• Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.

• The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of President.

This article takes a critical look at this provision and its implementation and posits that the current interpretation of the Supreme Court is, respectfully, problematic; and places an unnecessary clog on our constitutional development.

There are clear grounds for the invocation of the jurisdiction of the Supreme Court in matters of constitutional interpretation. In the case of Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, the Court of Appeal at page 605 identified the following as the grounds upon which the jurisdiction of the Supreme Court to interpret a provision of the Constitution may be invoked:

1. Where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double meaning or are obscure or else mean something different from or more than what they say.
2. Where rival meanings have been placed by the litigants on the words of any provisions of the Constitution.
3. Where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;
4. Where on the face of the provisions, there is a conflict between the operation of

particular institutions set up under the Constitution and thereby raising problems of enforcement and of interpretation.

It is on the back of these grounds that the Supreme Court was invited to look at the meaning of the provisions in Article 60 (11) of the 1992 Constitution in the case of Asare v. Attorney General [2003-2004] SCGLR.

The Supreme Court in Asare v. Attorney General reasoned that “unable to perform the functions of the President” connotes a situation where the President and the Vice President are both outside the country. The Supreme Court speaking through Professor Kludze JSC stated that “…the basic assumption of article 60(11) is the idea that the executive power of the presidency should never be in abeyance.”

The Court further stated: “…to have a situation when there is no person in Ghana to exercise the executive power of the presidency would be a prescription for chaos and anarchy, and could expose this nation to both internal and external instability”

It is for this reason that whenever the President and the Vice President are out of the jurisdiction even for just a few hours, Parliament is convened to swear in the Speaker of Parliament as Acting President.

This practice raises a number of issues particularly in the 21^st century and in the era of technology.

First, a close look at Article 60 will reveal that the framers of the Constitution never intended the word “unable” to mean being outside of the jurisdiction.

Article 60(8) 0f the 1992 Constitution. That provision provides that:

“Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the functions of the President until the President returns or is able to perform his functions.”

It is in the provision that the Constitution mentions “absent from Ghana”. When this provision is compared to Article 60 (11), it becomes evident that the ONLY time the speaker can be sworn-in as Acting President is when the “Both President and Vice are unable to perform the functions of President”. Thus, it is my considered view that while the President and Vice may be out of the country performing executive functions another office cannot be sworn-in as Acting President. This interpretation makes mockery of the Presidential Oath since sometimes the Speaker is sworn-in for just a couple hours. It is this absurdity in the current interpretation of Article 60 (11) that at point in our history, a Speaker of Parliament decided not to re-take the Presidential Oath since he had taken it once when both the President and Vice were out of the country. This “Phoenix-Presidency” by Rt. Hon. Speaker Doe Adjaho was challenged and the Supreme Court again was called upon to look at this interpretation of Article 60 (11) in Samuel Atta-Mensah v. Attorney General. The Supreme Court stuck to the fidelity of their earlier decision in the Asare v. Attorney General case, and ordered the Speaker to take and subscribe to the Presidential Oath.

This issue has gained currency again with the travelling of the President to Liberia for the swearing in of that Country’s President and the Vice-President’s medical leave in London. Parliament which was on recess had to be reconvened on Sunday 21 January 2018, to swear in Rt. Hon. Speaker Oquaye as “President-to-stop-Abeyance”.

It is my considered view that the time has come for this practice to cease. The Supreme Court should be the avenue for a suit for a possible review of the decision in Asare v. Attorney General. The implementation of the decision has led to the trifling of the Presidential Oath and the associated cost of reconvening Parliament, when on recess, in is unnecessary. Section 3 of the Oaths Act, 1972 (N.R.C.D. 6) is headed “Unnecessary repetition of Oaths”. The contents of this section of N.R.C.D 6 makes it clear that “A person who has duly taken the Oath of Allegiance or the Judicial Oath shall not be required again to take that oath on appointment to any other office or on any other occasion.” Thus, if the Oath of Allegiance and Judicial Oath have such protection from unnecessary repetition, the Presidential Oath should also be insulated from unnecessary repetition.

