HOME               REVIEW OF GHANA LAW 1980

SEPARATION OF POWERS IN GHANA: THE NEW ROLE FOR PARLIAMENT [1980] VOL. XII RGL 20—39

 Nii Aryee J.

ON the doctrine of separation of powers,1 Professor Richard Neustadt has remarked that, “The constitutional convention of 1787 is supposed to have created a government of ‘separated powers’. It did nothing of the sort. Rather it created a government of separated institutions, sharing powers.”2 Of course, the powers here referred to are no other than the executive, legislative and judicial powers of the state, the separability of which has, since the writings of John Locke and the eighteenth century political and legal philosophers, gained such recognition that the crucial question to be answered, since then when it came to writing constitutions, has been how much separation is desirable. Thus when in 1966, the Constitutional Commission in Ghana (commonly called Akufo-Addo Commission) was directed by its terms of reference to:

“ensure the inclusion in the Constitution for Ghana of a provision which will guarantee that so far as is consistent with good government, the Executive, Legislative and Judicial powers of the State shall be exercised by three separate and independent organs,”

the commission readily understood that directive as requiring it to take into account the “doctrine of separation of powers”.3 It is therefore quite remarkable that, despite this understanding by the commission of its task, it came out with proposals in which, of the three organs, only the judiciary was separate, but none independent. The commission, no doubt, shared the view of modern students of political science that4 :

“ Care is needed in discussing the doctrine, even in its constitutional setting. It does not mean that the separate branches of government avoid interaction; it emphasises the checks and balances through which the separate branches limit the powers of the others.”

The idea then was that, with a written constitution, spelling out the limitations of the other two powers, a tolerably independent judiciary holding the balance between the other branches, was all that was necessary to carry out the mandate of good government. Moreover, said the commission5:

“[the] separation of powers… in the sense in which Montesquieu conceived of it as being the essential characteristic of the British Constitution in the 18th century and also in the sense in which the framers of the American Constitution understood it, is not wholly practicable under a parliamentary system of government.”

In the event, therefore, the Constitution, 1969, which followed the Akufo-Addo Commission, stopped at only a limited separation of powers so as to maintain the parliamentary form of government. This was understandable, for by its mere association with the British Constitution, parliamentary or cabinet system of government, otherwise known as the “Westminster Model” has come to represent the best form of government known to most ex-British dependencies. There was, otherwise, no special reason for the Akufo-Addo Commission to link its task inevitably, so to say, with the parliamentary form of government. Thus, it was, that the 1978 Constitutional Commission, for its part took it as one of the central issues before it, and particularly opportune, in the light of the Union Government Affair,6 to re-examine the whole question of the compatibility of the parliamentary form of government with the requirements of good government in Ghana.

The Experience with the Westminster Model in Ghana

In its proposals, while readily admitting the success of the British constitutional system, the 1978 Commission was quick and strong in emphasising that the system was a peculiar British institution, which7:

“… is, in its pristine form, practised only in the United Kingdom and in modified forms in a few other countries which were formerly colonies of Britain.

48.  Even in these other countries the system has worked only in those countries whose population and institutions were at least in the initial stages, mainly Anglo-Saxon.”

To the commission, there was, therefore, no way to avoid turning the system into a8:

“government by or through a parliamentary cabinet, nominally responsible to Parliament but, in fact, hardly subordinate to any other body except perhaps to the Central Committee or the National Executive or National Conference of the ruling political party.”

In its view that the success of parliamentary cabinet system has something intrinsically to do with “the people, the ideas and the attitudes which made it possible in its original habitat”. The commission is supported by another foreign observer of the system, Professor Ulrich Scheuner, who points out that9:

“Cabinet government is not a theoretical invention but a form of government developed through historical process during the last two centuries in Great Britain. From there it spread to several countries of the European continent and thence to Asian and African states.”

There may therefore appear to be some justification for the commission’s conclusion that, with the Anglo-Saxon link missing, the system will forever be “tried in Ghana and elsewhere in Africa with predictably disastrous results,” and that in the end the only answer is to reject the model. Thus it was, that in the 1978 Commission was compelled to propose that the parliamentary form of government, upon which past Constitutions of Ghana has been based for well over twenty years,10 should be replaced by a system of government based on a “strict” or “thorough-going” separation of powers.

The Separation of Powers Proposed for Ghana

Given, however, the fact of the long history of a separate judiciary,11 with varying degrees of independence, the effect of any strict separation can really be no more than removal of the executive from the legislature a point which the commission took some pains to stress. The commission said12:

"What we propose is a system in which the Executive and the Legislature are separate and independent of each other, but complementary to each other and obliged to co-operate with each other if each is to be able to perform its functions effectively."

This proposal has now been given effect by article 75 of the 1979 Constitution, which vests all legislative powers in a Parliament, consisting only of its elected members (being not less than one hundred and forty in number), in contrast to the Parliament under the 1969 Constitution which included the President. Fears have however been expressed that this "enforced" or "legislated" co-operation might lead to a form of the "politics of immobilism."13 But in the words of the commission14:

"understandable as they may be, these fears are either completely groundless or unduly exaggerated ...

