INTRODUCTION
I thank the organisers for inviting me to join them to reflect as a guest speaker on this all-important topic, Our Democracy: The Constitution, Elections, and the Judiciary.
“Our Democracy”. Just saying this brings joy to my heart. I was born after independence during the Kwame Nkrumah era but my personal recollection of politics and governance, prior to 1992 starts during the era of General, (then Colonel) Kutu Acheampong, who led a military takeover on the 13th January 1972.
During that era an attempt to impose a dictatorship couched as Union Government was fiercely resisted by amongst others, the Movement for Freedom and Justice. I recollect as a teenager in Mfantsipim School in Cape Coast, we rushed out of school to the house of Lawyer Brodi Mends, which is near Mfantsipim, when we heard that leaders of the Movement for Freedom and Justice, including Okatakyie Akwasi Afrifa, Mr G. W. Amartefio “Mr No” and Nana Akufo-Addo, now President of Ghana had come to a meeting at the house.
Even in that era during military rule, Mfantsipim continued to sow seeds of democracy in its students by setting aside a period for what we described as “Mock Parliament”. During this period, students were allowed to form political parties and elections were held and a Head of State, a student, was elected.
One political party that I remember was the Junior Students Party, which was an audacious attempt by we the juniors to democratically take over the school for a period. This was a yearly affair but unfortunately, almost every event was characterized by a military takeover by unscrupulous students, and this would bring the democratic process to an abrupt end and a return to the ‘dictatorship’ of the headmaster and his staff.
This seed of democracy which was sown in us in Mfantsipim, continued to germinate and grow and in the university, my natural inclination was to oppose the military regime of the Provisional National Defence Council. I did not need persuasion to actively participate in any action which opposed military rule and promoted a return to constitutional democracy.
As a young lawyer, my desire to see Ghana return to a constitutionally elected government did not diminish in any way. I was part of the formation of the New Patriotic Party even though I was not a signatory to the incorporation documents which made a person a founding member of the Party.
I was also part of the team that wrote the Stolen Verdict, which was written by the New Patriotic Party after the 1992 General Election. Since then, I have been actively involved in the politics of Ghana, as a foot soldier from 1992 to 2005, as a Member of Parliament from 2005 till date, as a Deputy Minister, from 2005 to 2006 as Cabinet Minister from 2006 to 2009 and 2017 to 2021 and as a Deputy Speaker of Parliament from 2013 to 2017.
These experiences have increased my belief in democracy as the best form of Government. I have lived in an era where there was the culture of silence with a muzzled press. Today what we have is not perfect, but it is much better than an era where a few men, be they liberators, redeemers, revolutionaries or provisional, as the military regimes described themselves, concentrated final legislative and executive in themselves and supervisory judiciary power to the extent that they retained the unfettered right to dismiss judges as was the case during the PNDC era by PNDCL 42.
It is against this background and in this context that I proceed to discuss some aspects of Our Democracy: The Constitution, Elections, and the Judiciary.
The Constitution
There are some who preach Armageddon if the 1992 Constitution is not reviewed and hold the view that the survival of the 1992 Constitution hinges on its total review. I beg to differ, and let me use this occasion to emphasize my confidence in our Constitution.
However, permit me to quote the famous speech of Sowah JSC (as he then was) in the celebrated case of Tuffour v Attorney General, when he said:[1]
A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it, their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountainhead for the authority which each of the three arms of government possesses and exercises. It is their source of strength. …
Its language therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that into consideration to bear, in bringing it into consideration with the needs of our time.
These hallowed words by Sowah JSC were in respect of the 1979 Constitution. They hold true for the 1992 Constitution too in my humble opinion. This being the case, we should hasten slowly along our quest to review the Constitution. Some tinkering here and there is not what I am against. A wholesale review is what I oppose vehemently.
The 1992 Constitution itself recognises that a review is possible and consequently it has been reviewed once. What was reviewed were non-entrenched provisions of the Constitution. This was by the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527).
This amendment, amended, among other articles, provisions on citizenship and provisions on public officers. It allowed for dual citizenship and allowed public officers to continue to work for a further five years after attaining the retiring age of sixty.
