Friday,
July 18, 2014
But for its contradictory and
paradoxical implications, the legal suit filed against the Attorney-General,
the President, and the Constitution Review Implementation Committee by Stephen
Kwaku Asare (who writes under the moniker, “Kwaku Azar,” on Ghanaweb and other
online media) wouldn’t have turned my crank.
His suit says “Professor
Dankwah and his so called Constitution Review Implementation Committee have no
power under the laws of Ghana to schedule a referendum and/or to amend the
Constitution of Ghana… Parliament is the sole body that can initiate, consider
and propose amendments to the Constitution.” Kwaku Azar insists that Parliament’s
power to amend the Constitution “is not only plenary and exclusive but also
cannot be delegated to or usurped by the President, the so-called Constitution
Reform Commission or the Constitution Review Implementation Committee.”
We
note that the Constitution Review Implementation Committee isn’t gearing up to
organize any referendum on the submissions and proposals gathered from
Ghanaians by the Constitution Review Commission led by Mr. Fiadjoe. The Constitution Review Implementation Committee, chaired by Prof.
Emmanuel Victor Dankwah, was set up by government to make proposals and
recommendations for the review of the constitution. The recommendations and
proposals will be subjected to a vote at a referendum. And we already know that
it is only the Electoral Commission that is mandated to perform such a
responsibility as organizing general elections or referendums. The CRIC isn’t
usurping that role either.
Even before the case is certified
for hearing, Kwaku Azar has begun whipping up public attention to his suit and
one cannot sit back unconcerned. In all honesty, the suit has come at a time
that efforts are far advanced toward a possible referendum for amending the
Constitution.
If my reading of the suit (as
made available by Kwaku Azar himself) is anything to go by, I suppose that his
roping in the President (the late Mills, who appointed the ConstitutionReview
Commission, and the incumbent John Mahama, under whose tenure the Constitution
Review Implementation Committee is fine-tuning the submissions for
constitutional amendment) speaks volumes. At a higher level, his claim that it
is only Parliament that has the statutory responsibility to perform such
functions clearly disparages Parliament and reinforces the poor opinion that
some of us have about it as useless!!
But that is not the substance of
my opinion piece on this suit. I have more about it to comment on. First things
first, though.
Kwaku Azar is no stranger to us
when it comes to filing suits of this sort, especially when they are heavily
invested with political capital. He has done so on a few occasions, written
opinion pieces to fight his case at the court of public opinion, only to lose
the substantive case in the chamber of the Supreme Court. He is a strong apologist
for the NPP and does his political writing on that score. His suit may have
some political stain, but it has more to do with a quest for self-projection
than what will improve governance.
I don’t think that he can claim
to know more than all the legal brains that worked to get the Constitution
Review Commission established or to superintend over its activities to bring us
thus far. But he has every right to go whichever way he thinks his knowledge of
the law will move him. At the hearing of his case, steel will cut steel (“Dadie
be twa dadie”).
What he has set in motion with
this challenge to the legality of the constitutional review process will be no
exception to what he is already known for. Even after filing his case, he has taken
to Ghanaweb and other online media to push his own agenda, writing articles or
regurgitating the very suit that he has filed at the Supreme Court. If he were
any serious lawyer, he would be the first to know that he was breaking bounds.
Once a case is before court, it qualifies as “sub judice” and shouldn’t be
commented on outside the confines of the court. But our Kwaku Azar has been all
over the place, commenting on his own suit and provoking others to do same.
What does he hope to achieve at this early stage when the Chief Justice hasn’t
even empanelled the Supreme Court to begin hearing his suit?
I suspect that by pushing his
case out this way, he is only doing his kind of politics with it to reinforce
the purpose behind his suit: to cast the President in a bad light and create
the impression that he is abusing his powers or to portray Parliament as
grossly incompetent.
Now, let’s veer off a bit to see
Parliament in this light. Since the establishment of the 4th
Republic, Parliament has been functioning, using the provisions of this
Constitution as the guide/blueprint for its operations. None of the crops of
Parliamentarians ever raised any doubt about the Constitution as configured nor
has any even initiated any bill toward amending any aspect of the Constitution
despite massive public concern about some aspects of the Constitution that don’t
encourage good and productive governance. No MP has initiated any move for amendment of
provisions regarded as counter-productive.
Much noise has been made and
heard about the Transitional provisions, especially when Kufuor took over from
Rawlings; but none of those leading the pack of noise-making could get anything
done toward amending those portions of the Constitution that seemed “obnoxious”
to them. All the so-called bragging that the NPP has “intellectuals” couldn’t
lead us toward identifying specific problematic areas of the constitution for
amendment. Kufuor left office without seeing the need for any amendment.
