Prof. Gyampo Delivers Inter-College Lecture on the 1992 Constitution and Constitutionalism in Ghana

Prof. Ransford Gyampo

The College of Humanities has held its second inter-college lecture on Thursday, April 4, 2019. The lecture which was delivered by Prof. Ransford Gyampo, Associate Professor of Political Science and Director of the Centre for European Studies, was chaired by Prof Samuel Agyei-Mensah, Provost of the College of Humanities.

In his opening remarks the Provost of the College of Humanities, Professor Samuel Agyei-Mensah indicated that Ghana had practiced the hybrid constitution for a long time now and he believed the time has come to interrogate the system to find out the challenges and make recommendations for review.

Professor Samuel Agyei-Mensah

Prof. Ransford Gyampo, in his lecture, noted that Ghana’s 1992 Constitution is a neo-presidential arrangement that combines some features of both the US Presidential and British Westminster systems of Government.  Having modeled three different constitutions along the lines of both systems since 1960, there emerged the preference for constitutional hybridity in 1992. This, according to Prof Gyampo, was based on the assumption that the best constitution is a mixed system that borrows from the features of the two main systems of government. Nevertheless, after over twenty-seven years of operation, Prof Gyampo asserted that the 1992 Constitution is a weak countervailing mechanism in bridling the exercise of power. In his view, the Constitution upsets the balance of power between the arms of government, particularly between the executive and legislature and in favor of the former in a manner that undermines constitutionalism.

In his view, the theory of constitutionalism postulates a deliberate legal limitations placed on the powers and authority of those who exercise fiduciary trust of the people. He argued that the idea of constitutionalism is all about checking or shackling the exercise of power in order to avoid dictatorship and abuse. Even though he conceded that one of the mechanisms for promoting constitutionalism is the existence of a constitution, he was quick to point out the fact that the mere existence of a constitution may not necessarily guarantee constitutionalism as some constitutions, like the 1992 Constitution of Ghana, lacks the needed countervailing mechanisms to check the exercise of power.

In discussing the specific arrangements and provisions of the hybrid constitution and how they facilitate the exercise of unbridled as well as unmitigated executive power, Prof. Gyampo noted that first of all, the hybrid constitution gives extensive executive powers to the president in a manner that makes the office very powerful. The president, according to him, has the overwhelming power of appointment and patronage and appoints “virtually everybody” in Ghana. He has a say in the appointment of officers he does not appoint directly. The government of Ghana is his government and from ministers, heads of boards, agencies, commissions, mayors and members of the council of state, he is the appointing authority. In addition to being the Commander-in-Chief of the Ghana Armed Forces, Fountain of Honor and Mercy, the President, according to Prof. Gyampo, is also the source of all legislations in Ghana and every law passed by parliament emanates from the presidency.  According to Prof Gyampo, article 108 that confers exclusive right on the president to introduce into parliament bills that have financial implications is not only repugnant to Parliament’s constitutional control of the purse, but also makes the president the sole legislator in Ghana given the fact that “every bill has financial implications”.  This challenge, according to Prof. Gyampo, has stifled legislative initiative, conferred the power of law making in the sole hands of the executive and also accounted for the absence of Private Members Bill in parliament since 1992.

Furthermore, as per the hybrid arrangement, the president according to Prof. Gyampo, is required to appoint majority of his ministers from parliament and this appointing power has been exercised to the disadvantage of the legislature. This arrangement, in the presenter’s opinion, weakens the oversight role of parliament and leaves the executive unfettered in the sense that parliamentarians who are also ministers cannot question colleague ministers on the floor of parliament as required because they serve in the same government.

Parliamentarians who are also ministers owe collective responsibility for all government decisions and hence are unable to criticize the government on the floor of parliament. The few members of parliament (MPs) who are not ministers also join their colleagues in singing the praises of the government so they can also benefit from ministerial appointment. This practice, according to Prof. Gyampo does not only undermine constitutionalism but also weakens the representative role of MPs and sacrifices the peculiar interest of their constituents for that of the ruling government.  According to the presenter, it is difficult for MPs who are also ministers to find time to attend to parliamentary matters. These MPs are mostly absent from the floor of parliament because of Cabinet meetings, travels as well as ministerial policy formulation and execution. In this regard, they are also unable to attend Committee meetings which are “the actual workshops of parliament.” He added that the President’s power to surreptitiously appoint the Speaker of Parliament, Majority Leader, Clerks and members of certain committees of parliament, as well as the creation of the Ministry of Parliamentary Affairs are disingenuous provisions and practices that makes parliament subservient to the president and undermines the former’s checks on the latter.

The weak role of the legislature in its relations with the executive under Ghana’s hybrid constitutional arrangement, according to Prof. Gyampo, has also created serious problems for the judiciary. He argued that there is no ceiling on the number of Supreme Court judges that the president can appoint. Indeed, under article 128 (1) of the 1992 Constitution, “the Supreme Court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court.” The challenge of Ghana’s hybrid constitution in this area, according to Prof. Gyampo is that, a weak parliament controlled by the president will approve any number of judges appointed by the president in an attempt to pack the court and manipulate its composition in a manner that makes the president a judge in his own cause and sacrifice constitutionalism.

Another way in which the 1992 Constitution undermines constitutionalism according to Prof. Gyampo, is in the area of MPs cross-carpeting. Prof Gyampo He indicated that article 97 (1) (g) provides that “a member of parliament shall vacate his seat in parliament if he leaves the party of which he was a member at the time of his election to parliament to join another party or seeks to remain in parliament as an independent member.” This provision according to the presenter, was to deal with the mischievous situation under the First Republic (1960-1966) when President Nkrumah lured MPs to cross-carpet to his party and gave them appointments while those who resisted were detained (Awoonor, 1990). The problem with the above constitutional provision according to the presenter is that, it expressly forbids MPs to behave independently on the floor of parliament and to vote according to their conscience.

In his concluding remarks, Prof Gyampo lauded the Constitution for guaranteeing power alternation, peace, stability and national cohesion in Ghana. He argued however that the Consultative Assembly that actually drafted the 1992 Constitution did a great disservice to Ghanaians with respect to constitutionalism, by granting too many powers to the executive president and creating very fragile and toothless countervailing mechanisms. In his own words, he observed as follows:

“The 1992 Constitution may have served us well and guided the smooth transfer of power on three consecutive occasions. It has given us peace, cohesion, stability and made us the beacon of hope in the Africa region.  But it runs contrary to the dogmas of constitutionalism because in my view, it was made to pacify someone who was not a fun of multiparty democracy and constitutional rule.”

Prof. Gyampo asserted that, unless Ghana’s abandoned constitutional review process is revived, the nation cannot develop as its failed efforts to fight the quagmires of poverty and under-development are also directly and indirectly linked to the kind of constitutional order in existence. In his opinion, any constitution that cannot guarantee constitutionalism is a mere political document aimed at ticking the box to fulfil some conditionality. That constitution is completely out of touch with the quest for development.

A member of the audience asking a question

The event which was held at the Great Hall of the University of Ghana was attended by over 500 participants comprising faculty and students from the College of Humanities, political party representatives, civil society actors, and media practitioners.

Cross Section of Audience