DEPARTMENT OF POLITICAL SCIENCE

UNIVERSITY OF GHANA

GOLDEN JUBILEE COLLOQUIUM, 1-2 MARCH 2007

THEME: GHANA AT FIFTY: GOVERNMENT, POLITICS

AND DEVELOPMENT

CONSTITUTION-MAKING AND CONSTITUTIONAL

RULE IN GHANA

Alexander K. D. Frempong

kaadupong2002@yahoo.co.uk

INTRODUCTION

A constitution enjoys a special place in the life of any nation; a fact which makes

constitution-making and constitutional practice a useful starting point of analyzing

the government, politics and development of any state. A constitution regulates not

only the exercise of political power, but also the relationship between political

entities and between the state and citizens. Being the supreme law, it helps to shape

the organization and development of society both for the present and future

generations, and sets objective standards upon which the people and the

international community can judge government performance. Further, a

constitution sets out the rights and duties of the citizens, and provides mechanisms

to enable them to protect their interests. Overall, a constitution can contribute to the

development of a politically active civil society as well as promoting good

governance, accountability and the rule of law (Hatchard 1998: 381).

Constitution-making, then, offers a unique practical opportunity for the democratic

participation of different political, economic and social interests in an important

national project. The way a constitution is crafted can secure essential political

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compromises between opposing political interests, eliminate mutual suspicions and

instill confidence in each other (Jonah 1991: 77). Simply put, constitution-making

entails consensus building; and if handled with care and tact, the process can result

in a constitution that every citizen can defend with pride. In practice however, there

has always been the tendency on the part of the powers that be to attempt by subtle

and sometimes overt means to exclude their political opponents from full and

effective participation in the constitution-making process, with all the attendant

acrimony.

Ghanaians (Gold Coasters) had the benefit of participating in constitution-making

for nearly a decade before the 1957 Constitution which granted independence.

However, in the discussion about constitutional development throughout the 1947-

1956 period, neither the public nor the political leaders had any genuine choice as

to structure and contents of the final document (Hatchard 1998: 381) Newly

independent Ghana, then, started life with the Westminster model constitution

bestowed on it by the British colonial power.

In 1960, Ghana witnessed another constitution-making exercise which introduced a

constitution designed largely to enhance executive power, remove checks and

balances, and undermine the enjoyment of fundamental rights and freedoms (Ibid:

381). Subsequently, Ghana’s constitutional history was seriously affected by the

many intrusions of the military into politics in the 1966-1992 period. In addition,

Ghana has also run a whole gamut of systems of government - parliamentary,

presidential and hybrid; single party as well as multiparty.

What accounted for the quick succession and varied nature of constitutions in

Ghana over the last fifty years? How inclusive have the various constitution-making

processes been? To what extent has the manner of constitution-making impacted on

the practice of constitutional rule in Ghana? To what extent have changes in

constitutional arrangements affected politics in Ghana? What has sustained the

current constitutional dispensation in spite of the initial hiccups?

This work examines these trajectories of constitution-making and constitutional

practice in Ghana over the half-century since independence. Against the background 2

of a historical sketch of the pre-independence era, we give an overview of Ghana’s

constitutional development with special emphasis on the nature and dynamics of

the various constitution-drafting processes; essential features of the various

constitutions, and how they fared in practice. We conclude distilling lessons for the

future.

CONSTITUTIONS AND CONSTITUTION-MAKING

Duchacek has argued that constitutions are not only frames of government but also

"power maps"; they reflect the realities of the distribution of political power in a

polity; as well, they reflect explicitly or implicitly, the moral principles underlying

polities or regimes. Therefore, a constitution which does not sufficiently reflect and

accommodate socio-economic power realities remains a dead letter (Duchacek

1973). In most of post independence Africa, however, constitutions have often

created or sanctioned elaborate bureaucratic, legislative, executive and judicial and

structures that assumed levels of mass literacy, communication, cultural

homogeneity and national identification that did not exist at the time, rendering the

constitutions themselves irrelevant and meaningless to the bulk of the citizenry and

undermining stability (Owusu 1979: 94).

As a result, constitutions in Africa have frequently been abolished and rewritten, or

suspended, as military alternated with civilian rule with virtually every new

leadership pushing for a new political process (Ibid: 93). Interestingly, while on the

surface there is an apparently frequent change of documents, there exists

substantial continuity in their contents. While each constitution is presented as new

with specifics to reflect each new regime, there is usually great continuity of basic

articles from one document to the next (Ostrom 1980; 1987).

Constitution-Making and Constituent Assemblies

Constitution-making, ultimately, involves choices; not only what is chosen but who

does the choosing, and how (Ostrom 1980; 1987). These choices however are made

under constraints; for the conditions that induce constitution-making are

characterized by crisis1 (Elster 1995: 365 370-71). Constitution-making therefore

entails some paradoxes. First, given the intrinsic importance of constitutions, 3

crafting them require maximally calm and undisturbed conditions and procedures

based on rational and impartial argument, yet the call for a new constitution usually

arises in turbulent circumstances which tend to foster passion rather than reason

(Ibid: 394). Second, being written for the indefinite future, constitution-makers

legislate for future generations who have no representatives in the assembly. It thus

becomes part of task of the drafters, who have their own interests, passions and

prejudices, to look beyond their own horizon and their own interests (Ibid).

In a similar vein, two conflicting schools of thought exist on the role of constituent

assemblies. The first, the ‘idealized’ or ‘statesman’ school postulates that

constitution-makers should act as impartial law givers above the normal political

struggles, abstractly considering issues of constitution-making with the aim of

creating an ‘ideal’ document attuned to the needs of the state for which it is being

devised (Swanson, Kelleher & English 1972: 184). According to this view, the

constituent assembly should be created on the basis of rational disinterested

choice.2 The process and overall operation of the assembly are to be viewed as quite

separate from the normal functioning of the state political system; to be apart from

normal legislative politics (Swanson, Kelleher & English 1972: 184-185; Carrol &

English 1985: 593).

On the contrary, the ‘legislative’ or ‘realistic’ model argues that constitution-making

is very much a creature of the times and is not likely to rise above the prevailing

political partisan levels nor escape the established patterns of political leadership.

Constitution-making, though not a frequent phenomenon, is still an integral part of

the political process. This school further argues that constitution-making bodies are

more accurately described as mere extensions of normal legislative politics;

delegates come to the assembly wedded to distinct sets of interests they wish to see

reflected in the new/revised constitution. Thus, rather than acting as disinterested

and independent servants of general interest, the constitution-maker functions as a

representative of a constituency, party or interest group that in one way or another

supported his election and from whom the political process dictates that he will

accept some cues (Ibid). Which of these conflicting role expectations more

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accurately describe the way in which constitution-makers have done their jobs in

Ghana over the last fifty years?

Constituent assemblies face further constraints; those imposed before an assembly

starts to deliberate and those towards the end. The former arise from the

institution/individual that takes the decision to convene the constituent assembly

and the institutional mechanism that selects delegates to the assembly. The latter

constraints are linked to the group that would ratify the constitution. For example, if

the framers know that the document they produce will have to be ratified by

another body, knowledge of the preferences of that body will act as constraints on

what they can produce/propose (Elster 1995: 373).