The Constitution Review Commission and the subsequent Implementation Committee made recommendations on how to address this matter. But this is Ghana and we have allowed the report of the Constitution Review Commission to remain a “good document”.

Furthermore, the Constitution in its second schedule, prescribes the form and manner of administering the Presidential Oath. It states:

“The Presidential Oath

I,……………………… having been elected to the high office of President of the Republic of Ghana do (in the name of the Almighty God swear) (solemnly affirm) that I will be faithful and true to the Republic of Ghana; that I will at all times preserve, protect and defend the Constitution of the Republic of Ghana; and that I dedicate myself to the service and wellbeing of the people of the Republic of Ghana and to do right to all manner of persons.

I further (solemnly swear) (solemnly affirm) that should I at any time break this oath of office I shall submit myself to the Laws of the Republic of Ghana and suffer the penalty for it.

(So help me God). To be administered by the Chief Justice before Parliament.”

The form of the Presidential Oath in the second schedule of the Constitution in my considered view ONLY contemplates the administering of the Oath to elected President. When the Speaker is sworn-in in the absence of the President and Vice President, he is sworn-in as an Acting President or President-to-stop-Abeyance and not as President. Moreover, he has not been elected as President. The Presidential Oath together with the provisions in Article 60 are entrenched provisions. It is my view that any amendment or variation of the Presidential Oath without going through the correct process of amending same is unconstitutional and makes the Oath ineffective. I know the proponents of modern purposive approach to interpretation will want to hide in the cloak of Aaron Barack and scream that “elected” should be given a purposive interpretation. My question is, has it been given a purposive interpretation by the Court given the authority to do same?

Only solution available to us in the short term is to review the decision in Asare v. Attorney General that equates travelling out of the jurisdiction to being “unable to perform the functions of the President”. Unable in my view connotes incapacity, inability, and powerlessness. When our President and Vice President are out of the jurisdiction, are they powerless? Actually, most of the time when they are out of the jurisdiction, they exercise and exhibit the finest form of Presidential power – executing international agreements and making commitment on behalf of the State.

In the long term, should we ever get to the point of amending the Constitution, this is an area worth looking into. As said earlier, the Constitution Review Commission and the Implementation Commission have already made adequate proposals in their draft bills on how to deal with this issue.

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By: Clement Kojo Akapame

The post Legal Oddities: Swearing-in an Acting President under 1992 Constitution [Article] appeared first on Citi 97.3 FM - Relevant Radio. Always.

According to him, the framers of the constitution should have made provisions for the oath to be recited by the acting President when the need arises.

[contextly_sidebar id=”ihXhF25OcKqn9bXaWi4DCC9uW0CkocQa”]“They should have made provision in the case of someone who is acting, because what the Chief Justice sort to do was to alter the oath to fit the exigencies of the situations, I mean he has not been elected,  the oath says that whoever is being sworn in will say, ‘having be elected to the high office of President’, we have a situation where the Speaker, who is going be acting was not elected to the high office of president, so in this case that has that has to be altered,” he said.

He also questioned the constitutionality of the swearing at Parliament, and wondered if the Chief Justice has the power to alter the constitution in the sense to meet the demand of the situation at hand.

“Now, here is the case she has read something that cannot be found in the constitution, in such a situation what is the interpretation, does she have the legal backing, does she have the constitutional mandate, to alter elements of the constitution?” he asked.

He also said the absence of the President does not incapacitate him from going about his function as the President of the country.

“We live the 21^st century and I think the President can issue an instruction to any of his ministers to the Chief of Staff, from wherever he is, and the fact that he is not physically present in the country will not invalidate the things that he may have given instructions for,” he said.

He concluded that the alteration of oath is something they, the Minority, wants the general public to think about and in due time, their line of action with regards to that, will be made known.

