It has become a common concern among students, lawyers, politicians and the wider population about the threat Covid-19 poses to current government of the day should it be impossible for presidential elections to be held within the time stated in the 1992 constitution.
In early March, the World Health Organization declared Covid-19 as a pandemic. Within three weeks after that, Ghana closed its borders to international travel, passed the Imposition of Restrictions Act, 2020 (Act 1012) and the President has through an Executive Instrument placed a restraint on the free movement of persons in specified geographical areas in Ghana.
Constitutional minds have been concerned about the impact of the Covid-19 should this pandemic continue to spread such that it becomes practically impossible for presidential elections to be held. This article, as brief as it will be, shall attempt to offer responses and options to the above conjectural constitutional problem. In doing so, this article is divided into three sections.
The first part discusses the legal problem arising as a resulting of the persistence of the Covid-19 in ana election year. The second part shall set out the arguments and rebuttals made in rejection of some solutions offered to the legal problem. The third also part focusses on the solution to the legal problems raised.
PART I
Law Governing Presidential Elections
The 1992 constitution of Ghana does not leave the question of when presidential elections should be held to be settled by a legislation of parliament. It provided for this specifically under Art 63(2) of the 1992 constitution. Per Article 63(2), presidential elections shall be held not earlier than 4months and not later than 1month before the term of office of a president expires.
Contextually, in the case of the H.E Nana Akuffo Addo, presidential elections must be held between 7th September 2020 and 7th December 2020. This is so because the term of office expires on the 7th of January 2021. But the Framers of the 1992 constitution did not contemplate a situation where it could be impossible for elections to be held within the stipulated time due to practical impossibilities as Covid-19. Article 63(2)(b) provides that in cases where the office of the President becomes vacant, elections shall be held within 3 months after the vacancy.
This means that, in a situation where the office of the President becomes vacant upon the expiry of the term of office on 7th January 2021, elections must be held before 7th April 2021.
The legal problem
The legal challenge in this article though fictional since it has not yet actuated is of paramount importance. Why so? The functions of the president and other executive actors are very crucial to every nation. In the case of Amidu v. Kufuor[1], the court affirmed the importance of the president since he is deemed under Article 57(1) as the head of government and the state.
As the head of state, he is responsible for all foreign negotiations on behalf of the country and as the Head of State, he is responsible for all executive functions which he performs through his ministers. In times like this, we have seen how important the office of the president and other ministerial offices have been in handling the pandemic. The health ministry has been responsible for procuring necessary medical items for the treatment and containment of Covid-19.
Without a government, these above functions cannot be performed. So, the legal problem here is, effective after 7th of January 2021, if elections are not be held within 7th September and 7th December 2020, the office of the president will become vacant and in very crucial times like, this, how do we as a country survive if there is no government.
PART II
SOLUTION (A) AS A SCHOOL OF THOUGHT
This school of thought has argued that, the speaker of parliament can take over the office of the president upon the expiry of his term on the 7th of January 2021 pursuant to Article 60(10)(11) of the 1992 constitution. This position is based on a loose construction of Article 60(10)(11) and 57(2). Per Article 60(10) & (11),it has been argued that the speaker has the power to act as the president where the president is unable to perform his functions. This was a contention in the case of Asare v. Attorney[2].
It has been argued by this school of thought that where the term of office of the president expires, it means, in that situation, the president cannot perform his functions, so the speaker can act in that regard as president until a president is validly elected who can perform that function. We are all aware that this construction of Art 60(10) & (11) is novel and was never determined in Asare v. Attorney General[3] and thus, we must assess whether it is a valid construction.
A REJECTION OF SOLUTION (A)
There are some who reject the position above. They argue that Article 60(11) applies only when effectively there is a president in office whose tenure has not run out, yet cannot perform his function due to infirmity of mind or absence from the country or any other inability. And in this situation, since the term of the president has expired, we cannot say a president is unable to perform its functions since in fact there is no president in office.