The making of a constitution is only part of the story. Formal procedural safeguards

are also essential in order to protect this document, which is expected to survive

generations, against retrogressive amendment (Hatchard 1998: 383). Devising an

appropriate, formal amendment, however, is not a simple matter. An over-rigid

procedure may deter efforts to strengthen constitutional provisions, while a

constitution with ‘weak’ amendment provisions carries with it the possibility of its

wholesale amendment and a resultant undermining of key provisions (Ibid: 384).

An interesting nexus to this work therefore is to examine ways in which various

constitution-makers in Ghana have grappled issues of constitutional amendment?

PRE-INDEPENDENCE CONSTITUTIONS

The Gold Coast (Ghana), in between the two World Wars had three constitutions,3

but it were the events following the 1948 Riots that got Gold Coasters involved in

the drafting of their constitutions, nearly a decade before Ghana’s independence.

The Watson Commission set up to report on the 1948 Riots described the existing

1946 Constitution as outmoded and made the ‘revolutionary’ recommendation for

an all-African constitutional committee to draft a new constitution for the Gold

Coast.

The resultant 40-member Coussey Constitutional Committee formed in 1949 was

all-African, but the colonial authorities deliberately excluded radical elements of

society.4 Given this first opportunity by Gold Coasters to draft their own

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constitution, the Committee recommended measures to increase the membership

and geographical representation on the Legislative Council as well as allocation of

African ministerial positions on the Executive Council; but it fell short of self

government. This however formed the basis of the 1950 Constitution which led to

the first general election in 1951.

Following its massive victory in the 1951 election, Kwame Nkrumah’s Convention

People’s Party (CPP) which partially assumed the reins of power was allowed to

draft the 1954 Constitution. That constitution provided for the election of all the

104 members of the Legislative Assembly and internal self government; in the hope

that full independence would be granted not long after the 1954 election. The

emergence of the National Liberation Movement (NLM) in September that year

delayed the march towards independence. More significantly, the NLM’s demand for

a federation had serious impact on Ghana’s Independence Constitution of 1957

(Boahen 1975: 179-180).

THE 1957 INDEPENDENCE CONSTITUTION

The Constitution-Making Process

The NLM was uncompromising in its demand for a federal constitution and given

the spate of violence that followed the formation of that party, the colonial

authorities in 1955, appointed Sir Frederick Bourne to investigate and recommend

the feasibility or otherwise of the federal system for independent Ghana. The

Bourne Report recommended a compromise formula of a unitary system with

devolutionary powers to regional assemblies which formed the basis of the 1957

Constitution.

Main Features of 1957 Constitution

The Independence Constitution, officially titled, The Ghana (Constitution) Order in

Council, was firmly based on the cabinet system in line with British political

tradition. The executive consisted of the Prime Minister and his cabinet selected

from the National Assembly to which they were individually and collectively

responsible (Section 7). The head of state was a Governor General with generally

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ceremonial functions representing the British monarch (Section 6). The

Constitution had very few guaranteed rights such as the right to vote (Section 69),

the right to property (Section 34) and others safeguarding minorities rights.

Section 32 provided special amendment procedures. According to Article 32(1)

amendment to ordinary constitutional provisions needed 2/3 majority of

Parliament, while entrenched provisions needed a prior approval of not less than

two-thirds of all the Regional Assemblies and in some cases the Regional Houses of

Chiefs (Section 32(2). This cumbersome procedure of amendment was significant

given the polarized politics at the time.

Perhaps the most significant provision in terms of the ‘compromise formula’ was

Article 64 which called for the establishment, by an Act of Parliament, of a Regional

Assembly in each of the then five regions of the country. Section 64(1) gave the

regional assemblies effective powers in nine specified areas- local government,

agriculture, education, communications, medical and health services, public works,

town and country planning, housing, police- and ‘such other matters as Parliament

may from time to time determine’ (Section 64 (2).

Application of the 1957 Constitution

The colonial authorities had introduced the regional assembly system into the 1957

Constitution as a concession to an opposition which controlled 43% of the popular

votes. But it was a compromise that satisfied neither the government nor the

opposition. The ruling CPP felt the Independence Constitution had been forced upon

it (Kraus 1969:117). Nkrumah reportedly said his Government and the CPP had

accepted with grave misgivings the Constitution as was drawn in Britain but they

preferred to take what was offered rather than see independence delayed (Ohene-

Darko 1977:78). For the NLM and its allies, anything short of the federal system was

not desirable and they continued to boycott important stages in the transition

process5, a strategy which the CPP cleverly exploited to its own advantage.

The CPP adopted the uncompromising attitude of using its majority in parliament to

adopt measures aimed at destroying the opposition. For example, in December

1957, the CPP-dominated parliament passed the Avoidance of Discrimination Act 7

(ADA) which sought to render illegal all the opposition parties on grounds that they

were not national. The regionalist opposition parties however outwitted the CPP by

coming together to form the United Party (UP) before the ADA could be passed.

Similarly, the passage of the Preventive Detention Act (PDA) in 1958 made it

possible to detain without trial for five years and without right of appeal for conduct

considered by the government to be prejudicial to the defence and security of the

state. The CPP also resorted to amending significant portions of the Constitution;

measures that turned the very rigid constitution flexible. In this respect, the fate of

the regional assembly system is most illustrative. The CPP government had

‘induced’ the opposition to boycott both the parliamentary debate on and election to

the Regional Assemblies and succeeded in legislating the assemblies out of

existence.6

Thus, while the 1957 Constitution was intended to operate on compromise and

tolerance, both commodities were scarce between the Government and the

Opposition. In the middle of 1960, therefore, Nkrumah and the CPP threw away the

Independence Constitution wholly and wholeheartedly and introduced a new one

on their own terms (Dale 1993:72).

1 These include social and economic crisis, a revolution, regime collapse, fear of regime collapse, defeat in war, reconstruction after war, the creation of a new state and liberation from colonial rule.2 It prescribes for example that delegates be chosen by a non-partisan method designed to emphasize individual as opposed party or other group attitudes3 These were the Clifford Constitution of 1916 and the Burns Constitution of 1946. From a largely appointive Legislative Council in 1946, subsequent constitutions made provision for increasing number elected members. 4 While it included six leaders of the United Gold Coast Convention (UGCC), Kwame Nkrumah, its General Secretary and the most radical politician at the time was included. There were also seven chiefs on the Committee but workers, farmers, miners, petty traders and the trade union movement were not presented.5 For example, the opposition was on a boycott and did not take part in the debate on the ‘Motion of Destiny’ tabled by Nkrumah on 4 August 1956 calling for the granting of independence in March 1957. Though the Opposition returned to endorse the draft constitution early 1957, they again boycotted the debate in 1958 of the Regional Assemblies Bill.6 In accordance with Section 64 of the 1957, the Governor-General had formed the Van Lare Committee (composed of the chairman, 13 CPP and 8 opposition MPs) to work on the modalities of the regional assembly system. The Committee had drawn a careful compromise between the wide and extensive powers of the Regional Assemblies demanded by the opposition and their reduction to advisory bodies as demanded by the CPP. But the CPP government grossly altered the compromise formula when it introduced the Regional Assembly Bill in Parliament. The opposition boycotted the deliberations and subsequent elections to fill the Assemblies. Not surprisingly, the CPP-dominated Assemblies legislated themselves out of existence. This was approved by 2/3 majority in Parliament that enabled constitutional amendments to be made by a simple majority in the House. In addition, the Houses of Chiefs had their powers modified and chieftaincy matters came under direct government control.

