Netherlands Institute for Multiparty Democracy

Background

Since 2003 NIMD’s partner in Ghana, the Institute for Economic Affairs (IEA), has administered the Ghana Political Parties Programme (GPPP), which brings together the leaders of the four main political parties with representation in parliament to discuss and reach consensus on key national issues that deepens democracy and promotes economic development.

In 2006, the GPPP undertook a two and half year study that identified gaps in Ghana’s democratic practice and proposed practical recommendations for reforms. The study, called the Democracy Consolidation Strategy Paper (DCSP) audited various institutions of government and identified a number of provisions in the 1992 Constitution that hindered the maturation of Ghana’s democracy.

Some of these provisions include the Constitution as a hybrid of Presidential and Parliamentary systems of government and the attendant difficulties it raises, including the appointment of Members of Parliament as Ministers and the possible defection of sitting President or Vice President from the governing Party.

Reviewing the Constitution

The DCSP called for a review of the 1992 Constitution, a call that has since been echoed by the political parties themselves in their election manifestoes, as well as in various fora including presidential debates. Significantly, in his first State of the Nation address President Mills expressed his commitment to a review of the Constitution as recommended in the DCSP.

On 10 January 2010, the President established the Constitutional Review Commission (CRC). The Commission includes representatives from the other parliamentary political parties. Since then, IEA has facilitated joint meetings between the parties to discuss, in a non-partisan manner, the more than forty constitutional provisions that have so far been identified as requiring review.

A further step was a meeting with the nine-member CRC, facilitated by the IEA recently. At this meeting, the parties were given the opportunity to present their various collective positions. The CRC also indicated its intention to consider the collective proposals of the representatives of the GPPP.

The consultations have been highly successful and have resulted in the parties reaching consensus on a number of (but not all) important issues, three of which are summarised below.

The case for an independent public prosecutor

Article 88(1) of Ghana’s Constitution states that there shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government. The Attorney-General is responsible for (1) the initiation and conduct of all prosecutions of criminal offences; and (2) the institution and conduct of all civil cases on behalf of the State.

It has been argued that the political position of the Attorney-General prejudices all prosecutions in favour of the Executive and that these positions should therefore be uncoupled. After lengthy discussion, the political parties agreed that the power to prosecute corruption and abuse of office cases should be taken away from the Attorney-General and given to the Commission on Human Rights and Administrative Justice (CHRAJ).

The case for a cap on the Supreme Court

The Constitution states in Article 128(1) that the Supreme Court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court. These provisions indicate the minimum number of justices that may be appointed to the Supreme Court but place no upper limit or ceiling on the number of justices that may be appointed.

A number of matters of concern were raised, including the question of whether placing a ceiling on the number of judges would strengthen the administration of justice in Ghana, for example by curbing the power of the executive arm of government to control the judiciary. After considerable debate the parties decided that the Constitution should be amended by prescribing a ceiling of fifteen judges of the Supreme Court who would sit in panels of five.

The question of indemnity

Section 34 of the Transitional Provisions attached to the main Constitution provide for absolute indemnity for all coup-makers. Once indemnity is granted, however, should coup-makers be allowed to celebrate such events to the pain, chagrin and annoyance of those wronged by coups or whose sensitivities are offended by coups? If the coup makers have done nothing wrong, why do they need indemnity?

The political parties formed a consensus that indemnity provisions within the 1992 Constitution should be maintained so as to give a sense of closure to the regrettable events of the past. The attendant feeling was that coups should not be public celebrations, so that the acrimony and pain should not be relived. In effect, the parties agreed that the provisions should not be removed but a rider should be added to place a lid on public celebration of any coup.

Meeting between the GPPP and the CRC

A further step in the GPPP encounter with the constitutional review process was a meeting with the nine-member CRC, facilitated by the IEA. Even though the CRC was slated to meet the Parties separately to take their views and proposals, this meeting was considered crucial in ensuring consensus on areas of the Constitution that must be considered for review from the collective perspective of the political parties in Ghana.

During this participatory engagement process, the parties were given the opportunity to present their various collective positions on the areas of the Constitution that require review. The CRC also indicated its intention to consider the collective proposals of the representatives of the GPPP.