Forty-one In One Blow! Thoughts on the Proposed Single Referendum Question to Decide the Amendment of Ghana's Constitution
| Date | 01 February 2016 |
| Published date | 01 February 2016 |
| Author | |
| DOI | 10.3366/ajicl.2016.0137 |
| Pages | 1-11 |
Ghana's Constitutional Reforms Commission, [CRIC], set up in 2012 to translate the report of the Constitutional Review Commission (CRC),
Constitution Review Commission, ‘From a Political to a Developmental Constitution’, Accra 2011.
into concrete constitutional amendments submitted a draft bill to government in 2014. The Bill proposed to amend 34 entrenched provisions and insert 7 new ones and addressed matters found in no less than 10 chapters of the Constitution. Government apparently intends to put this bill to the mandatory referendum for amending entrenched provisions of the constitution. In other words, government hopes to amend Ghana's Constitution 41 times with single power-packed blowBoth the constitutional review exercise and the proposed amendments, have been met with condemnation and challenge at nearly every turn.
E.g. ‘Constitutional Review Takes Off But Kumado Says It's a Misplaced Priority’,
S. Kwaku Asare, ‘How To Amend the Constitution of Ghana’, available at
It is not impossible that Ghanaians will find all 41 suggested amendments collectively either appealing or unacceptable. But it is not very likely. They include (a) requiring the President and Vice-President to resign upon defecting from the party under whose auspices they were elected;
Supra note 1 at p. 100.
(b) President to appointing the head of a proposed Independent Emoluments Commission;This small sample demonstrates that there is no basis for believing the 41 provisions to be of such a nature that people would ordinarily choose to tackle them together. Matters that dovetail into each other can be considered together. But discrete matters should be treated independently. If there had been a bill on executive powers and a separate one dealing with legislative powers, etc, there might have been good cause to support that procedure, even though it would still fall short of the current constitutional standards. But it would have likely enjoyed the popular support that would have clothed it with the legitimacy bestowed by revolutions. When a constitution is amended by unconstitutional means, whether through activist judicial interpretation,
E.g. In
President Bush, declared war on Afghanistan in September 2001, though constitutionally only Congress can declare war on behalf of the United States.
L. Alexander, ‘Of Living Trees and Dead Hands’, 22 Can. J.L. & Juris. 227 (2009) at p. 236.
This is more in line with the purposes of a republican state than the proposed logrolling and the consequent uncertainty it creates in the minds of voters and in the public dialogue.
In drafting legislation, clarity is crucial. It makes a law's content accessible to the community, enabling citizens collocate each law within the general body of laws, thereby achieving the internal coherence of laws that Fuller lists among his desiderata for the Rule of Law.
L. Fuller, The Morality of Law, 1964, Yale University Press.
But as LeDuc points out, clarity is neither easily defined nor achieved.L. LeDuc, ‘Referendums and Deliberative Democracy’, Electoral Studies 38 (2015) 139–140 at p. 141.
Royal Instructions 1886, XXII (3). 1G&G 1 (2d) 147.
Ghana's voter population comprises demographics with varying degrees of sophistication: from first-time voters still in school to former presidents; villagers in remote places to high-powered tycoons in bustling cities. Achieving a level of clarity in direct decision-making that makes the law's content reasonably accessible to all these demographics is no simple task and a single bill into which so many issues are compounded is very unlikely to attain it.
Even if the 41 matters were simple grocery choices, it is doubtful that their desirability or otherwise would be determined in a single decision by a reasonable shopper. The matters in the proposed bill are neither simple nor trivial and the weight of their substance constitutes a third objection. Each proposal affects our way of life and national psyche. Seemingly distant proposals like reducing the number of Supreme Court judges to 15 or replacing capital punishment with life imprisonment have immediate consequences for citizens. The former could diminish access to justice and the latter has tax implications. It is imperative that these matters be dealt with as the disparate issues that they are in order to give the people proper opportunity to make considered choices about their supreme law.
A fourth objection is rooted in the people's right to participate in the foundational matters of their society. When given the choice in 1991, Ghanaians voted overwhelmingly to return to constitutional rule,
L. Cooper
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