without swearing the presidential oath?

Daniel Korang, Ghana School of Law

Introduction

Wonders, it is said, shall never end. This saying has its most realistic existence in the constitutional practice of Ghana. Indeed, the constitutional practice of Ghana is fraught with acrobatics. On Wednesday 5, 2014, Ghana experienced one of its most significant constitutional somersaults when the present Speaker of Parliament refused to be sworn in as President when both the President and the Vice President were absent from Ghana.
In this article, I propose to analyse and rebut the reasons advanced by the speaker and his supporters for the refusal to take the Presidential Oath as mandatorily required under the Constitution.
When can the Speaker of Parliament become the President?
Under the 1992 Constitution, “Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.” (Vide Article 60(11))
This provision imposes, in mandatory terms, an obligation on the Speaker of Parliament to serve as “the President” when both the president and the Vice President are absent from Ghana.
Is it mandatory for the Speaker to take the Presidential Oath?
Article 60(12) of the Constitution states that,
“The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of the President.”
Thus, before the Speaker can legally assume the office of the President, he must be sworn into office as the President. The words of article 60(12) are clear and unambiguous. The legal effect of this clause is that, the Speaker cannot lawfully assume the office of the president unless he takes and subscribes the oath set out in relation to the office of the President.
The Speaker’s refusal to subscribe to the presidential oath regrettably overlooks the legal nature and significance of the oath itself. In Ghana, a person cannot act as President unless he takes and subscribes the oath of allegiance and the Presidential Oath (vide Article 57(3)). Thus, under the Constitution, a President elect cannot assume the office of the President unless he takes and subscribes the oath of allegiance and the Presidential Oath.
Swearing of oaths by office holders is an essential and permanent feature of our constitutional practice. Oaths confer legal status on the persons who swear them. Oaths of office, by their nature, have expiry dates. Oaths taken by office holders expire with the termination or end of their tenure.
In the history of our constitutional practice, Presidents who held office for two terms all swore the Presidential Oath before the commencement of the second term. The legal implication is that, the validity and authority of the oath expire with the tenure of office. It cannot, therefore, be correct to say that a President is not obliged to subscribe the Presidential Oath before he commences his second term of office merely because he swore the same oath before the commencement of his first term.
For purposes of our present discussion, the Presidential Oath serves as the source of authority for the Speaker to assume the office of the President. The oath empowers the Speaker to act in the capacity of the President. The Presidential Oath creates and confers “presidential status” on the Speaker.
The constitutional requirement that the Speaker must swear the Presidential Oath before he serves as President can be justified on the ground of the distinctiveness of the two offices. Thus, whereas the President is the head of the Executive Arm of government, the Speaker is the head of the Legislature, (vide Articles 58 and 95(1)). This arrangement is based on the hallowed doctrine of separation of powers which enjoys a pride of place in the 1992 Constitution.
The Speaker can only begin to perform the function(s) of the President after he has taken the Presidential Oath. Without the Presidential Oath, the Speaker remains the Speaker, and any attempt by him to assume the office of the President or perform any function related to it, is unconstitutional and unlawful. Legally, the oath transforms the Speaker’s status to that of a President. Consequently, the failure of the Speaker to take the Presidential Oath and his purported ascension to the presidency constitute a breach of the Constitution (vide Article 60(12)).
One of the arguments put forward for the Speaker’s refusal to take the Presidential Oath is that he took the Presidential Oath in September 2013 which made him president then, and therefore, there is no need for him to be sworn in again. This view, with respect to its proponents, is twisted and misplaced. It is a blurred view of the clear provisions of the Constitution and cannot stand scrutiny.
This view suggests, somewhat erroneously, that once the Speaker swears the Presidential Oath there is an automatic activation of it subsequently when the President and the Vice are absent from Ghana. In other words, the argument suggests that when the Speaker took the presidential oath on 19th September, 2013 and then became President, his oath was held in abeyance upon the return of the President and the Vice President which was waiting to resurrect in any subsequent absence of the President and the Vice.
The questions to pose here are: what was the legal effect of the oath when both the President and the Vice returned to Ghana in 2013? Again, did the Speaker become a President in abeyance in 2013? Further, does the 2013 oath affect all subsequent Speakers of Parliament?
It must be appreciated that, the power of the Speaker to serve as the President on 19th September, 2013 extinguished immediately the President and the Vice President returned to Ghana from their journeys. Equally, the oath he swore also terminated and the authority under it extinguished.
It would be stretching credulity to bizarre limits to suggest that once the Speaker takes the Presidential Oath, he does not have to swear it on subsequent occasions when both the President and the Vice are absent from Ghana. This proposition defies the provisions of Article 60(12) of the Constitution.
It must be noted that the Constitution specifies the duration of the Presidential Oath to be taken by the Speaker. The effect of Article 60(11) is that the power of the Speaker to serve as President continues “until the President or the Vice President is able to perform those functions…”
The clear understanding of this provision must be that when the President and the Vice are able to perform their functions or upon their return to Ghana, the Presidential Oath sworn by the Speaker effectually expires and ceases to exist. It is wrong, therefore, to say the oath is held in abeyance.
Conclusion
From the foregoing analysis, it may be fair to say that the Speaker of Parliament cannot assume the status of the President and act as such unless he takes the Presidential Oath. The Constitution requires that ‘fresh oath’ should be taken whenever the need arises for the Speaker to act as the President. He cannot draw his authority from a ‘dead’ oath.
In conclusion, the refusal of the Right Honourable Speaker of Parliament to subscribe the Presidential Oath on Wednesday, 5th November, 2014 before purporting to assume the office of the President was wrong, unconstitutional and must be pooh-poohed as such. The act of the Speaker is likely to create a cancerous tumour in our constitutional practice and reverse the seeming development of the 1992 Constitution.
By:
Daniel Korang
Ghana School of Law
Accra
Mob: 0208759342/0248278729
Dkorang1986@yahoo.com