Rethinking Article 78(1), of the 1992 Constitution of the Republic of Ghana – Lessons from Ghana’s Election 2020.

Rethinking Article 78(1), of the 1992 Constitution of the Republic of Ghana – Lessons from Ghana’s Election 2020.

Introduction.

If there is one thing that the Parliamentary results of the 2020 elections taught Ghanaians (both politicians and non-politicians), it is the need for political parties to work together for the advancement and in the genuine interest of the people of Ghana. Indeed, His Excellency, the President-elect at the time, Nana Addo Danquah Akufo-Addo could not have said it better than he did in his victory speech on the night of December 09, 2020, after the Chairperson of the Electoral Commission in her capacity as the Returning Officer of the Presidential Elections announced the results and declared him the President-elect of the Republic. His Excellency the President-elect said thus, “The Ghanaian people through the results, have made it loud and clear, that the two parties, the NPP and the NDC, must work together, especially in Parliament, for the good of the country. Now is the time, for each and every one of us, irrespective of our political affiliation to unite, join hands, stand shoulder to shoulder and work hard to place Ghana where she deserves to be; a prosperous and a dynamic member of the Global Community, making her own unique contribution to the growth of world civilization[1]. For the first time in the 4th Republic, Ghana’s Parliament has equal number of seats by both the New Patriotic Party and the National Democratic Congress, with only one seat for an Independent Candidate.

In this piece, the author attempts to discuss the Parliamentary dynamics of the 2020 election results, the determination of the Speaker and Deputy Speakers of the 8th Parliament of the 4th Republic, the legal or constitutional requirement of the President choosing majority of his or her Ministers of State from Parliament, the doctrine of Separation of Powers, the arrangements under the 1979 Constitution of Ghana, make suggestions of how the legislative work of the 8th Parliament of the 4th Republic will not suffer due to absenteeism from the House, and finally make a case for the need to re- think the requirement of appointing majority of Ministers of State from members of Parliament.

Since the commencement of the first time in the 4th Republic, there is the likelihood of Ghana having a hung Parliament. A Hung Parliament is a Parliament in which no single political party wins a majority in the House of Commons[2] or in our case Parliament. It connotes a situation where no one has overall control and, therefore calls for all parties in the House to collaborate and build consensus for the governance of the country for the next 4 years. The 8th Parliament of the 4th Republic is made up of the two major political parties in Ghana, i.e., the New Patriotic Party (the NPP) and the National Democratic Congress (the NDC), and one Independent Candidate. Both parties have an equal number of 137 seats, with one independent Member of Parliament, who hitherto was a member of the NPP. This is barring any changes made by the various High Courts before whom some parliamentary election petitions are pending.

When the results of the 2020 Parliamentary elections were being announced, one thing was clear; the ruling NPP which had a commanding majority of about 169 seats in the 7th Parliament had lost some (about 32) of their seats and were either going to be the minority or a majority with a very slim majority of one or two[3]. Indeed, the leading opposition NDC had to the surprise of the author, managed to win more seats and was battling for majority in the House of Legislature. The NPP, which, prior to the 2020 elections, had in a politically arrogant mistake, sacked/dismissed its Member of Parliament (MP) for the Fomena Constituency for deciding to contest as an Independent Candidate against the party’s choice and position, had no option than to eat the humble pie and seek to bring back the Independent MP into their fold in the event that the NPP has 137 seats and the NDC also has 137 seats. Prior to the election of the Speaker of Parliament, it meant that the determination of which side of the House will have the majority may to some extent, depend on which side of the House the independent candidate (the former MP for NPP) will decide to be with.

Determination of Who is Majority and Minority

Soon after the election results were declared by the Electoral Commission, both parties claimed majority in Parliament. Although both NPP and NDC had 137 seats, the NPP claimed that the Independent MP for Fomena was on their side, hence the claim for majority. The NDC opined and argued that there is no majority since the NDC has an equal number of 137 seats just as the NPP. On the day of the election of the Speaker, this issue generated some controversy, when the NDC entered the chamber first and proceeded to sit on the right hand side of the Speaker of Parliament, a place which by practice is reserved for the majority side in Parliament.