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THE 1960 REPUBLICAN CONSTITUTION AND THE FIRST REPUBLIC

The Constitution-Making Process

Nkrumah and the CPP justified the shift from the Independence Constitution to the

Republican Constitution on grounds of the need for a strong government to bring

about rapid economic development (Hitchens 1979:173). In February 1960, the

CPP-dominated National Assembly passed the Constituent Assembly and Plebiscite

Acts to empower itself to sit at as a constituent assembly to draw the new

constitution. The National Assembly ‘dutifully’ approved within one month, the CPP

government’s draft constitutional proposal (Ohene-Darko 1977:80).

In April 1960, Ghanaians went into a double-barreled poll (a plebiscite-cum-

election) to approve the Republican Constitution and to elect the first president,

which overwhelmingly, went in favour of the group in power.7 The National

Assembly was in turn rewarded with a five-year extension of its term with effect

from 1 July 1960 (Schweb 1960: 634).

Main Features of the 1960 Constitution

The 1960 Constitution was tailor-made for Nkrumah to all intents and purposes.

Article 8(1-3) made the President, who was also Head of State, Fountain of Honour

and Commander-in-Chief, responsible only to the people. This ‘responsibility to the

people’ was amorphous and in the hands of a man who was bent on having his way,

the principles of a responsible and accountable government were seriously called

into question. Further, Article 8(4) further provided that “Except as may be

otherwise provided by law, in the exercise of his functions, the president shall act in

his own discretion and shall not be obliged to follow advice tendered by any other

person.” These were very wide powers particularly for a country coming from a

background of collective responsibility.

Article 55 gave the First President the power virtually to rule by decrees. He could,

whenever he considered it to be in the national interest, rule by legislative

instrument which may alter any enactment, other than the constitution. By this, he

7 The Plebiscite recorded 1,008,740 yes votes against 131,425 no votes; and in the presidential poll, Nkrumah of the CPP defeated the UP candidate, J. B. Danquah by 1,016,076 to 124,623(Boahen 1975: 211; Badu & Larvie 1996: 4).

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could prevent the passage of a bill or alter a law passed by the National Assembly;

and in effect, this rendered ineffective the sole authority vested in parliament to

make laws. This article was most offensive not only because of the special

unprecedented powers it granted to the president but also because they were given

to Nkrumah personally and singularly. Above all Article 55 was an entrenched

clause which could only be amended through a referendum.

While executive action was by virtue of Article 55 beyond judicial review; legislative

actions were so subjected; another clear indication of a deliberate attempt to

strengthen the hand of the executive at the expense of the legislature.

Legislative powers were vested in Parliament which consisted of the President and

the National Assembly, acting jointly. But the National Assembly’s control of the

public purse was taken away by at least two provisions: No expenditure was to be

made for any public expenditure from any public fund except under a warrant

issued by authority of the President(Article 31(1). Also, by Article 31(2) while the

National Assembly could vote on the annual budget estimates, ‘no amendment of the

estimates shall be moved’. In other words, the National Assembly was either to

accept or reject the budget in full; but given the political situation, there was no way

that it was ever going to be rejected. Worse still, the President on behalf of the

republic could enter into any agreement for the granting of a loan out of any public

fund or account.

Article 13, contained a nine-point Declaration of Fundamental Principles, to be

made by the President on assumption of office. Though the Declaration was

intended to replace a formal Bill of Rights, only three of its principles dealt

specifically with individual liberty – protection against discrimination; freedom of

speech, religion and assembly; and right to property. The rest were on issues as

varied as independence of Ghana, African unity, social policy and maintenance of

law. This clearly was to further diminish the limited human rights provisions of the

Independence Constitution. Worse still, the Declaration was not enforceable in the

court of law but a pious statement of political ideals likened to the British

coronation oath (Folson 1980:41).The idea of African unity also found expression in

the new constitution. The possibility of surrendering Ghanaian sovereignty in

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pursuit of African unity was provided for in Article 13, as part of the Declaration of

Principles.8

The common thread linking all these unique features was the very wide powers it

conferred on Nkrumah and effectively turned him into a constitutional dictator.

The 1960 Constitution in Practice

From the inception of the First Republic in July 1960 to the fall of the CPP

government in February 1966, there were a number of constitutional amendments

and measures with serious implications for constitutionalism.

In September 1962, a private member’s motion was passed to make

Nkrumah Life President.

Nkrumah used the legislature to extend the operative life of the Preventive

Detention Act (PDA)9 for another five years in 1963 and he used it to

terrorize not only his political opponents but members of his government

and party as well.10

In January 1964, a national referendum was held seeking two amendments

to the Constitution: to decide on the One-Party State for Ghana and to invest

the President with power in his discretion to dismiss judges of the superior

court at any time and for any reasons which appeared to him sufficient11. The

results were reminiscent of the April 1960 plebiscite.12

The Chief Justice and two Appeal Court judges were dismissed13 for

acquitting three CPP functionaries implicated in the Kulungugu assassination

plot.14

8 The President was to solemnly declare that ‘the union of Africa should be striven for by every lawful means’ and that ‘the independence of Ghana should not be surrendered or diminished on any grounds other than the furtherance of African unity’.

9 The Preventive Detention Act (PDA) first passed in July 1958, empowered the CPP government to arrest and detain without trial for up to five years, any person whose activities were perceived to be a threat to the security of the state. Initially, it was a weapon against the Opposition, but from 1960, some CPP functionaries suffered under it10 For instance, in 1963, P. K. K. Quaidoo, a minister, was sacked and detained following a speech in parliament in which he had asked MPs to assert their independence from the extra-parliamentary party organs which Nkrumah encouraged to undermine parliamentary authority (Twumasi 1968: 48)

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The parliamentary and presidential elections scheduled for 9 June 1965

never took place. Nkrumah was nominated unopposed in May by the Central

Committee of the CPP and he in turn in a radio announcement declared

automatically elected the CPP parliamentary nominees, a week before

Election Day.

