SPEECH DELIVERED BY HIS LORDSHIP JUSTICE GABRIEL PWAMANG, JUSTICE OF THE SUPREME COURT OF GHANA AT NCCE'S ANNUAL CONSTITUTION WEEK LECTURE AND PANEL DISCUSSION TO COMMEMORATE 30 YEARS OF GHANA CONSTITUTIONAL DEMOCRACY

THREE DECADES OF UNINTERRUPTED CONSTITUTIONAL RULE: REVISITING THE AGENDA FOR REFORMS

The Chairperson and members of the National Commission for Civic Education (NCCE), discussants, guests, the media, ladies and gentlemen; I feel honoured to have been nominated by the Honourable Chief Justice to give this talk in his stead on the subject of amendments to the 1992 Constitution of Ghana. The choice of my good self for this assignment is undoubtedly on account of my previous association with the Ghana Constitution Review process commenced in 2010 by the distinguished President of the Republic of Ghana at the time, the late Professor J E Atta Mills. It is my sincere hope that the brief comments I shall make here would contribute positively to the quest for more rewarding and deeper transparent democratic governance in Ghana.
Ladies and gentlemen, given our chequered constitutional history, where every effort at the constitutional experiment since independence was until recently marred by one or another form of military or military cum police insurrection, it is no mean achievement to have lived under uninterrupted constitutional rule for three continuous decades. With a constitution that has survived this long, it is a welcome undertaking to engage in healthy and enlightened discussions on the workings of the Constitution with a view to unearthing its weaknesses and strengths.
Therefore, the recent remarkable constancy with which discussions about the Constitution have been embarked on by actors at various levels of our national life is in itself laudable. These discussions, apart from engendering higher commitment to the principles of our constitution and compelling their strict observance by those entrusted with authority, they also point out areas of the Constitution that do not appear to be working smoothly and need to be modified. It is in this sense that the NCCE deserves our utmost commendation for organising this high-level national conversation which should serve to direct the discussion about constitutional reforms towards achieving some concrete goals.
It has been stated with authority by the Supreme Court of Ghana that a written Constitution ought to be seen as a living organism which is capable of growth and development. See Tuffour v Attorney-General [1980] GLR 637. Therefore, it is normal that with the effluxion of time a constitutional document would need to change to reflect its growth and development. This reality was not lost on the framers of the 1992 Constitution. Consequently, they devoted the whole of Chapter Twenty-Five in the Constitution to making comprehensive provisions on processes and procedures for amending both entrenched and non-entrenched provisions of the Constitution.
Nonetheless, as the supreme law that lies at the top of the normative pyramid in our legal system, the Constitution must not be subject to frequent and trifling amendments, lest its sanctity whittles away. As was explained in Tuffour v Attorney-General (supra) the Constitution is a solemn legal, political and developmental document. It is designed to reflect past values, regulate the present and inspire the future of the nation. It provides for the longings and aspirations of the people for the realization of a better and fuller life, while making provision for a framework of governance necessary to achieve these objectives. However, society is not static and what the aspirations of our nation were considered to be in 1992 may change with time. While we as a people are occupied with the uninterrupted application of the Constitution, some of our collective values disintegrate and are replaced by new ones, some political priorities get overtake others and some previously perceived urgent challenges cease to cause the anxiety they created in 1992.
In that connection, the Constitution must be reasonably stable enough to re-adjust to the new realities of changing values and national priorities. It is an established democratic principle that judges through the power of judicial interpretation are permitted to interpret and apply a written constitution, such as ours, in a manner that reflects and gives effect to changed priorities, values and national focus. However, the scope of judicial interpretation as a means for accommodating deserving changes to a Constitution is highly restricted in matters where a particular policy choice is patently stated in express language in the text of the Constitution. In the Supreme Court case of Republic v Fast Track High Court, Accra; Ex parte Daniels [2003-2004] SCGLR 364 at 370 Kludze JSC said as follows;
"We cannot, under the cloak of constitutional interpretation, rewrite the Constitution of Ghana. Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the lawgiver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution."
