Reviewing Ghana’s 1992 4th Republican Constitution Presentation By Kwesi Pratt Jnr…

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Reviewing Ghana’s 1992 4th Republican Constitution Presentation by Kwesi Pratt Jnr,

Managing Editor of the Insight and General Secretary of the Socialist Movement of Ghana

Mr Chair, distinguished ladies and gentlemen

Thank you for the opportunity to discuss this critical issue with your committee.  Like many Ghanaians, I have been concerned with the obvious deterioration of constitutional democracy in our politics.  Constitutional democracy as a political practice is intended to counter the concentrated power of elites and give the less powerful majority a greater say in public affairs.  Contrary to what some might think, we on the Left consider Constitutionalism essential for national progress and for the protection of minorities, including minority (for the moment) political views.  Many of my comrades have died fighting for Constitutionalism.  We have a stake in it.

I am not a lawyer.    However, Constitutionalism is centrally about politics and governance.  I have been an active participant in national politics for at least 40 years and have seen how people struggled under the 1969, 1979, and 1992 Constitutions. My views are based on this history, a historical-materialist perspective, and a sense of today’s urgent national priorities.  I offer them humbly, intending to advance national understanding and progress.  

I will attempt three questions. First, is meaningful Constitutional review possible? Second, is the 1992 constitution actually flawed and how? And Third, what kind of reforms do we actually need to address critical flaws?

I ask for forgiveness for any technical mistakes I may make.

1. Is Meaningful Constitutional Review Possible?

Mr Chair, the first question I had to grapple with upon receipt of your kind invitation was whether this process holds any real value.

Mr Chairman, no formulation of words on a piece of paper will protect the Poor against a rapacious elite.  No Constitution enforces itself.  Outcomes depend on how people behave around constitutions – especially governing elites.  Often, calls for review and amendment of the Constitution are insincere attempts at deflection from official misconduct.  There is more than enough by way of prescriptions, procedures, and standards of conduct in our Constitution for leaders of goodwill and public spiritedness to operate it effectively for the benefit of the People.  

Mr Chair, the main reason we have continual “constitutional crises” lies not so much in poor drafting but in the subservience of our political class to special interests.  Unfailingly, since 1992, President after President has overreached and abused his powers.  Presidents have turned a blind eye to, or even participated in, appointees’ reckless dissepation of national resources.  Presidents have tolerated institutional abuse of citizens’ democratic rights.  Presidents have supported or ignored undemocratic claims and illegal exercise of State power by traditional authorities.  Presidents have ignored police and military violence against citizens.  Presidents have even facilitated militia violence against citizens.  

Also, Mr Chair, in case after case Parliament has colluded with the Executive in this bad behaviour either, as often alleged, in return for a dip in the pork barrel or out of sheer cynical laziness.

Repeatedly, Mr Chair, the Supreme Court, too, has shown what appears to many as spinelessness in interpreting and applying the Constitution.  Our Supreme Court has not approached constitutional law as a mechanism through which the powerless can stand up to and check the excesses of the powerful.  

In all these repeated assaults on Constitutionalism, the immediate objective of the officials may be personal or collective greed, individual or group arrogance, or sheer thoughtless incompetence.  However, there is a pattern to it all.  It works to hold in place a system of intensifying foreign economic exploitation of Ghanaians and Ghanaian resources which is the only source of the wealth our leaders all seem to acquire overnight.  

And yet Mr Chair, unfailingly, these same forces blame the demonstrated outcomes of their cowardice, irresponsibility, and betrayal on the Constitution itself – as if the Constitution somehow prevents them from behaving as decent, rational, responsible human beings.

Mr Chair, the fear of many is that constitutional review process presided over by these same forces – our elite – will not address the problems of the downtrodden.  For some, constitutional reviews are a ploy to pacify restless social forces and prevent an upheaval that might sweep “everything” away.  And once the immediate danger of insurrection is passed, the Constitutional review is shelved.  For some too constitutional review is an academic or intellectual exercise with no true political urgency.  For others, still, it is a ruse by which sections of the elite seek even more power for themselves at the expense of the Poor.