On this tangent, Article 60(11) cannot apply. Beside the issue pertaining to the inability of the president to perform, Article 60(11) provides for the speaker to perform the function of the president in case both the president and his vice are unable to perform until a new president assumes office. This phraseology has misled proponents of School of thought (A) into thinking that, the speaker can perform the function of the president even where the tenure of office of the president has expired yet no new president has yet been elected.
This position is untenable because Article 60(11) is applicable only where the tenure of office of a president has not expired yet the president and his vice are unable to perform. Illustratively, should both the president and the vice president die in office or they both resign, the speaker of parliament pursuant to Article 60(11) can perform the functions of a president until a new president is validly elected to assume that office.
Also, it must be pointed out that the speaker of parliament has the same lifeline as parliament and on 7th of January 2021, parliament will effectively be dissolved pursuant to Article 113 and in that regard, there cannot even be a speaker to take over the position of the president. So, assuming without admitting that the earlier position is tenable, it is inapplicable per the facts since the life of the parliament will terminate together with that of the president and since there is no parliament, there cannot be a speaker to assume the office of the president
SOLUTION (B) AS A SCHOOL OF THOUGHT
Persons belonging here accept the arguments made against (A) and argue that the chief justice can take over the office of president even when the speaker cannot and they ground their argument on Article 57(2).
They argue that, since the chief justice is the third gentleman of our land, the chief justice can act as the head of state, government and commander in chief of the Armed forces where there is no president and speaker. On this regard, the chief justice could act should there be a situation where elections cannot be conducted.
A REJECTION OF SOLUTION (B)
Article 57(2) though it hierarchically makes the chief justice the highest person after the president and the speaker of Ghana, it does not provide for the usurpation of the offices of either person should the office of that person become vacant. In cases where such usurpations were intended, there would have been express provisions as we have under Article 60(10)&(11). In this regard, the chief justice’s attempt to take over the office of the President would be unconstitutional.
They also argue that it will undermine separation of powers since the chief justice would both be playing the role of a chief justice and a president. And where his own actions as a president amounts to a breach of the Constitution, he as a chief justice would have to constitute a bench to sit on the matter. These make it impossible for one person to play such a role and this absurdity cannot be intended by the framers. To this extent, the chief justice cannot take over.
SOLUTION (C) AS A SCHOOL OF THOUGHT
Persons belonging to this school of thought have accepted arguments made in rejection of School of thought (A) and (B). They proceed to offer an alternative drawing their arsenals from Articles 31 and 32 of the 1992 constitution dealing with the declaration of a state of emergency. To them there is a simple solution to this legal problem.
What the Nana Addo Government needs to do is to declare a state of emergency pursuant to Article 31(1). To them the Covid-19 pandemic is enough to warrant a declaration of a state of emergency under Article 31(10) since the situation renders it necessary for measures to be taken to safeguard public safety and has a character of being deemed as a ‘natural disaster’. To them, if a state of emergency is validly declared, it renders nugatory the necessity for elections to be held and all other provisions pertaining to the holding of elections are deemed suspended since it can be accepted that when there is a state of emergency, elections cannot be held.
Thus, a declaration of a state of emergency operates as a barricade which suspends part of the constitution, extends the term office of the president and also, renders inapplicable the 4-year term as established under Article 63 until the said emergency is non-existent
A REJECTION OF SOLUTION (C)
Respectfully, I must submit that this solution is the least tenable of all legal arguments made in this paper. It appears prima facie as a reasonable suggestion but on the face of the law, it is the least tenable. Why so? Article 31 and 32 of the 1992 constitution which provides for emergency power in very limited circumstances does not override all provisions of the constitution.
