By Nick Opoku and Lolan Sagoe-Moses
30/12/2016
The outgoing President of Ghana, John Mahama, has
made some appointments to key positions with just about two weeks to hand over
power to the incoming administration.
He appointed the Commissioner for Commission for Human Rights and Administrative Justice (CHRAJ), a Chairperson for the National Commission on Civic Education (NCCE) and a new Auditor General.
The position of CHRAJ Commissioner had been vacant since November 2015 when the then substantive post holder, Ms Lauretta Lamptey was removed for abuse of office by President Mahama.
The position of the Chairperson of the NCCE, on the other hand, had also been vacant since July 2015 when the then substantive post holder, Mrs Charlotte Osei was appointed Chairperson of the Electoral Commission.
President Mahama has also increased the allowances of National Service personnel by 40 percent.
These appointments and major decisions during this lame duck period have sparked some outrage from a cross-section of Ghanaians. Some say these appointments and decisions by President Mahama are deliberate attempts to sabotage the incoming administration.
Has President Mahama committed any
constitutional blunder?
He has not. Per Article 70 of the 1992 Constitution, the President has the executive power to make these appointments.
“Article 70 (1) The President shall, acting in consultation with the Council of State,
Appoint (a) the Commissioner for Human Rights and Administrative
Justice and his Deputies; (b) the Auditor-General; (c) the District Assemblies Common Fund Administrator; (d) the Chairmen and other members of (i) the Public Services Commission; (ii) the Lands Commission; (iii) the governing bodies of public corporations; (iv) a National Council for Higher Education howsoever described; and (e) the holders of such other offices as may be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”
Therefore, the legality or constitutionality of these appointments by President Mahama; even in this lame duck period is without question.
Lame duck period appointments have
been with us for ages
Appointments during the final period
of an administration, especially after the election of a successor are nothing
new. As a matter of fact, in the United States of America such appointments
have been made since 1803; but not without controversy.
In the seminal case of Marbury v.
Madison, William Marbury had been appointed a justice of the peace (a
judicial officer of a lower court, elected or appointed by means of a
commission) for the District of Columbia.
His appointment was made in the
final hours of President John Adams’ administration. James Madison, Thomas
Jefferson’s Secretary of State (the then incoming administration), refused to
deliver Marbury’s commission. William Marbury, joined by three other similarly
situated appointees, petitioned for a writ of mandamus compelling delivery of
the commissions.
This case solidified the United
States' system of checks and balances. It was in this case that the Supreme
Court announced for the first time the principle that a court may declare an
act of Congress void if it is inconsistent with the Constitution.
A few years ago, Former President
John Kuffuor in accordance with section 12 (2) of the Ghana Cocoa Board Act,
1984 PNDC Law 81, appointed
Mr Anthony Fofie as CEO of the Ghana COCOBOD on January 2nd, 2009, barely 5
days before handing over to the President Atta-Mills-led administration. [See: https://www.ghanabusinessnews.com/2009/01/02/ghana-cocobod-gets-new-ceo]
Mr. Kufour also made some major
decisions in the lame duck period including increasing the salaries of workers
in the public service by between 16 - 32% as part of the implementation of the
single spine salary structure.
So why the outrage?
From monitoring commentary in media circles, the outrage of some Ghanaians has little to do with the legality or constitutionality of such appointments by President Mahama. The major concern is that we seem to be firmly establishing this practice of lame duck period appointments and major decisions without developing any useful standards or conventions in our body politic.
It’s sad we have constrained our conversations to precise law; with the erroneous impression that every political problem should be settled with the constitution or with the law.
Respected political scientist and Executive Director of Centre for Democratic Development-Ghana, Prof Gyimah-Boadi is the view that we should not ‘...turn the matter of governing the nation into narrow legalistic arguments. That has not served the nation well. And we must evolve conventions that promote our progress and stop justifying wrongs with wrongs and pernicious precedents’.
The way forward: Law or Consensus?
Professor Kwaku Asare, a lawyer, recommends the enactment of an ‘anti-Midnight Appointment Act’ to deal with the controversy of lame duck period appointments.
He writes: ‘Midnight appointments are controversial. Such an appointment culminated in the famous US case titled Marbury v Madison. A potential solution is to pass an anti-Midnight Appointment Act that limits the power of the President to make appointments to the Public Service 3 months immediately before the next presidential elections and up to the end of her term.”
Prof Gyimah Boadi is however of the view that in the absence of legislation, there has to be some gentleman’s agreement between political parties that whenever vacancies fall in certain key public office positions, appointments will have to be made a lot more consultative and with more deliberation in a depoliticized manner even if such public office positions are political appointments.
As attractive as these proposals are, many will be skeptical, particularly of the latter seeing the light of day especially in our ‘winner-takes-all’ characterized partisan politics.
The most recent instances of lame duck appointments, for example, were made barely 24-hours after the transition team of the outgoing administration agreed to consult the incoming administration before making major decisions.
