Monday, July 9, 2012
The governments that have ruled under the ambit of this 1992 constitution have found adroit means to circumvent some aspects of the constitution or to implement them solely for political expediency. By being bold to establish the Constitution Review Commission to collect and collate views from Ghanaians toward amending the Constitution, the Mills government stood above its predecessors and had the support of Ghanaians for that matter. That was why not much was heard from anybody to condemn the huge expenditure made on the Commission.
At the end of the Commission’s work, however, certain developments—particularly, the government’s attitude to the Commission’s report—leave room for much to be desired. By arrogating to itself the power to cherry pick which aspects of the Commission’s report to issue a White Paper on, accepting or rejecting recommendations at will, the government isn’t giving a good account of itself.
The government’s White Paper on the report of the Constitution Review Commission is irrelevant. It is an illegality and must be condemned as such. It won’t help us grow our democracy.
Many reasons account for this anomaly that a government that seeks to facilitate our democracy should now turn round to hijack the process, pick and choose contents of the Commission’s report, and act as if the Commission was designed to work for it to determine how the amendment of the 1992 Constitution should be done. That was not what Ghanaians called for.
The original motive for establishing this Commission wasn’t so. It was aimed at gathering suggestions from Ghanaians to be openly debated and used as the input for constitutional amendment, not for the government to stamp its authority on issues and selectively accept or reject recommendations at will. The government is just the executive arm and shouldn’t overstretch its powers to this extent.
We expect the government not to see the report as its baby to be toyed with at its own pleasure. Ghanaians don’t expect the government to frustrate their efforts at smoothing the rough edges of governance.
We can see the danger toward which we are being pushed by the government. One of the recommendations it accepted was for Article 117 of the Constitution to be amended so that “criminal or civil processes coming from outside Parliament can be served on the Speaker, Deputy Speaker, or Members of Parliament through the Clerk of Parliament and on the Clerk of Parliament through any Deputy of Parliament when Parliament is in session.” Additionally, when Parliament is not in session, MPs may be served in the ordinary way.
In effect, then, by a stroke of his signature, the President has accepted to abolish the immunity conferred on the MPs. As is to be expected, the MPs will vigorously resist this unilateral decision. They will do all in their power to lock horns with the Executive on this score and muddy the waters.
We may not all support the existing situation which provides immunity for the MPs, but abolishing this immunity shouldn’t be done by the Executive arm of government. That is where the danger lies—for one arm of government to encroach on the purview of the other without good justification based on the will of the people.
That is why one expects the government to simply acknowledge the Commission’s report and forward it to Parliament for further deliberation and conclusive action that is likely to culminate in a referendum on the thorny issues, including this immunity for MPs.
Of course, the outcome of the referendum will then become the input for the Constitution as amended. Then, if the verdict is that MPs can be arrested in connection with any criminal or civil case in which they are incriminated, regardless of their status or involvement in Parliamentary sessions, no one will have any cause to complain. But the government has chosen to do the wrong thing by curtailing any civil and logical pursuit of the matter.
This is a troubling development, especially with only a few months leading to the general elections whose outcome no one can predict. Expectations that the Constitution will be amended can’t be met. We are worried that despite all the efforts put into the work of the Constitution Review Commission and the well-intentioned suggestions from Ghanaians, nothing will be done to improve our Constitution so that it can be used to enhance governance.
If the Mills government loses the elections, the process risks ending up in smoke. What is the guarantee that the new government will pursue the agenda for an expeditious amendment of the Constitution? Or will we expect it to come out with its own White Paper on what it has accepted or rejected?
The government has certainly complicated matters and demoralized all Ghanaians hoping that the constitution will be amended soon. How does the government expect its White Paper to be worked into the amendment process, anyway? And which institution is to do the amendment? Certainly, not the Parliament that it has already angered. So, where do we go from here?
This negative turn of events is nauseating, to say the least.
Agitation for the amendment of the 1992 Constitution didn’t come from the Executive for it to feel strongly that it has the final say in which aspects of the Commission’s recommendations should be the basis for any constitutional amendment. It came from the mass of Ghanaians who have been concerned enough to voice their misgivings about the weaknesses that have made it difficult for the Constitution to function effectively to help us use governance to solve our national problems instead of worsening them.
Once anything concerning the provisions of the current constitution or any recommendation leading to its amendment is part of our democratic experiment, the government should have reined itself in. It should have placed the report before Parliament for deliberation and the necessary steps taken to sensitize the citizens and to organize a referendum to amend the entrenched provisions, if need be.
Those aspects of the Constitution that don’t require any referendum could, then, be amended by Parliament, which is the legitimate law-making arm of government equivalent to the Constituent Assembly that promulgated the Constitution.
There are clear indications from the government’s White Paper that it has already shot down some useful provisions that could help us grow our democracy. A cursory reading of that White Paper should reveal what these recommendations are and why the government must not be allowed to hold sway.
Among others, the government has accepted that the indemnity clause (labelled by the Commission as “Ninth Issue”) should remain intact. We all know that this very aspect of the Constitution is at the core of the public anxiety or anger, which was one of the major causes of the agitation for amendment of the Constitution.
This particular provision is central to the workings of our democracy. Why won’t the government leave the report to be debated and a referendum held on it? I can confidently say that by reinforcing the retention of this indemnity clause, the tension created by it all these years won’t evaporate. No amount of pontification or appeals to people’s conscience will defuse that tension. There will be no reconciliation or peace between those who still feel embittered by the events that necessitated the promulgation of the indemnity clause. Only a referendum, not a government fiat, can settle this matter.
Another aspect is the government’s acceptance of the Commission’s recommendation for the law on willfully causing financial loss to the state to be repealed. No one knows what will come next; but I am pessimistic that anything better will emerge. With all the glaring instances of impropriety concerning the spate of judgement debts and many other acts of inefficiency from the Ministry of Justice and Attorney-General’s Department, there is every reason for Ghanaians to be worried.
What the government is doing now is illegitimate and should be challenged through laid-down legal means at the Supreme Court. Who will take the initiative to do so? Some of us not living in the country are constrained. Is there anybody willing to do so to ensure that the Executive arm of government doesn’t frustrate the efforts of the legislative one, after all? Or that it doesn’t impose its will on Ghanaians?
If we allow this illegality to go on, our democracy will not survive.
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