The above measures, in particular the 1965 electoral ‘no show’, created serious

doubts about constitutional and peaceful means of changing the CPP regime. Under

the circumstances, when Nkrumah was overthrown in the1966 coup, the

Republican Constitution was regarded as the lynchpin of the authoritarian political

system he had operated in the 1960s (Folson 1980:42)

THE 1966 COUP, THE 1969 CONSTITUTION AND THE SECOND REPUBLIC

The sceptre of Nkrumahism haunted Ghanaians following the February 1966 coup15

and the desire to prevent a recrudescence of the political and constitutional

arbitrariness of the previous regime, impacted greatly on the process which led to

the crafting of the 1969 Constitution (Twumasi 1968: 43).

The Constitution-Making Process

The ruling military junta, the National Liberation Council (NLC) established, on 18

November 1966, an 18-member Constitutional Commission under the chairmanship

of the Chief Justice, Edward Akufo-Addo to ascertain the opinions of the Ghanaian

public on a new constitution for the country (NLCD 102). A significant aspect of the

11 The 1960 Constitution had provided in Article 44(3) that the appointment of the Chief Justice ‘may at any time be revoked by the President by instrument under the Presidential Seal”; while by Article 45(3) judges of the Supreme Court could only be removed from office after a resolution passed by 2/3 majority in Parliament on grounds of stated misbehaviour or infirmity of body or mind’. The referendum therefore was to remove this latter limitation. 12 There was an overwhelming endorsement of 2,773,920 to 2,452. With 2,877,464 registered voters, it meant 92.8% of the voter population went to the polls.13 Chief Justice Arku Korsah had on the basis of Article 44(3) been removed soon after the Court’s verdict and the two other judges Van Lare and Akufo-Addo, following the 1964 referendum.14 Following an assassination attempt on Nkrumah at Kulungugu in the Upper Region in August 1962, three top CPP functionaries were implicated; but after their acquittal and the removal of the judges another special court was set up, had them retried and convicted.15 All public utterances made covert or overt references to the political and economic experiences under the Nkrumah regime; and all newspapers, Commissions of Enquiries, radio and television, educational institutions and public speakers were preoccupied with exorcising that scepter (Twumasi 1968: 43).

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composition of the Commission was that it was dominated by anti-Nkrumah

forces.16

The popular reaction to this offer to help make a fresh constitutional start was

overwhelming17 and Ghanaians were united in their determination never to allow a

repetition of anything resembling the 1960 Constitution (Owusu 1979: 99). In

response, the Constitutional Commission in its Report,18 rejected preventive

detention and the one party system, but recommended sovereignty of the

constitution and entrenched fundamental freedom of the individual (Twumasi

1968: 43). The 150-member Constituent Assembly,19 subsequently adopted a

constitution that made the President neither purely ceremonial nor purely

executive, as a balancing act to prevent the concentration of powers in the hands of

any one person.

Main Features of the 1969 Constitution

The main features of the 1969 Constitution sought to tackle different aspects of the

constitutional and other problems of the Nkrumah era. Article 3 barred Parliament

from passing a law to establish a one-party state. Also certain categories of persons

were disqualified. Article 71 disqualified in particular those against whom there

were adverse findings by Commissions of Enquiry from contesting to the National

Assembly. In practice, this became a major weapon for excluding members of the

previous regime of which the Gbedemah case was legendary.

The 1969 Constitution was unique in the manner in which constitutional powers

were diffused among several personalities and institutions. As earlier indicated, the

President was not a purely ceremonial head but wielded some powers of

16 The chairman, Akufo-Addo was a member of the United Gold Coast Convention (UGCC), Adam Amandi, M. K. Apaloo, William Ofori-Atta, and A. Kargbo were top members of the United Party (UP) and mostly PDA detainees; Akua Asaabea Ayisi, J. A. Braimah, Saki Scheck, were CPP activist who had fallen out with Nkrumah 17 Large groups of people from every walk of life appeared before the Constitutional Commission to present oral and written evidence and memoranda. Many others expressed their opinions in articles and letters to the press, in magazines both domestic and foreign and in booklets and pamphlets (Owusu 1979:99)18 The Report was entitled Explanatory Memorandum of the Constitutional Commission for a Constitution for Ghana.19 The Constituent Assembly, which was composed of 49 elected representatives of district councils, 91 representatives of professional and other interests and 10 nominees of the NLC, was formed late December 1968 to consider the proposals of the Constitutional Commission (Owusu 1979:101),

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appointment which he exercised either exclusively or in consultation and/or on the

advice the Council of State20, the Prime Minister or the Chief Justice (Articles 48-49).

The authority of the National Assembly in law making was also limited by the

presidential power of veto (Article 84). But the Speaker of the National Assembly

acted in the absence, resignation or death, of the President (Article 39(3).

The Supreme Court was vested with the power of judicial review over legislative

enactments and governmental actions (Article 2). In addition, the Constitution set

up a number of independent and semi-independent bodies, to control the exercise of

powers granted to the government. These included the Ombudsman (Articles 100-

101), the Public Services Commission (Article 139), the Police Council (Article 143),

the Armed Forces Council (Article 150) and the Prisons Service Board (Article

(147).

The Constitution made provisions to ensure that the Westminster parliamentary

system worked particularly with reference to the role of the opposition. Apart from

making the Opposition Leader a member of the Council of State (Article 53), his

salary was fixed at two-thirds that of the Prime Minister (Article 72) . Also, MPs

were debarred from crossing carpet (Article 75). This last provision was

particularly significant provision given the manner in which pressure to cross

carpet during the Nkrumah era depleted the opposition in Parliament and paved the

way for the one party system.

In place of the controversial Declaration of Fundamental Principles, the new

constitution made very elaborate provisions on Fundamental Human Rights. Among

the intriguing provisions was the recognition of the family as the unit of society

(Article 13). These were all enforceable in the law courts (Folson 1980: 42).

The constitution was very rigid. Seven articles were entrenched and could not be

amended under any circumstance.21 Amendment to 45 other articles needed prior

20 The membership of the Council of State, the body empowered to ‘aid and counsel the President’ included the Prime Minister, the Speaker of the National Assembly, the Leader of the Opposition and the President of the National House of Chiefs (Article 53)

21 These included the provisions that related to the Supremacy of the Constitution (Articles 1-2), the enforcement of the Constitution and Democracy (Article 3), the authority of Parliament to impose taxation (Article 128) and to raise an armed force (Article 149) and the institution of chieftaincy (Article 152).

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approval of the Supreme Court. Even 82 or so other articles which were not

entrenched needed 2/3 majority across two parliaments (Article 169).

The two most significant transitional provisions, because they bore the imprints of

the outgoing military junta, were the Presidential Commission (Section 1) and the

Indemnity Clause (Section 13). The NLC at the last minute introduced a three-

member Presidential Commission,22 to perform the functions of the President for up

to three years in the hope of ensuring a graduated transition. The Indemnity Clause

was even more controversial. It debarred any court action against the 24 February

1966 coupists and their collaborators (Section 13(3)). This provision has become

part of the two other constitutions since then and has always generated

controversy. The 1969 Constitution, then, was a sharp riposte to the arbitrary rule

of Nkrumah. But somehow by their obsession with the immediate political past, the

constitution makers hardly took into account the long term problems of Ghana

(Twumasi 1968: 50).

