PREZ WIELDS TOO MUCH POWER
“He is the chief patriot, dispensing all manner of addresses and exclusive benefits from car loans to MPs to lucrative contracts. He is the chief deal maker and deal broker, with the power to negotiate and conclude, make and unmake international commercial contracts. He is the chief grievance server, on whose desk all public grievances, including all those backed by stress and strike actions that have any chance of quick resolution, must land. He is the chief financial controller, who single handedly controls the nation’s purse, disbursing funds according to his conscience. He is the chief local governor, whose command, issued directly through his embassies at local level, reaches every corner of his sovereign estate. Above all, he is indeed, the chief law maker, upon whose sole initiative, all laws in the Republic are made and unmade,” he said.
Professor Prempeh was speaking at a CDD organized program on Constitutional amendment in Accra yesterday, on topic “Framing the Constitution of Ghana for the 21 Century.”
According to him, the power vested in the president to formulate policies, denies Members of Parliament (MPs) the opportunity to sponsor legislation that directly address the needs of constituents.
“Article 108 grants the president exclusive power or monopoly in the important area of policy or legislative initiative. Such exclusivity is bound to impoverish policy making in Ghana, as it gives the president the range of possible policy solutions to a given public problem that parliament may properly consider or vote upon. Worse still, Article 108 means that the failure or the discrimination on the part of the president to propose a legislative solution to a public problem, will lead the problem to fester without appropriate legislative attention or public resources. Moreover that provision of the constitution undermines the ability of MPs to represent effectively the interest of their constituents in the national policy making process, such by sponsoring legislation, including appropriations to deal specifically with certain needs of their constituents,” he noted.
Article 108 as enshrined in the 1992 Constitution, stipulates that “Parliament shall not , unless the bill is introduced or the motion is introduced by, or on behalf of the President (a) proceed upon a bill including an amendment to a bill , that, in the opinion of the person presiding, makes provision for any of the following:
(i) the imposition of taxation or the alteration of taxation otherwise than by reduction; or (ii) the imposition of a charge of the Consolidation Fund or other public funds of Ghana or the alteration of any such charge otherwise than by reduction.
He noted that any constitution that grants the state substantial and enabling authority, constrained only by obligation to respect certain negative liberties which does not adequately balance power with responsibility for the progress of the people.
The head of the Judiciary, the Chief Justice, was also cited as exercising more powers.
Citing the jurisdiction of the High Courts to buttress his argument, Professor Prempeh noted that granting the high court exclusive jurisdiction in the enforcement of the fundamental rights provisions of Article 130 and 33 as enshrined in the 1992 Constitution, raises access to justice problems in the country, where there are only 70 courts, most then located in the capitals and peri-urban areas, as compared to the number of Members of Parliament (230).
In dealing with the issue raised above, Prof. Prempeh proposed that the Constitution must make available a High Court or a high court judge to sit in every district in Ghana, or else give the lower, circuit and district courts jurisdiction to entertain and adjudicate constitutional right claims, at least when such claims are raised as defense in the criminal prosecution.
He again made certain proposals of which the government must consider when amending the country’s Constitution. He recommended the amendment of Article 128 (1) to specify a numerical limit ceiling to the number of justices who must make up the Supreme Court.
Article 128(1) states that: The Supreme Court must consist of the Chief Justice and not less than nine other Justices of the Supreme Court.
Again, he noted that justices to the Supreme Court, including the Chief Justice, must receive the approval of super majority not just a simple majority of Parliament, in order to eliminate or minimize perceptions of partisanship in the composition or appointment to the highest court of the land.
The long standing practice whereby a Chief Justice selects, on the basis of apparently subjective or otherwise unknowable criteria, which High Court Justices will hear and decide a given case, he noted, must be abolished.
“When it comes to deciding a case, the Chief Justice must be first among equals. Allowing the Chief Justice to determine whether and when a fellow justice of the Supreme Court, duly appointed and approved by Parliament , will sit on a case , is a power that I believe is fraught with too much risk of abuse ,” said Prof. Prempeh.
Furthermore, Prof. Prempeh proposed the Chief Justice move away from the practice, towards a perception of forum shopping, since it undermines public or professional trust in the impartiality of the court, particularly in contested cases.
Moreover, he said, such an empanelling power can be used to sideline or silence a duly appointed justice from court, specifically, where the Chief Justice habitually fails to empanel a particular justice in certain important cases.
“I think an appropriate remedy should require either the Supreme Court sit on bond, either as a full body, at least in constitutional cases, or if panels can be retained for efficiency and other reasons, that the selection of which justices will constitute which panels for a given case, must be made in a transparent manner in accordance, provided within a reasonable time after the conclusion of a giving case, a written judgment recounting the facts of the case on the legal grounds, upon which the judgment is made,” he noted.
The proposal amendment, he said, was intended to supersede a recent decision of the Supreme Court in one of the Tsikata cases, in which “the court held in effect that the judges were not constitutionally obliged to provide written reasons, explaining the legal grounds for their judgment.”
Another point he highlighted in connection with the Constitutional amendment, was what he termed as fourth branch government,‘ of which he said were a set of new institutions that cannot be classed as either legislative , executive or judicial.
He named those institutions as the Commission for Human Rights and Administrative Justice (CHRAJ), the Electoral Commission (EC), Auditor–General (A-G), and the National Media Commission (NMC).“These bodies are charged with protecting certain fundamental functions and constitutional commitment from political manipulation and control. Because the performance of these highly specialized functions requires non-partisan detachment and impartiality, we have given these bodies a certain measure of independence,” he added.
In reviewing the constitution, Prof. Prempeh suggested that the Constitution focus on what is necessary to give the institutions mentioned above more independence, in order to make them more effective in the discharge of their duties.
He also proposed that appointments to all independent constitutional offices be approved by a super majority vote of Parliament.