A constitution in contempt of constitutionalism?

By Herbert Krapa
The writer, Herbert Krapa

The dust is slowly settling on the now infamous Montie three and arising matters. The emotions are on a downhill trip and with it thankfully, the accompanying noise.

In the opposite direction should be very critical questions on how we got into the noisy space in the first place and how we can quieten those that bang on the doors of our Constitution with such frightening force. 

Several of those questions have so far been asked by legal minds and political observers of our governance landscape. But several more too remain.

Article 72 of Ghana's 1992 Constitution seems to be the hardest hit in the entire episode. It is the provision that hands the President of Ghana the widest powers to vet judicial sentences, as a first reading of it would at least seem. It gives the President power to pardon a person convicted of an offence or even substitute his own punishment for what was imposed on a person by the Court. But has the President, the head of the Executive arm of government in a constitutional democracy, power to vet judicial sentences? To that vexed and tricky question Article 72 seems to be saying a big 'ye' to all of us. But the question in actuality is whether the Constitution could have envisaged that Article 72 should set the President up as a somewhat appellate Court to the Judiciary. The answer now may not be found in Article 72 alone.

At law school, Sir Kumado's elaborate discussion of the ideal of constitutionalism seemed to me at first instance like another of the classroom work. Of course it was mostly about passing examinations then. But I remember too well the good Sir saying that the values embedded in constitutionalism must be allowed to grow if our nation would be able to consolidate the daily gains of our rather young constitutional democracy. 

Jennings tells us that an examination of the working of a Constitution must necessarily involve an examination of the social and political forces that hold together the desires and habits of the people. The social and political fabric of the Ghanaian society determines to the greatest extent the working of the 1992 Constitution. 

The ideal of constitutionalism rests firmly on this notion. It governs the legitimacy of government action, so that government actions will be in conformity with the broad philosophical values within a State. Properly understood, constitutionalism implies something over and above ‘legality’ and so Wheare is abundantly right when he asserts that before we can conclude that a country with a written Constitution has also a constitutional government, we must see how the Constitution works in practice, and see in particular whether usage and convention operate to strengthen or weaken constitutional limitations. 

If for example the Constitution gave power to the President to order the arrest and detention of persons who do not share his vision, and the President went ahead to exercise such a power, would it not be deemed to be constitutional? But will a people who have agreed collectively to be governed by the rule of law actually hold out same as good law? If the law has embedded in it a function which hampers its smooth and proper functioning then short of saying that it is not good law, the malfunctioning component must at least be cured. And if this law makes its way somehow into the supreme law of the land, the doctrine of constitutionalism must oversee the process of hibernating the mischief, at least for the time being that it remains in the Constitution. 

Constitutionalism is that fertile seed that births the required values for the proper working of a Constitution and for the protection of the people’s freedoms and liberties. It also guarantees the effective and efficient working of State institutions in a constitutional democracy. 

Article 125 (3) of Ghana’s 1992 Constitution is clear in vesting the judicial power of Ghana in the Judiciary and giving it the final say in judicial matters. Article 72 on the other hand seems to be giving the President of the Republic some executive-judicial power to pronounce a sentence after the sentence. It is curious how both provisions made it into our Constitution as they appear, but needless to say that it is very instructive that Article 125 follows Article 72 in the very Constitution. 

It means that, regardless of the curiosity, the Ghanaian people, upon giving those wide powers to the President to give a sentence after the sentence, pronounced in very clear terms thereafter that the Judiciary should have the final say in such matters. 

The Constitution accordingly creates some friction by saying that the Judiciary must have the final say in judicial matters and yet somehow reserving a portion of the final say to the President. The seeming friction may beg an interpretation of what Article 72 indeed means or an analysis of what convention has evolved over time in dealing with the problem. But interpretation or convention, the ultimate path on which every President must turn in my opinion, is the one on which the brightest constitutional lights have shone in all civilised democracies across the world. 

If the Judiciary is to perform its duties effectively and remain true to the calling of justice delivery, then the dignity and authority of the Courts have to be respected and protected by all means lawful. Without this is guaranteed an erosion of the foundation of our constitutional framework, and with it, the rule of law. 

This is the only reason why the Courts exercise the power of punishing those whose acts, whether inside or outside the Court, have the potential of undermining the Court’s authority and bringing it into disrepute. An exercise of this power is not to be seen as quenching a thirst to vindicate the dignity and honour of the judge. 

It is simply an act in holding up high the majesty and supremacy of the very law that provides relief for all. The confidence of the people in the judiciary as being a fair, firm and final arbiter in the delivery of justice is a non-negotiable necessity in giving vitality to the rule of law.

Has Article 72 the potential of eroding that confidence? Of course the answer to this one too is a yes. But if the President is mindful of its consequences and is careful in invoking and applying it, then the no in the yes becomes louder than the yes itself. 

The arguments of Dr Danquah may have failed in the celebrated case of Re Akoto, but they have remained evergreen, influencing in many respects all subsequent Constitutions after 1966. We have embraced his arguments because we agree as a people that law is not law if it is not recognised by the values on which our society rests. 

The history behind the promulgation of the 1992 Constitution, the spirit in which it is written and the front row seat that it gives values such as separation of powers and judicial independence, must make all of us wary whenever one arm of government stretches beyond its bounds. Even if the interference purports to be sanctioned by the same Constitution, the values of the society, which underpin and oversee the written text, must work together to reduce the potency of the interference. 

A final question remains: between the Constitution and constitutionalism, which is more important? Of course it will be preposterous on my part, with my understanding of constitutional supremacy, to attempt an answer that derogates from the authority of the Constitution. 

But I may equally not offend any law if I put constitutionalism above the Constitution, because unlike the constitutional approach, which makes direct reference to a written constitutional text, constitutionalism invokes open-ended questions, which recognise that sovereignty resides in the Ghanaian people alone in whose name and for whose welfare the powers of government are to be exercised. Britain has no written Constitution and yet her democratic credentials are perhaps unmatched by many countries with written constitutions. Constitutionalism accounts for that. The fact that a thing is in the Constitution does not necessarily mean it is right. 

If we agree that Article 72 of our Constitution is too broad in giving the President too much power, then we must accept that its use by the President may either be ‘lawful’ or ‘arbitrary’ depending on all the circumstances attending to the specific invocation. If it will be arbitrary to invoke it in favour of the Montie three, then the President, acting on the authority of the Constitution, would be in contempt of constitutionalism.