By Ernest Kofi Abotsi
I begin this lecture with a quote from the great American president, Abraham Lincoln, who addressing the place of citizenship and limited government rather aptly noted, that we the people are the rightful masters of both congress and the courts, not to overthrow the constitution but to overthrow the men who would pervert the constitution. That this quote sets the tone for this lecture is clear and straightforward. For it addresses the role of the citizen in governance and the place of government relative to the constitution.
It is rather not unusual in the life of a country for it to experience a twilight moment in its governance history; something of a midlife crisis when the follies of its own glory and failings creates moments of political depression. Ghana like many countries have restlessly struggled in search of a system of government that best serves its people and delivers the good things of life to its citizens.
One that ensures the practical responsibility of government and its officials to the limits imposed by law. After suffering four debilitating coup d’états, our country settled in 1993 on the current constitution in one final act of democratic experimentation.
The fact that this Constitution, unlike the 6-year duration of the 1960 constitution or the barely 2-year experience of the ’79 constitution, has lasted already for nearly 30 years is a testament to the resolve of Ghanaians to see this governance project through and to shut the door perpetually on authoritarian and undemocratic rule. But the hopes of constitutional rule that greeted the adoption of the 1992 Constitution some 29 years ago appear to have dampened and some will argue, faded.
Many are those who already despair at the future in light of the failed promises of hope and opportunities presented when we turned that history-making page in 1993. Rather unsurprisingly, commentators find the reasons for the stunted growth in constitutional development rather self-imposed. A kind of voluntary self-harm in which actors charged with the primary obligation of upholding the constitution leads the way in its abuse. Yet history teaches us that democratic experiments the world over have always come at a cost, sometimes in blood but also in endurance, with consequences that are sometimes irredeemable and sadly destructive. The abuse of the powers of majorities, ethnocentric tensions that get played out, and entrenched power blocks that crowd out equitable considerations in the distribution of public entitlements have led to bloodshed in other countries and present us with learning opportunities for our own situation here in Ghana.
The failures of democracy and constitutional rule has led many to raise questions bordering on whether the deficits of democracy outweigh the dividends. For critics, democracy is expensive and tends concentrate too much power in the hands of majorities. This is not helped by officials who respond to any incidence of profligacy with the cryptic quote that “democracy is expensive” a point I will come to later in this presentation. Others chide constitutional democracies for their claim to representation of the common man while being hijacked by vested interests. But just to ease some anxiety, our generation is not alone in this cynicism to the good old governance model of democracy. As was lucidly stated by the great wartime leader of the UK Sir Winston Churchill, ” democracy is the worst form of government except all the others that have been tried”.
This mind-set and indeed approach to the pitfalls of democracy helps in not only looking at the gains of democracy in comparative terms but also enables us to appreciate the history of authoritarianism and human suffering that have been perpetrated under the myriad of various government systems across the centuries. Having lived and led his country against fascist and murderous regimes of Hitler and Mussolini, it is understandable that Churchill will view with deep suspicion other governance systems that seek to dislodge democracy. Regrettably, the changing fortunes of democracy in the world with the rise of populist governments in Europe and elsewhere may seem to have further deepened the distrust and doubts of many in the promise of democracy.
Everywhere you turn these days, democracy appears to be in turmoil and pressures on established institutions have been mounting. Ghana on the other hand, is experiencing a peculiar evolution. Having chosen the path of an open, liberal, and accountable system of government under the 1992 Constitution, we embraced a system of government that placed power in the hands of the people and in which political leadership will be subservient to the electors and the will of the people. For the opening words of the constitution contained in the preamble, “We the People” sum up the ideals embedded in the constitution in which the framers intended that the Ghanaian people, and nothing else, will be at the pinnacle of things affecting government and governance.
“We the People” constitute government and legitimize it by entrusting it with authority. “We the People” place limitations on government through the Constitution and should expect that accountability will be exacted for the exercise of power. “We the People” have stated our broad policy blueprint and preferences under chapter 6 and our aspirations as a people for the future. “We the people” have established institutions to deliver public goods and shape the public administration of Ghana.
These abiding words of the Constitution speak to a vision of government and outcomes intended by the framers of the Constitution and the values which should light and illuminate the path towards an intended glory. The fact that nearly 30 years after its adoption there has been failures to attain core goals of constitutionalism and accountability and of delivery of critical public goods to the broader satisfaction of the Ghanaian people, speaks to deeper factors that go beyond the text and even spirit of the constitution. Illustrating this view, Nana Dr. S.K.B Asante, the chairman of the committee of experts who drafted the constitution hinted that contrary to the position of the supreme court on the issue, it doesn’t seem that presidents have been limited by the restraints that have been placed on the powers of the office relative to the obligations to consult and act on the advise of bodies and agents. Like many others, he has therefore joined calls for the review and reform of the constitution to promote constitutionalism.
