[ 2012-08-16 ]

Martin Amidu contests imposition of Mahama on NDC
Former Attorney General, Martin Amidu is raising
national constitutional and NDC constitutional
issues on the decision of the National Executive
Committee (NEC) of the NDC to “impose” President
Mahama as the flag-bearer of the ruling party in
the 2012 general elections.

In a statement issued on Thursday, he cautioned:
“Does the NDC have to court destructive internal
conflict and disunity by handling the transition
to the election of a new flag bearer to represent
the Party at the 2012 Election in a manner that
may raise disaffection and dissatisfaction in some
members as experience has shown?”

He further stated: “Firstly, just a day after the
unfortunate demise of former President Mills, the
General Secretary of the NDC (in what I consider
to be an indecent haste in the midst of the
mourning atmosphere that had engulfed the nation,)
issued a statement allegedly on behalf of the NEC
informing members [I suppose all members of the
NDC] that the “His Excellency John Dramani Mahama
becomes the leader of the Party under Article
26(1) of the NDC Constitution which states that,
'the president of the Republic who is a member of
the Party is the leader of the Party when in
government.'” What this statement suppressed is
the fact that when Article 26(1) of the NDC
Constitution is read within both the context of
that Article and the NDC Constitution as whole,
the statement of the NEC issued by the General
Secretary could be inconsistent with the letter
and spirit of the NDC Constitution. It could also
be inconsistent with and in contravention of
Article 55(5) of the 1992 Constitution."

Below is the full statement
16-08-12

CONSTITUTIONAL AND POLITICAL CHALLENGES ON THE
DEMISE OF THE PRESIDENT OF GHANA AND POLITICAL
IMPUNITY: BY MARTIN A. B. K. AMIDU

Political parties under the 1992 Constitution are
constitutional and public institutions deriving
their power and authority from and under the
Constitution. This is amply captured by the letter
and spirit of Article 55 of the Constitution. It
is because political parties are public and not
private institutions under the Constitution that
the Constitution guarantees participation in
political party activities to all citizens of
voting age (18 years and above) and enjoins that
every such citizen has the right to participate in
political party activity intended to influence the
composition and policies of the Government (see
Article 55(2) and (10)). As a bulwark against
tyranny and oppression the Constitution further
guarantees in clause (5) of Article 55 that: “(5)
The internal organization of a political party
shall conform to democratic principles and its
actions and purposes shall not contravene or be
inconsistent with this Constitution or any other
law.”

The sitting Vice President on 24th July 2012
naturally and properly succeeded the deceased
President as mandated by the Constitution for the
balance of the remaining term of the President.
The sudden demise of the President as the NDC's
Presidential candidate who had been duly elected
at a properly convened and contested Congress at
Sunyani in July 2010 has, however, left and raised
national Constitutional and NDC Constitutional
issues as to the succession to the Presidential
flag bearer candidacy of the NDC for the 2012
elections.

Firstly, just a day after the unfortunate demise
of former President Mills, the General Secretary
of the NDC (in what I consider to be an indecent
haste in the midst of the mourning atmosphere that
had engulfed the nation,) issued a statement
allegedly on behalf of the NEC informing members
[I suppose all members of the NDC] that the “His
Excellency John Dramani Mahama becomes the leader
of the Party under Article 26(1) of the NDC
Constitution which states that, 'the president of
the Republic who is a member of the Party is the
leader of the Party when in government.'” What
this statement suppressed is the fact that when
Article 26(1) of the NDC Constitution is read
within both the context of that Article and the
NDC Constitution as whole, the statement of the
NEC issued by the General Secretary could be
inconsistent with the letter and spirit of the NDC
Constitution. It could also be inconsistent with
and in contravention of Article 55(5) of the 1992
Constitution.

Does Article 26(1) of the NDC Constitution
standing and read alone apply to a sitting
Vice-President who was never elected at the
previous National Congress as the flag bearer that
contested the elections that brought the
government referred to in the sub-clause (1) to
power but assumes office by virtue of the
inevitable death of the sitting President under
Article 60(6) of the 1992 Constitution? Does
Article 26(2) of the NDC Constitution which states
that: “Where the President of the Republic is not
elected a flag bearer, a person elected as flag
bearer of the party at any time prior to the
election is the leader of the party” not reinforce
the fact that the President referred to in Article
26(1) is a President who had been elected a flag
bearer as Professor Mills had been at the NDC
Congress of 2006, for the 2008 Presidential
Elections, and in July 2011 for the 2012
Presidential Elections?

Will the NEC not be accused of unconstitutional
acts and conduct in equating the right of the
sitting Vice-President to assume office as the
President of the Republic for the unexpired term
of the office of the deceased President with
effect from the date of his death with a right to
assume the leadership of the Party without any
previous endorsement by the National Congress at
its previous meeting? Does the selective and out
of context interpretation of Article 26(1) of the
NDC Constitution not send signals of arbitrariness
and impunity when the NEC takes such an important
decision and imposes it on the generality of the
citizens of Ghana who have a right of expectation
under the 1992 Constitution and the NDC
Constitution that, in running the affairs of the
Party, the NEC will observe internal democratic
principles?

Are there any lessons to be learnt from the
consequences of the Swedru Declaration and the
subsequent fracture of the NDC in the 2000
Presidential Elections leading to the formation of
the National Reform Party? Are there further
lessons to be learnt from the rapture from the
Korforidua NDC Congress which also led to the
formation of the Democratic Freedom Party? Does
the NDC have to court destructive internal
conflict and disunity by handling the transition
to the election of a new flag bearer to represent
the Party at the 2012 Election in a manner that
may raise disaffection and dissatisfaction in some
members as experience has shown?

