*By Abdul Baasit Aziz Bamba, Ph.D.
Lawyer and Lecturer at the School of Law, University of Ghana.
Unless the COVID-19 crisis subsides to enable the 2020 presidential and parliamentary elections to be held by December 7, 2020, we will be confronted with a constitutional crisis by reason of the combination of certain legal “knowns” and “unknowns”. The legal knowns represent clear and obvious legal situations, which appear to be beyond legal controversy whilst the legal unknowns are suppositions and conjectures based on “ifs” and “buts”.
It is a legal known that the term of office of (a) the President (article 66(1)); (b) his Ministers (JH Mensah v Attorney-General, 1997); (c) the Speaker and Members of Parliament (article 113(1)) expires on January 6, 2021. Yet the concurrent expiration of the terms of the executive and parliament on January 6, 2021 leads to a number of unsettling legal unknowns or scenarios if no presidential and parliamentary elections are held by December 7, 2020.
Scenario 1: No President, No Parliament
In this scenario, there will be no executive or the legislature on January 7, 2021 since the term of office of these two organs of government would have ended by operation of law on January 6, 2021. The only organ of government that would remain is the judiciary. We are in uncharted territory and the resultant legal and political vacuum is not only dangerous, but also presents an unprecedented constitutional crisis.
Scenario 2: Chief Justice as Acting President
Scenario 2 – Chief Justice as Acting President – rides on Scenario 1. Upon the expiration of the term of the executive and legislature on January 6, 2021 in Scenario 1, we may be tempted to invoke article 57(2) of the Constitution to make the Chief Justice the acting President. However, the 1992 Constitution does not include the Chief Justice in the presidential line of succession (Article 60). Nor did the 1969 and 1979 Constitutions.
From the viewpoint of our constitutional history and for context, it is noteworthy that under the 1969 Constitution the Speaker of the National Assembly acted as president in the absence of the President. (Article 38(3) of the 1969 Constitution). The 1979 and 1992 Constitutions have the same provisions on succession to the presidency. In the absence of the President, the Vice President acts as president, and in the absence of the Vice President, the Speaker of Parliament acts as President. As already noted, the Chief Justice is not included in the presidential line of succession.
Articles 57(2) of the Constitution deals with persons who “take precedence over all other persons in Ghana”. It does not directly relate to the presidential line of succession. Instead, it is article 60 that deals with succession to the presidency. Therefore, articles 57 and 60 address clear, separate and distinct matters. And there is no direct logical correlation whatsoever between the persons named in article 57(2) and the succession to the presidency provided for by article 60 of the Constitution. Therefore, if we invoke article 57(2) of the Constitution to make the Chief Justice the acting President, it will amount to a desperate move to avoid the doomsday situation presented by Scenario 1 – no president and no parliament on January 7, 2021. It is also extremely doubtful the framers of the 1979 Constitution and 1992 Constitution ever contemplated the Chief Justice acting as President in the absence of the President, Vice President and Speaker of Parliament; considering the constitutional scheme on the presidential line of succession in the 1979 Constitution, which has been reproduced in the 1992 Constitution.
In the 1979 Constitution, we adopted the US presidential system of government with complete separation of the executive and legislature. By the provisions of the 1979 Constitution, the term of office of the President was 4 years (article 53(1)) while that of Parliament was 5 years (article 94(1)). The different terms of office for the executive and the legislature as provided for in the 1979 Constitution, together with the different constitutional stipulations in relation to the period for holding presidential and parliamentary elections was advantageous. This made it exceedingly remote and unlikely that the end of the term of office of President and the dissolution of Parliament would take place on the same date.
Another reason which supports the view that it was not in the contemplation of the framers of the Constitution for the Chief Justice to ever act as president rests on the fact that, the presidential line of succession in article 47(7-12) of the 1979 Constitution (same as article 60(7-12) of the 1992 Constitution) was clearly influenced by the US Constitution and the US Presidential Succession Act of 1947, where the Chief Justice is not included in the line of succession to the presidency. Despite the lack of textual, historical, structural or conceptual support for the Chief Justice acting as President, Scenario 2 does not look as outlandish as it may seem at first blush given the obvious adverse legal, social and political consequences of Scenario 1.
Scenario 3: Chief Justice as Acting President governs without Parliament
Scenario 3 piggybacks on Scenario 2. If Scenario 2 prevails with the Chief Justice acting as President, it would appear that, by the combined reading and effect of article 113(3) and 297(h) of the Constitution the Chief Justice would have the option of governing the country with or without Parliament for the purpose of holding “a presidential election within three months after his assumption of office” as acting president (Article 60(13)).
To elaborate further, article 113(3) of the Constitution empowers the President if he “is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.” Relatedly, Article 297(h) states that “words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants”.
By extension, if the Chief Justice becomes acting president he could exercise presidential powers on the basis of article 297(h) of the Constitution for the purpose of holding “a presidential election within three months after his assumption of office” as acting president.
Should the Chief Justice act as president for a period not exceeding 3 months for the purpose of holding a presidential election we should expect the most senior judge of the Supreme Court to act as Chief Justice.
If the COVID-19 pandemic persists beyond 3 months after the Chief Justice has acted as president, we have hit a constitutional cul-de-sac. To overcome this, we may creatively deploy article 297 (b) of the Constitution to keep extending the term of the Chief Justice for 3 months in succession until the pandemic abates to enable us hold presidential and parliamentary elections.
Scenario 4: Chief Justice as Acting President recalls the dissolved Parliament
By article 113(3) and 297(h) of the Constitution as explained above, the Chief Justice can exercise presidential powers when he acts as president. Starting from that premise, the Chief Justice as acting president may invoke article 113(3) of the Constitution “to summon the Parliament that has been dissolved to meet.”
Substitute “Chief Justice” for “President” in article 113(3) of the Constitution. When that is done, then acting on the basis of article 113(3) of the Constitution, the Chief Justice may recall the dissolved parliament after declaring a state of public emergency pursuant to article 31of the Constitution. In the absence of a formal declaration of a state of emergency, the Chief Justice cannot trigger article 113(3) since that provision is predicated on “the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana”.
Scenario 5: Speaker of Parliament recalled acts as acting president and first deputy speaker acts as speaker of parliament
Should the Chief Justice recall the dissolved Parliament pursuant to article 113(3) of the Constitution after declar