Many have broadly embraced the view that the 1992 Constitution of Ghana has served as a compass for democratic governance and steered the country through turbulent political waters into an era of relative stability. Yet, as with any human construct, those who also share a contrary view argue that it is not immune to flaws. Indeed, the challenges of over-centralised executive authority, the rigidity of entrenched provisions, and the ever-evolving socio-political landscape are matters of sweat and stress to many.

The Institute for Growth and Sustainability Outlook (IGASO) notes that during a public lecture at the Institute for Democratic Governance (IDEG) on 27th January 2023, Prof. Raymond Atuguba, executive secretary to erstwhile 2010 Constitutional Review Commission (CRC), characterized these contrasts as a structural flaw, and argued somewhat summarily that “the excessive centralization of executive powers has hampered true democratic governance.” This imbalance, he suggested, has prevented the country from realizing the full potential of its governance structures. As these critiques accumulate, one pressing question emerges: How does Ghana adapt its Constitution to meet the aspirations of an evolving society without eroding the principles that have safeguarded its democracy?

No doubt the establishment of the CRC in January 2010, under the Constitution Review Commission of Inquiry Instrument, 2010, C.I. 64, was a significant step towards addressing these concerns. As we have observed, the CRC was tasked with ascertaining the views of Ghanaians on the operation of the 1992 Constitution and recommending necessary amendments. It was therefore satisfying that after extensive nationwide consultations, the CRC presented its report to the President in 2011.

Despite these efforts, the implementation of the CRC’s recommendations has faced significant delays. In 2019, the Coalition of Civil Society Organizations (CSOs) demanded clarity from the government on the status of these recommendations and highlighted public concern over the stagnation of constitutional reforms.

We have observed the landscape thus far and wonder if constitutional advocacy should once more pivot from reliance on executive-led independent committees, or is it time to shift the focus entirely to Parliament? And if the agreement is widely shared with us that parliamentary action is pivotal, how can Ghana overcome the bottlenecks created by entrenched clauses like those under Article 290? Indeed, the safeguards from relevant clauses in Article 290 have largely contributed to protecting democratic stability yet without prejudice, created significant barriers to the matured clouds of reform as the country awaits the rainy moment.

On page 752 of the 2010 CRC report, it was observed that “the Commission finds that the various submissions it has received on the review and amendment of the Constitution reflect the raging debate on whether, as the fundamental law of the country, the Constitution should be subject to frequent review. The submissions are also a reflection of the debate as to whether the process for review should be rigid or flexible. Unlike the 1969 Constitution, which had very cumbersome amendment procedures and even prohibited the amendment of certain provisions of that Constitution, the 1979 and 1992 Constitutions introduced a less rigid process differentiating between the matters which are considered as essential characters of the Constitution, and should, therefore, be entrenched, and those matters that are not, and are referred to as the non-entrenched provisions.” Since then, the question of whether the rigidity of these entrenched provisions has shifted from being a safeguard to an obstacle remains unresolved.

We acknowledge that President John Mahama’s establishment of the recent Constitutional Review Committee under the chairmanship of Professor H. Kwasi Prempeh has excited critical voices both in and outside Ghana on conversations about reform. However, the history of Ghana’s constitutional reform efforts reminds us that identifying problems is often easier than implementing solutions. The 2010 CRC is a case in point. Despite the extensive consultations and comprehensive recommendations from the 2010 CRC process, it is unfortunate that the mechanisms for implementation remain uncertain. Not even the clarity provided by the landmark case of Professor Stephen Kwaku Asare v. Attorney-General, where the Supreme Court ruled that any proposed amendment must return to Parliament for legislative endorsement under Article 290, has led to actual implementation. Professor Asare’s remark that “the executive’s ability to dominate reform processes risks undermining the Constitution’s principle of checks and balances” was sustained by the honorable court. The decision therefore affirms Parliament’s position as the ultimate authority in constitutional reform and this ought not be in doubt any longer.

The selective acceptance of recommendations and the subsequent limitations created by legal suits on the constitutionality of the Constitution Review Implementation Committee (CRIC) is a whole lesson the country must learn from. We share the critical view that the CRIC’s purposive formation and the selective approach to the CRC’s recommendations were unconstitutional, unwarranted, less useful, abuse of executive powers, and contempt of the guidance from the honorable court. But for that white paper, there would have not been any opposition to the CRIC.