But is the Constitution really flawed or are the actors just good at elusive behaviour that renders an otherwise functional document impotent in the face of exploitative application? With the heavy weights behind this call being made, I dare say that the situation is vexed. But as will be repeatedly seen in this lecture, actor commitment and not prefect texts is what makes the difference in constitutionalism. Indeed Nana SKB Asante himself seem to have recognized this reality when he stated rather emphatically in relation to Parliament’s failures to exercise its oversight powers that that failure cannot be attributed to defects in the Constitution. Perfect texts can be abused or underused by bodies and officials with the wrong mission.
The eroding confidence in democratic governance by many arising from the increasingly desperate standards of public life and corruption, minimal sense of nationhood and sectionalism, the othering and exclusion of political opponents (actual or perceived) from access to public resources, and the general departure from the core values of regime goals remain a major threat to the stability of our governance system established under the constitution. Being honest with ourselves should lead us to the admission that the two leading parties which have alternated in leading this country have not developed the spirit and ethos of constitutionalism in Ghana. If I ask for a politics that promotes constitutionalism and the ethos of good governance, I do so not oblivious of the fact that politics is about the preservation and advancement of interests—self-interest.
But whereas the heedless pursuit of self-interest destroys a polity and weakens our collective resolve as a country, enlightened self-interest is the stuff that sustains a country. Whenever individual self-interest dominates, clashes are inevitable and exploitation for selfish interests becomes the norm.
I will at this stage spend a minute of this lecture to reflect on the very idea of constitutional governance, the adoption of written constitutions and the philosophical reasons that informs the implementation of the 1992 Constitution. I find this important for at least two fundamental reasons; First, this will provide context for our discussion of the sub-themes of the lecture and, secondly, an understanding of the bases of written constitutions affords the needed connecting thread for evaluating the reasons for the status quo. So examined, written constitution becomes a veritable prism for understanding the fortunes of governance in Ghana and indeed the way forward.
The adoption of constitutions in Africa have been said to be a part of the third wave of democratization on the continent. Seen for what it is however, constitutional rule has been viewed as higher systems of governance in which power is invariably subordinated to ideal principles embodied in a written constitution. But the idea of constitutional rule has also been equally criticised by those who think we accord too much to a document which in fact is an act of human construction. The American founding father, Thomas Jefferson famously criticizing the enduring nature of constitutions and their tendency to outlive generations, remarked, “the dead should not rule the living”.
Therefore, while universally embraced as the most superior model of governance ever devised by man, constitutional democracies have had some powerful critics and I dare say that responses to these criticisms have at best been unconvincing and at worst, lame. For the fact is, any trans-generational document that binds the future will remain hard to justify from a legitimacy standpoint, because after all, future generations should in principle have the right and capacity to enact for themselves whatever they please. To have, as the constitution does, a document which imposes itself on future generations simply because a constituent group and people adopted it some decades back, is in theory, hard to justify. But this known criticism has not assailed the onward march of constitutional democracy in our time.
The past decade has however seen increasing calls for constitutional reforms in Ghana arising out of concerns over the failure of the constitution to rein in the actions of officials and achieve the goals for which specific provisions are adopted. But it bears pointing out also that these calls may just have provided a ready pretext to shift blame for the actual failings at constitutional development. Indeed, the bi-partisan consensus on this subject resulted in the establishment (albeit by the then NDC government) of a commission to compressively investigate the need for review and submit proposals for the review the constitution.
While I am not by any stretch of imagination suggesting that our Constitution is a perfect document which needs no review, I argue that the subject and necessity of constitution review has been overstated and overblown and the mechanism of review has been exploited to explain failings which in fact remain attributable to officials of state. The fact that the architecture and complexity of our Constitution compares favourably with any standard or model constitution in the world makes the case for aggressive review of the constitution counterintuitive.
For all the calls of review, advocates of constitution review are indeed blinded to one dangerous prospect of any exercise in reform and that is the fact that constitution review itself can be used to water down liberties and enhance the powers of government given that majorities who vote on these amendments are not necessarily adequately enlightened in the changes being introduced. Again, the centuries old wisdom of Abraham Lincoln speaks for the ages on this and his assertion that maintaining provisions of adopted constitutions is the only safeguard of our liberties holds true for Ghana’s 1992 Constitution.