The other limitation of constitutional amendment by judicial interpretation is that, what judges may perceive as the new drift of national consensus may be disputed. Certain times, when the Supreme Court renders a decision that appears to dictate a particular policy choice said to be the intention of the framers of the Constitution, some vociferous sections of the society would challenge it and insist that the opposite of what the court said is the better policy for the country.
To this end, I believe that, while judicial interpretation may have a role in aligning our Constitution in penumbra areas left out of the constitutional text, since a Constitution cannot set out every conceivable circumstance and provide for it, after thirty years of existence, our Constitution requires certain significant reforms that can only be accomplished by resort to Chapter Twenty-Five of the Constitution. Gladly, the work of the Constitution Review Commission (CRC) in 2010 resulted in a comprehensive report. While I do not intend to go through the findings and recommendations of the CRC for they are well documented, it bears pointing out at least three key points of dissatisfaction Ghanaians expressed about the working of the 1992 up to the time of the consultations. These were; (1) deficit in transparent governance despite changing from dictatorship to constitutional rule in 1992, (2) continuous high levels of public sector corruption and lack of accountability for revenue from natural resource exploitation, and (3) non-realisation of real democratic dividend in the form of accelerated national development promised as attainable under constitutional rule.
I will discuss the work of the CRC later on but let me make the point here that since those consultations, Ghanaians continue to register their grievances with governance under the 1992 Constitution and to call for amendments. The calls for constitutional reforms are getting louder of late and have spread to involve the younger generation whose persistent failure to see a better future ahead of them after continuous changes of governments appears to explain their awakening. It has dawn on many observers that as a nation we require something deeper than changing governments under this same Constitution and that we need to take a hard look at our governance framework. For example, earlier this year, the immediate past Chairperson of the NCCE, Mrs. Josephine Nkrumah, in a press release on “Constitution Day” acknowledged that despite the remarkable achievements of the Constitution, there is the need for a reform and improvement of the constitutional infrastructure. “This”, according to her, “will help tackle constitutional deficits and aspects of the 1992 Constitution that seemingly breed apathy from the public, disengages the public in major aspects of governance at the grassroot and national levels, further deepens marginalisation, promotes excessive powers of the Executive and festers the course of corruption (sic).”
Ladies and gentlemen, the momentum that surrounds the recent calls for constitutional amendment must not be brushed off or given little consideration. There seems to be a new spirit of constitutional consciousness rising among us, the likes of which have never been experienced in this country. We need to open our ears widely to the loud whispers of this spirit and be sensitive to its guidance if we are to achieve a better quality of life for Ghanaians.
But it must be stated that the need for constitutional amendments was noticed shortly after the birth of the 1992 Constitution. When we commenced operating according to its provisions we immediately realized that some of policy choices made in the document were not playing out coherently as expected and that led to an amendment in 1996, less than half a decade after the Constitution came into force. The 1996 amendment included providing for dual citizenship which was barred in the original Constitution, changing the gratuities regime for members of Parliament, the inclusion of representatives of the National Commission on Women and Development, the Trade Unions Congress and the Association of Private Broadcasters in the National Media Commission. The 1996 amendment also made the President or his nominee the Chairperson of the Armed Forces Council, rather than the Vice President who was made the automatic Chairperson of the Council in the original Constitution.
Less than a decade and half later, in 2010 the CRC, under the chairmanship of Professor (Emeritus) Albert Kodzo Fiadjoe was established. The Commission was tasked to ascertain from the people of Ghana, their views on the operation of the 1992 Constitution, particularly its strengths and weaknesses; to articulate the concerns of the people on amendments that may be required for a comprehensive review of the Constitution; and to make recommendations to the Government for consideration and provide a draft bill for possible amendments to the Constitution. The Commission carried out its mandate to the fullest extent and submitted its report and recommendations to the Government in December 2011.
