liberal values of the constitution would demand first a rethinking of the place and essence of these values and a re-socialization of government and institutions of state on the importance of upholding the neo-liberal values of the constitution. This would then involve a prior identification of the variables of violations affecting these provisions. To do this, I have identified four factors affecting the liberal regime under the following sub-heads; (1) institutional constitutionalism (2) internalizing constitutional values (3) progressive judicial interpretism, and (4) individual centrism vs. institutional functionality
A. INSTITUTIONAL CONSTITUTIONALISM
The enforcement of the liberal values of the constitution are contingent on the effectiveness of institutions established to deliver certain public goods and services. On the one hand, the extent to which public institutions are able to effectively and efficiently discharge the duties and services for which they were set up determines the degree to which the values intended to be advanced by that particular institution could be said to be promoted or upheld. Thus institutional constitutionalism provides the necessary framework within which constitutional institutions operate within the bounds set by law, while deploying their power towards an optimal attainment of the purposes for which they were established.
In another breadth, institutional constitutionalism implies respect for the autonomy and functional independence of constitutional institutions while refraining from acts that overtly or covertly undermine their capacity to discharge the duties entrusted upon them as contemplated by the constitution. This is especially important within the context of Ghana given the pervasive structural and other problems plaguing the relationships between the executive and other branches of government
Institutional constitutionalism serves as a discipline against arbitrariness and inaction. The liberal tenets of the constitution mandate governance institutions to maintain a balance between private individual autonomy and the collective interest of the state community. To this end, constitutional liberalism advocates the attainment of that mutual interest, even if with greater emphasis, as it is sometimes, on private rights. Thus, the conventional fear of the relationship between private rights and state interests being binary opposites-one akin to Pareto efficiency is not only flawed, but inherently problematic in its conceptualization of this relationship. Institutional constitutionalism of the kind limiting of institutional power does not impoverish institutions in the quantum of power availing these institutions as is sometimes feared, but rather sanitizes and regulates it for the attainment of the ultimate goal for the conferment of that power. For example the ability or otherwise of the police service to effectively combat crime and prosecute perpetrators may or may not enhance its clout and effectiveness. Yet, a police service seen as disrespectful of the law may suffer a legitimacy crisis, and may lose critical public cooperation. On the other hand, the ability of the government to affect citizen’s behavior through the police could be impacted negatively and a government’s regulation of public order and crime combat may become less than efficient, if not completely thrown out of gear. Thus contrary to popular perception, institutional constitutionalism under the constitution is intended to provide the fulcrum around which government, citizens’ and other interests coalesce inspired by the liberal values of limitation, independence and accountability.
Again, institutional constitutionalism as a generic liberal value under the constitution is intended to reinforce the strictures of mutual checks and control of other institutions in the governance paradigm. For example, the constitution is replete with instances of one institution empowered to act as a check on another through reporting, approval and other oversight mechanisms. These are designed to check excesses and abuse, whose breach could fundamentally erode the values of liberalism under the constitution.
Thus, the failure of the checks and balances intended by the framers of the constitution invariably enhances the powers of constitutional institutions leading to negative exploitation and as usually occurs, human rights violation. The copious failure of stringent parliamentary checks on the exercise of executive power has often been cited for criticism due apparently to its obvious effect on the balance of power and the tendency for opportunistic exploitation of executive power. Where parliament fails in the exercise of its powers, the institution’s representative role becomes diminished since the essence parliamentary democracy in this vein is to provide a platform for the representation of the interests of the individual in national governance. As an institution for the promotion of the micro-rights of the citizens thus, parliamentary weakness could promote illiberalism as the rights and voice of the individual becomes completely blocked or consigned to the background.
