What happened to the Constitutional Review?

Ghana’s fourth republic came into being to succeed a long period of military regime. Transition from military regime to constitutionally elected government is totally different a normal succession of constitutionally elected governments following one another.

The path to the fourth republic and its specifi-cities lie at the root of many of the problems the country goes through today. Thanks to the methods of the movement working for an end to military rule and the establishment of constitutional rule such violence as have been elsewhere has not occurred in Ghana and we have to ensure that the level civility that has been employed should be strengthened and sustained.

Historic has been the 2013 Presidential Election petition before the Supreme Court and the spirit in which the decision of the Supreme Court to uphold the election result was accepted by both sides. Impressive during the hearing was also the firmness of the Supreme Court ensuring that tension in the country did not lead to any form of anarchy.

In our experience as a country we have known two types of military regimes which are military regimes which arise as a result of the overthrow of a constitutionally elected government and counter-coup military regimes which are a consequent of the military overthrowing another military regime.

The military regime which preceded the fourth republic emerged from the overthrow of the constitutionally elected of the third republic. In such a situation, civil society gets divided into two between supporters of the coup d’état and defenders/supporters of the constitutional rule and its structures/officials.  Unfortunately, it is the character of authoritarian regimes to act as if they speak for all the people and not recognize the fact that there are others opposed to them.

From 1982, those who were opposed to the PNDC had no means of expressing the opposition openly within Ghana and the structures to discuss the PNDC’s interests were the only structures through which one could involve in politics. That means those not prepared to advance the interests of the PNDC or pretend about where they stand are marginalized or excluded. Obviously, those who are in their structures will be those with the highest potentials of being employed. The only way of openly expressing any position different from that of the PNDC will be to leave the country into exile.

The paramilitary structures introduced in civil society such as the militia and civil defence organisations institutionalised the suppression and intimidation giving a position of strength backed by instruments of violence to supporters of the military beyond the monopoly over arms which military which now ruling already has.

In the post regime dispensation, it is necessary to have a national demilitarisation exercise which should involve the sections of society which were not on the side of the military regime in its enforcement to ensure fairness to all and for the security of society as a whole. Unless, society as a whole including those not on the side of the military regime are involved.

We have come a long way as a nation with the gradual granting of amnesty to those who fled the country and transition to constitutional rule in 1992 after it became clear that the only productive way forward for the nation is to return to the constitutional order which the military overthrew as that is the only forward for the whole nation to leave in harmony.

What was lacking was participation of society at large with those who were opposed to the military and supporters of the military regime being equally involved in coordinating the transition process. Transition was organised as concession from the military regime to open up the democratic space so leaving the military regime totally in the driving seat. This process institutionalised the democratic right from the beginning and made it a dominating future of new constitutional dispensation.

The first non-PNDC regime under President J. A. Kufuor addressed the issue of individual harms by convening the National Reconciliation Com-mission for people to bring issues of repression and human right violations before it. Whilst this tackled or responded to issues of human rights violations, it did not resolve the systemic problem of democratic deficit and disadvantageous control of the tools of violence and intimidation in the body politic. Despite the fact that we have a constitution with enshrined human rights and their protection the de facto military regime legacy has its own way of invalidating what is de jure.

Under the second era of NDC constitutional rule under President J. E.A. Mills, he initiated a constitutional review by appointing a constitutional review commission. Two USA based Ghanaian scholars in Law, Professors S. Kwaku Asare and H. Kwasi Prempeh questioned the constitutionality of the exercise initiated by President Mills. The scholars held the position that only parliament has power to amend the constitution and that the President has no power to appoint a commission to review the constitution. They insisted that any and all initiatives to amend the constitution must originate from parliament. In an earlier article, I stressed the importance of parliament as body to which we have our elected representatives.

The issue with the Ghana situation is one beyond the technical issue of whether it is the President or Parliament which should initiate the process. The systemic democratic deficit and tilted control of power is creating problems where governments can be attacked because problems have been created where there is not a negotiated consensus of how to handle them.

A lot has been made of the issue of Delta Force. Why should we be surprised about Delta Force when we also have Azorka Boys and Bolgatanga Bulldogs and several others linked to the NDC? After all the civil defence organisation’s former activists now called ‘cadres’ are de facto thugs and intimidating forces of the NDC. The hang over elements from the military regime era indirectly forces others to develop methods of balancing them to defeat intimidation. There is need for a holistic solution. A lot is made of how the government solicits funds but do we look at the financial crisis of chaos which the government has inherited?

In other cases where there has been a transition from military regimes to constitutional dispensation there has been Sovereign National Consultative Constitutional Conferences. The previous NPP regime convened the National Reconciliation Commission. Having a Sovereign National Consultative Conference now is an appropriate call.

Explo Nani-Kofi is an Advocate for Constitutional Review and Grass Root Popular Participation in Governance.