By Dr Abdul Basit Aziz Bamba
Unless the Covid-19 crisis subsides to enable the 2020 presidential and parliamentary elections to be held by December 7, 2020, we will be confronted with a constitutional crisis by reason of the combination of certain legal “knowns” and “unknowns”.
The legal knowns represent clear and obvious legal situations, which appear to be beyond legal controversy whilst the legal unknowns are suppositions and conjectures based on “ifs” and “buts”.
It is a legal known that the term of office of (a) the President (article 66(1)); (b) his Ministers (JH Mensah v Attorney-General, 1997); (c) the Speaker and Members of Parliament (article 113(1)) expires on January 6, 2021. Yet the concurrent expiration of the terms of the executive and parliament on January 6, 2021 leads to a number of unsettling legal unknowns or scenarios if no presidential and parliamentary elections are held by December 7, 2020.
Scenario 1: No President, No Parliament
In this scenario, there will be no executive or the legislature on January 7, 2021 since the term of office of these two organs of government would have ended by operation of law on January 6, 2021. The only organ of government that would remain is the judiciary. We are in uncharted territory and the resultant legal and political vacuum is not only dangerous, but also presents an unprecedented constitutional crisis.
Scenario 2: Chief Justice as Acting President
Scenario 2 – Chief Justice as Acting President – rides on Scenario 1. Upon the expiration of the term of the executive and legislature on January 6, 2021 in Scenario 1, we may be tempted to invoke article 57(2) of the Constitution to make the Chief Justice the acting President. However, the 1992 Constitution does not include the Chief Justice in the presidential line of succession (Article 60). Nor did the 1969 and 1979 Constitutions.
From the viewpoint of our constitutional history and for context, it is noteworthy that under the 1969 Constitution the Speaker of the National Assembly acted as president in the absence of the President. (Article 38(3) of the 1969 Constitution). The 1979 and 1992 Constitutions have the same provisions on succession to the presidency. In the absence of the President, the Vice President acts as president, and in the absence of the Vice President, the Speaker of Parliament acts as President. As already noted, the Chief Justice is not included in the presidential line of succession.
Articles 57(2) of the Constitution deals with persons who “take precedence over all other persons in Ghana”. It does not directly relate to the presidential line of succession. Instead, it is article 60 that deals with succession to the presidency. Therefore, articles 57 and 60 address clear, separate and distinct matters. And there is no direct logical correlation whatsoever between the persons named in article 57(2) and the succession to the presidency provided for by article 60 of the Constitution. Therefore, if we invoke article 57(2) of the Constitution to make the Chief Justice the acting President, it will amount to a desperate move to avoid the doomsday situation presented by Scenario 1 – no president and no parliament on January 7, 2021.
It is also extremely doubtful the framers of the 1979 Constitution and 1992 Constitution ever contemplated the Chief Justice acting as President in the absence of the President, Vice President and Speaker of Parliament; considering the constitutional scheme on the presidential line of succession in the 1979 Constitution, which has been reproduced in the 1992 Constitution.
In the 1979 Constitution, we adopted the US presidential system of government with complete separation of the executive and legislature. By the provisions of the 1979 Constitution, the term of office of the President was 4 years (article 53(1)) while that of Parliament was 5 years (article 94(1)). The different terms of office for the executive and the legislature as provided for in the 1979 Constitution, together with the different constitutional stipulations in relation to the period for holding presidential and parliamentary elections was advantageous. This made it exceedingly remote and unlikely that the end of the term of office of President and the dissolution of Parliament would take place on the same date.
Another reason which supports the view that it was not in the contemplation of the framers of the Constitution for the Chief Justice to ever act as president rests on the fact that, the presidential line of succession in article 47(7-12) of the 1979 Constitution (same as article 60(7-12) of the 1992 Constitution) was clearly influenced by the US Constitution and the US Presidential Succession Act of 1947, where the Chief Justice is not included in the line of succession to the presidency.
Despite the lack of textual, historical, structural or conceptual support for the Chief Justice acting as President, Scenario 2 does not look as outlandish as it may seem at first blush given the obvious adverse legal, social and political consequences of Scenario 1.
Scenario 3: Chief Justice as Acting President governs without Parliament
Scenario 3 piggybacks on Scenario 2. If Scenario 2 prevails with the Chief Justice acting as President, it would appear that, by the combined reading and effect of article 113(3) and 297(h) of the Constitution the Chief Justice would have the option of governing the country with or without Parliament for the purpose of holding “a presidential election within three months after his assumption of office” as acting president (Article 60(13)).