The amendment which allowed for dual citizenship is very welcome. It supports my view that we have to involve all Ghanaians and people of Ghanaian descendant in our development of our nation. The amendment which extends the work life of a public servant is also welcome in my view. No doubt there are parts of the 1992 Constitution which with a compelling argument may lend themselves to the possibility of amendment, but as I said previously, we must hasten slowly.
Our Constitution is a living document and it is growing, albeit it is very much in its infant stages. The separation of powers between the executive and the legislature, the Council of State and Local Government are areas that several people have identified as being likely candidates for amendment or review should we decide to embark as a nation.
A well flogged horse in the discussion for amendments of the Constitution is the argument that the Executive being chosen from the Legislature offends against the doctrine of separation of powers. The proponents of that view call for a strict separation of powers where the Executive, the Legislature and the Judiciary are separate and distinct arms of government.
This doctrine, which was first formulated properly by the French philosopher Montesquieu was formulated to check the abuse of power and to protect the individual from such abuse. The rigidity and purity of the doctrine of separation of powers is no longer the case and various arrangements have been formulated to ensure that the power of the State is kept in check.
For example, in Ghana, the constitutionally established Commission on Human Rights and Administrative Justice is mandated by article 218 (a) to, among other things, investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties.
Article 33 (1) of the 1992 Constitution also gives any person the right to seek redress in the High Court where a person alleges that a provision of the Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
These are but two examples of provisions of the Constitution that provide checks and balances and protection against abuse by the State. An argument for the strict division of the Executive and legislative power contradicts or is at variance with those who advocate for the Westminster type of government, where the Executive are members of the legislature.
Today, we have a Constitution which has some of the ministers being Members of Parliament. In 1969, we practiced the Westminster system of government. In 1979 we practiced the Presidential system of government. We have combined the two systems because of our experiences in 1969 and 1979. Let’s tread with caution and don’t let us be in a rush to torpedo our current constitutional arrangement.
The 1992 Constitution also established the Council of State. Admittedly, the full impact of the Council of State is yet to be felt on our body politic. However, I do not think the answer is to let the Council of State publish its advice as a general rule as has been argued by some.
Indeed, I am of the opinion that the framers of the Constitution envisaged the Council of State as a form of advisory council in the nature of elders who give advice to the Chief or the Head of Family under customary law. The advice of the elders is not made public and so should it be with the Council of State.
As I said before, there are parts of the 1992 Constitution which we can look at as potential areas for amendment. The provisions of the Constitution on Local Government is one such area. Article 55 (3) of the 1992 Constitution restricts the right of political parties to be involved in District Assemblies or local government units.
After the recent District Assembly elections, supporters of the two major political parties claimed they had won the election. How can they win an election they did not take part in. The truth of the matter is that political parties at the local level actively support supposedly so-called non-partisan candidates.
Even the colour scheme of their campaign posters is a clear indication of which political party each candidate belongs to. We must also look at electing members of Unit Committees, Assemblies and the Chief Executives of the Assemblies on a partisan basis and also funding of our representatives at the local level should also be examined. This review of local governance should also look at the role of Chiefs in our governance at the local level.
All said and done, I am of the respectful view that our Constitution has served us well. Between 1992 and 2015 poverty in Ghana has been more than halved. Between 2015 and 2022 research shows that poverty levels have been fluctuating. The reasons are varied, and corruption is one of the reasons but not the only reason.
The 1992 Constitution has allowed the sun to shine on all aspects of governance and public life public officers and are increasingly put under the spotlight. Generally, the independent constitutional bodies and key institutions are being called upon to improve their standards by the citizenry. Democracy is deepening every day and we are in a much better place in our understanding of democracy than when we started this democratic journey in earnest on 7th January 1993 with the coming into force of the 1992 Constitution.
Elections and the Judiciary
General elections have been held since 1992. After every election, we as a people have taken steps to improve the conduct of our elections. Through consultation which result in the Electoral Commission proposing subsidiary legislation and Parliament not annulling the legislation, to citizens and political parties challenging some of the decisions of the Electoral Commission in court, we have together embarked on the journey of improving the conduct of elections in Ghana.