So why is the President establishing another committee in anticipation of yet another report? Since there is no value in lamenting over lost moments when searching for a strategy, we ask if the focus on independent review committees by the executive, dilutes the urgency of implementation. Would a parliamentary-led process rather ensure greater accountability and legislative momentum?

No doubt. The lack of progress on constitutional reform during President Akufo-Addo’s first term from 2016 to 2020 requires reflection. During this period, the Rt. Hon. Speaker Professor Aaron Mike Oquaye had the opportunity to influence reform efforts. His extensive knowledge of constitutional matters and prior advocacy created high expectations for his leadership as Speaker. However, there was no substantive effort to introduce constitutional reform into the legislative agenda. His resumption of public advocacy for constitutional review after his tenure, particularly through the Ghana Institute for Economic Affairs (IEA Ghana) as Chair for Constitutional Studies, highlights the gap between the apparent lack of awareness on Parliament’s handiness to the subject matter.

The closest was in the President’s second term (2020-2024) where constitutional reform efforts appeared inconsistent. Civil society groups CSOs and academic experts called for action, yet these calls were dismissed publicly by both the President and the Attorney-General. Puzzlingly, the former Majority Leader, Hon. Osei Kyei-Mensah-Bonsu emerged as a vocal advocate for reform. His support, however, came toward the end of his 28-year tenure, coinciding with his efforts to invent a legacy for a rumored running mate ambition after a long parliamentary career.

We observed that Hon. Osei Kyei-Mensah-Bonsu played a pivotal role during his seven-year tenure under President Akufo-Addo’s administration, serving concurrently as Majority Leader, Leader of Government Business, Member of Parliament, and Minister for Parliamentary Affairs (Cabinet). These roles, in our considered view, positioned him at the intersection of legislative, executive, and party leadership. Despite his considerable influence, we noticed he was constrained by procedural rules that limited his ability to sponsor constitutional reform bills without the active involvement of the Attorney-General. His eventual efforts to initiate a consultative process for constitutional reform appeared insufficiently transparent. The process is alleged to have been consultative yet eventually produced PowerPoint slides and a media presentation on JoyNews file on the eve of his exit from office. We have also noticed the apparent silence of former President Akufo Addo,  whose “Ministry” purportedly undertook the said process in 2023, on the said report or process in his administration. Our search with the alleged CSOs that were consulted in this process,  and media scan reveals no evidence or availability of even the PowerPoint slides for public use, unlike the 2010 CRC process. These limitations raise concerns about the depth and effectiveness of the 2023 initiative.

The process of constitutional reform requires transparency and accountability. Questions remain about the funding sources and procedural integrity of the 2023 consultative process initiated outside Parliament by the former Majority leader, Hon, Osei Kyei-Mensah-Bonsu. We note that the unique composition of the eighth Parliament, which relied heavily on consensus and cooperation, could have been a platform for initiating constitutional reform. Introducing this agenda into the parliamentary framework would have provided a clear foundation for the ninth Parliament to continue efforts with a strong procedural and technical direction. Setting accountability aside, public interest alone requires that Ghana’s Auditor General demands answers about the sources of funding and due process in the 2023 consultative process initiated outside of parliament by the former Majority Leader, and Leader of Government business given the consistent dismissals by both the President and Attorney General on the subject matter. Clarity from the Speakers of both the 8th and 9th Parliaments on this subject would be appreciated.

Given Parliament’s ultimate authority (Prof Kweku Asare Vs Attorney General) for constitutional amendments, should Ghana not channel reform efforts directly through it? Rather than constituting another external committee, why not form a parliamentary committee on constitutional reform to be co-chaired by the Office of the Speaker, and the Office of the Attorney-General, to sponsor amendment bills? Of course, CSOs, Policy Institutes, and other interest groups can proceed to engage this concept of a create-for-purpose committee with relevant proposals. This approach would have streamlined the process, reduced redundancy, and ensured reforms aligned with the procedural requirements of the Constitution, and guidance from the supreme court (ditto).

Yet, as Ghanaians would have it, there is another committee with carefully worded Terms of Reference (TORs) and a creamy taste of independence and technocracy given its composition. This is not to cast any doubt whatsoever on the professionalism and capacity of the members of the committee but knowing their individual high considerations for ethics and professionalism, they would likely deliver to the extent of the TORs. And who knows their Principal, the President’s next move with their committee’s report? Another selective “white paper”, and a circle of lawsuits?