The Second Republic/1969 Constitution in Practice

In the parliamentary election held in August 1969, the Progress Party, led by K. A.

Busia won 105 out of the 140 seats to form the government, while K. A. Gbedemah’s

National Alliance of Liberals (NAL) with 29 seats formed the opposition. But the life

of the government and the 1969 Constitution was cut short by the 13 January 1972

coup.

A number of issues cropped up within the 27-month Second Republic which affected

constitutional practice. First, there was the disqualification of Gbedemah under

Article 71.23 The absence of the experienced Gbedemah from Parliament removed

the moderating influence he would have had on his younger opposition colleagues.

His presence could also have avoided the stand-off between government and

opposition particularly over the issue of ethnicity.

22 The commission comprised the Chairman and Deputy Chairman of the NLC and the Chief of Defence Staff of the Armed Forces.23 Gbedemah, leader of the opposition NAL could not assume his parliamentary when the Supreme Court upheld a petition by his PP opponent in the Keta Constituency, E. B. Awoonor-Williams, to disqualify him on the basis of Article 71 in relation to adverse findings from a commission of enquiry.

15

Second, was the purge of 568 public servants (Apollo 568) in 1970, ostensibly as a

drive against overstaffing and inefficiency. Though supposedly in line with Section 9

of the Transitional Provisions, the general impression was that majority of those

sacked were opposition sympathizers. Worse still, there were indications that in

some cases the government had acted in breach of Section 9.

Third, and related to the second, was the Sallah Case in relation to the power of

judicial review (Article 106).24 The Busia government refused to reinstate Sallah

and others. The shout of “No Court, No Court’ by Busia and the government’s

insistence that it was rather the Court that had exceeded its competence were

particularly regrettable since they were reminiscent of the treatment the Nkrumah

meted to the judiciary after the treason trial, of which the then opposition was very

critical.

The fourth, the J. H. Mensah Affair was in violation Article 61.25 An opposition-

initiated censure motion calling for Mensah’s resignation fell through by 24-81 and

Mensah kept his job when Prime Minister Busia refused to sack him. The matter

however cast further doubts on the government much touted democratic

credentials.

Two other constitutional omissions were the non- declaration of asset by ministers

in violation of Article 67 and non-establishment of the office of the Ombudsman as

provided in Articles 100-101.

The attitude of the Busia government to the constitution was rather worrying, given

that several members of that government had been influential members of the

Constituent Assembly also. Worse still, those constitutional omissions and

commissions provided part of the excuses for the 13 January 1972 led by Col. I. K.

Acheampong. It was ironical that like the 1966 coup, the military intervened in 1972

supposedly to restore democracy (Owusu 1979: 102).

24 E. K. Sallah, one of the victims of Apollo 568 appealed against his dismissal in the courts. The Supreme Court decided that the government’s power to dismiss was limited to offices created by the NLC and called for Salah’s reinstatement.25 In the course of the Busia administration it was discovered that Finance Minister J. H. Mensah contrary to Article 61(4) was engaged in business as Director of Odumasi Farms Ltd. According to Article 61(4) ministers while in office could not ‘hold any other office of profit or emolument whether private or public and either directly or indirectly’.

16

UNION GOVERNMENT

The Acheampong regime from 1972 to 1976 was insistent that it would not hand

over until it had put the Ghanaian economy on a sound footing.26 But under pressure

from students and several professional groups, Acheampong in October 1976

introduced the Union Government (Unigov) concept (Oquaye 1980: 27). This was

supposed to be a ‘no-party community democratic government’ in which the army

and the police would share power with civilians (Hitchens 1979:171-172).

At the start of 1977, the government formed an Ad Hoc Committee to collate views

Union Government and soon the date for a referendum on the adoption of the

concept was fixed for 30 March1978, well before the committee had finished its

work. Return to constitutional rule was scheduled for July 1979 (Oquaye 1980: 91).

The Ad Hoc Committee report in December 1977 indicated that majority of the

Ghanaians rejected the institutional representation of the police and the military

(Owusu 1979: 104 & 107); yet the Acheampong government was bent on carrying

on with its initial plan; confirming fears that Unigov was a device for the

perpetuation of military rule. Considerable opposition, then, arose to Unigov,

particularly in the run up to the 30 March 1978 referendum. The opposing groups

included the People’s Movement for Freedom and Justice (PMFJ), the Third Force

and the Front for the Prevention of Dictatorship in Ghana. These groups were made

up of a motley assortment of politicians from the two precious republics and the

first military regime, who charged that the campaign was one-sided and the debate

had been hampered by intimidation of opponents of Unigov (Owusu 1979: 104).

The referendum did not do much to clarify the debatable issues surrounding

Unigov. The government after claiming 54%-46% victory, even after the electoral

commissioner had run for his dear life before counting could be completed, banned

the three opposing groups and had their leaders detained, supposedly, for their own

safety (Ibid). In April 1978 a Constitutional Commission was formed to submit a

26 General Acheampong had argued at a press conference in Burma hall on the fourth anniversary (13 January 1976) that to hand over to civilians in the face of the prevailing world economic situation would be ‘tantamount to running away from a problem. See Oquaye 1980 for details

17

draft constitution by October the same (Ibid). This determination on the part of the

Acheampong regime to impose Unigov on Ghanaians was however halted as a result

of the 5 July 1978 palace coup which removed Acheampong from office.

THE 1979 CONSTITUTION AND THE THIRD REPUBLIC

The Constitution-Making Process

The new Head of State, General FWK Akuffo and his SMC-II announced new

proposals to return Ghana to civilian rule. It introduced the concept of ‘national

government’, also a non-party form of government, which would rule for at least a

transitional period of four years (Oquaye 1980: 118). Late 1978, however, following

the poor voter turnout at the no-party local government elections, Akuffo publicly

endorsed the pluralist party system and the ban on parties was lifted on 1 January

1979. Like all governments before it, the SMC-II tried to influence the process by

proscribing all former Ghanaian parties, their names, their slogans and symbols,

from being utilized in the election campaign.27 The Constituent Assembly within

January-March 1979 formulated a constitution which was closer to the American

model than the British, the political tradition that had dominated the constitutional

evolution of Ghana.

Main Features of the 1979 Constitution

While the shift from the American model was the most significant feature of the

1979 Constitution, it is interesting how much of the 1969 Constitution was retained.

Among the new features was a full presidential system with separation between

executive and legislature. The President as Head of State and Head of Government

was vested with executive powers and to be assisted by a Vice President was to be

directly elected for a four-year term and eligible for a second term (Chapter 8).

Ministers were to be appointed by the President with the prior approval of

Parliament and MPs appointed ministers had to resign from Parliament. Members of

the legislature were elected separately for a five-year-term, a year more than the

President.

27 In addition, over a hundred prominent individuals were also prohibited from running for office, partly as a result of adverse decisions against them by one or more of the numerous commissions probing the legality of politicians’ assets (Lumsden 1980: 473)

18

Another innovation was the legally enforceable Directive Principles of State Policy

which purported, with the support of the courts, to force governments to achieve

certain social and economic objectives irrespective of the state of public opinion,

government’s priorities and the state of the economy (Chapter 4, Articles 6-18).