Today, it is difficult to believe that there was a time in Ghana where ballot boxes were not transparent, for example. No one can deny that the conduct of our elections has generally improved, but there is still room for more improvement generally. We have spent a lot of time concentrating on the election process itself.
I intend to talk about the external factors and what I call the judicialisation of elections. We must all with one voice condemn election violence. Violence they say begets violence and it should be completely taken out of our body politic. I am of the view however, that election violence is on the decrease not the increase.
I remember a time when supporters of one political party found it difficult to operate in specific locations which were considered the stronghold of other political parties. Pre-election and post-election violence were the order of the day in such places. This is no longer the case as a general rule and violence does not occur as a rule, but rather as an exception. This is because of the deepening of democracy and the concept of a ‘no go’ area for a political party is fast eroding.
Unfortunately, there is a marked increase in disrespect for other candidates within the body politic. For some candidates, the way to the top is to destroy the other candidate with lies and insults. This is inter-party as well as intra-party.
People are creating “monsters”. It is alleged that people pay others to create lies about others which they promote on social media and other platforms. The surprising thing is that when you confront some people, they tell you it is politics. When did politics equate lying and vice versa?
Even though we have rules to deal with defamation both under customary law and under common law, perhaps this business of pure lies and insults is so serious that the Law Reform Commission should look at crafting special laws to deal with it.
The sanction I propose must include banning the person who is sponsoring or perpetuating the lie or insult from holding public office. We must take this seriously because this growing trend can undermine our democracy. Heaven forbid, but look at what happened in Rwanda. We say that when you see your brother’s beard burning you fetch water in the event that yours starts burning too.
Closely related to lies and insults is the problem of making promises. In the desperate bid to get political power, be careful not to promise what you cannot deliver. I made it a point not to make wild promises during an election campaign. One promise I made was always to do my best. Political opponents have developed another strategy of giving you a promise even if you have not made one. This is the rough and tumble of Ghanaian politics.
Today, another rising phenomenon is going to the Supreme Court with an election petition after a Presidential election and to the High Court after a Parliamentary election. We must be careful so that we don’t create another level of electioneering. I am of the view that where there is no basis for a petition, the court before which the matter is, should mulct the petitioners in heavy and punitive cost.
Where there is no basis whatsoever for the election petition and it was filed in bad faith, the court should punish the petitioner for embarking upon such a journey. Such a person should also be banned from holding public office for a period.
Another matter that should occupy our attention regarding elections is campaign financing. It is within this broader context that I want to consider vote buy. Uncontrolled political fund-raising and spending can undermine the democratic process and erode the confidence of the electorate in political institutions.
Campaign expenditures have grown in many countries in recent times. In the United States, for example, between 2000 and 2012 the estimated total spending for U.S. presidential elections almost doubled, from $3.1 billion to $5.8 billion. This massive growth in campaign finance is not peculiar to the United States, however, but is a global phenomenon. In Ghana just a cursory glance at the number of billboards and their size is enough to tell you that campaign financing is growing.
Campaign finance raises fundamental ethical questions for democratic regimes. Most often, debates about campaign finance revolve around the protection of freedom of expression and the prevention of corruption, two democratic principles that can enter into conflict with one another.
On the one hand, jurists have often considered financial participation in a campaign (either through donation or spending) to be a form of political expression that must be constitutionally protected from censorship. On the other hand, it is generally agreed that regulations and limits can justifiably be placed on campaign finance to prevent corruption.
Should we not spend a little more time as a nation looking at the whole issue of campaign financing? Can we limit the cost of our elections? Must the State provide some basic funding? What punishment should be meted out for breaking laws on campaign financing, including vote buying? In my view, these are serious matters which need further consideration in order to protect the integrity of elections.
I have sought to raise some issues and offer some solutions but let me state once more that I am of the firm view that our Constitution has served us well and will continue to serve us well. Our democracy is growing from strength to strength, our elections are improving, and our Judiciary is growing from strength to strength. On this Constitutional Day, what can I say but God bless our homeland Ghana and I am happy and proud to be a Ghanaian.