The need to rethink the orientation of constitutional institutions in Ghana is all too obvious. Since the inception of the 1992 constitution, key institutions of state have continued to exhibit weaknesses and haplessness in the face of exploitative executive power. Thus institutions such as the judiciary, CHRAJ, SFO, among others continue to experience manipulations in a manner that detracts from their capacities to perform the oversight functions accorded them under the constitution. In many ways, the appointment powers of the president have been criticized, and I think rightly so, for being too wide, and promoting in the process, patronage and corruption, cronyism and nepotism, and subtle manipulations of constitutional institutions. While the policy rationale for this conferment may appear to be a desire to create a strong executive in general control of governance and administration, the appointment powers of the president under the constitution is both unwieldy and dysfunctional to the assurance of liberty and a regime of checks and balances.
The appointment process into the judiciary for example has been criticized for undermining the philosophy of judicial independence and has unwittingly enhanced executive control over the institution. Key provisions on the composition of the judicial council, the appointment processes of the chief justice and justices of the Supreme Court, as well as the powers of removal and suspension of judges, all seem to reinforce the overbearing clout of the executive over the judiciary. Similarly, the provision that mandates the president to appoint majority of his ministers from among the members of parliament has been shown to be ineffective after sixteen years of experience. Within the context of the neo-liberal roots of the constitution, the experience betrays a tendency whereby the representational quality of members of parliament and the essence of parliamentary oversight gets diluted by executive influences and interferences, together with all the allurements that surrounds appointment to executive positions.
For the realization of the neo-liberal values of the constitution, we would need to prune down some powers of the president especially in the area of appointment. The focus here would be to deepen the independence of constitutional bodies and other officers from presidential control and thereby insulate them from any possible manipulations.
There would also be the need to strengthen our institutions of governance in terms of their capacity to check and oversee the prudent exercise of executive power. This would require that there be some changes in the structural and relational outlines of these institutions. For example, the lack of prosecutorial powers of CHRAJ remains a palpable weakness in the efficacy of that institution to secure compliance to decisions made by it in pursuance of complaints of violations of human rights abuses. This situation is reinforced within the context of the absence of an independent office of a director of public prosecutions and the often-criticized position of the Attorney General being the chief prosecutor while also acting as the chief legal advisor to government.
It is arguable that the constitution enjoys internal consistency when the text is interpreted with the spirit. Recent judicial decisions of the Supreme Court however underscore the fear that judicial elaboration on the textual gaps in constitutional provisions may not necessarily produce outcomes that promote public accountability and limited power as overarching neo-liberal ideals. Yet constitutional liberalism dictates that constitutional institutions imbibe a minimum set of operational ethic consistent with the paradigm of the larger constitutional value system. Thus, while institutions should obviously refrain from acting in a manner inconsistent with the textual injunctions of the constitution, the actions of constitutional institutions in grey or penumbral areas of the law should be governed by considerations of human rights protection and value advancement, rather than the constriction of the frontiers of those rights. In this vein, provisions on liberty, dignity and freedom of association may import collateral rights inuring to the individual and obligations appertaining to the state/institution, which may not necessarily find textual expression in the constitution. The tendency thus to exploit seeming gaps in the law through the enhancement of the executive and other institutional powers may seem to violate institutional constitutionalism as a neo-liberal value.
B. INTERNALIZING LIBERAL VALUES: BEYOND THE RULE OF LAW POLITIK
A recent phenomenon of our constitutional experience has been the tendency to objectify liberal constitutional values in a manner that seems to prioritize the outward respect for guaranteed provisions by the mere abstention from certain prohibited conducts, and the establishment of certain institutions in compliance with constitutional requirement as end values in themselves. In this vein, our experience since the inception of the 1992 constitution mirrors a certain gulf that exists between guaranteed values versus the substantive internalization of the scope and import of these values by constitutional bodies and officials of state
Thus, even though the constitution has been underlain by inter alia values promoting of free speech, fair trial, personal dignity, non-discrimination, and limited governmental power, it is significant that official action and institutional proclivities in this regard have tended to exhibit “anti-value’’ orientations through open violations such as deprivation of legal representation for indigent litigants, poor conditions in prisons, policies that continue to exclude minorities and vulnerable groups and a seeming unhealthy condoning of executive action by Parliament. In the case of parliamentary inactivism, the preponderance of critics have ascribed this to the internal fragmentation of the legislative branch of government among the various political parties in the midst of excess allegiance of members of parliament to these parties leading to a weakening of the corporate image of the institution in its relationship with other branches of government especially the executive.