Speaker needs only Oath of Secrecy to act as President – Majority Leader

Majority Leader, Osei Kyei Mensah-Bonsu, has suggested that future Speakers of Parliament who may have to act as President be allowed to take only the Oath of Secrecy.

At the moment, Speakers of Parliament who serve as acting President in the absence of both the President and the Vice, are to take only the Oath of Office.

But speaking on the floor of Parliament on Sunday after Professor Michael Oquaye was sworn in as acting President, Mr. Mensah-Bonsu said the country could take a second look at the arrangement.

He argued further that the Speaker of Parliament is already administered the Oath of Allegiance when sworn in as Speaker of Parliament.

“The Speaker did not take Oath of Secrecy. For the Oath of Allegiance, the Speaker has already taken it, so I would want to plead that going forward, whenever he has to be sworn in, he does not need to take the Oath of Allegiance because he has already done so as a Speaker. What he didn’t do was the Oath of Secrecy that is done by the President.”

“So I would think that, going forward, when the Speaker has to be sworn in as a President, the Oath of Secrecy would have to be admitted. It has never been done, but I guess we can improve our own procedures,” the Majority Leader stated.

Controversy over swearing-in

The law concerning the swearing-in was breached by a former Speaker of Parliament, Doe Adjaho in 2014, when he refused to take the oath of office as acting President at a point.

Both President Mahama and his Vice Kwesi Amissah-Arthur, had traveled outside the country at the time.

This compelled the Managing Director of Citi FM, Samuel Atta-Mensah, and a United States-based Ghanaian lawyer, Prof. Kwaku Asare, to file a suit at the Supreme Court, to among other things, seek an interpretation of Article 60 (12) of the 1992 Constitution, which requires that the Speaker takes the oath of office each time he is to act as President.

The Supreme Court, in a unanimous decision, declared that the Speaker of Parliament, Mr. Edward Doe Adjaho, violated Article 60 (11)-(12) of the 1992 Constitution when he declined to be sworn in to act as President.

The nine-member panel, presided over by Justice Sophia Akuffo, also averred that the “Speaker of Parliament shall always, before assuming the functions of the Office of President when the President and the Vice-President are unable to perform their functions, take and subscribe to the oath set out in relation to the Office of President”.

Some have however insisted that the law is obsolete, considering that a President on an international assignment remains a President, and so he or she doesn’t need anyone to act in his absence.

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By: Farida Yusif/citifmonline.com/Ghana

The post CJ’s ‘altering’ of Oquaye’s swearing in oath ‘illegal’ – Ras Mubarak [Video] appeared first on Citi 97.3 FM - Relevant Radio. Always.

Haruna Iddrisu, who raised these concerns on the floor of the House today [Tuesday], said “President Nana Akufo-Addo actually replaced some words during the oath, instead of going strictly by what is originally in the constitution.”

According to him, the President said welfare instead of well-being, while the Vice President also mispronounced the word sovereign.

The Minority Leader believes “Any allusion to any honourable member of this house, not taking the business of this House serious or such an allusion to any other public high official should not be the practice in this House.”

“Mr. Speaker, I will try and substitute not taking the work seriously that they should next time follow religiously the citation, her ladyship the Chief Justice in administering the oath, so that it will reflect whatever the constitution provides for,” he added.

Budget statement to be read in March

Citi News’ Duke Mensah Opoku  reporting from Parliament, said the Speaker, Prof. Michael Oquaye, indicated that the new government’s first budget statement will be read in March this year.

The Speaker also advised new members of Parliament to be diligent and dedicate themselves to study the rules that govern proceedings in the house.

His comments come few days to the scheduled induction seminar for MPs which begins on Friday. He made these comments in a speech on the floor of Parliament, as the house resumed sitting today [Tuesday], after a two-week break.

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By: Marian Ansah/citifmonline.com/Ghana
Follow @EfeAnsah

The post Minority Leader slams Nana Addo, Bawumia for mistakes in presidential oath appeared first on Citi 97.3 FM - Relevant Radio. Always.