In our view, provided the Constitution spells out clearly and comprehensively the ground rules of the 'competition and co-operation' between the Executive and the Legislature in such a way that there is no reasonable doubt as to what the rights and responsibilities of each organ are, the possibility of disagreement on objectives, priorities or modalities need not be a serious cause for concern. The President and Parliament being cognate authorities with equal constitutional guarantees and security of tenure will surely realise that they cannot do their work effectively or execute their functions except in co-operative manner ordained by the people in their constitution . . . In the first place we are not at all convinced that we as a people should again sacrifice our freedoms and liberties on the altar of the so-called ‘strong and effective government’."

THE GHANAIAN PARLIAMENT IN A GOVERNMENT OF SEPARATED INSTITUTIONS SHARING POWERS

But, indeed, given the dominant position the executive has hitherto enjoyed under previous Constitutions in Ghana, and the powers associated with the Executive President, the real question arising from the new system of separation adopted by the Constitution, 1979, is how well Parliament is equipped (after several years of subordination to the executive), to assume the new role of balancing the power of the executive as an equal. Under the executive presidency of the First Republic, for instance, the President was both Head of State and Government with powers further enhanced by the parliamentary framework within which he operated. Although Parliament was necessarily bound by the executive initiative, it was not clear to what extent the Cabinet appointed from Parliament, could influence presidential decisions. For, by virtue of article 8(4) of the Constitution, 1960, the President was, in the exercise of his functions entitled to act in his own discretion.15 Similarly, under the type of presidential system Ghana has adopted, it has been held in the case of Youngston Sheet and Tube Co. v. Sawyer (The Steel Seizure Case)16 that the powers of the President are derived from the still nebulous concepts of "the executive authority." "the execution and maintenance of the laws" and the post of "Commander-in-Chief” of the Armed Forces, as provided in article II of the United States Constitution, and that even in a system also regarded as “a government of enumerated powers" it was possible for the President to assume additional powers. Mr. Justice Jackson concurring in the opinion of the court in the case under reference said:

“If not good law, there was worldly wisdom in the maxim attributed to Napoleon that,  ‘The tools belong to the man who can use them.' We may say that, power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."16a

Traditionally, Parliament, like other constitutional assemblies, has performed three functions, namely deliberation, legislation and the voting or supply of money (otherwise called the financial function). Put in other words, the question therefore is how much power of separate and independent action can Parliament claim in the discharge of these enumerated functions.

(i) The Deliberative Function

A former Clerk of the Ghanaian Parliament has observed that the17: "deliberative function, sometimes called the function of criticism, is exercised in the main, by substantive motions which lead to debate and that debate is the method by which the Assembly passes laws, issues orders and makes known its opinions and its will."

Allan Ball, has also observed that,18 "Debates and questions may have some effect on the government and certainly serve to inform the government as to the opinion in the assembly." In the Ghanaian Parliament the major debate ordinarily ensues after the presidential message delivered in pursuance of article 54 of the Constitution, 1979. It is by such messages that the President is required at the beginning of the session to inform Parliament of the plans which the executive branch has drawn up for the administration of the country during the session and to report at the end of the session on the steps taken so far to implement such plans. It may be noted here that the content and purpose of the presidential message appear to be spelt out more precisely, in section 3, article II of the U.S. Constitution, to the effect that, “He shall from time to time give to Congress information of the state of the Union, and recommend for their consideration such measures as he shall judge necessary and expedient." It is clear, by this section for instance, that it is by this message that the President as chief executive is expected to assume leadership in the shaping and enactment of a legislative programme for the session. Indeed it had been noted of the U.S. presidential system with some exaggeration, though, that19:

"It is also widely recognised that the legislature does not initiate legislation. It accepts and rejects, with or without modification, but the sources of the law lie elsewhere  . . . In the main, they consist of the administrative departments, units of local government and the lobby."

Thus, far from immobilising the presidency, as opponents of separation have suggested, there is ample scope within a government of separation of powers for the chief executive, to seize the initiative, provided there is the necessary programme and a clear-cut policy to back such initiative.

(ii) The Legislative Function

Legislation is of course the best known function of Parliament. But important as this function is to Parliament; as has been rightly pointed out,20 "the usual term 'legislature' is one indication of the exaggeration of the law-making functions of assemblies." Properly speaking, the legislative function is just an extension of Parliament's broad function of influencing the executive. Nevertheless, there is no doubt that, it is the legislative function by which Parliament is intended to exercise the greatest check on the President. In a constitutional system based on "laws and not of men" as Chief Justice Marshal once described the American Constitution, the overwhelming majority of executive decisions are normally carried out by some form of legislation, and in the United States, where, as in Ghana, the President is not even part of the legislature, over 75 per centum of all laws passed during any session are initiated by the executive. That this has been possible notwithstanding the independence of the U.S. Congress, has been attributed to the elaborate system of consultation and co-operation which has been built up over the years, between the President and the Congressional leaders. Indeed, as has been pointed out,21 "in no other country has the legislature so much capacity for acting independently and for thwarting the will of the executive as in the United States." In Ghana, the President's effectiveness in legislative matters, is, however, expected to be further enhanced by the constitutional requirement contained in article 88(14) that, "No bill introduced into Parliament by or on behalf of the President shall be delayed for more than three months in any committee of Parliament," a provision that has no equivalent in the American system. Indeed having regard to the large measure of discretion which would have otherwise been left to the parliamentary committees in this matter, the importance of the provision to the enhancement of presidential effectiveness in Parliament cannot be over-emphasised.

