By Otchere Darko

INTRODUCTION TO THESE SERIALISED ARTICLES:

I must restate, at the beginning of this second part of these series I am writing, that I am not writing them as a person with expert knowledge about our Constitution or about constitutional law.

*I am only writing them because, firstly, I want to expose some selected parts of the constitution to readers of this forum and, by so doing, to spark READERS’ DEBATE on the issues I have chosen and will be raising in these articles. Secondly, I want to create a platform for PUBLIC EDUCATION on the Constitution that is under review by luring Ghanaians with expert knowledge of our Constitution and constitutional law to enter into the discussion and share their knowledge with the readers of this forum to help many of us to become “better educated” on our own Constitution. I must emphasise, as I often do, that I am not a member or supporter of any of the existing political parties. My intentions are purely on grounds of service to my country.
*Today’s article is intended to call the attention of readers to the part of the Constitution that deals with Local Government which is the part of our governance that is closest to the doorsteps of Ghanaians and which, therefore, should involve us more because of the fact that it deals with the most fundamental services of State that affect our personal wellbeing most of the time. This is the part that is set out under Chapter Twenty of our Constitution.

THE CONSTITUTIONAL REVIEW VIS- A -VIS CHAPTER TWENTY:

Since His Excellency President Mills set up the Constitutional Review Commission, views expressed by many readers of this forum suggest that many of us would want the Commission to review our current system of Local Government to facilitate greater transfer of powers and other tools of governance from the Government to local people to enable them to manage their own affairs and improve local control over local development; as well as to encourage competitive spirit among local communities in community development; and also to ensure fairer distribution of developments nationwide. The transfer would also lessen the control of Local Government by the President and Central Government, especially with respect to choosing the people who should become the local Chief Executive Officers who, in fact, are the ones who exercise the principal executive powers of State at the local levels of public administration and governance. These calls, in a nutshell, are demanding greater devolution from Central Government to local people and, thereby, giving a more concrete expression to the concept of decentralisation that the whole of Chapter Twenty of the Constitution seeks to promote; and which through the Preamble, we, the people of Ghana, have declared and affirmed our commitment, among other things, to the core democratic principle that ALL POWERS OF GOVERNMENT ARE DERIVED FROM THE SOVERIEGN WILL OF THE PEOPLE. This core principle, in effect, means that power must come from the bottom where the people are to the top where the Government is, and NOT the vice versa. This in practice means, among other things, that it is the people who should have the initial power to choose those who should run their Government for them, irrespective of the level. Accordingly, and for the same reason why Ghanaians choose the leaders who run the affairs of Central Government on their behalf, local people expect to choose those they want to run on their behalf the affairs of the lower structure of State administration which, as has been said above, is the level that is closest and matters most to the people.

Any system of governance that takes from the people their fundamental right and power to choose those who should run their affairs for them at both levels of government....central and local....cannot describe itself as “democratic” or “decentralised”. Most important of all, if the Local Government level of administration which is supposed to be nearest to the people denies them their right and power to choose both sets of people who exercise the executive and legislative functions of State, then the people have been denied the earliest and most basic form of democracy that long preceded our modern democratic Central Government system.

It is clear from above that the much acclaimed belief in Ghana that we have decentralised power from Central Government level to local people at Local Government level is a complete sham. Creating Local Assemblies that are made up of partly elected and partly unelected people who are appointed by the President in consultation theoretically with [non-elected] traditional authorities and other [non-elected] interest groups in the district is NOT decentralisation, especially, where the proportions of unelected members of these Assemblies are close to one-third of the total memberships.

Apart from this weakness in the composition of the Assemblies, Article 243(1) of the Constitution further removes power from local people and gives it to Central Government by empowering the President to appoint the Chief Executive Officer for every district or other units of Local Government and, once more, creating a mere “illusion of democracy” by saying that the President’s appointees must be approved by a two-thirds majority of the Assemblies [which are themselves thirty percent appointed by the President and are, therefore, “programmed” to merely “rubber-stamp” the Presidential Appointees].

*We need to convert our system of Local Government to the modern democratic system whereby the people in the local communities concerned choose through local elections all the men and women who are members of the various local councils or local assemblies, and also elect the Chief Executive Officers for all district, municipal and city administrations.