While the ideals of separation of powers and checks and balances instilled in the constitution have been designed to reinforce the liberal bases of the constitution, as it is in the case of the general orientation of other values in the constitution, these provisions have been opportunistically exploited by political interests and officials of state towards selfish and parochial ends, and have consequently resulted in the weakening of the operational bases of these values. On the other hand, institutional culture protective of state interests have tended to lean against private rights and been overly concerned with the promotion of the perceived efficiency of state institutions as opposed to their compliance with liberal constitutional strictures. Thus criminal justice administration in Ghana has tended to be more concerned with the number of convictions and successful incarcerations than it has been with the provision of a system of fair processes fair trial.
On the other hand, this situation presents a danger-i.e the creeping acceptance of the status quo habours the potential of implicitly legitimizing the bad situation. Problematic institutional ethos towards constitutional values not only undermines the regime of liberalism, but also perpetuate a counter-culture of illiberalism in which rights abuse is both excused and justified on grounds of national poverty leading to the failure to allocate resources to relevant institutions in their various engagement with the citizenry.
For the attainment of an optimal regime that upholds the neo-liberal values of the constitution, we need to internalize these values by going beyond the ‘objective’ rule of law politik- under which the seeming abstention from a positive breach of guaranteed values has been trumpeted as sufficient indicators of compliance with constitutional values. Internalizing these values would require that institutional ethos must mirror a desire to advance the substantive content of constitutional values whiles avoiding overt or benign acts that undermine these. Among others, the state must undertake to pluck up the gaps in the operations of constitutional institutions vis-à-vis the extent of their compliance with key constitutional guarantees. In this vein, fundamental problems plaguing criminal justice administration such as the conditions in the prisons and inordinate delays in the trial of cases involving remand prisoners, for example, reflects serious problems of institutional complicity in ongoing constitutional breaches.
PROGRESSIVE JUDICIAL INTERPRETISM
The interpretive powers of the courts has remained pivotal to the development of constitutional regimes the world over. Besides the imperative of checking the exercise of legislative and executive power, progressive judicial interpretism promotes socio-legal reengineering and serves as an inbuilt flexibility for adapting the textual imperfections in the constitution to the changing times and circumstances of the state. The Ghanaian judiciary has been established and positioned to play that lead role in the advancement of the liberal values of the constitution.
Having been accorded exclusive jurisdiction in matters of constitutional interpretation, the Supreme Court is functionally empowered to develop the interstices of the liberal values of the constitution and in this context provide the critical bridge connecting statutory provisions to enforcement mechanisms. The performance of the Supreme Court would substantially reflect on the quality of rights preservation while impacting on institutional responsibility and responsiveness to ‘’citizen interests’’ in governance in general. Indeed the role of the Supreme Court as I understand it within the context of the entire constitutional framework vis-à-vis constitutional liberalism is to hold the balance between individual interests and the powers of government with the view to expanding and preserving the frontiers of individual self-government. In this regard, the court’s role is to guard against political and economic totalitarianism by reinforcing the countervailing strictures of liberalism. The extent of success of the court in this depends on the interpretive philosophy proclaimed by the court coupled with the adoption of principled methodologies in arriving at its decisions. While different cases present different factual dynamics for the court’s consideration in arriving at a decision, fidelity to espoused principles and tests of constitutional interpretation remains key to deepening the rational predictability of decisions. This not only further enhances an essential element of the rule of law, but also reinforces the democratic effect of constitutional decisions rendered by the court.
In this context, judicial approach to the interpretation of parts of the constitution especially as regards interpretations that impact on the scope and quantum of governmental powers vis-à-vis the effectiveness of constitutional institutions in their checking of government and officials of state have not altogether been consistent nor have they demonstrated a clear judicial commitment towards developing the liberal foundations of the constitution. The approaches adopted by the Supreme Court since the inception of the 1992 constitution have not altogether been consistent and provide an opportunity for review and possible re-examination. I propose briefly to do this by examining three decisions of the court all of which touch on fundamental issues relating to constitutional liberalism in Ghana.
