[ 2014-11-10 ]

Dr. Amoako-Baah writes: The Speaker should not be sworn in
Though I am not privy to the details of why the
Speaker refused to take the Presidential Oath, I
will start by saying that he did the right thing.
There is no provision in the 1992 Ghanaian
Constitution that says that anytime both the
President and Vice President are absent from
Ghana, the Speaker must be sworn in as acting
president. There is nothing like that. Let me
present what the constitution says on this
matter:


Article 57 of the constitution says,
(1) There shall be a President of the Republic of
Ghana who shall be the Head of State and Head of
Government and Commander-in Chief of the Armed
Forces of Ghana.
A president is of course singular, which means
Ghana cannot have two presidents at the same time.
Anytime we swear in the Speaker, we have two
presidents, one at home, one overseas.
Article 60 (8) reads
Whenever the President is absent from Ghana or is
for any other reason unable to perform the
functions of his office, the Vice-President shall
perform the function of the President until the
President returns or is able to perform.


First of all, being absent from Ghana does not
mean that the President in unable to perform his
duties as president. After all, President Mahama
was in Burkina Faso on official duty as president
of Ghana, which means he was performing his duties
as president. In addition, there is no mention of
the Speaker in this provision. This provision does
NOT say when the President is absent from Ghana,
the Speaker should take over; it is the Vice
President who is supposed to take over; neither
does it say when both president and vice president
are absent, the Speaker should take over.


Additional confusion comes from section 11 of
article 60:
Where the President and the Vice-President are
both unable to perform the functions of the
President, the Speaker of Parliament shall perform
those functions until the President or the
Vice-President is able to perform those functions
or a new President assumes office, as the case may
be.
As can be seen, a poorly written constitution is
the blueprint for disorder since it leaves too
much room for interpretations. The question to be
asked is this: Are the president and Vice
President unable to perform their duties just
because they are outside the country? Since the
President and Vice President are on official
duties, albeit outside Ghana, we cannot say they
are unable to perform their duties. The duties
they are performing overseas are duties of the
President and Vice President.

Once we accept that “absent from Ghana” does
not mean unable to perform their duties, then the
Speaker does not come into the picture at all.
Like many things we do in Ghana, we like to
practice our own brand of democracy, the crooked
one. When it does not work, we blame others, and
complain that we should practice African
democracy. Whose democracy do you think we have
been practicing all along?


Article 60 section (3) says, Subject to the
provisions of this Constitution, the functions
conferred on the President by clause (1) of this
article may be exercised by him either directly or
through officers subordinate to him.
This means there is no need to swear in the
Speaker because the President can at anytime
delegate some of his subordinates to act on his
behalf during his absence.
Section (12) of Article 60 states: The speaker
shall, before commencing to perform the functions
of the President under clause (11) of this
article, take and subscribe the oath set out in
relation to the office of the President.


The Speaker only performs the functions of the
President if both President and Vice President are
UNABLE to perform their functions. This situation
can arise in the case of an accident involving
both the President and the Vice President at the
same time. Even here, as long as the President or
Vice President is alert, one of them can take
charge without the Speaker being sworn in. The
only time the Speaker comes into the picture is
when neither the President nor Vice President is
able to perform. This can also come about if both
resign at the same time. If the President resigns,
the Vice President takes over. If the Vice
president resigns, the President nominates another
person.


In a properly constituted presidential democracy,
anytime the Speaker is sworn in as acting
president, it is an indication of a national
emergency. When the Speaker is called upon to act
as president, it means all mechanisms to maintain
separation of powers by filling a vacancy in the
presidency through the ascension of the Vice
President to president or the nomination of a new
candidate to fill the position of vice president
has been exhausted, and that the only option left
is for the Speaker to temporarily hold the
position until a new president is elected. The
speaker cannot be made a casual appendage of the
presidency so that every time the president is out
of the country, he takes over his
responsibilities. This is not only a violation of
the constitutional principle of separation of
powers; it diminishes parliament’s autonomy and
mires it in the politics of the executive.


Here are some allegations made in the Joy News
article:
His refusal to take the oath means Ghana at the
material moment has no acting president, since the
President and his Vice are outside the country…

Ghana does not need an acting president because we
still have an active President and Vice President.
There are many people who the President can
delegate to act on his behalf.

It will be obvious to all of us that, that action,
first of all, disrespects the letter...[from the
Office of the President
A disagreement about a constitutional matter is
neither disrespectful nor an affront to anyone.
Does it mean that whatever the President says must
be obeyed? This is one way errors in legislative
interpretations are corrected. This attitude is
what has brought Ghana to its knees because we
have slowly created an imperial president who does
no wrong; parliament is his.
I would rather obey a lawful instruction from the
Chief of Staff…
The ordinary Ghanaian may choose to obey any
instructions from the Chief of Staff, but the
Speaker does not have to. The Speaker as the
legislative leader does not take instructions from
the President let alone his subordinate.


There is the requirement for the physical presence
of a person; and that person must be sworn in, in
accordance with Article 60 (12) to perform the
functions of the president.


Nowhere in the constitution does it say that the
President must be physically at the presidency at
all times. I can go on and on about this issue.
One thing I see in Ghanaian constitutional
discourse is that when we talk of the spirit of
the law, we seem to think it simply means doing
what we think is right or prudent.
Justice Atuguba remarked in one of his rulings
that, “Indeed when the constitution itself or
any statute commits an error, this court rectifies
it.” If this is what we understand by the spirit
of the constitution, then we got it wrong. First,
the constitution does not commit en error. Until
that “error” is corrected, not by the Court,
but by constitutional amendment, it remains the
law.

Judicial review is not meant to change the law; it
is meant to give an interpretation to the law. The
source of the new interpretation must come from
sources in the constitution. This means, one can
read into the constitution only when provisions in
the constitution allow one to. To interpret
“absent” to mean “unable to perform” is
reading into the constitution without a source
that allows one to. I’m sure the framers knew
the difference between “absent” and
“unable.”
Here are some of the ramifications of swearing in
the Speaker when the President is out of the
country:


1. During this time of two presidents, who should
Ghanaians listen to in case there is a crisis?
2. After the Speaker has been sworn in, suppose
the Vice President returns to Ghana before the
President does. What happens then? Does the VP
take over from the Speaker or does the Speaker
continue as acting president? Since the Speaker
was acting as president, the VP cannot take over
from him because the VP would technically be
taking over from a president.
3. After the Speaker steps down as acting
president, shouldn’t he be sworn in again as
Speaker, since by being sworn in as president, he
ceased to be Speaker?
4. Suppose the speaker is sworn in as Acting
President, and the President dies, does he hand
over to the Vice President or does he remain the
president?
5. The argument that there is no need to swear in
the Speaker since he had been sworn in a year ago
implies that he had been Acting President all
along, even before President Mahama left the
country.

This means he was Acting President and Speaker at
the same time, a violation of the constitution.
Even when we are doing the wrong thing, we still
get it wrong! Just because we’ve done the wrong
thing in the past by swearing in the Speaker does
not mean we should continue doing it. We are
actually the laughing stock of those who
understand constitutionalism. Just as it is more
honorable to follow the right example, it makes
more sense to change course than to follow the
wrong path. Democracy is a culture and a process;
we are still learning, but the longer we take, the
more we become a danger to ourselves.
THE SPIRIT OF THE CONSTITUTION CLEARLY INDICATES
THAT THE SPEAKER SHOULD NOT BE SWORN IN JUST
BECAUSE THE PRESIDENT IS ABSENT FROM GHANA.

Source - Dr. Richard Amoako-Baah

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