I sincerely believe that this process is not such a process.  I believe that those gathered here are participating in good faith and out of concern that the rapid deterioration of our national politics may soon slip beyond anyone’s control.  I sincerely hope that elements of the political elite can see the writing on the wall and that they are willing to make substantive concessions in our economic system and reflect these in the political and constitutional system to avoid looming catastrophe.   In the hope of raising the level of public consciousness and at least contributing to such a process, the Left must participate in such debate.

2. Is the 1992 Constitution Flawed?

Mr Chairman, the Second question to address is: Is the 1992 constitution flawed?  And if so, what is the nature of the flaws?

Constitutions, however lofty their rhetoric, necessarily represent, idealise, and protect a specific status quo.  They are political instruments to express the balance of social and, therefore, political forces in a society at a particular time.  They promote specific social interests and weaken others.  They are not neutral in the class struggle that drives society.  They are seldom aspirational and seldom dynamic.  If the socio-economic arrangements a Constitution is designed to protect are anti-people, then I believe the Constitution is necessarily flawed.

I understand the 1992 Constitution to be the legal culmination of the long campaign of neo-colonial forces to consolidate control of the Ghanaian state apparatus and leadership of society that Imperialism launched with the 1966 overthrow of the First Republic.   It reflects the neo-liberal agenda consolidated finally during the PNDC era by an uneasy alliance of the most organised socio-economic forces of the day with support from the West.  These forces, by 1992, had exorcised the Left and dispensed with all but the rhetoric of nationalism and mass mobilisation once associated with the so-called 31st December “Revolution”.  The Constitution is a consolidation of neo-liberal neo-colonialism. It is fundamentally flawed.  And this is what is revealed by the tension between its institutional and ideological operations.

Ideologically, the Constitution self-presents as a national “consensus”.  It claims to provide substantive equality amongst citizens.  It declares citizens’ fundamental Human Rights and dignity.  It claims to provide for the exercise of government powers only for the collective benefit of citizens.  It equally enjoins politicians, bureaucrats, institutions of State and ordinary citizens to behave “democratically”, “fairly”, “accountably”, and “peacefully” and provides for redress where this is not the case.  However, in making all these lofty declarations, the Constitution ignores our society’s glaring class and economic inequality.  With extreme variations in economic power, legal equality is hollow.  

What the Constitution does (as opposed to what it declares) is provide the arrangements that the elite believed (incorrectly) would lock the social order that had come into being by 1992 in place.  What are some of these arrangements?  We have, e.g.:

· a Political Party and electoral system that requires increasing financial resources to access Presidential power; incentivises public corruption; and makes politicians beholden to all sorts of “business” interests rather than the electorate;

· centralisation of state power in the Executive (necessary to push through inevitably unpopular neoliberal policies);

· subordination of the Legislature to the Executive by patronage (allocation of cabinet positions and the regular need for campaign patronage resources);

· exclusion of organised ordinary citizens from democratic participation in decision-making by the complete subordination of Local to Central Government (e.g. the Presidential appointment of DCEs and one-third of Assembly members rather than by the citizens they serve;

·  the elimination of the right of recall

· the Executive power to appoint, expand, and pack the Bench ensuring that the Executive can overturn troublesome judicial decisions.

There is a constant tension between our economic reality and the ideology of our Constitution.  And in that tension, the poor and marginalised always lose out.  There is no such thing as “popular” neo-liberal mass exploitation.  Neo-liberal stability requires repression.  Powerlessness is the only condition under which most people “accept” abuse.  The deterioration in Constitutionalism that we are experiencing today reflects the collapse of the ideological veneer of the Constitution and the increasing visibility of the rapacious reality of our system.  The first to realise that things are coming to a head are the political elites that wield power.  But awareness is spreading increasingly also to ordinary Ghanaians.  Our middle classes – those with the greatest enthusiasm for Constitutionalism – are in complete panic.