The Committee System and Parliamentary Autonomy

In a system of strict separation of powers there would have been no way of ensuring the return of any bill from committee except by the rules and custom of the legislature itself.22 Using the American experience once again as a guide, it has been pointed out that23 "In the U.S. bills begin in committee, are discussed and examined there and can be killed in committee without the inconvenience of a formal vote on the floor of either house.” “Actions taken by the committee are usually the actions which are taken by the parent body,"24 and thus where a committee decides to "shelve" a bill or to report adversely on it, the odds are that that decision will be confirmed by the appropriate house in Congress. Froman, explains the conceptional basis thus:

"In so far as the chairmen of the Committees and to some extent, the majority party members are not bound in anyway by considerations of the executive interest, the Committee system becomes the central pivot of the whole power relationship between the Congress and the executive in which the former sees it as its role the control of the latter."

By virtue of article 88(14) of the 1979 Constitution, however, it is possible in Ghana for the executive to bring some pressure (even by way of a court action, in the extreme case) against any committee unduly delaying action on any administration bill referred to it.25 Nevertheless this rule can be of very little effect in the absence of the co-operation between the executive and Parliament, referred to earlier, which only can ensure that bills presented by or on behalf of the President are given the high priority they may deserve when being referred to a committee.

Introduction and Consideration of Bills Generally

Since the President and his Cabinet are not members of Parliament, theoretically, there would have been no way they can present or introduce bills in Parliament. In the United States, this theoretical difficulty is resolved by the simplification of the procedure for the introduction of bills. There, a bill is deemed to be introduced once it is dropped into the box assigned for that purpose, after which it is referred to a committee by the Speaker of the house or, as the case may be, by the presiding officer in the Senate. Thereafter, strictly speaking, the bill becomes the property of the house. This latter fact is brought home more forcefully in Ghana by the corresponding procedure contained in article 88 (4) and (5) together with Orders 102 to 104. Article 88(5) provides:

"(5) Where a bill has been deliberated upon by the appropriate committee it shall then be reported to Parliament; and the report of the committee together with the explanatory memorandum to the bill shall form the basis for a full debate on the bill for its passage ...”

In Ghana the introduction procedure involves publication of the text of the bill in the Gazette followed by presentation to the clerk for inclusion in the business of the house on an assigned day when the clerk will read aloud the long title of the bill after which the bill is deemed to have been presented and given a first reading. After this, the bill is then referred to the appropriate committee by the Speaker. In this connection the following matters also call for special comment.

Introduction of Bills by the Executive under Article 92

So as further to overcome the procedural problem arising from the exclusion of the President and his ministers from the membership of Parliament, the Constitution has provided in article 92 that "a Minister of State may, with the permission of the Speaker and at the request of the President . . . take part without a vote in the deliberations of Parliament or a committee thereof in order," among other things, "to introduce a bill." In previous Parliaments, the need for a formal introduction of bills arose really at the second reading when "upon the motion" that this bill be now read a second time the member introducing the bill stated its principle and general merits. "Second Reading is the most important stage in the passage of a Bill."26 Both the mover and the seconder of the motion then speak for the motion. Thus, the provisions of article 88(4) and (5), noted above, appear to make the need, and even the usefulness, of the provision enabling a minister to introduce a bill most doubtful if not merely confusing,27 for strictly speaking, it is the chairman of the committee from which a bill is reported who will give the bill an introduction when reporting to the house.

Explanatory Memoranda to Bills

As already stated, article 88 (2) requires that every bill except financial bills be prefaced by an explanatory memorandum. It is important to note here the reasons given by the 1966 Constitutional Commission whose proposals on this were adopted in the 1969 Constitution from which the present article 88(2) originated. The reason given in paragraphs 443 and 444 of that Commission's Report was that the legislature has an educational value to the people and as stated in paragraph 444:

“we propose that when a bill is introduced in the National Assembly it should be accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law and the remedies proposed for their solution."

As a legal practitioner of no mean standing and Chief Justice at the time of his appointment to chair the commission, Mr. Justice Akufo-Addo, must have been appalled in his time, by the slip-shod and skimpy information normally given by way of explanatory memoranda to bills. There was no doubt that such memoranda would not have qualified as such by the standard subsequently set by the 1969 Constitution. Many still do not. On the other hand by way of illustration, the following may be cited as examples which compare favourably with the high standard required by article 88 (2); these are examples of memoranda which were either prepared by expert legal draftsmen as part of the general scheme of statute law revision undertaken before 1960, and more recently as part of the work of the Law Reform Commission namely:

Judgments (International Enforcement) Act, 1960 (Act 20)

Extradition Act, 1960 (Act 22)

Contracts Act, 1960 (Act 25)

Arbitration Act, 1961 (Act 38)

Limitation Decree, 1972 (N.R.C.D. 54)

Maintenance of Children Decree, 1977 (S.M.C.D. 133)

We shall later revert to the subject of trained and qualified legislative staff in connection with the requirements of the Parliamentary Service created by article 105 of the Constitution, 1979.