Apart from the above two defects that mar our Local Government system and reduce its democratic credentials, that is, the “non-elected members of local assemblies” and “the denial of the right and power of local people to choose their Chief Executive Officers”, the method used for the election of the 70% elected Assemblymen and Assemblywomen, which method is supposed to be non-partisan [in theory], but which is operated in a partisan way [in practice], though without being governed by the rules that govern partisan elections in Ghana, is meaningless. As usual, the method prescribed displays the same “semblance of quality that has no quality”, as it is with the structure of the system of Local Government that we have in place and which has already been discussed above. This prescribed method is as senseless as it is crude. Why can we elect the “people’s representatives” for Central Government through the partisan model of elections but cannot elect the “people’s representatives” for Local Government through the same party system of elections? The logic behind the non-partisan system of electing Assemblymen and Assemblywomen, [if there is any such logic in the first place], is very “shallow” and makes the method impossible to practise in modern democracy, except to operate it with an “undercover help” from the same parties that it seeks to eliminate.

*We need to do what is done in all modern democratic Local Government elections. That is, we must conduct our local elections along the same party lines as it is done in elections here at Central Government level. By using the same party system of election, the rules governing the party-system of elections can be applied to our local elections which have since 1992 been promoted covertly by the party machineries, though they have never been governed by the partisan election rules that should have been applicable.

Before concluding my discussion, it is necessary for us to ascertain the legal position with respect to the amendment of Chapter Twenty, as directed by the 1992 Constitution as it stands today. Chapter Twenty-Five of the Constitution which deals with amendments says through Article 290(1) (o) that Articles 240 and 252 of the Constitution are the only two parts of Chapter Twenty that fall under the “Entrenched Provisions”. That means that all other provisions under Chapter Twenty fall under the “Non-Entrenched Provisions”. Articles 240 and 252 that fall under the “Entrenched Provisions” of our Constitution can only be amended after certain tough requirements, including referenda, have been met.

Article 240(1) declares that our system of Local Government shall, as far as practicable, be decentralised. The vagueness of Article 240(1), however, weakens it, in my opinion, by leaving too much room to Parliament with respect to interpretation and discretion because of the use of the expression: “as far as practicable”. Article 240(2) vests power in Parliament, among other things, to make laws to ensure a mannerly and coordinated transfer of powers, responsibilities, functions and resources from Central Government to Local Government units. It does not appear to me that there is any problem with Article 240(2), except that its lack of specificity and obligation has allowed our selfish Parliamentarians to leave powers, responsibilities, functions and resources as they have been since 1992, because it is in the interest of the party in power to concentrate those tools for governing at Central Government level. Article 252 deals with District Assemblies Common Fund and Grants-In-Aid. Parliament has in this article been vested with power to make and pay annual allocations into this District Assemblies Common Fund with guidelines for determining the sizes of the allocations to be paid into it, in terms of their lower legal limit which has been pegged at 5% of the total annual revenues of Ghana and their upper legal limit which has been left open. The setting of a lower limit and the leaving open of the upper limit are both good provisions for democracy and need no amendment, in my opinion. Article 252, in my mind, is perfectly okay and should be left intact.

*It appears to me, therefore, that the Constitution has vested enough power in the hands of Parliamentarians to devolve as much powers, responsibilities, functions and resources without the need for any amendments to Article 240 of the Constitution as it stands today, IF PARLIAMENT WANTED TO BRING ABOUT GREATER DEVOLUTION AT ANY TIME. But, because of the fact that the two main parties realise that it is in their parties’ interest to concentrate powers, responsibilities, functions and resources in the hands of Central Government, they have showed no inclination whenever they assumed the reins of Government to use the enormous power vested in Parliament by section 240 of the Constitution to devolve these vital tools of governance to the advantage of local people and the disadvantage of Central Government, despite what they say when they are in opposition. The Constitutional Review Commission should, therefore, use the on-going review to recommend an AMENDMENT OF THE ENTRENCHED ARTICLE 240 with a view to constitutionally devolving further the machinery of State governance from Central Government to Local Government level by EXPRESSLY transferring more and specific powers, responsibilities, functions and resources further down, than we have now, from Central Government level to Local Government level in concretised form and in an explicit language without leaving things to Parliamentarians and any room for them to exploit and play party-politics with Local Government.