So, while reviews may indeed be necessary to reflect the dynamics of human societies, too often the failings of constitutional governance do not arise from the internal imperfections of the structure and even mores of the constitutions involved, as much as it is with factors external to the Constitution itself. For the reality of life is that human foresight is simply too short to deal with all new developments of the future and accordingly the determining factor is not a perfect constitution as much as it is the dynamic adaptation of the constitution to the vagaries of current circumstances and any future society.
So, if the constitution is not the problem, what has been or what could be the issue with constitutional governance in Ghana? The distorted application of various aspects of the constitution has resulted in the application of what may aptly be called a “shadow constitution”-rules of the constitution that may have been reinterpreted in ways that enhance executive and administrative power or undermine the very value for which these rules were incorporated into the constitution in the first place. The shadow constitution may explain the reason Parliament is prepared to concede ground and interpreted article 108 to imply that the institution lacks legislative authority to initiative legislation without executive input or consent.
The shadow constitution is the reason why the debate on the number of ministers to be appointed has become hotly politically contested. It is the shadow constitution that gets Parliament illegally arrogating unto itself developmental functions and allocating moneys to its members for projects. The shadow constitution is alive whenever the constitution is interpreted by Parliament and the executive in ways that depart from the original and purposive intent behind the provisions of the Constitution. Given that the shadow constitution is what gets in fact implemented, this constitution, and not the actual document is effective and overriding. The risk and danger of implementing a shadow constitution lies among others in the fact that the interests, trade-offs and compromises that are contained in the fold of the official Constitution become trumped in favour of entrenched but often self-serving preferences of political and constitutional actors implementing the shadow constitution.
This has resulted in a situation in our country in which we have come experience constitutional development without growth. This conclusion will strike many as odd; For after all we are the country that has done well with establishing constitutional bodies; built a modicum of constitutional culture; run many elections and have had stable changeovers of government; We have been touted as having led the rule of law enterprise in the sub-region and generally excelled where our counterparts have floundered. Yet as I will argue in this lecture, growth entails more than a semblance of compliance with constitutionalist culture or demands. Growth entails realizing the values and aspirations of the Constitution beyond the text and superficial actions demanded by the Constitution.
For the textual compliance by actors or officials have been optimal since the coming into force of the Constitution but speaking substantively, this is really tokenism. Indeed, it is the frustrations with the textual dynamics that has led to calls for changes in the text in the first place. The problem has never generally been the text. For as every constitutional law student knows, the text is dead until life breathed into it through implementation. The jurist Oliver Wendell Holmes says it best when he asserts that the life of the law is not logic but experience.
Far from being the text thus, the problem has been exploitative use. Indeed, given that there are “permanent texts” in the Constitution which cannot be changed through reforms (one calls to mind the transitional provisions in this regard), the tendency to overemphasize development through reforms become clearly problematic in this vein. Changing the text through reform will be a futile exercise in the absence of commitment on the part of the political class to fully implement the text and ideals inspiring them, for human ingenuity has constantly been ahead of the best possible text ever adopted.
The fact that ours have become a highly divided country has resulted in elections becoming perhaps the main indicia of constitutional governance in Ghana. From election to election, we seem to have become obsessed with the phenomenon and have essentially reduced governance to that exercise. So for example, core governance policies have become the subject of political spat between parties thrust into the vortex of electoral politicking within the intervening period from one election to the next. Elections have come to distort governance as government policies have had to yield to the pressures of politics. Elections can be a barometer for gauging public preferences on given subject or policy of governance, but as has been shown in our experience, elections can become problematic and can indeed serve as the very obstacle to real and sustainable development.
It is clear from the Constitution, that the framers intended that elections serve the 3 three key functions of enabling the exercise of the right of choice by the electorates when candidates present themselves for public office. In the same vein therefore, elections provide an avenue for accountability and ensuring that constitutional trusteeship is maintained. That, public office is an avenue for service in respect of which there must be accountability. And finally, elections under the Constitution provides a means for participation by the citizen in the life of the Republic. So conceived, elections constitute a means reinforcing the sense of ownership by electors. Elevating elections to the centre and dislodging the order of things treat elections as an end in themselves and badly distorts the picture originally intended by the framers. This calls for a reset.
Dr Ernest Kofi Abotsi is the Dean of the Faculty of Law of the University of Professional Studies, Accra (UPSA)