This fundamental contradiction can only be resolved in one of two ways.  One way is for ordinary Ghanaians to attain sufficient consciousness and organisation to end neo-liberal economic relations and perhaps neo-colonialism and build a self-reliant economy based on mobilising all our people and resources.  If that happens, the People will also develop, demand, and operate new governing relations that reflect this agenda.  In other words, we will upgrade our Constitution.  The other path to resolution (which seems to be one we are walking down now) involves the elite taking off the kid gloves and attempting to rule openly with an iron fist – while still claiming “constitutional” authority for the status quo.  Of course, this will only hasten the demise of the neo-liberal constitutional order.

3. What can we change in the Constitution to stave off disaster?

Mr Chair, as indicated, I support fundamental Constitutional reform. There is not enough time in this current engagement to offer a complete analysis of the text of the Constitution and how it can be improved. It is only possible immediately to list some key issues here, hoping to spark further debate in the weeks and months to come. I believe that we can develop a new system of Government that meets our developmental needs. So I will list general clusters of governance issues. Others can address the legal niceties.

Mr Chair, in the little time left, I will look at the following:

a. The Preamble as the point from which all other constitutional provisions should flow.  

b. Chapters 5 and 6 as our fundamental (and flawed) Bill of Rights and Obligations amongst citizens and between citizens and the State;

c. Chapters 8, 9, 10, 11, 12, and 20 describe our fundamental institutions of Government – where we think fundamental change is needed.  Chapter 12, of course, deals with media rights and practice, which has been my passion and my profession.

d. Chapter 21 addresses the fundamental question of how we define and manage our natural resources;

e. Chapter 22 addresses the place of Chieftaincy in our national life.

4. Commentary

a. Preamble:  

The Preamble to the 4th Republican Constitution is excellent.  We have disposed of this reactionary formula, “the Chiefs and People,” that marred earlier constitutions and expressed constitution-making as a popular act.  

We still have a meaningless reference to “Almighty God” in our otherwise and logically secular Constitution.   

b. Caps 5 & 6  – Fundamental Human Rights & Directive Principles of State Policy.

These chapters contain lofty-sounding provisions that express a national view on the innate dignity of citizens.  For ordinary citizens, they are mostly not enforceable. I am told that the Supreme Court has held Chapter 6 as unenforceable, a great tragedy.

Additionally, Chapter 5 consists mainly of statements of individual rights.  Without grounding in clear socio-economic rights, individual rights can seldom be enforced by the marginalised who theoretically need their protection most.  They are otherwise of little value, especially as institutions like the courts are biased against the weak.

The two Chapters should be bundled into a substantive and enforceable bill of collective and personal rights that protects the small against concentrated power as democracy is supposed to do.

c. Cap 7 – Representation of the people.

Many argue that the Constitution should not regulate the internal structure and operations of State Commissions.  The Constitution should address the three main Branches of Government and leave the rest for lower-level legislation.

d. Cap 8 – The Executive

Many Ghanaians believe that the Executive Branch of Government is too powerful.  A strong executive is desirable in a developing country.  But a strong executive does not mean a single person calling all shots.  We should limit the scope of Presidential power as indicated above.  Our key proposal would be to:

· devolve considerable executive powers down to District Assemblies where they can be performed more effectively and more accountably; and

This proposal links directly with the function and operation of the Legislature and Local Government.