In June 2012, the Government issued a whitepaper on the Report of the Commission, in which it accepted most of the recommendations of the of the Commission. Subsequent to that, a five-member Constitution Review Implementation Committee was set up by the Government in October 2012 to drive the implementation of the recommended amendments in accordance with Chapter 25 of the Constitution. In spite of these significant strides towards amending the Constitution, we are yet to move that process to its logical end by Cabinet approving any constitutional amendment bills and forwarding them to the Council of State for the process to pan out. There is no doubt that the final processes of amendment would definitely require the cooperation of both sides of the Parliament and I want to believe that there are some areas of proposed amendments that the major political parties, through their election manifestoes, expressed consensus on. These include reform of the local government structure spelt out in the Constitution and bringing backwards the date for general elections so as to provide sufficient time for a President to constitute his government after elections. Changes to the local government system would deconcentrate the power over public resources which is presently vested at the centre, specifically at the presidency, and enhance the authority of lower tier political structures to exact greater accountability for budgetary funds ostensibly allocated for development of their area of jurisdiction. In this area of local government reform, it seems to me that what is needed for reform is political will since the constitutional provisions on local government are largely non-entrenched and the mechanics of amending them is easier.
Considerable attention needs to be paid to the torrents of recent calls for constitutional amendment sweeping across country from religious leaders, civil society to politicians. Not only must the calls for amendment be given significant primacy, but necessary steps must be taken towards implementing constitutional reform. As at the time the 1996 amendment was made, the Constitution had not lived that long but as there was political will, some important changes were quickly made and I believed those changes enabled the Constitution to deal with challenges that would still have been with us today if they had not been tackled then. Now we have had enough time to assess the Constitution better and studies have been conducted by academics, consultations undertaken so we have no viable excuse to continue to hold back on effecting the needed changes.
It is relevant to note that, one remarkable characteristic of the present calls for amendment is that all actors involved - political parties, civil society groups, and academics, agree that there is the need for some adjustments to be made to the Constitution. Divisions arise only around the extent to which those adjustments are necessary. Whereas others call for a complete overhaul of the whole document, some are for a more minimalist approach, requiring the amendment of particular provisions.
To those who call for a total overhaul, my advice is that there is no one size fits all in democratic governance structure the world over. I say democratic governance structure because some others make calls for a total change of the Constitution as if they have problem with even the basic structure of our Constitution including the human rights provisions. But, it must not be easily forgotten that we framed the 1992 Constitution the way it is on the back of our political experience from the pre-independence time. Some critics of our constitution quote philosophical principles on democracy propounded in the eighteenth century and compare our constitution to those of other countries and conclude that ours is not democratic. However, whilst it is always good to learn from other peoples experience, we should not underrate the thinking that informed our constitutional structure which, if it has done nothing at all for us, it has enabled us to keep together as one nation without military intervention for thirty years so far. The stable constitutions we keep referring to took centuries to attain their stability through sustained efforts by conscientious political actors. In my personal opinion as a citizen of Ghana, the governance deficits under the 1992 Constitution I referred to above can be remedied by creative constitution making processes without a complete change of the structure of the Constitution.
Some time past a lot of commentators thought that the manner we structured our legislature under the 1992 Constitution made parliament subservient to the executive, until the parliamentary election results of 2020 and the election of the Speaker made them to revise their notes. The present composition of the legislature has posed some challenges to the speed with which government is able to actualize its plans, but it has equally hinted at the potential strength of our Constitution as far as the power of parliament to hold the executive accountable is concerned. The framers of the 1992 Constitution must have foreseen this possibility, and even other more challenging party permutations in parliament, and they must have believed that we would exhibit the requisite democratic temperament on all sides of parliament and scale over the challenges. It takes time to learn new roles when things change such as we are confronted with in the current parliament but we shall overcome. Rome was not built in a day.
So, I will suggest that we should respond to the renewed calls for reform by moving forward the 2010 process by starting with an identification of areas of apparent consensus indicated in the elections manifestoes of the major political parties and galvanizing the resources and energies of civil society around these. I sincerely hope that such renewed effort would afford space for the arising young energetic civil society groups such as #fixthecountry to influence the course of changing their future by channeling their creativity as the younger generation into results oriented consultations.
Thank you!