Come in the late President Mills
and efforts began being made to identify problematic areas for amendment; hence
the establishment of the Constitution Review Commission (headed by a seasoned
lawyer and law professor, supported by a crop of brilliant lawyers and experts)
to help smooth the rough edges of the Constitution. The Commission spent
resources to gather data from diverse constituencies of Ghanaians (home and
abroad, political and apolitical), which led to the Mills’ government’s issuing
of a White Paper to accept recommendations for constitutional review.
Following up on that initiative,
a Constitution Review Implementation Committee is in place, fine-tuning efforts
so the appropriate institution charged with electoral responsibilities (the
Electoral Commission) can organize a national referendum on the areas that are
deemed critical for constitutional amendment.
In comes Stephen Kwaku Asare to
sue the President and the Constitutional Review Commission on that score to
create the impression that the President is acting ultra-vires and that
Parliament is the only body with the constitutional mandate to pioneer
constitutional amendments. This suit, to me, is nothing but an exercise in
futility, apparently because it has more to do with the sentimental than the
legal imperative. I am no trained lawyer, but common sense tells me that the setting
up of the Constitution Review Commission under a Constitutional Instrument by
the late President Mills is no violation of the Constitution. Neither does it
amount to a usurpation of Parliament’s power or function.
If it were so, won’t Parliament
itself be seen as “dead”? What made it impossible for the MPs themselves to
know that their powers were at risk? Why won’t they rise up to right the wrong,
if it were so?
In any case, Stephen Kwaku Asare
is free to exercise his constitutional right to seek the interpretation of the
constitution by the Supreme Court as far as his suit is concerned; but I
daresay that he is already putting a lot out to create the impression that he
is on a wild goose chase. Behind all that he has set in motion is his calculated
move to undermine the Presidency and create the unfortunate impression that
political opponents of the NDC administration have continued to use for
undeserved political leverage.
I am being blunt here to say that
our Constitution needs amending, apparently because circumstances have changed
and its provisions must be revisited and used to serve needs that our contemporary
existential circumstances demand. The bitter truth is that no Constitution
anywhere is sacrosanct. It is a paper tiger that must be bent to serve useful
purposes whenever possible, which is why it must be amended when necessary.
In our Ghanaian case, we have a
peculiar problem when those who refused to participate in the drawing up of
this very Constitution have turned out to be those who implemented it to
advantage when in power or those now mischievously seeking to prevent its being
amended. When the clarion call came, the so-called “interrectuals” refused to
respond, leaving the task to ordinary but committed, patriotic citizens from
the lower ranks of society (artisans, farmers, fisherfolks, traders, and
what-have-you) who teamed up with some well-intentioned and educated
compatriots to form the Constituent Assembly. Those who turned their back are
now in the limelight, raising dust and drawing needless attention to themselves
to be seen as “patriotic”. Their days are gone and they should spare us their
tantrums disguised as legal illumination. They aren’t out to serve any useful
national purpose but partisan political ones.
The questions, then, are: Has any
of them known that by setting up the Constitutional Review Commission and
spending public funds on its activities the President was acting ultra vires
but didn’t bring it out? Did any not know that as the Third Estate of the Realm
(the Judiciary), they have the bounden duty to offer input for good governance?
If the President was acting ultra vires but they didn’t raise red flags, what
did they seek to accomplish or to add to our democracy? Or have they been
waiting (and being unpatriotic and incompetent as such) for other Ghanaians
(like this Kwaku Azar) to bring the matter before them before they act? Why
should it be so? Or that what the Constitution Review (Implementation) Commission
has done so far is irrelevant to the quest for input to improve governance and
must be discarded? Many more unasked questions!!
In the final analysis, Kwaku Azar’s
legal suit has only one objective: to either embarrass the President or curtail
the ongoing efforts at Constitutional review (that is, if the Supreme Court
agrees with him, which will be a sad reflection on the integrity of the judges
themselves as those charged with interpreting the Constitution, meaning that
someone among them should have seen that problem and raised it long before the
filing of this suit but didn’t). Very paradoxical. In one breath, here is
someone who has come across as interested in constitutional amendments while at
the same time initiating a legal process to curtail those very amendments. How
contradictory!!
Or is he suggesting that
Parliament has been too dormant and incompetent and must seize the opportunity
provided by his legal suit to begin the process toward constitutional amendment?
And to imagine that the majority of our Parliamentarians are people who brag as
lawyers? More ironical.
I am waiting impatiently for the
Supreme Court to begin hearing this suit by Kwaku Azar. Then, I can get to know
more about the under-current and intrigues. Clearly, I don’t think that the
Supreme Court judges (whose responsibility it is to interpret the Constitution)
can free themselves from blame if they see eye-to-eye with Kwaku Azar,
apparently because as experts, they have been expected to know inside-out the
provisions of this Constitution and to take steps to help us use them to
improve governance. In fine, then, I consider this suit as a hot air being
blown by Kwaku Azar.
I shall return…
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E-mail:
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