The issue of who is the majority and minority in Parliament is determined by the Standing Orders of the Parliament of Ghana with reference to definition of leaders of both sides. Under the rules of Parliament, “Majority Leader” means, a Member of Parliament designated by the Party or Parties holding majority of the seats in the House as their recognized Leader in the House[4]”. This means that the political party with the majority of seats form the majority and the leader they elect becomes the majority leader. Minority Leader, on the other hand means “a Member of Parliament designated by the Party having the largest numerical strength in Parliament other than the Party that formed the Government, as the recognised Leader of all Minority  groups in the House[5]” (emphasis supplied). This definition means that the minority is the group other than the party in Government. From the above, it is the view of the author, that even though both NPP and NDC have 137 seats, from the reading of the Standing Orders, the NDC forms the minority side, to the extent that they are the Party with the largest numerical strength in the House aside the Party that formed the Government. This is the position regardless of the fact that the Candidate of the NDC was elected as Speaker. It was therefore not surprising that the learned Speaker of Parliament settled the matter in favour of the NPP caucus, since the Independent Candidate indicated that he would do business with the NPP side. Prior to the determination of this issue, the NDC side had sought to argue and construe the word “Parties” in the definition of majority leader narrowly to exclude an independent candidate, yet they nominated the Independent candidate as a Second Deputy Speaker. It is therefore the considered view of the author that the word ‘Parties’ in the definition of majority and minority leaders under Order 7 of the Standing Orders of Parliament ought to be construed broadly and purposively to include Independent Candidates who become members of Parliament.

Determination of Speaker and Deputy Speakers

The law[6] is that there shall be a Speaker of Parliament, who shall be elected by members of Parliament from among persons who are members of Parliament or who are qualified to be elected as members of Parliament”. It is not the position of the law that the majority side must elect the Speaker, neither is it the law that the nominee of the majority must take the chair as Speaker, unless the said nominee, obtains the majority votes of members of Parliament. It is possible, as happened in this case, for the minority to propose a candidate for Speakership, who will be voted for by the majority of members of Parliament, and that in itself does not determine who is the majority or minority in the House. The law also provides for the election of two Deputy Speakers who must of a necessity be members of Parliament. Unlike the Speaker who may either be qualified to be a member of Parliament, or a member of Parliament, in which case there must be a bi-election, the Deputy Speakers must be nominated from the members of Parliament[7], save that the two Deputy Speakers must not come from the same political party[8].

Appointment of majority of Ministers of State from members of Parliament

One of the major challenges that will be facing H.E Nana Addo Danquah Akuffo-Addo in his second term, is regarding the appointment of his Ministers to run the government. The author argues that if there is any time the President must consider a lean government, then this is the time. If there is any reason why the President must not have too many ministers in the second term as he had in the first term, then the number of members of Parliament his party has in the House should be one such reason.

The 1992 Constitution of Ghana provides that “Ministers of State shall be appointed by the President with the prior approval of Parliament from among members of Parliament or persons qualified to be elected as members of Parliament, except that majority of Ministers of State shall be appointed from members of Parliament.[9] (emphasis mine). The 1992 Constitution, therefore expects that Ministers of State are people who are also Members of Parliament or are persons qualified to be elected as such, and majority must come from the House of Parliament. This implies an underlying reasoning that the ruling government must have a majority in the House of Parliament to be able to appoint some as Ministers and still have Members in the House to conduct daily or regular parliamentary business. Since the ruling Party would have a controlling majority in Parliament, it can still appoint majority of ministers from Parliament in compliance with the constitutional requirement and not suffer the Government business because they will still have the numbers to push the agenda of government in Parliament.