It would appear that those in control of the NDC,
for the time being, were bent on excluding other
bona fide members of the Party who may wish to lay
democratic claims to who becomes the next flag
bearer of the Party by excluding them even before
the mortal remains of the demised President were
interred. It is also symptomatic of how political
party elites in Ghana and Africa worm their way
into the confidences of persons perceived as
likely to ascend to power positions for purposes
of eventual personal economic gain at the expense
of the generality of the mass of Party members and
the Nation which every President swears to serve
under the Constitution.

It is with the lense of this attitude of the self
serving political elite, as distinguished from the
nationalistic and democratic political elite, that
I see the attempts by those persons falling over
themselves to ignore the letter and the spirit of
the NDC Constitution to give the transitional
President the impression that it is right to
anoint him as leader and flag bearer pending
acclamation by the National Congress. Like the
Congress of the former Communist States, the NDC
National Congress is being called now on 31st
August 2012 just to endorse the candidature of one
person who has ascended to the balance of
President Mills' term as President because of a
force majeure. Yet we are being told that for
others the demise of the late President is not a
very welcome and prayed for blessing to be
exploited for personal power and glory.

Secondly, the Constitution of the NDC provides for
the Election of a Presidential candidate in
Article 44 thereof. Article 44(a) appears to have
envisaged the immortality of the NDC Presidential
candidate once elected by the Congress as the
highest decision making body of the Party.
Consequently, it provides for the election of the
Presidential candidate at least 12 months before a
national election date in the case where the party
is in power, and at least 24 months in the case
where the party is outside government. The rest of
Article 44 governing the election of the
Presidential candidate of the NDC envisages the
democratic nomination of candidates, balloting,
and run-offs as the only legitimate procedure for
the choice of a Presidential candidate and remain
in full force and effect. But Article 44(a) only
governs the power of the NEC to decide the date
and venue for the election of the Presidential
candidate and requires that they do this within
the periods stipulated. It does not prohibit an
abridgement of the period in exceptional
circumstances such as the death of a flag bearer
before General Elections!

But as a result of the death of the sitting
President and the mandatory assumption of that
office by the Vice President, the NEC decided that
there was no provision in the NDC Constitution
which deals with the election of a Presidential
candidate following the death of one elected
within the periods stipulated in Article 44(a).
They made a decision to endorse the new President
as the leader of the Party, and the flag bearer in
waiting allegedly pursuant to Article 50 of the
NDC Constitution on the residual powers of the NEC
to make regulations only.

The requirement that political parties be governed
by internal democratic principles necessarily
requires that the regulations to be made by the
NEC will be published for discussion by the
various branches and organs of the party before
they are enacted and published as valid and
binding regulations. The right of citizens to join
and participate in political party activities
would be set at naught if the NEC could just meet
in a room, enact constitutional regulations
altering stipulations in the Constitution without
due process and publication of same to its
members. Indeed the spirit of the 1992
Constitution requires political parties to furnish
to the Electoral Commission copies of such
constitutional regulations just as they furnish
the Electoral Commission with a copy of their
Constitution and amendments thereto.

The letter and spirit of the 1992 Constitution,
particularly Article 55(5) thereof and the NDC
Constitution, Article 44(a), require that
democratic elections be held to nominate the
Presidential candidate of the NDC for Election
2012. The fact that the elected Presidential
candidate died before those elections does not
change the spirit in which the National Congress
enacted such a democratic constitutional
provision. In any case wherein lies the power of
the NEC to amend Article 44(b) to (g) of the NDC
Constitution and impose in advance a Presidential
candidate on the Party, however styled or called
in the interim?

We are just a few days to the new date of 31st
August 2012 when the NDC National Congress will be
convened in Kumasi, the Ashanti regional capital,
at great Party and public expense to endorse the
transitional President as the only choice of the
strongest political elite, for the time being, in
control of the NDC as the Party's flag bearer for
the 2012 Elections. I am not aware of any
constitutional regulations pursuant to Article 50
the NEC has enacted to take care of whatever
omissions or perceived gaps there are in the NDC
Constitution.

The letter and the spirit of the 1992 Constitution
and the NDC Constitution are both binding on the
NDC and demand that citizens who are members of
the Party are treated by the strongest political
elite in control of the Party, for the meantime,
with utmost respect by making requisite
information available to them within a reasonable
time before the National Congress. Any political
party that does not allow its members access to
critical information and rules that will affect
the exercise of their democratic right of choice
of a flag bearer in a democratic and transparent
manner in accordance with Article 55(5) of the
Constitution will be acting in a manner
inconsistent with and in contravention of the 1992
Constitution, and the Party Constitution.

I speak out now so that I may not be counted among
what self serving elite politicians take the mass
of the national population for – a herd that
unquestionably swallows what ever is put out there
in the name of the Party and be led by the nose.
Reasoned argumentation is the only way by which
group dynamics can be sustained in any political
party respecting the rights of its members, the
rule of law, democracy and liquidating the
impunity of what Marx Webber calls the controlling
political elite.

I have had my say by writing this statement. I
pray that even those who may disagree with what I
have written will respect my right as a citizen of
Ghana to articulate my perceptions on such matters
of fundamental national and public importance and
interest in the market place of political
discourse to aid fellow citizens in making
informed choices in defending the 1992
Constitution as mandated by Article 3 thereof. I
welcome clearly written and convincing opposing
views to my perspective to enable informed choices
to be made by the citizen. Personal attacks on
radio or in writing will constitute a clear
diversionary tactic and a demonstration of the
lack of an ability to engage in reasoned debate on
matters of public and constitutional importance.
No democrat should welcome such primitivity in the
politics of today's Ghana.

Source: Martin A. B. K. Amidu

Source - MyjoyOnline

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