The Power to Summon and Dissolve Parliament; Tenure of Members of Parliament, Etc.

The source of Parliament's power to meet, the regularity of such meetings and whether attendance by members is full-time, are important aspects of the effectiveness of Parliament. The privileges of freedom of speech, immunity from court proceedings for acts in Parliament and outside Parliament during sessions as well as the power to commit for contempt though they reinforce Parliament’s authority, are really dependent upon the first three factors. For instance, if the power to convene Parliament resides in the executive which cannot be compelled to convene Parliament if, for any reason, no meeting is held, all the other powers, if any, are only academic.

Thus under the new system of separation of powers Parliament enjoys a fixed term of five years and it is required by article 93(2) that a session be held at least once in every year, "so, however, that a period of twelve months shall not intervene between the last sitting of Parliament in one session and the first sitting thereof in the next session," which simply means that Parliament shall meet every year of its five-year life span. The convener is the Speaker and not the President as was the case under the 1969 Constitution. Under article 94(1) Parliament stands dissolved only after the expiration of its fixed term of five years. The question of full-time or part-time attendance is dealt with by article 80 (2) which provides:

"(2) A member of Parliament shall not hold any offfice of profit or emolument, whether private or public and either directly or indirectly, unless otherwise permitted by the Speaker acting on the recommendations of a committee of Parliament on the ground—

(a) that holding any such office will not be to the prejudice of the work of a member of Parliament; and

(b) that no conflict of interest arises or would arise as a result of the member holding such office."

The decision to pay each member of Parliament, by virtue of article 80(1), a salary instead of mere sitting and other allowances was, no doubt, the reason for the general rule that members of Parliament should be excluded from any other office of profit whether directly or indirectly. Moreover by virtue of articles 205 (5) (c) and 206, the public trustee is required to take over and manage any business interests of members of Parliament, and compensation is even required to be paid if there is any mismanagement on the part of the public trustee. Admittedly, the public trustee cannot manage the professional businesses of members of Parliament. But it is precisely for the loss of the freedom and profit of such personal vocation that article 80 (1) requires that the member be paid salary with the result that the discretion later granted in article 80 (2) appears almost irreconcilable with the policy to pay salaries.

During the deliberations of the Akufo-Addo Commission, when the same problem came up, the commission made the following observations, in paragraphs 438-439 which, it is submitted, still hold good against any detraction from the rule that attendance by members should be full-time:

"438…Parliamentary work involves considerable expense—travelling and living expenses, secretarial service, not to mention the fact that a member cannot in the ordinary course of things continue to look after his own affairs in the normal way.

439. In a few countries where Parliaments hold short and infrequent sessions, such as Switzerland, the Netherlands and Iceland, it has been possible to fix the remuneration of Parliamentarians at relatively low level and limited to the duration of the session. In most countries, however, the growing demand of parliamentary life on Members' time and the increasing frequency and duration of sessions have resulted in the introduction of emoluments on an annual basis, thus providing members with the means of livelihood which they can no more earn from their previous occupations . . . "

A further danger here is that once such a concession is granted, those who are not availed of the concession are usually not strictly dealt with if for one reason or the other they absent themselves frequently from Parliament. Finally it must always be borne in mind that the executive branch against which is supposed to be balanced the authority of an effective Parliament, is not only full-time, but is also supported by a whole public service machinery in the form of the Civil Service, public boards and corporations in which service is full-time.

(iii) The Supply or Financial Function

Apart from legislation, perhaps the most effective check the legislature can exercise over the executive is the power of supply. Indeed the two powers sometimes coincide to the extent to which the supply power is itself expected to be exercised by legislation. The supply power may however, be broken down into three different functions.

(a)  the need for legislative approval for the imposition of taxation. Under article 138 (2) even the power to vary or waive any taxation after it has been imposed, can be effected by the executive only with the approval of Parliament. Investment incentives, in the form of tax concessions, tax holidays, etc. rank among the most important matters which are subject to this approval;

(b)  the permission to spend money (article 141); and

(c) the investigation of how the money was spent through the activities of the Public Accounts Committee, designated for that purpose under article 85(1) of the Constitution.

Realising the relative shortcomings of the support machinery normally available to Parliament, the framers of the Constitution have in general wisely devised a form of division of labour and co-operation between the executive and Parliament over the settlement of financial matters. Thus even though under Chapter Ten of the Constitution, 1979, only Parliament may cause the estimates of the income and expenditure of the government to be prepared for laying before Parliament, the appropriation bill by which the national budgetary expenditures are met, is, by virtue of article 90, to be prepared by the executive branch under the supervision of the Minister of Finance.