Awuni v. West African Examinations Council
This case involved the cancellation of the examination results of students of a school without prior hearing by the West African Examination Council.(WAEC). The court held that the right to be heard in Ghana is a fundamental right the denial of which impugns a decision made by a decision-maker. This case has been lauded as representing a bold attempt by the court in developing the substantive foundation of the human rights in the constitution. By upholding a ‘hearing requirement’ in the decision-making process, the court enlivened a key liberal constitutional benchmark requiring that administrative decisions be fair and motivated by reasonable considerations.
This case is important for at least one fundamental reason: It marked one of the first attempts at the highest level, to restrain administrative tyranny without undue considerations being made of the balance of convenience between individual rights and institutional interests. On the other hand, given the outcome of the case, we can even conclude that any such consideration may have been made in favour of the former. In this vein, Awuni v. WAEC is watershed to the extent that it represents a discountenance of all administrative decisions taken without prior hearing given to individuals affected. The Supreme Court’s intervention in this case underlines the liberal roots of the constitution, which inter alia mandates fairness, reasonableness and candidness in the decision making processes of administrative bodies. Furthermore, Awuni represents a denunciation of collective punishment in all its manifestation given the irrational and indiscriminate character of this type of punishment.
Awuni provided a veritable platform for the launch of a neo-liberal agenda in the court’s jurisprudence. Yet as would soon be seen in the following cases, the court subsequent stance on issues of liberalism has raised questions on the extent to which the Supreme Court is prepared to robustly uphold liberal values under the constitution.
Anane v. Commission on Human Rights & Administrative Justice
CHRAJ represents one of the independent constitutional institutions designed to protect human rights and balance the exercise of administrative authority. To that extent, the establishment of CHRAJ is motivated by neo-liberal considerations and is importantly designed to animate the comprehensive human rights provisions contained under the constitution. Granting that this conclusion is true, one is then led to question the rational bases of the decision of the court in the Anane v. CHRAJ case in which the judgment of the court sought to restrict or limit the operational powers of the court. The case bordered on an application brought before the court challenging the competence of CHRAJ to commence investigations into certain matters bordering on abuse of power. The thrust of the challenge rested on the requirement or otherwise of a formal complaint in order to activate the investigatory powers of CHRAJ. The Supreme Court held that CHRAJ did not have the power to commence investigation without the prior presentation of a formal complaint.
The decision raises fundamental issues of principled judicial decision-making within the context of the liberal values underpinning the constitution. The case also broaches the topical problem of whether or not the Supreme Court ought to take account of situational contexts and cultural variability and peculiarities of Ghana in the interpretation of the constitution especially those parts where a problematic interpretation could stultify the liberal spirit of the constitution.
Writing for the majority of the court of the Supreme Court of the United States in the case of Lawrence v. Texas, Justice Kennedy instructively notes;
Had those who drew and ratified the Due process Clauses of the Fifth or Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only oppress. As the constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The foregoing may therefore appear to require that decisions of a supreme court be culturally and situationally sensitive. While the decision of the court seem to attempt a balancing of the competing rights of the individual not to be harassed by incessant investigations vis-à-vis the powers of human rights and accountability institutions, the conclusions reached by the court in this regard overlooks the hierarchy of norms or values within which the values of transparency, accountability for use of public resources, and respect for ethics of public office are arguably higher norms deserving of protection. The attempt to foreclose possible incessant investigation may appear to fail a cost-benefit analysis test not only grounds of being counterfactual, but also that this tendency betrays a certain interpretive rigidity on the part of the supreme court by which the court appears to restrict the exercise of its constitutional interpretation within conventional doctrines or principles very much contrary to the court’s own established approach.