The President, assisted by ministers, should also directly manage the following:

· International relations

· National defence

· Central planning

· Finance and central banking

· National Infrastructure

· Higher Education

· Specialised curative Health Care

S/He should also oversee Commissions responsible for setting standards, licensing, and monitoring the performance of devolved government services like:

· Basic Education

· Primary Health care and local clinical care

· Agriculture & Natural Resources

· Public safety

· Sports & culture

· Elections

In general, we also need the following:

· provisions for Political Parties to exercise a right of recall on Presidents who renege unreasonably on sponsoring Party policy positions (set out in a manifesto or Party constitution) or who otherwise breach their oath of office;  

· complete separation of legislative and executive branches of Government so Parliament can play its watchdog role effectively;

· a reduction in the number of institutions whose heads and governing bodies are appointed by the President;

· a limit to the number of Art 70 appointees;

· changes to the system for fixing emoluments in Article 71 to make these a simple permanent multiple of basic salaries in the Public Sector; and

· separation of the functions and persons of “Attorney General” (Government’s lawyer) and Minister for Justice (manager of Prosecutions and law enforcement agencies).

Finally, we need an explicit authorisation or mandate for the Executive to pursue Continental Unification.

e. Cap 9 – The Council of State

This institution is simply a patronage mechanism that produces little value.  It is a drain on our resources.  We should abolish it.

f. Cap 10 – The Legislature

The Preamble to the Constitution says, “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution”.   As a country, our legislative process is fragmented.  The disconnect between local and national assemblies weakens both.  This disconnect ensures that ordinary Ghanaians have almost no input into legislation and that our priorities do not really feature in national agendas, which are worked out primarily with foreign donors, banks, and companies.  We also spend too much on maintaining a national legislature.  

If we had an Executive focused on long-term developed planning for the country, these plans would break down into geographic and sectoral components suitable for debate at District Assemblies and within Sector Commissions.  Feedback from this level could percolate up and down the hierarchy.  Central government officials will collate and reconcile these into a national plan and implementation sub-programmes.

In this case, we would only need a Legislature that convenes for, e.g., 4 months in a year to consider and approve these final plans and the institutional arrangements created for their implementation.

We would not need full-time professional MPs.  Assemblies and recognised institutions (e.g. Trade Unions) would elect MPs to represent them in a national debate on the Plan.  MPs would necessarily reside in the communities they represent.  They would receive appropriate allowances and “excuse-duty” for their annual stint in Accra updating the national Plan.

g. Cap 11 – The Judiciary 

The judiciary needs re-engineering.

We need to innovate or restore the community lay courts that provided public order, justice, and reconciliation quickly and inexpensively to ordinary citizens at the community level.

h. Cap 12 – Freedom and Independence of the Media

It is my considered view that representation on the National Media Commission (NMC) is completely biased in favour of elite groups. It may be helpful to include trade unions and African traditional religion adherents.

i. Cap 20 – Decentralised & Local Government

Ghana needs a more radical devolution of governance than we have seen in the 4th Republic.  Power is over-centralised, so decision-makers lack the information and context required for good decisions or accountability.  We believe Basic Education, Primary Health care and local clinical care, Agriculture & Natural Resources, Public Safety and Law Enforcement, Sports & culture, and Elections should be fully transferred to Assemblies.

This decentralised system will create more and better Local Government jobs.  And it will instigate more significant and more rapid development around the country.

These reforms will require the removal of presidential powers to appoint Assembly members and DCEs.

j.  Cap 21 –  Lands &Natural Resources

The ownership and management of natural resources are at the core of our national development crisis.   It is time to confront the issue.

The State should assert allodial title over all natural resources within our borders and territorial waters.

It should, after that, grant leaseholds on all surface land to Assemblies.  Assemblies must develop spatial plans.

k. Cap 22 – Chieftaincy

Ghana needs a national discussion about Chieftaincy.  Our Constitutional provisions on Chieftaincy are strange.  The framers of the Constitution went out of their way to protect the institution and its operations even from Parliament’s legislative remit – protection not afforded even to the other branches of Government.

Conclusion

The Chairperson, as indicated earlier, 30 minutes cannot be sufficient for a full discussion of a complex document like the 1992 constitution. All I have tried to do is to raise some issues of principle and I am sure that others better informed and more articulate will carry on this conversation for the good of our country. Once again, I thank you most sincerely for the opportunity.