The Parliamentary Service

The Ghanaian Parliament has, since independence, been served by a complement of staff which, as far as the constraint of money and trained personnel could permit, was based on the British model. There was thus the Speaker, who, as the spokesman and representative of Parliament and the embodiment of its power and dignity, was the most important officer of Parliament.28 He is in charge of the proceedings of Parliament but does not contribute to debates. Next in importance was the Clerk of Parliament who was29:

"the chief adviser to the Speaker on the practice and procedure of the National Assembly. Members of Parliament and public officers may also consult him. He makes arrangements for the sittings of the Assembly, keeps its records and engrosses its bills. He is also the head of the office of the Assembly and its accounting officer."

All appointments to the office of the National Assembly, were strictly speaking, public offices and it was unthinkable for members to hire their own assistants at public expense. Presently, both for technical and practical reasons, the organisation of the office of Parliament need not remain the same as before.

Western European assemblies, including the British Parliament, have always been inferior to the United States Congress with regard to the resources needed for effectively carrying out their functions. American congressmen are enabled to carry out their duties, especially that of influencing and controlling the executive, far more effectively because of their separate offices, library and congressional professional staff and adequate funds to hire personal assistants. The most important of the congressional professional staff, has been the legislative counsel, who apart from drafting bills and other legal documents for Congress, has been responsible for providing official legal advice to the legislature and its committees. In Ghana an additional function that may be assigned the legislative or parliamentary counsel is to provide advice to the Speaker on the applicable rules of procedure in Parliament since the rules are legal in nature. Indeed in the United States House of Representatives, this function is performed not by the Clerk, but by a separate officer called the Parliamentarian. In addition congressmen are given such privileges as free postage, free printing for speeches, and allowances for stationery, long-distance telephone, telegrams and travel to and from sessions. In Ghana, even if parliamentarians need not be given power to hire assistants paid from their personal allocation of funds, it should be possible for Parliament to provide them with the services of personal staff in whose selection each member may be given some choice.

The chief concern, in the light of what has been noted above in connection with the role of professional staff, is, however, with the omission both in the Constitution itself, and in the Standing Orders, setting out the current internal organisation of the house, to provide for the full-time professional services of a parliamentary or legislative counsel. Thus although Parliament is expected by the Constitution to make laws independently of the executive branch, the means by which that task is to be carried out, has been left so much to chance that Parliament has felt able to decide to depend, after all, on the executive branch, in at least one important aspect of its legislative functions, namely, the determination of the question as to whether there has been due publication of bills as required by article 88(2)(b) of the Constitution. Under Order 101(1) the question whether bills presented for Parliament's consideration have been properly published or not, is reserved to the judgment of "the Parliamentary Draftsman" who, at the moment, is employed by the Attorney-General's Department and is therefore subject to control by the executive branch. How independently can Parliament be said to be carrying out its legislative functions when in such a crucial a matter as the determination of a constitutional condition precedent to the performance of its task, it has to await the judgment of an official of the executive branch over whom it has no control? This, of course, is constitutionally and even practically, indefensible. So also Order 178 (1) which purports to confer power on parliamentary committees "to request the Attorney-General to attend upon it to give such assistance in the examination of witnesses as the Chairman may direct." Under article 74 of the Constitution, the Attorney-General and any of his officers, for that matter, are principally legal officers of the executive branch who cannot therefore be involved either intimately or officially in the legislative process in Parliament not even at the investigative stage before a committee. It is true that under article 74(2) the Attorney-General can be assigned "duties of a legal nature." But it is submitted that the nature of his relationship to the executive precludes the extension of his services to the sort of role being assigned him under the Standing Orders. Admittedly, the situation would be different if he were summoned as a witness, for which Parliament has the power of subpoena, or where Parliament wishes to refer any case to him for prosecution. In the latter case, article 74 (3) may support such course of action.

Nevertheless one can find explanation for these lapses in the eclectic manner in which constitution drafting has been done in Ghana since 1966, when the events before and after the coup d'etat of that year, made it relevant to search for a constitutional framework which placed the right emphasis on Bill of Rights. The American Constitution is, of course, the most famous example of such a constitution, and, would, therefore, have commended itself as a model for direct adoption but for the common awareness that the apparently, straightforward language of the American Bill of Rights provisions—that is to say, the first ten amendments—have posed very serious problems of interpretation for the courts. Discussing the problem recently, a very well-known expert on the American Constitution found it necessary to stress the caution that, "In the United States, then, the use of constitutional language that speaks in absolutes and yet must be interpreted with qualifications has thrust a broad and difficult responsibility on the courts."30 He also debunked the idea of the perfect constitutional model thus31:

“I doubt that there is any such thing as an expert about constitutions generally. There is no such device as an ideal, most efficient, constitution. Constitutions must be responsive to special needs and problems to the particular context of a particular country. Experience elsewhere can be informative and helpful; it cannot supply a simple model automatically transferable to another soil."