In the case under consideration, the interpretation placed on the powers of the CHRAJ substantially weakens the evolution of the institution as a constitutional body. In a country where public interest litigation and/or advocacy is minimal at best, any requirement of there being a formal complaint for the commencement of investigation involving human rights abuses or breaches of administrative powers not only undermine the prospects of promoting human rights pro-activism on the part of CHRAJ and other similar institutions, but could in fact re-invigorate the state of impunity characterizing the pre-constitutional era in Ghana. As an institution inspired by the need to protect human rights and administrative injustice, CHRAJ is one of the agencies established under the constitution to deepen the foundations of liberalism under the constitution. In this context, the decision by the court in Anane weakens the institution in its attempt to neutralize the exercise of executive power in the area of human rights and administrative justice.
As the court with the exclusive jurisdiction in matters of constitutional interpretation, the Supreme Court has a mandate to develop the constitution and its institutions. Thus decisions of the court must be seen to advance certain substantive values undergirding the entire constitution. In this vein, the rather heavy adherence to orthodox rules of construction, which appear to truncate obvious constitutional values, remains counter-productive. Whiles the outcomes of such decisions can be corrected by legislative reform, it is important to remember that given the partisanship involved in the political process in Ghana, Supreme Court decisions continue to attract a higher degree of legitimacy and as such possess a higher potential for institutional development and credibility.
CIBA and Economic Liberalism.
The decision of the court in the CIBA case presents us with an interpretive difficulty and may arguably undermine the prospects of deepening economic liberalism in Ghana. In that case, the Supreme Court held that the directive principles of state policy, as a set of national constitutional policy blueprint are non-justiciable per se, but could only be enforced where similar provisions appear elsewhere in the constitution. In arriving at this conclusion, the court reasoned that the directive principles are aspirational in character and do not constitute immediately binding obligations on government. The difficulty with this decision lies not in its overall conclusion, which I think is in sync with the promotion of the liberal ideal of freedom of association, but in its failure to generally uphold the enforceability qua the principles as an overarching set of liberal ideals.
By generally de-legalizing the contents of the directive principles, the court has made it difficult to hold government accountable for the prudent economic governance of Ghana as contemplated under these provisions. The argument that the attainment of these provisions is indexed to an availability of resources requirement and for that matter impossible of immediate enforcement furnishes no inadequate basis for denying them enforcement given the fact that any allegation of violation would necessarily be considered against the background of what is pragmatically possible and feasible within government’s overall policy and developmental agenda.
Furthermore, a decision holding that these provisions are justiciable could have been coupled with specific and measurable mechanisms and benchmarks for the ascertainment of breach given their peculiar orientation. Economic liberalism dictates that the constitution creates and enlarges the scope of economic liberty of the individual, and more importantly that government’s management and deployment of national resources are geared towards the attainment of key national aspirations. The best, and arguably only means of doing that is to reinforce existing constitutional policy on economic governance.
The major difficulty with the court’s decision requiring that provisions in the directive principles be enforceable only when they find expression in other parts of the constitution effectively deprives the economic provisions of any enforcement since these provisions are a virtual characteristic of the directive principles and are hardly repeated elsewhere in the constitution. It is instructive in this regard to note that where repeated elsewhere, the other provisions are normally in the form of benign freedoms whose variant manifestations tend to include economic liberty. Thus, the decision of the court deprives the individual of the capacity to demand greater accountability from government and its officials on the economic choices made thereby.
INDIVIDUAL CENTRISM vs. INSTITUTIONAL FUNCTIONALITY
The constitution is awash with provisions designed to construct spaces for individual action, promote his dignity whiles regulating the powers of the state in these areas. Thus from individual liberty and freedom of arrest to the protection of privacy, the 1992 constitution is a model document exemplifying liberal values in an emergent democracy. Yet as mentioned earlier, the reality mirrors a disturbing dissonance between guaranteed rights and respect for these rights. A careful examination however would reveal that the underlying cause is the constant preference, albeit unwittingly, accorded institutional functionality as a superior goal to individual liberty. This explains the reasons for the shocking congestions and appalling conditions in the prisons, police brutalities and the implicit complicity of government in conditions obtaining in pre-trial detention facilities at the nation’s police stations, etc.