We suggest that if Parliament lacks capacity on the subject matter of implementing the recommendations of the 2010 CRC’s publicly available report, it should consider seeking expertise and support from Civil Society Organizations (CSOs), rather than another committee’s report to the Executive. We acknowledge Speaker Rt. Hon. Alban Bagbin’s versatility on matters of this kind and wish to support the process by highlighting a few developments.

One intriguing consideration requiring judicial review is whether Article 290 itself, not the clauses qualified as entrenched, is non-entrenched and could be amended under the procedure provided by Article 291. If such relief is obtainable, then “amending Article 290 itself could recalibrate the constitutional rigidity that limits progress on review or amendment or reforms without violating its “spirit.” Such an initial amendment could allow Parliament to address pressing governance issues through a more practical framework while retaining the democratic safeguards that entrenched provisions were intended to provide. For instance, administrative provisions or procedural clauses could be shifted to the non-entrenched category to enable reforms without referenda. Could this be the creative legal maneuver that unlocks the implementation challenges of the 2010 CRC recommendations? IGASO will soon hold a public lecture and expert consultations to dive into this critical gap in Ghana’s constitutional reform advocacy. The goal is to hear from experts and explore whether this move could undermine the true spirit of the Constitution. We share the view that these are the types of questions Ghana needs answers to.

Lessons from Kenya’s 2010 constitutional reform experience inspire us to make this proposal. Kenya happens to be another commonwealth country, and by convention within the commonwealth’s parliamentary practice, demonstrated how entrenched provisions can be restructured to enhance flexibility while maintaining their protective intent. Our Constitutional Advocacy and Democratic Reforms in Africa (CADRA) seeks to assist African countries in evolving through the next stages of their incipient democratic phases. CADRA offers to help Ghana draw valuable lessons from these experiences to navigate its own constitutional challenges through the versatility of a coordinating mechanism via capacity building and systems for governance and administrative reforms beyond constitutional review.

There is another compelling reason why constitutional reform should not be the purview of the President’s four-year mandate. Constitutional review, as evidenced in Kenya and South Africa’s10 experiences, is a deeply strategic exercise that demands time, institutional memory, and consistency. Ghana must admit that these requirements far exceed what a single administration can achieve. Unlike the Presidency, Parliaments are designed to endure transitions between political administrations, hence preference as the ideal institution to manage constitutional reforms. We suggest the President focuses on delivering on his immediate mandate, by setting pace to address issues that can only be handled by the executive and outsource those that could be easily handled on its behalf. To engage in constitutional review as an executive-led initiative at this time of the nation’s life, risks reducing this complex exercise to a hurried process that prioritizes timelines over substance. We are confident that working with relevant CSOs and stakeholders, Ghana’s Parliament can provide the consistent attention constitutional reform demands.

History offers lessons on the consequences of shifting executive preferences and attention. During the first Mahama administration, crises such as the Ebola outbreak and the energy crisis partly accounted for the inaction on constitutional reforms. Similarly, the Akufo-Addo administration’s silence on constitutional reform during its first term and opposition to CSO activism on the subject left many puzzled. Given the foregoing, we propose the following:

1. The Attorney-General, as the government’s chief legal advisor, holds a unique position to bridge the
   gap between policy recommendations and legislative action. Article 88 of  Ghana’s Constitution explicitly
   mandates the Attorney-General to oversee all government legal matters, including the drafting of
   bills.
2. The successful passage of the Right to Information Act in 2019 demonstrates the transformative
   potential of collaboration between the Attorney-General, Parliament, and civil society. Such an
   approach could be replicated for constitutional reforms, with the Attorney-General sponsoring
   amendment bills and Parliament providing the legislative platform for debate and consensus.
3. Ultimately, the 1992 Constitution remains a cornerstone of Ghana’s democracy, but its limitations
   demand bold and innovative solutions. Whether a new constitution or an amended constitution,
   Parliament, as the embodiment of the people’s will, must assume its rightful role as the engine of
   constitutional reform.
4. Revisiting Article 290 to streamline amendment procedures offers a pragmatic pathway to progress.

Sources

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