By: Otchere Darko

THE ON-GOING CONSTITUTIONAL REVIEW.... (PART 3):

INTRODUCTION TO THIS THIRD AND FINAL ARTICLE: *I am writing this third piece aware of a comment to my second article by one “Wofa Yaw”, part of which comment was: “HEI!! OTCHERE DARKO, WHO HAS THE TIME TO READ ALL OF THIS?” A basic principle of cookery is: “Do not cook food that nobody wants to eat”. Taking a leaf from this principle, I will conclude my series prematurely today and will instead be submitting to the Constitutional Review Commission any further views that I hold on the on-going review, rather than submit them as articles for public discussion and education at Ghanaweb.

*Today’s write-up is intended to deal with the Retiring Benefits or Awards of the President and the gratuities that become payable to MPs, Ministers, etc, every four years that Parliamentarians go to the country to seek re-election. These entitlements are part of the emoluments of certain specified top Public-Office Holders as set out under Article 71 of the Constitution.

Article 71(1) states that the salaries and allowances of the Speaker and Members of Parliament shall be DETERMINED BY THE PRESIDENT based on the recommendations of a Committee he shall set up for such recommendation. Then Article 71(2), in its turn, states two things. Firstly, it states that the salaries and allowances payable to the President, the Vice President, Ministers, Deputy Ministers, as well as the Chairman and other members of the Council of State shall be DETERMINED BY PARLIAMENT based on the recommendations of a committee set up to make such recommendations. Secondly, it says THE PRESIDENT SHALL APPOINT THE COMMITTEE that shall make the recommendation on the basis of which Parliament shall make such determination.

It is clear that the drafters of the Constitution tried to remove conflicts of interests from the determinations of the emoluments of both the Executive and the Legislature. However, the drafters did not try well enough. The Executive is prevented from determining its own emoluments by transferring the determination to Parliament. But then, the President who is the Head of the Executive is empowered to appoint the Committee that makes the recommendations upon which Parliament makes its determination. What has this arrangement achieved in terms of removing the conflict of interest from the Executive when it is the President who still appoints the Committee that makes the recommendations for the emoluments of the Executive? Then, there is this weird “cross-arrangement” that allows Parliament to determine the emoluments of the Executive while the Executive, in turn, determines the emoluments of Parliament. This “cross-arrangement” puts into legalised practice the proverb that says: “Scratch my back for me and I will scratch yours for you” or what my village vehicle driver has written at the back of his commercial vehicle which is: “You see me, I see you”.

By Article 71(3), the Constitution makes the retiring benefits or awards of both the Executive and Parliament part of the emoluments that are covered by clauses 1 and 2. While this is the position, Article 71(3) fails to define the circumstances under which those entitlements become claimable.....that is, under what circumstances do various members of the Executive become “retired”? It fails to declare whether Executives become “retired” after they have reached the retiring age or whether after serving a certain specified number of service-years. Under Parliament, though, Article 114 of the Constitution, as amended by Act 527, spells out the circumstances under which a Parliamentarian can claim gratuity under Article 71 of the Constitution. It must be made clear here that the President, the Vice President, Ministers and other several political office holders specified under Article 71 are not Parliamentarians by definition or by function and, therefore, cannot be said to be covered by Article 114 of the Constitution, as amended [or as un-amended]. It is clear, therefore, that the Constitution fails to define the circumstances under which members of the Executive become duly eligible for “retiring benefits or awards” as set out under Article 71.

As a result of this failure of the Constitution, it is difficult to determine whether all the “ESB” entitlements and awards that have been paid since the inception of the 1992 Constitution to the President, the Vice President, Ministers and other political Appointees listed under Article 71 do properly come under “retiring benefits or awards” when the Constitution fails to define what constitutes “retirement” in terms of the various members of the Executive.

From the foregoing analysis therefore, it is evident that the weakness of Article 71 makes it possible for the President and Parliament to act in matters of their own interests and, also, for the two to work “hand-for-hand” to the disadvantage of the nation. And it goes without stressing that the two have “collaborated”, [preferring this word to “colluded”], since 1992 to “rip” this nation with the help of Committees set up under powers given to the President by article 71.

IN VIEW OF THE WEAKNESS OF ARTICLE 71 OF THE CONSTITUTION, IT IS SUGGESTED THAT THE CONSTITUTIONAL REVIEW COMMISSION SHOULD RECOMMEND THE REMOVAL FROM BOTH THE PRESIDENT AND PARLIAMENT THE POWER OF EACH TO DETERMINE EACH OTHER’S EMOLUMENTS, INCLUDING THEIR “RETIRING BENEFITS AND AWARDS”.