Breaches of individual rights and liberties under the constitution has in many cases been perpetuated by the skewed focus on institutional effectiveness to the detriment of all other competing values and in further disregard of the ‘collateral’ cost involved in ensuring their effectiveness.
Thus prisoners are kept on remand for years without trial contrary to the constitutional requirement of speedy trial coupled with the absence of legal aid as mandated by the constitution, public buildings continue to be put up without considerations of disability rights, our courts continue to insist on colonially oriented procedures in a society where the vast majority of our people are illiterate and cannot afford or access the services of a lawyer etc.
A focus on institutional effectiveness has led to individual rights being sacrificed in favour of the perceived effectiveness of institutions of state. In other spheres of human liberty, the right to demonstrate continue to be undermined by the granting of injunctions against intended demonstrations, the right to assembly and association are routinely breached by the denial of collective bargaining certificate to emergent trade unions for fear of promoting splinter unions, the right of bail is usually denied on grounds other than the accused person’s failure to meet the conditions of bail but rather to demonstrate the power of the police or prosecution over the accused person standing trial, among others.
These instances betray a defeat of the value of liberalism in a constitutional system where the individual and his welfare remain an enduring feature of the constitutional regime. The constitution has established the regime on liberalism and the underlying value, yet years of negative institutional evolution, coupled with a tendency to downplay the imperative of human rights protection vis-à-vis the operation of state institutions has meant that the value of individual centrism which is a fundamental bedrock of liberalism, and for that matter the 1992 constitution, has been, and continue to be eroded.
The persistence of this state of affair constitutes a major deficit for the development of the liberal regime of our constitution. Besides the rampant violations of human rights in the interactions of citizens and state institutions, an overemphasis on institutional efficiency/effectiveness to the detriment of human rights could potentially perpetuate a psyche of totalitarianism as an antithetical value to liberalism. While the importance of effective state institutions cannot be overemphasized, functional liberal constitutional regimes are built on a healthy interaction between the spaces of human liberty and state/communal interests in which the latter is ultimately designed to perfect and reinforce the former. This then is yet one instance in which we witness a palpable dissonance between constitutional values and intendments and the practical operations of these values vis-à-vis other variables within the state.
HARNESSING OPPORTUNITIES; REFORMING WEAKNESSES
The liberal bases of the constitution remain strong and comprehensive, at least in theory. Optimizing its effect will then involve harnessing its substantive coverage and enforcing them to the latter.
As noted in the foregoing discussions, the liberal values of the constitution provide spaces for individual autonomy and self-advancement. It is important to conclude that these values mandate the state to positively develop and enforce the regime on liberalism in Ghana. This can only be done if active steps are taken to ensure that citizens are able to access its provisions and that values are translated into real and accessible rights when these are breached or violated.
This would involve re-socializing our institutions of state and ensuring that they operate an ethos that conduce to the development of the liberal values/provisions of the constitution. We would need to refuse the situation where remand prisoners are kept in detention indefinitely without any judicial oversight or under expired warrants. Again, the disparity between ideal constitutional provisions on liberty such as freedom from unlawful arrests must be upheld, and in consequence, it is utterly important that the judiciary must show itself open to individual complaints and demonstrate active resentment towards institutional encroachments on individual liberty. This is the only way to bolster human liberty and promote the freedom of action of the individual.
The discussions have also highlighted some instances in need of reform. Among these are, the appointing powers of the president, access to constitutional justice and justice in general, reinforcing the independence of constitutional bodies from executive interference, and the avoidance of the exploitative use of power.