The 1979 Constitution retained from the 1969 Constitution the Bill of Rights

(Chapter 6), the sole-commissioner Electoral Commission (Chapter 7), the Council

of State (Chapter 10) the Ombudsman (Chapter 11); while introducing other

independent institutions as the Press, the National Development, and the Forestry

Commissions.

Significantly, the 1979 Constitution introduced a somewhat more rigid method of

amendment. Ordinary articles could only be changed with the approval, by secret

ballot, of two-thirds of the total number of district councils in the country, two-

thirds of all members of the Council of State, and two-thirds of all members of

Parliament on two separate occasions. For entrenched articles that procedure had

to be preceded by a popular referendum (Chapter 25).

The 1979 Constitution/ The Third Republic in Practice

Like the 1969 Constitution, there were a number of constitution-related events over

the 27months that the 1979 Constitution was in force. The first was the Chief Justice

Apaloo saga28 which threw up the inherent contradictions of transitional

provisions29 vis-à-vis the provisions of the main constitution. At the same time, the

28 In 1980, President Limann had submitted a list of Supreme Court nominees, which included the incumbent Chief Justice Fred Apaloo to parliament for approval. Earlier in October 1979, the Chief Justice had taken the oath of office in line with Section 7(1) of the Transitional Provisions. Parliament however vetted and rejected his nomination in a vote that the minority parties had boycotted and this degenerated into a constitutional crisis. The opposition was of the view that the Chief Justice should not have been re-nominated in the first place. In line with the provisions of Article 2 of the Constitution Dr. Amoako Tuffour sought the Supreme Court’s declaration on the legal status of the Chief Justice. The Court upheld the status quo before the President’s nomination list. Unlike the Busia government, the Limann government accepted the Courts ruling gracefully and retained the Chief Justice. The peaceful ending of the crisis turned out to be the first anniversary gift for the Third Republic (Essifie-Conduah 1991: 84-88)

29 Section 7(1) of the 1979 Constitution provided that: “Any person who before the coming into force of this Constitution held or was acting in an office in existence immediately before the coming into force of this Constitution shall be deemed to have been appointed as far as is consistent with the provisions of this Constitution to hold or act in the equivalent office under this Constitution.”

19

manner in which the matter was resolved demonstrated how upholding judicial

decisions could contribute to the growth of constitutionalism.

Unlike the Second Republic, the President and Parliament in the Third Republic

performed their constitutional duty of establishing the Office of the Ombudsman.30

Even more significant was the fact that, the length of the Third Republic like the

Second was 27 months.

There was also the clash between the Limann government and the Electoral

Commission (EC) over voter registration. In July 1980, an attempt of the EC to

update the electoral roll was opposed by the PNP government ostensibly because

the EC had not coordinated its activities with the government. The minority had

challenged the government’s position on grounds that it violated the independence

of the Commission as enshrined in Article 37(8). In the end, the enabling bill in

parliament failed to secure the needed 2/3 majority when it was defeated by 69

votes to 64 (Essilfie-Conduah 1991: 74-75).

The defeat of the PNP government’s 1981-82 budget in July 1981 was significant not

least because the PNP had majority in Parliament. It was unprecedented in the

country’s political history and even though it did not lead to the fall of the

government, it was an indication of the legislature asserting its independence from

executive control (Ibid: 123-124)

Like the 1969 Constitution, the life of the 1979 was cut short midstream by the 31

December 1981 coup, and with that the growth of constitutionalism that had begun

to emerge in the Third Republic. This was followed by eleven years of non-

constitutional rule under the Jerry Rawlings-led Provisional National Defence

Council (PNDC).

THE 1992 CONSTITUTION AND THE FOURTH REPUBLIC

The milieu preceding the crafting of the 1992 Constitution was, to say the least, not

conducive for constitution-making. By 1991, the entrenched military-based

30 Articles 110- 112 of the 1979 Constitution enjoined Parliament to pass a bill within six months for the establishment of the Office of the Ombudsman and for the officer, to be appointed by the President in consultation with the Council of State and the approval of Parliament.

20

authoritarian PNDC which had been in office for a decade, had succeeded in

intimidating and disorganizing the middle classes of professional and business

people and in suppressing their civic associations including political parties (Ninsin

1998: 6). Again, Rawlings was least interested in, or committed to,

constitutionalism, given that he had confessed to that umpteen times during the

regime (Ibid: 7). Above all, the Rawlings’ regime like Acheampong’s was interested

in self-succession.

The Constitution-Making Process

The process that culminated in the crafting of the 1992 Constitution can be traced to

the regional fora that the National Commission for Democracy (NCD) organized

from mid-1990 to collate ideas on a new constitution for Ghana. On 25 March 1991,

the NCD published its report, Evolving a True Democracy, which contrary to the

widely known preference of Rawlings and the PNDC, recommended a return to

multiparty politics and the exclusion of the military from partisan politics (Bluwey

1998: 107-108).

The PNDC accepted the report and in response appointed a nine-member

Committee of Experts to propose a constitution for Ghana’s Fourth Republic (Ibid:

108). The Committee’s report, in the form of a draft constitution and corresponding

explanations for the proposals, contained ideas like a split executive of a President

and prime minister, direct participation of the military, police, civil servants and

traditional rulers in politics, and a non-partisan local government system; all of

which were preferred by Rawlings and the PNDC (Ibid: 108-109).

A 260-member Consultative Assembly (CA) was subsequently established to draft a

definitive constitution. On the surface, the composition of the CA covered broader

interest groups than ever before (Hatchard 1998: 382), but a close study revealed a

deliberate attempt of the incumbent regime to marginalize, if not exclude opposing

forces.31 Protests over the composition, like other demands related to the transition

process, were virtually all rejected by the PNDC.

21

On the whole, however, the CA exhibited its independence and produced a

constitution that was different in many respects from the draft presented by the

Committee of Experts (Ibid). The draft constitution was approved through a

referendum in April 1992. This was followed by the lifting of the ban of political

parties the following month to set in motion the process which resulted in the

November/December 1992 elections and the start of the Fourth Republic on 7

January 1993.

The Main Features of the 1992 Constitution

The new constitution followed the American presidential system with formal

separation of powers and checks and balances but with a few exceptions. It vested

executive power in an executive president elected together with his vice president

for four years and eligible for second term only (Articles 57, 60 & 66). Legislative

power is vested in Parliament whose members are also elected for a four year term

(Article 93); while judicial power is vested in the judiciary with a wide measure of

independence and the power of judicial review (Articles 125 & 2 respectively).

But according to Article 78(1) majority of the President’s ministers must come from

Parliament. In addition, the vice president and non-MP ministers can participate in

parliamentary proceedings though without a voting rights (Article 112). These

provisions introduced aspects of the British parliamentary system but without the

attendant collective responsibility to Parliament. Another provision that upsets and

viable system of separation of powers is the limitation expressly imposed on

Parliament’s legislative powers by Article 108. That article conferred exclusive right

on the President to introduce into Parliament bills that have financial or tax

implications. This is repugnant to Parliament’s constitutional control of the purse

(Asante 2002: 16-17).