Doctrine of Separation of Powers

Democracies like Ghana’s operate with the doctrine of Separation of Powers (SOP). All the Constitutions of Ghana[10] since Independence have had some underlying concepts and theories, one of which is the doctrine of Separation of Powers. This doctrine is usually traceable to a French jurist by name Montesquieu, who is credited with expanding the work of political theorists like John Locke. The doctrine of Separation of Powers is more of a political doctrine than a legal principle.  Separation of Powers as a doctrine has been variously described by political and legal scholars. In the dictum of Professor Kludze JSC[11] in the celebrated case of Asare v Attorney General it is “a philosophical and political dissertation which seeks to compartmentalize the organs of government into three distinct branches denominated as the executive, the legislature and the judiciary branches. The doctrine proceeds to postulate the theory that for efficient governance, and in particular to avoid despotism and tyranny, the three branches of government must remain distinct; for, the concentration of power in the hands of one person or one set of persons has the natural tendency to breed despotism and tyrannical rule because of the fallibility of man.[12]

The underpinning principle of SOP is that there are mainly three Arms of Government being the Executive, Legislature and Judiciary. Each of these three arms perform separate and independent but inter-dependent functions. In the case of Youngstown Sheet & Tube Co. Sawyer (Steel Seizure Case) Lord Justice Jackson said “While the Constitution diffuses power the better to secure liberty, it also contemplates that the practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity[13]. The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution.[14] The legislative power of Ghana is vested in Parliament and such powers is also exercised in accordance with the Constitution.[15] The judicial power of Ghana is vested in the judiciary.[16] Ghana’s democracy under the 4th Republican Constitution, 1992 is said to be a combination of the British Westminster Parliamentary system and the American Presidential system. It means that although Parliament has its own functions as well as the Executive, there is an overlap and the tendency of a Member of Parliament (from the legislative arm) being a Minister of State (from the Executive arm). For good reason, a member of the judiciary can neither be a Member of Parliament or a Minister of State.

The determination of which party has the majority is important for two reasons in the author’s view. One is,  it is the votes of the majority in Parliament that by law[17] and by practice and convention[18] determines who becomes the Speaker of Parliament. The other reason is that by the Constitutional arrangement under the 1992 Constitution, not only must ministers be appointed from among Members of Parliament or from persons qualified to be Members of Parliament, but a majority of the Ministers must be appointed from the Members of Parliament. The situation Ghana has had to find itself post-election 2020 is what has necessitated this discussion in governance and legal circles. Members of Parliament are mostly needed in the House to perform government business. These same Members of Parliament are either Ministers or Deputy Ministers whose executive roles and functions may take them out of the House of Parliament. Parliament cannot conduct business unless they form a quorum, which is one-third of its members present.[19] It is not uncommon to hear Speakers of Parliament bemoaning the absenteeism of Members of Parliament.

The utility of the doctrine of Separation of Powers, therefore, is to avoid the situation where one arm of Government exercises all the powers of the state. The idea is that the powers of the state must be performed by different organs to prevent abuse and to provide checks and balances on each other to maintain the balance of power and not to exceed the constitutional limits. Although the three arms of government are or are supposed to be independent, they depend on each other and hence the need for collaboration and interdependency. It is argued that, the 1992 Constitution was so structured because of a precedent under the 1979 Constitutional arrangement that made governance difficult for the People’s National Party (PNP) Government under the presidency of Dr. Hilla Liman in the third Republic of Ghana. It is said that because the ruling party did not have a majority in Parliament, it could not approve the budget of the government of the day in a particular year.

1979 Constitutional Arrangement.

From a reading of the 1979 Constitution, one would see an architecture that is meant to achieve an absolute Separation of Powers. Under the 1979 Constitution, a Member of Parliament could not be a Minister of State and vice versa. The idea then, was that a Minister or Deputy Minister must be consigned to the Executive, while Members of Parliament stuck to the House of Legislature. There is, therefore a clear difference between the architecture of the 1992 Constitution and that of 1979 regarding the appointment of Ministers. Whereas as indicated supra, the 1992 Constitution requires or mandates majority of Ministers to be appointed from among Members of Parliament, the 1979 Constitution did contain any such requirement. In fact, the 1979 Constitution required the opposite. The relevant provision of the 1979 Constitution provides that “Ministers of State shall be appointed by the President with prior approval of Parliament from among persons who are qualified to be elected as members of parliament[20]. From this, it seems under the 1979 Constitution, a Minister of State needed not even be a Member of Parliament, the person must only qualify to be so elected. This view is even made more clearly under clause 2 of the above-mentioned article, which provides that “A member of Parliament appointed a Minister of State shall resign from Parliament before he assumes office”[21]. The import, therefore, is that, under this arrangement even if a member of Parliament is appointed as a Minister, that member of Parliament must vacate the seat in Parliament before assuming the office as Minister. Consequently, the 1979 Constitution prohibited a person serving in that dual role of a member of Parliament and a Minister of State. This presented a situation where there was a clear separation of powers such that once you belong to the Executive, you have no place in the Legislature.

