Rising threat to constitutionalism in Ghana under President Nana Akufo-Addo: Will the storm ever calm?

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Nana Akufo-Addo with the Sword of Authority as he is sworn in as Ghana’s 5th president in Accra. EPA/Christian Thompson
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Is Ghana’s constitutional democracy under threat? Kafui Tsekpo and Michael Abbey outline how President Akufo-Addo and his government are undermining the basics of Ghana’s democracy – constitutionalism, press freedom, independent constitutional institutions and citizen participation.

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On 21st May 2019, members of the media and some opposition members of Ghana’s parliament registered their displeasure on what they termed attack on press freedom by the current government. Subsequently, the home of the leader of the protest was also attacked. This has triggered many questions regarding democratic practice in Ghana today. With recent happenings, President Akufo-Addo’s administration appears to have fallen short of meeting modern democratic standards; and consequently, undermining the consolidation of constitutional democracy in Ghana. Ghana’s 1992 Republic Constitution is premised on the ideals of constitutionalism. Though Ghana has realised Huntington’s two turn-over test for democratic consolidation, lots remain to be done as far as democratic constitutionalism is concerned. 

Constitutionalism in recent times

After taking the oath of office and allegiance, actions and inactions of President Akufo-Addo have been disturbingly questionable; posing a potential threat to the democracy, peace and stability of the state. These actions include abuses of political and constitutional rights, the disenfranchisement of large sections of the population and creeping institutional decay.  

Ghana’s 1992 Republican Constitution provides the legal remits for the exercise of governmental power. Its primary function is to restrict governmental power. Ghana’s Constitution envisages the potential abuse of constitutional powers; hence, has provided “implementation framework provisions” within and according to which these powers are to be exercised. The Directive Principles of State policy  under Chapter 6, Code of Conduct for Public Officers under Chapter 24 and particularly, Article 296 which governs the exercise of discretionary powers in the Constitution are “bedrock” provisions for constitutionalism in Ghana. 

However, arbitrariness has risen to the point where constitutional provisions are read and applied in a narrow and self-serving manner even in the face of the rule of law, natural justice, and the “implementation provisions” in the Constitution. The essence of any constitutional democracy is to limit what government can do within the framework of how it should be done – the rule of law and the principles mentioned above.

Debilitating events

Interference in the life of Independent Constitutional Bodies – Ghana’s Electoral Commission (EC): In Ghana’s Fourth Republican constitutional democracy, the Electoral Commissioner and her deputies were, for the first time, removed from office under arguably disturbing undemocratic circumstances. The removal occurred on the back of public pronouncements made by President Akufo-Addo and his party on their mistrust and dislike for the EC boss because former President John Mahama appointed her. A questionable petition by faceless persons was allegedly sent to the President for the removal of the former EC boss, Mrs. Charlotte Osei. Aside the secret identities of the alleged petitioners, the basis for the removal was an alleged procurement infraction.  However, it is important to note that procurement is incidental to, but not part of, the express core functions of the EC under Article 45 of the Constitution. 

The 1992 Constitution envisaged a situation where a sitting President could tamper with the role and functions of ICBs. Consequently, the Constitution granted security of tenure to ICB office-holders making it difficult for a sitting President to arbitrarily and without justifiable constitutional cause to remove any such office-holder. Ghana’s Procurement Act provides for appropriate remedies when procurement infractions occur; however, President Akufo-Addo, a lawyer himself, bypassed the Procurement Law remedies and removed the EC boss on the basis of stated misbehaviour. A careful reading of Article 146 reveals that the alleged “misbehaviour” must necessarily relate to the core, and not, the incidental functions. The President Akufo-Addo appointed-Chief Justice, Ms. Sophia Akuffo, formed the committee which investigated the EC boss and recommended her removal. Interestingly, Ms. Akuffo was also the subject of a petition to the President seeking her removal as Chief Justice. Though the petitioners against the Chief Justice were publicly known and the issues they raised convincing, President Akufo-Addo, unlike in the Charlotte Osei case, never acted on the said petition against his appointee-Chief Justice, Ms. Sophia Akuffo. A clear case of selectivity and arbitrariness?