The 1992 Constitution retains the Directive Principles of State Policy (Chapter 6,

Articles 34-41).32 Even more outstanding is the wide-ranging Bill of Rights, entitled

31 Not only did it include hitherto non-political associations such as butchers, hair-dressers, traditional caterers, etc, but also institutions closely related to the PNDC like the Committee for the Defence of the Revolution (CDR) and the 31 December Women’s Movement (DWM) had ten representatives each compared to the one each for Ghana Bar Association (GBA),the University Teachers Association of Ghana (UTAG), the National Union of Ghana Students (NUGS), the Christian Council and the Catholic Bishops Conference (Bluwey 1998: 109-110).

22

Fundamental Human Rights and Freedoms, in Chapter Five(Articles 12-33). In

addition to well known political, civil, social and economic rights and freedoms,

special provisions are made for the property rights of spouses (Article 22), women’s

rights (Article 27), children’s right (Article 28) rights of the disabled (Article 29),

and the rights of the sick (Article 30). In addition, for most of these special rights,

Parliament is specifically mandated to enact such laws as are necessary to ensure

the enforcement of those provisions.

Furthermore, the 1992 Constitution made it mandatory for the establishment,

through Acts of Parliament within six months of the start of the Fourth Republic, a

number of constitutional commissions that would facilitate good governance,

accountability and political participation. These were the Electoral Commission

(EC), the Commission on Human Rights and Administrative Justice (CHRAJ), the

National Commission for Civic Education (NCCE) and the National Media

Commission (NMC). To ensure their independence, their composition and functions

were prescribed in the Constitution (Articles 43, 216, 232 and 166 respectively) and

once appointed, they were to be accountable only to the Constitution (Articles 46,

225, 234 and 172 respectively).

Another unique feature of the 1992 Constitution is the elaborate provisions on

Decentralization and Local Government (Chapter 20, Articles 240- 256), as a

mechanism for enhancing local participation in the decision process, promoting

accountability of local officials, and grassroots development. However there are

some inherent contradictions. First, a non-partisan local government (district

assembly) system has been superimposed on a multiparty system at the national

level and has created situations where known party functionaries during national

elections become ‘non-partisan’ actors during local elections (Frempong 2003).

Second, the appointments the District Chief Executive (DCE) and thirty percent of

assembly members, have retained the national executive control of local

government and tended to undermine the expected democratic outcomes of the

decentralization process (Asante 2002: 17).

32 The Directive Principles, according Article 34 ‘shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society’.

23

The 1992 Constitution / The Fourth Republic in Practice

From a not-too-inclusive constitution-making process through acrimonious

transitional elections in 1992, the Fourth Republic has taken several positive strides

forward. Three more peaceful and generally acceptable national elections have since

been held in 1996, 2000 and 2004; and Ghanaians are gearing themselves for a

historic fifth consecutive election in December 2008.The 2000 election produced an

alternation of power from the NDC to the NPP. These electoral successes have been

achieved, in no small measure, through an elite consensus building mechanism, the

Inter-Party Advisory Committee (IPAC). It was initiated by the Electoral

Commission in1994 and has since provided a forum for political parties and other

stakeholders to iron out their differences and contribute to electoral reform.

The other constitutional commissions- NCCE, CHRAJ and NMC- have all contributed

in their own ways to facilitate civic education, the promotion and protection of

human rights and freedom of expression and thought, respectively.

The emergence within the parameters of the constitution vibrant civil society

groups in the form of academic/research think tanks, civic educators, election

observers/monitors, have all contributed to the electoral/democratic progress

chalked over the last fifteen years. Also, the liberalization of media which has led to

proliferation of private electronic and print media has been very much instrumental

in all the above respects.

However, a lot still remains done particularly in terms of imbibing the ethos of

constitutionalism. The heightened fear and threats to stability that characterize

successive elections is a clear indication that the Ghanaian political elite and their

followers are yet to fully imbibe the democratic culture. Indeed, it is not one of the

norms of democracy and constitutionalism to play on the electorate’s fear as an

electoral strategy.

Another threat is that Ghana’s democratic progress has been paralleled by increased

ethnicity. Particularly since 2000, elections have been shaped by the Akan–Non-

Akan divide. The ruling NPP has gained most of its votes from the five Akan regions

while it has performed poorly in four Non-Akan regions; and for the opposition NDC 24

the reverse has been the case. The only exception here is the cosmopolitan Greater

Accra Region, which though traditionally Non-Akan, voted for the NPP, not least

because, majority of the people there are Akans. The sad aspect is that in 2004 the

people of Central Region who had not voted along ethnic lines were mocked rather

than hailed.

25

The frequent boycott of parliamentary sessions by opposition groups casts doubts

on how deeply the political elite have imbibed the ethos of consensus building.

While in opposition the NPP had boycotted parliament over issues like vetting of

presidential ministerial nominees and the budget. The current opposition NDC has

continued and deepened the boycott ‘tradition’. Issues like, national reconciliation,

national health insurance, extension of the franchise to Ghanaians abroad, and the

26

conviction of one of its members by a court of law33, have all attracted boycotts by

the NDC parliamentary caucus.

In spite of the several measures aimed at leveling the playing field electoral

resources remain skewed in favour of incumbency; the 1996 and 2004 election

campaigns in particular demonstrated the affluence of incumbency and the penury

of opposition. The intriguing point, as Election 2000 amply demonstrated, is that

33 As at 15 February 2007, the opposition NDC had boycotted Parliamentary sessions for two weeks, because the NDC MP for the Keta in the Volta, Daniel Abodakpi had been convicted by a Fast Track High Court over issues related to his tenure as a Deputy Trade Minister in the NDC Government. In their absence the President had presented the constitutionally-mandated State of the Nation Address on 8 February 2007.