Although the 1979 Constitution may have been fraught with certain challenges, the author is of the view that it presented a better form of governance since there was some strict form of Separation of Powers. The members of Parliament were consigned to the sole role of legislature and therefore devoted their full time to the work of Parliament. Members of Parliament did not need to catch the attention of the President (Executive) to be given any ministerial position among others.

Failure to approve Budget under the 1979

President Dr. Hilla Liman was sworn in as President on 24th September 1979 after about seven years of political uncertainty. H.E J.J Rawlings handed over power to President Liman and charged him to inter alia root out corruption and to ensure a restoration of the country to the paramount place it held in the world affairs.[22] As every President would do, Liman started putting policies in place to address the challenges he inherited as President of the Third Republic. His policies to resolve the economic challenges suffered a set-back, when for the first time in the history of Ghana, the Parliament of the Third Republic rejected his 1981/1982 budget proposals, by a vote of 54 to 51 votes[23]. This meant that he failed to secure the approval of Parliament and hence had to repackage the proposal before Parliament could approve same subsequently. As seen above, under the 1979 Constitution, there was no fusion between the executive and the legislature since a member of Parliament could not be a minister of state, and hence for the proposals to be approved, consensus was needed in the house of Parliament. 

Reasoning behind the Current Architecture

It is obvious that the alleged ‘shortcomings under the 1979 Constitution which resulted in instances when the Government could not get approval for its budget was one of the reasoning behind the arrangement where majority of Ministers of State are not only supposed to be qualified as Members of Parliament, but must also be Members of Parliament. Prior to the return to civilian rule under the 1992 Constitution, the nation had been under a military rule under the J.J. Rawlings led Provisional National Defence Council (PNDC) for a period of eleven years. The agitation for return to civilian rule led to the establishment of a Committee of Experts by the PNDC regime with the task to draw up and submit to the PNDC, proposals for a draft Constitution for the Republic of Ghana.[24] The Committee of Experts in their report made a recommendation that majority of Ministers ought to be appointed from among Members of Parliament. It is believed that this recommendation was principally influenced by the difficulties faced by the Executive under the 1979 Constitution to get its policies and programmes approved. The Committee was of the view that there was a hostile relationship between the executive and legislature which made consensus building extremely difficult.[25] It was the Committee of Experts that proposed the current Article 78(1) of the 1992 Constitution quoted above, that placed an injunction on the President to appoint majority of his Ministers from the house of Parliament. The Committee submitted its draft on April 28, 1992 and it was accepted by the people of Ghana and that became the 1992 Constitution which came into force on January 03, 1993.

This issue again engaged the attention of the Constitutional Review Commission (CRC), which was established in 2010 by the President of the Republic of Ghana H.E Professor J.E.A. Mills and commissioned to consult with the people of Ghana on the operation of the 1992 Constitution and on any changes that needed to be made to the Constitution.[26] The Report of the Commission was presented to the President of the Republic of Ghana with submissions and recommendations on various aspects of the 1992 Constitution including on Article 78(1) of the Constitution on the requirement of appointment of majority of Ministers from the House of Parliament. This issue engaged the mind of the Commission and the submissions received by the Commission were diverse. While some citizens thought there was the need to maintain the status quo where majority of Ministers must be appointed from Members of Parliament, others were of the view that there was the need to depart from the current practice and adopt the situation where Ministers were appointed from outside Parliament and in the event that a Minister is appointed from Parliament, that person must resign his or her seat before that person assumes office as Minister, which was the architecture of the 1979 Constitution.