To elaborate further, article 113(3) of the Constitution empowers the President if he “is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.” Relatedly, Article 297(h) states that “words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants”.
By extension, if the Chief Justice becomes acting president he could exercise presidential powers on the basis of article 297(h) of the Constitution for the purpose of holding “a presidential election within three months after his assumption of office” as acting president.
Should the Chief Justice act as president for a period not exceeding 3 months for the purpose of holding a presidential election, we should expect the most senior judge of the Supreme Court to act as Chief Justice.
If the COVID-19 pandemic persists beyond 3 months after the Chief Justice has acted as president, we have hit a constitutional cul-de-sac. To overcome this, we may creatively deploy article 297 (b) of the Constitution to keep extending the term of the Chief Justice for 3 months in succession until the pandemic abates to enable us hold presidential and parliamentary elections.
Scenario 4: Chief Justice as Acting President recalls the dissolved Parliament
By article 113(3) and 297(h) of the Constitution as explained above, the Chief Justice can exercise presidential powers when he acts as president. Starting from that premise, the Chief Justice as acting president may invoke article 113(3) of the Constitution “to summon the Parliament that has been dissolved to meet.”
Substitute “Chief Justice” for “President” in article 113(3) of the Constitution. When that is done, then acting on the basis of article 113(3) of the Constitution, the Chief Justice may recall the dissolved parliament after declaring a state of public emergency pursuant to article 31of the Constitution. In the absence of a formal declaration of a state of emergency, the Chief Justice cannot trigger article 113(3) since that provision is predicated on “the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana”.
Scenario 5: Speaker of Parliament recalled acts as acting president and first deputy speaker acts as speaker of parliament
Should the Chief Justice recall the dissolved Parliament pursuant to article 113(3) of the Constitution after declaring a state of emergency by reason of the persistence of the COVID-19 pandemic, the Speaker of the dissolved and recalled Parliament would replace the Chief Justice as acting president (article 60(11). When that happens, we should expect the 1st Deputy Speaker of Parliament to act as Speaker of Parliament.
Scenario 6: Parliament legislates to expand the presidential line of succession
Article 60 of the Constitution provides for the line of presidential succession in the order of Vice-President and the Speaker of Parliament. However, Parliament could use its residual power under article 298 of the Constitution to expand upon the presidential line of succession. Any such expansion cannot include the extension of the term of the President; that would appear to be patently unconstitutional since the President has a fixed term of 4 years.
We may consider including in the presidential line of succession heads of independent constitutional bodies such as the Commission on Human Rights and Administrative Justice and the National Commission for Civic Education. We could accomplish this expansion in the presidential line of succession by amending the Presidential (Transition) Act 2012 (Act 845).
Scenario 7: The President declares a state of emergency and Parliament extends its term.
In this scenario, immediately before or after December 7, 2020 but prior to January 6, 2020 when the window for holding presidential and parliamentary elections is closing or has closed, our President declares a state of emergency pursuant to article 31 of the Constitution. As a sequel, a citizen of Ghana mounts an interpretative action in the Supreme Court arguing that, the expression, “At any time when Ghana is actually engaged in war” in article 113(2) covers not only war as we know it but extends to “war-like situations” and the Government’s efforts to tackle the COVID-19 pandemic is a “war or a war-like situation”.
If this tenuous or attenuated legal argument prevails then the current Parliament could extend its life beyond 6th January 2021 in periods of 12 months at a time but not for more than 4 years. When Parliament extends its term beyond 6th January 2021, the Speaker acts as president when the term of office of the president expires on 6th January 2021.
What is clear from the above scenarios and analysis some of which appear like a carousel is that a constitutional crisis beckons if we are unable to hold presidential and parliamentary elections by December 7, 2020. Scenario 1 is the worst possible scenario we may ever face. Scenarios 2, 3, 4 and 5 contain too many “ifs” and “buts” for comfort and they provide no guarantee that we can avert Scenario 1 – the doomsday case of no president; and no parliament. Scenarios 6 and 7 are possible but not in the least probable.
So the buck stops with our Electoral Commission. The impending constitutional crisis suggests that in time the Commission has to consider seriously the prospect of holding presidential and parliamentary elections on different dates. Much more besides, the Commission as part of its risk management and business continuity planning and strategy, and working in tandem with our scientists with epidemiological background, must come out with contingency plans for holding presidential and parliamentary elections by December 7, 2020. Any such plans must not endanger the health of voters.
Meanwhile, we must constantly keep in mind that the legal, political and social consequences of not holding presidential and parliamentary elections by December 7, 2020, are too dire and unsettling to contemplate.