The Minister of Environment in the John Mahama regime and one-time Information Minister, Mahama Ayariga, defended the outgoing government’s actions saying “ if you feel like engaging, you do, if you feel like you can go ahead and exercise your powers as set out in the constitution, you go ahead”
If our political class cannot abide by the terms of a gentleman’s agreement which was announced to the public on several media platforms, there is little hope that they will adhere to the terms of any informal agreements in the future.
Different Problems require different remedies
A one-size-fits-all to the phenomenon of appointments during lame-duck periods may not resolve the problem. Presidents take a wide range of decisions during lame-duck periods, and each type of decision requires a different remedy. For the purposes of this article decisions will be broadly categorised into:
A. Reversible executive appointments to head public bodies. (Example, ministers of state)
B. Reversible fiscal and other public policy decisions. (Example: Mr. Kufour’s increase of public service wages by between 16 - 32 percent as part of the single spine salary structure implementation).
C. Irreversible appointments to head fixed-term, constitutionally autonomous bodies. (Example: President Mahama’s appointment of a CHRAJ Commissioner).
We are of the opinion that while it will be unwise to restrict the President’s powers to perform A and B by law, his power to make irreversible appointments to constitutionally independent bodies must be altered through reform of the 1992 Constitution.
President of mPedigree and public interest researcher, Bright Simons, shares this view:
‘It would obviously not be sound policy to attempt to shackle a lame duck President by legislation from being able to exercise all his powers. However, we do need to distinguish between constitutionally autonomous appointments and executive appointments, which fall within the day to day functions of the Head of State.’
The current constitutional provisions are problematic for several reasons.
The constitution grants the President the power to appoint the heads of these bodies ‘in consultation with the council of state.’ This consultation process was designed as a mechanism to restrain the President from the unchecked and self-serving exercise of his appointing power. The Council of State has however been rendered legally and practically useless.
The Council of State is legally toothless because the Supreme Court recently ruled that its advice is not binding on the President: Ghana Bar Association v. Attorney General (2015). The Council has no soft power or public influence because the public has no way of verifying whether or not it has met and offered the President advice, particularly since successive Councils have stayed largely out of sight and remained mute in the public arena. Furthermore, the President’s power to appoint 40 percent of its members effectively turns it into a rubber stamp mechanism.
With the absence of any real check on his appointing power, it is more likely than not that the President, acting like any rational politician, will appoint someone who is partial to his political party to these sensitive constitutional positions.
Bright Simons again agrees with this view. He says, ‘It is a real travesty that ministerial appointments require parliamentary approval but the appointment of a CHRAJ Boss does not. The President should by no means be able to appoint an EC Chair, for instance, with the same ease with which he appoints his executive secretary.
Presently, the complete ineffectiveness of the discredited Council of State makes it, in fact, so. To the extent that we have these institutional limitations, constitutional change is warranted.’
Even if the President appoints highly professional and independent-minded people to these offices, they are tainted with the tag of partisan bias, especially if he appoints them in election years or during lame duck periods.
For example, the Electoral Commissioner, Charlotte Osei, was accused of having previously contested in NDC parliamentary primaries though those allegations were later proved untrue. [See: http://www.peacefmonline.com/pages/politics/politics/201511/261459.php]
It is arguable that most of her actions were scrutinised and condemned by most Ghanaians in part because of the perception that she is partial to the NDC, a perception fuelled by the nature of the process through which she was appointed.
The cure for this problem is to amend the constitution to institute a system of appointments to constitutionally independent positions which are transparent, encourages bi-partisanship, prioritizes the professionalism of the appointee, and limits the President’s powers of selection.
Thankfully, several useful examples abound in other African jurisdictions. Kenya, for instance, advertises the position of Electoral Commission Chair and commissioners. Interviews of shortlisted applicants are then conducted in public. The process then continues as follows:
“After conducting interviews, the Selection Panel shall select two persons qualified to be appointed as IEBC (Independent Electoral and Boundaries Commission) Chairperson and nine persons qualified to be appointed as members of the electoral body and shall forward the names to President Kenyatta for nomination of one person for appointment as the Chairperson and six persons for appointment as members.
President Kenyatta shall, within seven days of receipt of the names forward the list of nominees to the National Assembly for approval in accordance with the Public Appointments (Parliamentary Approval) Act.
He shall, within seven days of receipt of the names approved by the National Assembly, by notice in the Gazette, appoint the Chairperson and the members of the Commission.
The Selection Panel shall stand dissolved upon the requisite appointments being made”
[See: http://www.eastafrikadaily.com/2016/10/kenya-selection-panel-calls-applications-for-chief-and-members-of-electoral-commission/]
Public interviews of candidates for the headship of constitutional bodies will highlight their professional competence or lack thereof. The public would also have the opportunity to supply any evidence of political bias and give the candidate the opportunity to defend him or herself. Parliamentary approval would allow bi-partisan consensus to develop around a candidate. These reforms would ensure that whether the appointment of a CHRAJ Commissioner or EC boss is made during a lame-duck period or not, the occupants of these positions are unlikely to be tagged as partisan and will be free to execute their mandate with the full public support.
So who will bite the bullet? For now, the onus lies with President-elect Nana Akuffo Addo to right the wrongs of the past, however, costly or time-consuming it may be.
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