At paragraph 228 of the Commission’s report the Commission frames the Dimension of the issue as follows “Should the majority of Ministers be appointed from Parliament? If not, what percentage of Ministers, if any, should come from Parliament?” The submissions received by the Commission included “A good number of submissions called for a retention of the current state of the law. The main argument in support of this motion is that the necessary working relationship that should exist between the Executive and the Parliament would thereby be maintained and this would ensure the smooth and quick processing of government business in Parliament.”[27] To those who espoused this view, the status quo ensures that government business is conducted smoothly when some Ministers of State are also Members of Parliament. However, many Ghanaians expressed a contrary view. The Report further revealed that “Many Ghanaians proposed that Ministers should not be Members of Parliament as it was humanly impossible to effectively perform the demanding functions of both offices at the same time. They argued that Ministers who are Members of Parliament are often absent from Parliament attending to their Ministerial duties. Proponents of this view also argued that the practice conflates the parliamentary and presidential systems in an unacceptable manner and leads to a situation where Members of Parliament are beholden to the Executive for ministerial appointments instead of focusing on building a career in Parliament and advancing the interests of Parliament as an institution. This ultimately leads to weakening of Parliament as an institution and also undermines the concept of separation of powers between the Executive and the Legislature.”[28] The Report again shows that “A small number of submissions were to the effect that the minimum requirement should be removed from the Constitution so that the President would have a free hand to appoint Ministers from within or outside of Parliament”[29]. Broadly speaking, from these submissions, it shows that Ghanaians have been engaging on this all-important aspect of our Constitution.

As earlier indicated above, the Commission in its report observed that the “Consultative Assembly of 1992 decided to establish a linkage between the Executive and the Legislature and, therefore, stipulated that the President appoints the majority of Ministers of State from among Members of Parliament. The Consultative Assembly departed from the 1979 Constitution in this respect”[30]. The Commission further observed and found, and rightly so, that “the 1979 Constitution required that Members of Parliament appointed as Ministers were to resign from Parliament. There is some evidence that the relationship between the Executive and Legislature under the 1979 Constitution could have been better if the necessary linkage existed between the two institutions.”[31] It was observed further that in other jurisdictions like Nigeria where the Executive and the Legislature are completely separate, a liaison, usually a former senator, is appointed to facilitate a smooth relationship between the two institutions. The Commission made the following recommendation at paragraph 237 of its Report: “The Commission recommended that the Constitution be amended to allow the President a free hand to appoint ministers from within or without Parliament. A person appointed a Minister from Parliament may retain his seat in Parliament”.

Implications of the current architecture

From the above one can see that under the current dispensation, the appointment of majority of Ministers of State from Parliament may mean that a large number of the 137 Members of Parliament are likely to be out of the House of Parliament attending to their executive functions. This, by necessary implication, means that whenever there is a government business which requires voting by majority, all members of the ruling government must be assembled into the chamber and whipped into line to vote in a certain way to ensure that the government agenda is pursued. As it is said in parliamentary language, “the majority must have their way and the minority have their say.”

The current arrangement also calls for greater consensus building and collaboration in the legislative arm of government. In the 8th Parliament of the 4th Republic, the ruling government has no option but to be more consultative in its approach in doing things. The ruling party does not have the luxury of a huge majority to call the bluff of the other side of the political divide. In fact, by the Constitutional arrangement, it is more likely that on a regular day in Parliament, the number of NDC MPs in the house will be more than those of the NPP since majority of the NPP MPs will hold ministerial positions which may necessarily take them out of the House more often than not. This is more so when regard is had to Article 104 which provides that “Except as otherwise provided in this Constitution, matters in Parliament shall be determined by votes of the majority of members present and voting, with at least half of the members of Parliament present”.