It is suggested that a constitutionally prescribed body should be set up to determine the emoluments of all “Top Public Service Office Holders” including the salaries, allowances and retiring benefits or awards of the President, the Vice President, Ministers, Deputy Ministers, the Speaker, Parliamentarians and all other elected and non-elected political office holders. It is also suggested that members of the said body should not be appointed by the President or by Parliament; but should, rather, be appointed by the Public Services Commission through applications based on modalities and requirements set out by the Constitution. People who should meet those requirements before they can apply to the Public Services Commission for consideration to serve on the body should meet constitutionally specified qualifications that should include the requirements of being, or having been: (1) Supreme Court Judges with a specified minimum number of years of service, (2) Professional Accountants with a specified minimum number of years of post-qualification experience, (3) Economists with a Masters degree plus a specified minimum number of years of post-qualification working experience, (4) Professional Bankers with a minimum of a Masters degree plus a specified minimum number of years of post-qualification working experience, and others with similar top qualifications and work experiences.

Secondly, the Constitutional Review Commission, in addition to recommending the setting up of the above body, should spell out the basis for the determination of the emoluments of all such “Top Public Office Holders” from the President downwards, so as to restrain any future determining persons, including members of the recommended body, from giving EXCESSIVE salaries, allowances and benefits of any type to any public office holders, including those classified in the Constitution as “Top Public Office Holders”. Thirdly, apart from a President who has finished serving the two full terms of office, no political-office holders who can still contest elections, [if they wished to do so], should be allowed to draw “end-of-service” benefits or awards. What happens in other countries should not be relevant here in Ghana. All such “Top Public Office Holders”, except a President who has duly completed his/her two terms of office, should NOT qualify for “retiring benefits or awards”, UNLESS in accordance with the circumstances and manner prescribed for all other Ghanaian public office holders by the general laws and regulations relating to pensions and retirements in the public services in Ghana at any given time. This should mean that the current situation that allows Members of Parliament, or the President who has not completed his or her two full terms, or the Vice President, or Ministers and other political office holders who can still contest or hold their political offices to become eligible for gratuity every four years of parliamentary term should be cancelled. Fourthly, the retiring benefits of a President who has duly completed his two full terms of service and who accordingly cannot serve anymore as President of Ghana should be determined by a consideration of so many constitutionally spelt out factors including the economic status of Ghana and also including a laid-down socio-economic gap defined by the Constitution to be “acceptable” between the highest and the lowest-paid income earners in the country. When so many people are poor and suffering, it is NOT RIGHT to give excessive benefits to one person, whether that person is a former President or a current President.

ACCORDINGLY, IT SHOULD BE MADE IMPOSSIBLE FOR A RETIRING PRESIDENT OF GHANA TO BE GIVEN MORE THAN ONE STATE HOUSE, [IN ADDITION TO HIS OWN HOUSE OR HOUSES]. IT SHOULD SECONDLY NOT BE POSSIBLE FOR A RETIRING PRESIDENT TO BE GIVEN MORE THAN TWO STATE CARS, [IN ADDITION TO HIS OWN CAR OR CARS]. IT SHOULD, THIRDLY, NOT BE POSSIBLE FOR A RETIRING PRESIDENT TO BE PAID ADDITIONAL CASH BENEFITS, IF THE SAID RETIRING PRESIDENT CHOOSES TO RETIRE ON HIS SALARY. *IF WE DO NOT STOP THESE EXCESSIVE BENEFITS, WE WILL BE CREATING IN GHANA THE SORT OF ANGER THAT GIVES BIRTH TO SOCIAL UNREST IN A COUNTRY.

Before ending this write-up, I am using this article and this medium to appeal to the two former Presidents, His Excellencies, former Presidents JJ Rawlings and KA Kufuor to VOLUNTARILY give up parts of their continuing entitlements to make it possible for the Constitutional Review Commission to consider it as fair to reduce the “retiring benefits or awards” of the current and future Presidents since the two “awarded” retiring benefits of the two former Presidents seem to “morally restrain” the Commission in its “curtailment” recommendations regarding retirement benefits of the President....[which cannot legally be made to have retrospective effect]. Both former Presidents should be able to give up any extra numbers of state houses other the ones they are using. They should, also, be able to return to the State any state cars that have been given to them [or are due to be given to them] that are in excess of two official cars. *THE TWO FORMER PRESIDENTS SHOULD DO THIS RIGHT AND HUMANE THING, MINDFUL OF THE SUFFERING OF MILLIONS OF FELLOW GHANAIANS WHO STRUGGLE EVERYDAY, INCLUDING THOSE WHO SQUAT OVERNIGHT INFRONT OF SHOPS BECAUSE THEY HAVE NO HOMES TO GO TO AND THOSE WHO WALK EVERY EVENING AFTER WORK FROM THE CENTRAL TO THE SUBURBS OF ACCRA BECAUSE THEY CANNOT GET THE DEATH-TRAP “TRO-TRO” TO TAKE THEM TO THEIR HOMES.

Source: Otchere Darko (Written on 6th March 2010).