First, I suggest that the future development and consolidation of the liberal roots of the constitution is contingent on limitations placed in the way of the exercise of executive power. The current situation under which the president wields wide ranging appointing powers remains dangerous for liberalism. Indeed, Ghana’s constitutional history amply belie the propensity towards abuse whenever the presidency is heavily invested with power. We need to devise creative alternatives to presidential appointments. For example, given the fact that the commissioner for CHRAJ is required to be qualified as a court of appeal judge, it is proposed that a system of appointment where the Chief Justice proposes a name for consideration of parliament, upon the occurrence of a vacancy in the position is far more preferable to the current situation where the president appoints the commissioner whiles merely acting in consultation with the council of state. We need to adopt similar approaches to the appointment of other members and officers of independent constitutional bodies and offices. The failure or deliberate refusal to appoint officers to key substantive positions by maintaining heads of these institutions in acting positions indefinitely amply testifies to this concern.
Second, the liberal bases of our constitution can only be enlivened and promoted where the Supreme Court provides an avenue of open access in the prosecution and defence of matters of constitutional importance. The Supreme Court therefore needs to expand the scope of standing and access for litigants who are in need of its services. As I have argued elsewhere, the tendency by the Court to award costs against losing litigants in constitutional cases remains not only unjustifiable but also counter-productive to the very rationale underlying constitutional litigation as an instrument for the defence of the constitution and public interest protection. Similarly, the Court could promote liberal ideals by watering down on the effect of procedures and legal technicalities in the institution or defence of constitutional cases. The trend in India where the court dwells on the substance of claims with little regard to the mode by which the court was seised of jurisdiction is worth emulating particularly having regard to the fact that the vast majority of our people are illiterate and indigent with little or no access to legal representation. Finally in this regard, decisions of the court bordering on human liberty and constitutionalism need to be functionally useful to the peculiarities of our national polity and ethos. Thus the court’s conclusion that a judge need not assign reasons for judicial decisions is not only fatal for transparent and rational decision-making in a liberal regime, but also provide spaces for abuses of rights in lower levels administrative decision-making.
We also need to strengthen constitutional bodies against executive machinations and manipulations. Independent constitutional bodies are designed as oversight bodies and as such reinforcing their independence is a veritable constitutional imperative. I propose that the budget of institutions such as CHRAJ and the NCCE must not be subject to executive review, but must treated in much the same way as that of the judiciary. The fear of mismanagement can be obviated by a parliamentary oversight requirement. In this vein, parliamentary check should be deemed preferable to executive control.
Finally, constitutional liberalism can only be possible in a regime of restrained executive and legislative action. Constitutional powers are in themselves benign and ultimately well intentioned. Our experience has taught us however that conferred power is always apt to be abused and undermined usually by the executive. For the development of the regime of liberalism in Ghana, the exercise of power must be conditioned and restrained by ethical considerations. Liberalism implies that guaranteed power must always be used in pursuance of the objective for which the power was granted in the first place. Thus powers of appointment and removal, powers of allocation and redistribution, and powers of according privilege must all be exercised with ethical considerations in mind. Ethical use of power will lead to functional use of same. The effect is that the perennial confrontation that characterizes the exercise of power and human rights will be minimized, if not altogether reversed.
The imperatives of upholding the liberal tenets of the constitution is now all too obvious and is very much akin to our quest as a nation to develop and advance the circumstances of every Ghanaian. On the other hand, experience has shown that the liberal values of the constitution have not been prioritized in our policy orientation thereby weakening the regime’s effectiveness and its capacity to help address problems confronting human liberty and freedom of action in a developing democracy.
The reality however remains that liberalism, as a constitutional ideal cannot thrive in the midst of a political ethos that refutes constitutionalism. In this vein, the innate acceptance of restraint imposed on the exercise of political power, coupled with a desire to enforce its rules represent real benchmarks in determining the extent to which liberalism cannot succeed in Ghana. Our governments must demonstrate a commitment to uphold liberalism understood as a holistic understanding of liberalism as a regime in which any constriction of human liberty must be specifically justified. I will in this vein again quote the words of yet another American judge, Justice John Harlan who opined in Poe v. Ulman that,
‘liberty is not a series of isolated points, but a rational continuum which… recognizes…that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.’
The regime exists---in theory; optimizing it effects in practice remains the challenge.