The government must listen and be ready to take the views of the NDC MPs regarding certain transactions or agreements that come before the House. In recent times, we have had the ‘Agyapa’ transaction which was fraught with many controversies and misunderstandings. The opposition NDC in the 7th Parliament of the 4th Republic had a lot of concerns, which they raised but were ignored by the ruling NPP in Parliament. Obviously because the NPP had the numbers, they managed to vote and approve the transaction albeit with the opposition’s reservations. It took the work of the Special Prosecutor to reveal some of the concerns and legal breaches in the transaction. The work by the Special Prosecutor compelled the Government to ask Parliament to take a second look at the transaction. It is the respectful view of the author, that if the 7thParliament had the slim majority we have in the 8th Parliament, we may not have had this situation on our hands.

The government will be compelled to ensure that whatever transaction it pushes to the legislature will be convincing and seen by all as being in the best interest of the country. The author is of the view that, the status quo actually will inure to the benefit of the people of Ghana, since no single party can take undue advantage of its number of seats in Parliament.

Another implication is that the President must consider reducing the size of his government. Under the first term, the President had over 120 Ministers of State. Majority of which Ministers would be more than 60 if the provisions in article 78(1) of the Constitution is to be complied. With 137 seats in Parliament and the need to conduct government business, the President would have no option but to consider forming a lean government in his second term in order to have members of Parliament present in the House to conduct government business therein. It is at least refreshing that the President has actually indicated an intention to cut down on the number of his ministers of State.

Further, this situation limits the President with regard to who he appoints as Ministers. By Article 78(1), the President is mandated to appoint more than half from the house of Parliament. This implies that, assuming without saying that the quality, competence of the members of Parliament is low, then obviously, a majority of the Ministers of State must be low. The author is by no means saying that the quality of members of Parliament is low, but it is a possibility, it can be and when it is, that will be the result and the nation will be the poorer for it. The author is further fortified in this view having regard to the basic qualification of members of Parliament. It is provided in 1992 Constitution that “Subject to the provisions of this article, a person shall not be qualified to be a member of parliament unless (a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter; (b) he is resident in the constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of the ten years immediately preceding the election for which he stands, or he hails from there; (c) he has paid all his taxes or made arrangements satisfactory to the appropriate authority for the payment of his taxes”[32]. This is the constitutional bar every member of Parliament must meet, and from such persons, majority of ministers of state must be appointed.

Last but by no means the least, the current situation can affect government executive functions if ministers who are also members of Parliament must keep an eye or be in Parliament to pursue the government’s agenda. This issue featured in the remarks of the Speaker of Parliament when he admonished the members of Parliament who may also be appointed as ministers of State, not to sacrifice their Parliamentary role in favour of their executive functions. A man cannot serve two masters he admonished, and if care is not taken, one of the functions may suffer and it is most likely Parliament will be sacrificed.

 

The Way Forward

Regulate Parliamentary times.

To ensure that the legislative business does not suffer, the author suggests the time Parliament sits should be reconsidered to ensure that all members of the house are present for the day’s business. The current practice where the House sits from 10:00am in the forenoon and closes at 2:00pm[33] may not be helpful since during that time, some if not most members of Parliament who are also Ministers of State may be absent from the house attending to their executive functions. For instance, the House can consider commencing its proceedings around 3:00pm to ensure that the house has most members of parliament present to do the legislative business, since the House is a master of its own rules.

Parliament to reconsider its sitting days.

Seeing as the current constitution mandates that majority of Ministers of State must be appointed from among members of Parliament, the obvious situation is that most of the members of the ruling government with ministerial portfolios may be out of the House more often than not. The Standing Orders of Parliament provides “The House shall sit on Tuesdays, Wednesdays, Thursdays and Fridays. Sittings shall, subject to the direction of Mr. Speaker, ordinarily commence at ten o’clock in the forenoon and shall ordinarily conclude at two o’clock in the afternoon”.  It would therefore be ideal for Parliament to re-consider its sitting days to allow such members of Parliament attend upon the business of the House in a manner that will not prejudice their executive functions and duties. The Standing Orders provides that “Notwithstanding paragraph (2) of this Order, Mr. Speaker may having regard to the state of business of the House direct that Sittings be held outside the prescribed period[34]. The rules permit the Speaker to direct that sittings of the House be held outside the prescribed period.