In Ghana, however, it appeared that a model had to be found at all costs, presumably to solve the technical drafting problem of restating the American Bill of Rights provisions, together with such judicial expositions thereon as were deemed to have attained the status of general acceptability. The choice for the ready-made model, in the event, fell on the Uganda Constitution of 1967 which provided the basic model for the Ghana Constitution of 1969, a fact, which contrary to all expectations, has never been acknowledged anywhere, despite the copious explanatory memoranda, which accompanied both the original Ghanaian draft in 1968 and the 1978 revised version. The 1978 Constitutional Commission, on the other hand, has indicated throughout the memorandum the close similarity between its draft and the 1969 Constitution. Perhaps the disability of the 1967 Uganda Constitution is its stormy historical background. It was the product of what has been held by the Uganda courts to be a civilian coup d'etat staged by the then Prime Minister Milton Obote. After arbitrarily suspending the Uganda Independence Constitution, he put in its place the 1966 Constitution which was the direct forebear of the 1967 Constitution. This background is doubtlessly well known to the draftsman to the Akufo-Addo Commission who served as First Parliamentary Counsel in Uganda up to about the time of the constitutional crisis in Uganda. He has also played a leading role in the drafting of the present Constitution which unhappily has retained the provisions which form the subject of Professor Gunther's comment referred to in note 33 below. The final irony was that both the 1967 Constitution of Uganda and its 1969 counterpart in Ghana were overthrown within a short time of each other. An acknowledgement of the source of a statutory provision is standard practice in the memorandum on such provision, since it sometimes serves as an aid to interpretation in case of doubt.32 Indeed serious questions of doubt have been raised against the Ghanaian Bill of Rights provisions by Professor Gunther who apparently did not know that they were borrowed from the Uganda Constitution33:

"The Ghanaian provisions are more detailed, to be sure. But the language remains broad indeed. What are 'the interests of defence, public safety, public order, public morality or public health,' for example, that may justify restrictions on freedom of expression? When do those interests 'reasonably require' restriction? And if giving content to these broad phrases were not assurance enough of broad judicial responsibility, the concluding language ... emphasises the immense judicial scope: the restrictive law must not only be 'reasonably required' by the stated interests, but must also be shown 'to be reasonably justifiable in terms of the spirit of this Constitution'."

Little was Professor Gunther aware that what he was saying about the Ghanaian Constitution very well applied to the Ugandan Constitution as well!

The Uganda Constitution of 1967 and its Ghanaian counterpart of 1969, were of course, framed for a parliamentary form of government, and could not therefore have catered for the special deeds of an independent legislature, among which is the office of legislative counsel. Indeed the Ghanaian Constitution, 1979, could have provided for this among its real innovations and in full recognition of the fact that no legislature can, today, perform efficiently by itself, let alone, independently of the executive, without its own legislative counselling services. The omission is even more regrettable having regard to the detailed provisions made elsewhere in the Constitution to cater for similar circumstances in respect of the judiciary and the Judicial Service and specifically for the appointment of counsel to assist regional chieftaincy tribunals. Worse still, it is to be noted that the newly enacted Parliamentary Service Act, 1980 (Act 431), establishing a Parliamentary Service in pursuance of article 105 of the Constitution, 1979, does not specifically make provision for the appointment of a parliamentary counsel. Perhaps an opportunity to remedy the situation may be found under section 16 of Act 431 which provides:

"16. (1) The Board shall with the prior approval of Parliament by constitutional instrument make regulations providing generally for the effective and efficient administration of the Service.

(2) Without prejudice to the general effect of subsection (1) of this section, the regulations—

(a)  shall prescribe the terms and conditions of service of officers and other employees in the Service; and

(b) divide the Service into such branches, divisions or departments as the Board may from time to time consider expedient for the effective and efficient administration of the Service."

In this regard, it is perhaps necessary to mention that although it took a long time for the United States Congress to recognise the need for a legislative counsel,34 the main reason was the fact that legislative counselling is a very recent development in institutional legal practice the first Office of Parliamentary Counsel being established in Britain only a century ago in 1869. Nevertheless, the office of parliamentary counsel, has been an established post of relatively long standing in Ghana. Under previous Constitutions, when the executive was the most important factor in the initiation and passage of legislation, due recognition was given to a centralised office of Parliamentary Counsel in the law office of the Civil Service.35  Now that situation has changed giving Parliament a more important role in legislation, all that is being urged here is for the corresponding adjustments to be made so that Parliament may have its fair share of the necessary professional support required for that role. The need for this adjustment is all the more imperative, because of the additional need for professional legal advice which Parliament may even feel with regard to the scrutiny of delegated or subsidiary legislation from the executive branch. Because of conflict of interest, Parliament cannot rely on the law officers of the executive branch in this matter. Similarly there is no way by which Parliament can exercise the exclusive power which the Constitution has conferred on it, over certain categories of legislation other than having its own legal drafting services. Generally, where the source of the legislative power is expressed in terms of an "Act of Parliament" it is settled that this confers concurrent jurisdiction for the legislative initiative on both Parliament and the executive branch, and that in any other case, Parliament has exclusive jurisdiction, which it may exercise through the appropriate committee responsible for the subject-matter of the legislation.36 Notable among the categories of legislation over which Parliament has exclusive jurisdiction are:

(i) Laws under article 216, to provide for unforeseen matters, consistent with the Constitution. This category is similar in kind to the laws anticipated under the "necessary and proper" clause in section 8 of article 1 of the U.S. Constitution;

(ii) Citizenship laws;

(iii) Treaty ratification laws;

(iv) Parliament's own internal organisation;

(v) Laws under article 148 to regulate foreign participation in the economy.37

The case for the remedy suggested for the current operational inadequacies of Parliament is, however, not complete, without the caution that the recruitment of staff for the office of parliamentary counsel is not an easy one. One of the problems of recruitment, namely, the problem of adequate remuneration, was discussed in an earlier article.38

In that article, it was argued that if autonomy was the only way out of the problem of adequate remuneration, then so let it be. Thus although under section 10 of Act 431, the Clerk of Parliament is to be the Head of the Parliamentary Service, this should not preclude the parliamentary counsel earning an equal or even a higher salary than that of the clerk especially where the parliamentary counsel's office is given the necessary autonomy. The work of parliamentary counselling is still a Cinderella job, even within the legal profession, which further aggravates the problems. Good remuneration and sound career prospects are therefore the essential ingredients of a scheme of service likely to attract and retain the staff for this type of legal practice which is still obscure in many countries. Certainly the situation can be further improved if it were possible to introduce law students to the art of legislative counselling through a course or seminar equal in status to the civil procedure course taught in most law faculties.39 Such a course or seminar, may also be taken as a component of a comprehensive study of constitutional law or separately as an advanced or specialist study of constitutional law in the area of the legislature, legislation and the legislative process. Indeed, the Commonwealth Secretariat has recently sponsored a series of new programmes in institutional teaching of legislative drafting. These, have however, been conducted outside the university or law school curriculum and might not achieve the desired objective. Indeed, a general assessment of the impact of these latter programmes with regard to stimulating interest in legislative drafting, should be instructive and may even be said to be long overdue.

CONCLUSION

It has been the object of this article to highlight the historical background to the choice of a complete separation of powers as a system of government in Ghana, the new role which Parliament is expected to play in that system and the extent to which the new Constitution, 1979, has been able to accommodate the necessary changes. In the process a brief examination of the operation in Ghana of the cabinet or parliamentary form of government, otherwise known as the Westminster Model, was undertaken, with the caution that the departure from that form of government after nearly a quarter of a century would be, for both the executive and a populace accustomed to the role of Parliament as only a rubber-stamp and a tool for carrying out the orders of the executive, as hard as the death of old habits. Hence the special care that ought to have been taken in drafting the Constitution, 1979, to equip Parliament adequately to assume its new role with as little pain as possible.

FOOTNOTES

* B.A., LL.B. (Ghana), LL.M (Colum.), Barrister and Solicitor; Ag. Chief Executive, Ghana Industrial Free Zones Authority; formerly First Parliamentary Counsel, Uganda (1972-75).

1. While in political philosophy, the term “doctrine” has passed without question, the modern view of the written constitution more as law rather than as the mere statement of directive principles, would seem to support viewing separation of powers as a legal principle underlying the very operation of the constitution and not merely as a political doctrine by which it may be explained.

2. See Neustadt, R., Presidential Power, the politics of leadership (New York, 1964), p. 33. Writer’s emphasis.

3. See the proposals of the Akufo-Addo Commission, otherwise known as The Proposals of the Constitutional Commission for a Constitution for Ghana (Accra, 1968), p. 82.

4. See Ball, Allan R., Modern Politics and Government (London, 1971), p. 43. For another definitive view of the doctrine of separation of powers, see the Report of the 1978 Constitutional Commission, otherwise known as The Proposals of the Constitutional Commission for the Establishment of a Transitional (Interim) National Government for Ghana (Accra, 1978); hereinafter in these notes, referred to as the “1978 Const. Comm. Rep.” p. 19.

5. The Akufo-Addo Commission Report, pp. 138-139.

6. The Union Government (Unigov) Affair started quite innocuously with a call in 1976 by the late then General I. K. Acheampong, Head of State, for a new form of government in which party politics were to be abolished in the interest of national unity. But the suppression and intimidation of opponents of the government’s stand that characterised the campaign for the referendum on the issue, later confirmed the fears of many that the whole affair was meant to perpetuate military influence in Ghanaian politics. Our main concern here however, is with the special issue which the protagonists took with the Westminster Model or form of government, for which see the Report of the Ad Hoc Committee on Union Government (Accra, 1977).

7. The 1978 Const. Comm. Rep., p. 18.

8. Ibid., pp. 18-19.

9. See Scheuner, U. (1969) 1 R.G.L. at pp. 107-108.

10. Like other colonial territories before her, Ghana was at independence in 1957, given by Britain, a constitution based, as a matter of course, on the Westminster Model. Since then, excluding the four military interregnums established respectively by the Proclamations of the National Liberation Council, the National Redemption Council, the Supreme Military Council, as well as the Armed Forces Revolutionary Council, Ghana has had three other constitutions in 1960, 1964 and 1969, all of which were based on the parliamentary or cabinet form of government. The Proclamations are excluded on the basis of the view that a proclamation is not a constitution, for which case see the judgment of Archer J. A. (as he then was) in Sallah v. Attorney-General, Supreme Court, 20 April 1970 unreported; digested in (1970) C.C. 55.