*Regarding the recommendation for the amendment of the Constitution to enable the REMOVAL OF THE POWER VESTED IN THE PRESIDENT TO APPOINT: (i) unelected members of the local Assemblies as set out in Article 242, and (ii) Chief Executive Officers for all Local Government units as set out in Article 243 , it is interesting to note that both Articles 242 and 243 fall under the “Non-Entrenched Provisions” which means that the amendment to both articles can be done ordinarily if and when the Constitutional Review Commission recommends that ALL LOCAL ASSEMBLYMEN AND ASSEMBLYWOMEN and ALL MMDCE’s should be elected as part all Local Government elections in Ghana.

In conclusion, anybody who says that the system of Local Government that we have in Ghana is “democratic” and “decentralised” is knowingly throwing polluting dust in the eyes of Ghanaians with these illusions of half-baked structures of partly elected and partly unelected “people’s representatives” and their unelected Chief Executive Officers who are imposed from the top; who are then accepted by the “people’s representatives” by two-thirds “bending of their heads”; and who also can be sacked at the whims of the President and without consideration of even a two-thirds approval rating for such officers by the “people’s representatives” who have no direct power of their own to sack such appointed CEOs, except where they have obtained a two-third majority-support in votes of local Assemblies that have 30% of their members appointed by the President. This whimsical “give-it-and-take- it-back” decentralisation that we currently have in Ghana can only become a “proper decentralisation” if the Constitutional Review Commission makes a recommendation for the amendment of Articles 240, 242, 243, and any other related parts of Chapter Twenty of the current Constitution under review and through such recommendations, the Commission: (1) effects a constitutional transfer of more functions, powers, responsibilities and resources from Central Government to local people; (2) institutes the abolition of non-elected memberships of all Local Assemblies; (3) and lastly, provides for the election of all Chief Executive Officers for all the existing units of Local Government, including all the Mayors of our cities. It is only when we do this that local people can plan and execute local development freely, positively, and in accordance with local aspirations, without Central Government playing “Napoleon” over local people.

SOURCE: OTCHERE DARKO (WRITTEN ON 27TH FEBRUARY 2010.)
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*RESPONDING TO COMMENTS TO PART 1 OF THE SERIES:

Last week I drew attention of readers to a section in the 1992 Constitution that appears to be playing riddles with Ghanaians with respect to interpretation of Article 290(1) (s) that puts the entire Article 299 [which embodies the Transitional Provisions] under the “Entrenched Provisions” of the Constitution which are all described as amendable, provided certain stringent procedures including referenda are followed. Since this is the position specified in Chapter 25 by virtue of Article 290(1) (s).....* WHY WAS THERE ANY NEED FOR THE INSERTION OF SECTION 37 OF ARTICLE 299, unless it was meant to say something more than what Article 290(1) (s) has already said? *And then, as if to continue to create more ambiguity, Section 37 has been given the specific TALE-TELLING TITLE of: “SECTIONS NOT TO BE AMENDED”. *Then the ambiguity continues further with the STRANGE WORDING of Section 37, which says: “NOTWITHSTANDING ANYTHING IN CHAPTER 25 OF THIS CONSITUTION, Parliament shall have no power to amend this section or sections 34 and 35 of this Schedule”.....which is not a clear way of telling us that Parliament alone cannot amend the two “Entrenched Provisions”, if this is the message Section 37 wants to convey. And even if this the message, does Article 290(1) (s) fail to convey this message? Think about these.
Couldn’t the framers of the Constitution have removed ambiguity and clear off doubt by using a better and more purposeful wording of Section 37 such as: “Subject to the provisions of Chapter 25 of this Constitution, Parliament shall have no power to amend this section or sections 34 and 35 of this Schedule”, [if they merely sought to reaffirm Article 290(1) (s)]? And couldn’t they have changed the title of Section 37 to read: “Sections Not to Be Amended Ordinarily”, [if they merely sought to reaffirm Article 290(1) (s)]?
*I AM FULLY AWARE that, irrespective of whatever the framers of the 1992 Constitution intended Section 37 of Article 299 to mean, IT IS ONLY THE SUPREME COURT OF GHANA THAT CAN GIVE ITS PROPER INTERPRETATION, should the Constitutional Review Commission decide to recommend the removal of the Indemnity Clause from the Constitution; and should that recommendation then lead to a challenge on grounds that the removal would be inconsistent with Section 37 of Article 299.

SOURCE: OTCHERE DARKO (REF: MY POST OF 22ND FEBRUARY 2010)