Members of Parliament to aim at building consensus

The time when one political party had majority of seats is long past. For the government to get it programmes, policies and agreements requiring parliamentary approval[35] approved, the ruling party must seek to engage the minority side with the view to building consensus. Under this 8th Parliament, if a matter requires the votes of a simple majority. There is no point for the ruling party to show arrogance and expect its programmes and policies to receive approval. It is a fact that the learned Speaker of Parliament has indicated that his Parliament will not be an obstructionist, neither would it be rubber-stamp. Collaboration and consensus building between the NPP and NDC is therefore a sine qua non for the success of the 8th Parliament of the 4th Republic.

 

Conclusion

From the foregoing, the author is of the view that, looking at the sophisticated nature of the Ghanaian voter and the voting trend for the parliamentary elections 2020, the time has come for us to re-think the constitutional requirement that makes it mandatory for majority of Ministers of state to be appointed from Members of Parliament. If the elections 2020 Parliamentary Election is anything to go by, then there is the need for the country to re-consider whether Article 78(1) should remain as it is or we go back to the position we had under the 1979 Constitution. It is the considered view of the author, that if Ghana cannot revert to the architecture we had under the 1979 Constitution, then at least the President must be given the freedom to appoint his ministers from outside Parliament and not necessarily limited to appointing majority from Parliament.

[1] https://soundcloud.com/citi97-3/nana-akufo-addos-victory-speech-after-election-2020

[2] https://www.parliament.uk/about/how/elections-and-voting/general/hung-parliament/

[3] Thanks to Andrew Asiamah Esq the Independent MP for Fomena who had declared that he will be on the side of the NPP

[4] Order 7, Standing Orders of the Parliament of Ghana

[5] ibid

[6] Article 95(1) and Order 8 of the Standing Orders of Parliament

[7] Article 96(1) (a) of the 1992 Constitution of the Republic of Ghana

[8] Article 96(1)(b) of the 1992 Constitution of the Republic of Ghana

[9] Article 78(1) of the 1992 Constitution of the Republic of Ghana

[10] 1956, 1960, 1969, 1979 and 1992 Constitutions

[11] A former Justice of the Supreme Court

[12]  [2003-2004] 2 SCGLR 823

[13] 343 US 597

[14] Article 58(1)

[15] Article 93(1)

[16] Article 125

[17] Article 95(1) of the 1992 Constitution of Ghana “There shall be a Speaker of Parliament who shall be elected by the members of Parliament from among persons who are members of Parliament or who are qualified to be elected as members of Parliament”. See also article 104

[18] The practice pursuant to the law has been that nominations for the Speaker are taken either by consensus or as happened on 2004, then it is out to a vote so eventually the side with the majority of seats wins the ballot assuming there are two nominations from both sides.

[19] Article 102 of the 1992 Constitution “A quorum of Parliament, apart from the person presiding, shall be one-third of all the members of Parliament”

[20] Article 65(1) of the 1979 Constitution of Ghana

[21] Article 65(2) of the 1979 Constitution of Ghana

[22] Nana Essilfie Conduah, Ghana: The Third Republic, Elmina Nesfico publication, 1991. Pp. 43-44

[23] The PNP actually won 71 out of the 140 seats in Parliament

[24] Richard Asante, Emmanuel Debrah, The Legislature and the Executive in Ghana’s Fourth Republic: A Marriage of Convenience

[25] Report of the Committee of Experts (Constitution) on Proposals for a draft Constitution of Ghana, 1991, p.1

[26] Report of the Constitutional Review Commission dated the 20th December, 2011

[27] Ibid at para 230

[28] Paragraph 231

[29] Paragraph 232

[30] Paragraph 233

[31] ibid

[32] Article 94(1)

[33] Order 40 (2) of the Standing Orders of Parliament of Ghana

[34] Order 40(3) of the standing Orders of Parliament of Ghana

[35] Article 181(5) of the 1992 Constitution

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    STEVE DOTSE 5 months

    GREAT PIECE WITH INVALUABLE INSIGHTS. THANK YOU

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