Forging Forward Introspectively as Ghana’s Constitution Turns Thirty

Maame A.S. Mensa-Bonsu

University of Oxford

In 2022, Ghana’s Fourth Republic will be three decades old – the longest any governance regime has lasted since independence. After a long and turbulent relationship with arbitrary power, Ghana, it seems, has finally settled into being a constitutional state.  As we edge closer to this monumental anniversary, it is the perfect time to reflect on the design of the Constitution of this Fourth Republic. In this post, I discuss one victory and one failure in the design of the 1992 Constitution, and the impact they have had on our constitutionalism journey thus far. 

Between oppressive legislative acts (like the numerous asset confiscation decrees), executive shows of power (like hosing protesters with hot water), and the perversion of justice by the establishment of parallel courts steeped in procedural injustice (including by the absence of defence lawyers), the Rawlings dictatorship had, by its end, completely eroded the culture of inalienable rights in Ghana. Perhaps the greatest design victory of the 1992 Constitution is the entrenchment of what it calls the Fundamental Human Rights and Freedoms (FHRFs), and a judicial review mechanism to enforce it. Whatever its democratic deficit, judicial review has proved the indispensable element in the transformation of Ghanaian society from a perpetually cowed people to an empowered people who insist on their constitutional rights. It is no mean victory, especially considering that prior to the 1992 Constitution, Ghana had only known six years of constitutional rule. The sheer volume of rights related case law over the last thirty years (notable examples of which include NPP v IGP,  GBA v AG,  Ramadan v EC, NDC v AG & EC) attests to the wisdom of entrenching a bill of rights in the Constitution. 

A substantial portion of that litigation occurred under governments formed by the present main opposition party – the National Democratic Congress (NDC) – which is essentially the reinvention of the last military junta – the Provisional National Defence Council (PNDC) as a political party within a democratic order. If its tyrannical antecedents show in its governance culture, it is hardly surprising. More unexpected has been the autocratic tendencies that have bubbled to the surface in the governance ethic of the present government formed by the National Patriotic Party (NPP). The NPP has been responsible for a significant number of the rights enforcement litigation that has occurred in this Fourth Republic, in particular, in the periods 1993-2000 and 2009-2016. This had earned the party stellar democratic, constitutionalist credentials. 

It is disappointing therefore to see an NPP government display such disregard for these same principles on which its reputation is founded. Examples that spring to mind include the following: in 2020, the president summarily ordered the Auditor-General – an office constitutionally guaranteed non-interference from the executive – to proceed on 167 days of mandatory leave, locking him out of his office when he attempted to resist the order; a cathedral project appeared as a line item in the 2021 national budget despite Ghana being a secular state. As recently as May 9 2021, armoured vehicles rolled into Independence Square in anticipation of a peaceful, civil society led protest. What all these incidents confirm is that the drafters of our Constitution well-gauged the human inability to resist abusing power for self-interested ends. 

While I enjoy the idea of the nobler humanity on which Waldron’s core case against judicial review is built; I lack examples in Ghana’s experience – or indeed in any other jurisdiction’s – to support it. It turns out it is not only those who when powerful oppress others who must be checked when continued in power; it is also, or, perhaps, especially, those who when powerless champion the victims’ cause who must be restrained when given power. The FHRFs and the (arguably overly) robust judicial review mechanism entrenched in the 1992 Constitution have done more to reimagine and redefine the experience of Ghanaian citizenship than any other aspect of our statehood and are definitely a constitutional design win. 

Less successful is our Constitution’s allocation of executive power and the supervisory mechanisms intended to limit its abuse. Although the intention to make Parliament the executive’s main supervisor comes through quite clearly, the structuring of that relationship fails to achieve the objective. By requiring the President to choose a majority of his ministers from Parliament, the Constitution has inadvertently given the president the power to divide and conquer the House. Ministerial appointments now function as a key carrot and stick tool in the arsenal of the president in getting Parliament to do his bidding; thereby accruing soft powers to him even in spaces where he was never intended to be a force. For example, the choice of the Speaker of Parliament was supposed to be made internally by the House itself with no interference from without. But the carrot of ministerial appointments has been used by every president of this Fourth Republic to impose their choice on Parliament. No instance of this more clearly demonstrates the design fail than the process of the appointment of Sekyi Hughes as Speaker (2004-08). Not having found the formidable Peter Ala Adjetey sufficiently malleable, the newly reelected president did not wish Adjetey to be retained. The minority NDC did. In an unsubtle display of executive bullying, MPs on the majority side were instructed to show their vote to their neighbour to be considered for a ministerial portfolio. 

By comparison to any other Constitution we have had, the 1992 Constitution makes the most honest effort to constrain executive power. Sadly, it does not succeed. Long exposure has so accustomed us to arbitrary power that there is a genuine belief in some quarters that a ‘strong leader’ is required for a state to function. Unfortunately, as we are learning, strong leaders and strong institutions are mutually exclusive. We continue to struggle with executive oppression. But if the ongoing ‘#fixthecountry’ protest movement shows anything, it is that we have not thrown our hands up in defeat on that front. As a new decade dawns on our Fourth Republic, I am hopeful that we will find creative ways to redefine executive limits and thus develop constitutional conventions that succeed where constitutional design has failed us. 

Maame A.S. Mensa-Bonsu is a Fellow at the London School of Economics and Political Science and a DPhil candidate in Law at the University of Oxford, UK    

Suggested Citation: Maame A.S. Mensa-Bonsu, ‘Forging Forward Introspectively as Ghana’s Constitution Turns Thirty’, IACL-AIDC Blog (11 October 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/10/11/forging-forward-introspectively-as-ghanas-constitution-turns-thirty.