11. The foundation for the modern principle of judicial independence in common law countries is believed to have been laid in 1700, by the enactment of the Act of Settlement which provided security of tenure of judges quamdiu se bene gesserint.

12. 1978 Const. Comm. Rep.,  p. 16.

13. The “politics of immobilism” has been used to describe the political systems of the Fourth French Republic and post-war Italy in which under the form of parliamentary system practised, governments were brought down so often by adverse vote in Parliament, that no governing was actually possible. Applied to the presidential system, the fears of “executive immobilism” can be justified only to the extent to which Parliament can so succeed in obstructing the executive that the latter cannot have any governing done.

14. 1978 Const. Comm. Rep., p. 21.

15. There is, however, the view that this discretionary power did not affect the principle of collective responsibility of the Cabinet and therefore in cases referred to it, it was the cabinet decision, and not the President’s, which prevailed. For this, see “The Report of the Commission of Inquiry into Kwame Nkrumah’s Properties” (Accra, 1966), pp. 68-69.

16. 343 US, 579; 72 S. Ct. 863; 96 L.Ed. 1153 (1952). Reported in Gunther and Dowling Constitutional Law Cases and Materials (8th ed.), p. 556.

16a.  Ibid., at pp. 565-566.

17. See Ayensu, K. B., An Introduction to the Law, Practice and Procedure of the National Assembly (Accra, 1965), p. 7.

18. See Ball, Allan R., op. cit., p. 148.

19. See Heineman, Ben W., “ A Law Revision Commission for Illinois” cited in Read, MacDonal and Fordham Legislation (2nd ed.), p. 64.

20. See Ball, Allan, op. cit.,  p. 145.

21. See Froman, The Congressional Process: Strategies, Rules and Procedure (1967) p. 3.

22. Under art. 91 of the Constitution, 1979, the procedures of Parliament and its committees are to be regulated by Parliament. There is no time within which Parliament may finish any particular legislative business under the current Standing Orders of Parliament.

23. See Ball, Allan, op.cit., pp. 156-157.

24. See Froman, op. cit., p. 16.

25. For the view that any court proceedings in a case like the one assumed, may be brought against the committee itself and not the whole house, see Gibson v. Florida Legislative Investigation Committee, 372 US. 589; 83 S. Ct. 889; 9 L.Ed. 2nd 929 (1963). Reported in Gunther and Dowling, op. cit. p. 1341.

26. See Ayensu, op. cit., p. 14.

27. Art. 92 may be seen as an over-reaction to the recognition of the fact that even in a government of separated powers, the executive initiative is still the most important source of legislation.

28. Commensurate with the new status of Parliament, the Speaker now ranks next after the President and the Vice-President as the third most important officer of the State: see art. 44 (2).

29. See Ayensu, op. cit., p. 24.

30. See Gunther, The Constitution of Ghana—An American’s Impressions and Comparisons (1971) 8 U.G.L.J., p. 7.

31. Ibid. at p. 2.

32. When a statue is borrowed from another jurisdiction, it is presumed to have been borrowed together with any uniform exposition on its provisions in the jurisdiction from which it is borrowed: see Marqueze v. Caldwell, 48 Miss. 23, 31 (1873).

33. See Gunther, op. cit., pp. 7-8.

34. See Title V of the Legislative Reorganisation Act, 1970 (Office of the Legislative Counsel; Public Law 91-510; 2 U. S. C281 et seq.), as amended by the Legislative Appropriation Act, 1972. The office of legislative counsel was however first established by the Act of 24 February 1929. Under the current applicable law, the management, supervision and administration of the office are vested in the legislative counsel, appointed by the Speaker, in the case of the House. The office is not under the Civil Service and is required, on the other hand, to maintain the attorney-client relationship with respect to all communication between it and any member or committee of the House.

35. See the Administrative Instructions on the Preparation of Legislation, 1960 made under the Civil Service Act, 1960 ( C.A. 5).

36. In these cases the parliamentary counsel will take his drafting instructions from the chairmen of the respective committees of the House.

37. It may well be that for being prepared and introduced by the executive branch, i.e. the Minister of Finance instead of Parliament itself, the Export Trade and Industry (Specified Minimum Foreign Capital by non-Ghanaian Citizens) Bill, made under article 148 of the Constitution contains the seeds of constitutional invalidity.

38. See Aryee, J. Nii, "The Drafting of Recent Legislation: A Reply" (1969) 2 R.G.L., pp. 5-12.

39. The absence of a formal course of lectures or faculty seminar in legislation and legislative drafting in most African universities, no doubt, has accounted for the reluctance of most newly qualified lawyers in Africa, to take up the job of legislative counselling as a career. The author is however aware of the exceptional efforts being made at the Law Development Centre, Makerere, Uganda, where he himself gave a series of post-graduate lectures on the subject, while also serving there as First Parliamentary Counsel of Uganda.