BIBLIOGRAPHY

Asante, S.K. B (2002) Reflections on the Constitution, Law and Development, Accra: Ghana Academy of Arts and Sciences.Badu, Kwasi Afriyie &John Larvie (1996) Elections 96 in Ghana, Part 1, Accra: Friedrich Ebert Stiftung.Boahen, Adu (1975/2000) Ghana: Evolution and Change in the Nineteenth and Twentieth Centuries ,London: Longman/Accra: Sankofa Educational Publishers Limited. Brandon, Mark (1995) “The ‘Original’ Thirteenth Amendment and the Limits to Formal Constitutional Change”, in Sanford Levinson, ed. Responding to Imperfection: The Theory and Practice of Constitutional Amendment, Prineton.Bluwey, G. K. (1998)”State Organisations in the Transition Constitutional Democracy” in K.A. Ninsin, ed, Ghana: Transition to Democracy, Accra: Freedom Publications, pp. 105-111.Carroll, John J. &Arthur English (1985) “Constitution Making Roles and Delegates Behaviour”, POLITY, Vol. 17, No.3, Spring, pp. 586-594.Corwin, Edward S. (1995), The ‘Higher Law’ Background of the American Constitutional Law, Ithaca: Cornell University Press. Cowen, D.V. (1961) “Constitution Making for a Democracy, African Affairs, Vol. 60, No. 238, January, pp. 77-108. Dale, William (1993) “The Making and Remaking of Commonwealth Constitutions”, The International and Comparative Law Quarterly, Vol. 42, No.1, January, pp. 67-83 Duchacek, Ivo (1973) Power Maps: Comparative Politics of Constitutions (Santa Barbara, Calif.: A.B.C.-Clio.Elster, Jon (1995) “Forces and Mechanisms in the Constitution-Making Process”, Duke Law Journal, Vol. 45, No. 2, November, pp. 364-396.Ephson, Isaac S. (1968) Reflections and Refractions on the Ghana Draft Constitution, Accra: Liberty Press.Essilfie-Conduah, Nana (1991) Ghana: The Third Republic, Accra: Assemblies of God.Folson, Kweku G. (1980) “1979 Constitution: A Virtually ‘Unchangeable’ Document”, Africa, No.103, March, pp. 41-43.

27

incumbency is not always an advantage. Can Election 2008 produce another

alternation of power?

CONCLUSION

In this post mortem of Ghana’s constitutional history the following issues stand out.

First, there has been a general tendency on the part of the powers that be, whether

civilian or military, to exclude their political opponents from the constitution-

Gyimah-Boadi, E. (2000) “Six Years of Constitutional Rule in Ghana: An Assessment and Prospects of the Executive and the Legislature” in Friedrich Ebert Foundation, Six Years of Constitutional Rule in Ghana: 1993-1999 Accra: Gold Type Ltd. p. 2.Gyimah-Boadi, E.(1991) “Tensions in Ghana’s Transition to Constitutional Rule” in K.A.Ninsin & F.K.Drah, ed, Ghana’s Transition to Constitutional Rule, Accra: Ghana Universities Press, pp. 35-43.Hatchard, John (1998) “Perfecting Imperfections: Developing Procedures for Amending Constitutions in Commonwealth Africa”, The Journal of Modern African Studies, Vol. 36, No.3, September, pp.381-398.Hitchens, Diddy R. M. (1979) “Towards Political Stability in Ghana: A Rejoinder in the Union Government Debate”, African studies Review, Vol. 22, No.1, April, pp. 171-176.Jonah, Kwesi (1991) “The Monopolisation and Manipulation of the Constitution-Making Process in Ghana” in Kwame A. Ninsin and Francis K. Drah, ed. Ghana’s Transition to Constitutional Rule,Accra: Ghana Universities Press, pp.73-83.?Kraus, Jon (1969) “On the Politics of Nationalism and Social Change in Ghana”, The Journal of Modern African Studies, Vol. 7, No. 1, April, pp. 107-130.Lumsden, D. Paul (1980) “Towards Ghana’s Third Republic”, Canadian Journal of African Studies, Vol. 13 No.3, pp. 471-477.Miller, Arthur S. & Ronald F. Howell (1960) “The Myth of Neutrality in Constitutional Adjudication”, University of Chicago Law Review, 27, Summer, pp. 661-695. Ninsin, K. A. (1998) “Introduction” in K.A. Ninsin, ed, Ghana: Transition to Democracy, Accra: Freedom Publications, p.14.Ohene-Darko, I. E. (1977) Government and Politics in Ghana (1850-1972), Akrokerri: Reliance Series. Oquaye, Mike (1980) Politics in Ghana, 1972-1979, Accra: Tornado Publications. Ostrom, Vincent (1980) "Hobbes, Covenant and Constitution," Publius 10:4 Fall.--------------------- (1987) The Political Theory of a Compound Republic: Designing the American Experiment, 2nd ed. Lincoln: University of Nebraska Press, 1987. Owusu, Maxwell (1979) “Politics without Parties: Reflections on the Union Government Proposals in Ghana”, African Studies Review, Vol. 22, No. 1, April, pp. 89-108.Richard Jeffries (1980)” The Ghanaian Elections of 1979”, African Affairs, Vol. 79, No. 316, July, pp.397-414.Schweb, Egon (1960) “The Republican Constitution of Ghana”, The American Journal of Comparative Law, Vol.9, No.4, Autumn, pp. 634-656.Swamson, Wayne R., Sean A. Kelleher & Arthur (1972) “Socialization of Constitution-Makers: Political Experience, Role Conflict and Attitude Change”, The Journal of Politics, Vol. 34. No.1, February, pp. 183-198.Twumasi, Yaw (1968) “Ghana’s Draft Constitutional Proposals”, Transition, No. 37. pp. 43-52.

28

making process. The CPP in 1960, the NLC in 1966-69, the SMC in 1977-78 and the

PNDC in the 1990-1992 periods, were typical examples.

Second, lack of consensus among the political elite on the fundamentals of the

constitution has had the potential of introducing violence into the political process

as the 1954-56 federalist agitation, the Unigov campaign of 1977-78 and the

immediate post 1992 election period, amply demonstrate.

Third, since independence, Ghana has passed through several different

constitutional arrangements; but these changes have not really changed the

characteristic way in which politics in Ghana has taken place.

Fourth, confrontations over constitutional issues or the deliberate neglect of

constitutional provisions have provided part of the pretext for military adventurers

to intervene. The Busia regime had a whole catalogue of such constitutional

omissions and commissions.

Fifth, the intrusion of the military into Ghanaian politics has had serious impact on

constitution-making and constitutional rule. Military interventions have prevented

carefully crafted constitutions from operating long enough for effective and critical

analysis. The 27-month life spans of the 1969 and 1979 Constitutions readily come

to mind in this respect. In addition, outgoing military regimes had imposed

transitional provisions which have proved controversial and sometimes ran counter

to the very tenets of the constitutions. Particularly, significant in this respect are the

indemnity clauses that have been ‘smuggled’ into the 1969, 1979 and 1992

Constitutions. Above all, interludes of military regimes have had negative impact on

imbibing ethos of constitutionalism. Some positive lessons from the Limann era

such as the president’s acceptance of the judicial verdict of the ‘Chief Justice saga’

and the defeat of the government’s last budget in parliament in spite of its

parliamentary majority were quickly forgotten following the 31 December 1981

coup.

Sixth, the merits and demerits of a constitution emerge when it is practised long

enough. Over the last fourteen years that the 1992 Constitution has been in

29

operation a few rough edges have been identified including Articles 78(1) and 108

which have somewhat weakened the legislature in relation to the executive; but

there have been general acceptance of the constitution’s workability.

Lastly, the success of a constitutional dispensation depends on the extent to which

the principal political actors agree on the institutions and rules that are necessary

for the efficient mediation of competing claims and be able to shape norms in line

with the new political order. In this respect, consensus building among political

parties, electoral authorities and civil society have played a crucial role in sustaining

the Fourth Republic in spite of its initial hiccups.

ENDNOTES

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