Many questioned the basis for such a dangerous move by the President since it appears a violation of Article 46. It became obvious how the democratic and electoral soul of the country was being pierced through arbitrariness and selective application of the law. Kweku Baako, a Senior Journalist and known NPP sympathizer took the government to court on the matter but lost. Akufo-Addo’s action has become a dangerous scar and unfortunate precedent for democratic governance in Ghana. Has he set a bad example for successive governments and presidents to follow? Hopefully, not.

The Electoral Commissions Limited Registration Exercise: Ghana will be having district assembly and local government elections at the end of 2019. It is the democratic and constitutional right of new eligible voters to register so they can vote. Democracy thrives on political participation – a human and political right. Political participation operates from both the “demand and supply” perspective. The demand side is the people’s willingness – and, indeed, including even when the people are unwilling – to engage in the democratic space. The supply side is the state’s – including its institutions – unbridled duty to provide every reasonable means necessary to facilitate and realise the people’s right to political participation.

The right to vote is at the heart of political participation. The EC is thus obliged to provide every reasonable facilitative means to enable every potential voter to register. However, in an apparent move to disenfranchise many Ghanaians, President Akufo-Addo’s newly elected EC has relocated voter registration centres that hitherto were stationed at the polling stations – closer to the people – in the constituencies, to District Centres far away from the majority of people in the upcoming limited registration exercise. The new EC is bent on going ahead regardless of serious reservations by opposition political parties including the NDC. Indeed, the NDC has projected that, should the EC go ahead with such a move, one million new voters are at risk of being disenfranchised. Through such a move, eligible voters are expected to travel miles from their polling stations to the District Centres to register. The long distance and economic cost of such an exercise is a disincentive for the potential registrant, especially, those from poor economic background. This is a clear case of discrimination. How does such a move deepen and grow the democratic process; specifically, the people’s right to political participation in Ghana? This decision by the new EC has the potential to create an electoral atmosphere of low confidence in the ability of the EC to deliver free and fair elections in 2020.

The Ghana Card Registration Exercise – National Identification Authority (NIA): The institution of a universal identity card is laudable; especially coming into effect a decade after the first attempt was made to   issue a single identity card to all residents in Ghana to be used across different platforms. However, the process has been fraught with serious legal breaches, with the potential to cause integrity problems. Indications thus far are that the Ghana card would form the basis for compiling a new voter register towards the 2020 general elections. Issues of eligibility and requirements for registration are exclusionary: The production of a digital address in a country where a considerable segment of the population do not own a smartphone and just about 35% of the population are connected to the internet is highly problematic. The insistence on meeting these requirements, 31 in total has been exacerbated by the ruling of the High Court which makes them mandatory. The sum effect of the court’s decision, and the NIA’s position is that a significant proportion of potential voters risk being excluded from the voters roll.

Conclusion

The idea of constitutionalism is not merely the adherence to Constitution provisions. Its essence is that government and state institutions should be legally limited in performing their functions, with their authority depending on enforcing these limitations. Put differently, the constitution must not be seen to be only working, constitutionalism requires the rule of law to enhance the living circumstance of the citizenry. However, recent events under the current administration after its inauguration on 7 January 2017 leaves a lot to be desired. The arguably unsatisfactory performance of the current administration does not only erode some of the gains made by previous administrations but sets a dangerous precedent that subsequent administrations might find difficult to undo. This is especially so as supporters of whichever political party, beside the NPP, that may win the next general elections on 7 December 2020 would want their party to maintain the status-quo – a situation that would be difficult to manage with the looming fear of losing the next elections. This is irrespective of some of the shortcomings of the NDC under the Mahama administration – such as the arguable pardon granted to the infamous Muntie 3. Furthermore, for whatever reasons, the loud silence of hitherto very vocal and active Civil Society Organisations known for their policing duties over the activities of previous governments – especially the immediate past administration sends a very bad signal to all observers, locally and internationally. It suggests a tacit complicity in the objectionable actions of President Akufo-Addo’s government. 

Kafui Tsekpo is a doctoral student with the SARChI Chair is Social Policy.

Michael Abbey is a public policy expert, development strategist and international trade law consultant.

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