In July 2020, Parliament took the monumental step of adopting a motion to allow members introduce, shepherd and get bills passed into law on their own accord without executive interference.
Oquaye’s Legacy
This was hailed by many as the right step in changing the face of Parliament and the narrative that the Legislature acts just as the proverbial rubber stamp for the Executive. For years, many speakers, from the venerable Justice DF Annan to Rt Hon Doe Adjaho did not entertain private members bills because of the edict in Article 108 of the 1992 Constitution which provides that Parliament shall not proceed upon a bill that in the opinion of the person presiding imposes a charge on the Consolidated Funds or other Public Funds.
This provision of the Constitution is at the center of the latest feud between the Speaker of Parliament, Alban Sumana Bagbin and President Nana Addo Dankwa Akufo-Addo.
The Instant Matter
According to the monocephalous Executive presidency that Ghana runs, the President must assent to bills passed by Parliament before they become law, but the President can veto bills he doesn’t intend to sign into law by providing reasons as to why he cannot assent to the said bill.
This is the exact scenario playing out at the very top of governance in the country. The President has decided not to sign three bills into law citing what he terms as the unconstitutionality of the said bills.
The bills are; Criminal Offences (Amendment) Bill, 2023, Criminal Offences (Amendment) (No.2) Bill, 2023, and Armed Forces (Amendment) Bill, 2023.
He wrote to Parliament that, “Upon a thorough review of the relevant constitutional legislative frameworks specifically Article 108 of the Constitution and Section 100 of the Public Financial Management Act 2016, Act 921, it is evident that the bill is introduced as private member’s bills by the honourable member of Parliament for Madina Constituency, Francis-Xavier Sosu do not conform with the provisions of the Constitution.
“These bills which avoid the death penalty and criminalise the activities of witch doctors retain substantial financial obligations on the Consolidated Fund and other public funds of Ghana due to the projected cost related to imprisonment, sustenance and healthcare for those who will be convicted under the days when they become law.
“Therefore, in light of this significant fiscal impact, these bills should not have been introduced with the fiscal impact analysis. Access to such an analysis precludes these bills from being properly classified as private member’s bills. The legislative power entrusted to Parliament comes with responsibilities to ensure that all enacted laws comply with the constitutional provisions safeguarding the nation’s fiscal integrity and avoiding the principles of governance.”
The Speaker, to the chagrin of the Majority Leader, disagreed in no uncertain terms with the President indicating that the President’s understanding of the law in this case was wrong. In Defence of his view, the Speaker argues that “It does not amount to the imposition of a new charge on the consolidated fund or other public funds. The financial implications here are consequential and incidental rather than being the creation of new fiscal obligation. Therefore, interpreting these bills as falling within the ambit of fiscal implication as outlined in Article 108 a (ii), stretches the meaning of imposition of a charge beyond its intended scope.
Honourable members, it is imperative to underscore that, literal and narrow interpretation of fiscal bills will unduly constrict the legislative autonomy granted to Parliament. Such an approach, will not only be contrary to the spirit of the Constitution, but will also set a precedent that could hinder our ability to address the diverse needs of our nation through private members legislation. Honourable members, the bills under consideration, do not create new fiscal obligations. Therefore, should not be constrained by the provisions of Article 108.”
It is important to note that apparently, the President has already signed one of the three bills into law but told Parliament he doesn’t intend to sign it into law. The public records and the gazette seems to bear this fact out. If that is so, then the President, in respect of that particular law cannot recant his position, because it is already law. What is shocking however, is the lack of attention to detail in the President’s back room on this matter.
Who woefully failed in his duty to remind the President that he had already signed one of these bills into law? This is embarrassing to say the least and the President’s handlers must save him from such ridicule in Parliament.
Having stated this obvious fact, the conundrum still remains about how this constitutional feud will be resolved. The Anti-witchcraft Bill is one of most progressive bills passed by our Parliament in recent memory. It must see the light of day.
The Clarion Call
Patently clear to every student of law and governance is the need for the Supreme Court to be invited to make a pronouncement on this matter, to settle it once and for all and set a judicial precedent out of it.
What is the standard of determining whether a private member’s bill imposes financial implications on the Consolidated fund or not? This is the question begging to be answered by the Apex Court and it’s Law Lords.
Unfortunately, due to the archetype of our constitutional jurisprudence, hardly ever does the Supreme Court go on a frolick of its own to interpret such matters. The Court’s original jurisdiction must be invoked.
Luckily, every sound citizen is clothed with locus standi or the capacity to seek interpretation of the constitution at the Apex Court. It has been done on several occasions by many. Law students make a meal of reading and dissecting such landmark cases. And so then, it is time once again for the Court to be called upon to do justice to this important matter.
Otherwise, a lot of important private members bill in the offing may never see the light of day and an important tool meant to assert legislative independence in the midst of a system that prioritizes Executive Dominance will be wasted. The Clarion Call is out to all public-spirited individuals to once again save our democracy!