It is a part of the constitution and must be read holistically in a coherent spirit with the entire constitution. The emergency powers were intended to cover actions taken by government in times of emergency which may derogate from Human rights provisions under the 1992 constitution or may call for the need for some steps to be taken which are not immediately catered for under any express statutory provision. It is for the latter reason which is why Article 31 (3) provides for parliament to decide whether or not a proclamation of emergency shall stand. If it so does, the powers and authorities to be exercised by government becomes authorities granted to it by parliament and must be consistent with the constitution. It is this very reason why under Art 31(10), the framers stated that nothing done under the authority granted by Parliament to the government during a time of emergency shall be deemed to be in contravention of Article 12 to 30 of the 1992 constitution. This shows that aside the suspension of the Human Rights provisions under Article 12 to 30, all other provisions are duly in force and must duly be obeyed by state actors.
In 1994, the then parliament enacted the Emergency Powers Act 1992pursuant to Article 31. Section 5 of the Emergency Powers Act 1992 provided a set of powers which the government has under a state of emergency. Under sub-section 2 of section 5, it provided that the government can suspend the operation of a law within a state of emergency. I contend that Law as used under the said section does not mean the constitution but only laws made by parliament and any subsidiary legislation. And even if it was intended to mean the power to suspend the constitution, I shall here contend that parliament does not have the power to suspend or authorize the suspension of any part of the constitution and to that extent, that power is nugatory. On this ground, emergency powers if granted does not suspend Article 63 and to that extent, upon the expiry of 7th January, the term of office of the president shall duly become vacant whether or not there is a state of emergency or otherwise.
PART III
SOLUTION C & D
C)- it is argued that parliament can amend Article 66(1) which provides that a term of office of a president is 4 years. In this regard it can insert a provision which extends the President’s tenure for more than 4 years. It can extend it to 5 years or make it a conditional term such that where the pandemic halts, the election can be held in a month. In that regard until the pandemic halts, the H.E Nana Addo Government is effectively the government. Though this seemingly looks as a better option, Article 66 is actually an entrenched provision under Article 289. On that regard, its amendment cannot be done without a referendum. But if holding an election is impossible how can a referendum be held then? This makes this position legally sound yet impracticable. For this reason, we shall fall on Solution D
A short note before Solution D
After H.L Hart, published his book, the concept of Law, many legal commentators have accepted the reign of positive theory of law as the true notion of what the Law is. What has not been foreseen by these commentators is that, positive law is only good if the legal problems of a society can be envisaged and captured in law. But in certain situations, human mind fails to project into the very exceptional future and when such exceptional situations appear, positive law fails brutally in offering a sizeable solution to the problem. Ashamed as we positivist may be, we must not deny ourselves a solution, if even that solution comes from the naturalist school of thought. On this note, I shall indulge all positivists, to remove their Hartian hats and with me, take a ride with the naturalists on this worthy excursus in finding a solution to the legal problem before us.
D) This argument is stricto sensu not based on a positive law. It draws its basis from the legal theory of Emeritus Professor Kwame Gyekye. It has been argued by Professor Kwame Gyekye in his article ‘The two conceptions of Legitimacy ‘ that a government can either be de-jure legitimate or de facto legitimate. In this regard, although after 7th January, the Nana Addo government shall become de jure legitimate, due to the supervening circumstances, it can be construed as a de facto government which can still rule validly until a time where it is possible for elections to be made.
This will help prevent needless amendments. The validity of a government de-facto is on grounds of acceptance and necessity. A government which is de facto legitimate, must both be accepted by the people and can only be valid if the exercise of governmental power is on grounds of necessity. It appears that from the legal problem as discussed above, it is necessary that we have a government in the hem of affairs after the expiry of the term of office of the Nana Addo government.
Whether it may be a coalition government where it is formed from a conglomeration of actors from all parties or can be a continuity of the Nana Addo government. It legitimacy shall be the acceptance of the people and the validity of it governmental power shall be on the necessity of its continuity. Kwame Gyekye stated that acceptance shall be deemed effective if the large section of the population does not riot or reject the defacto government. I suggest this part be taken since it comes with little to no legal hurdle nor the need for needless amendments.
On this tangent, the expiry of the term of office of the government does not render it illegitimate where there are moral, pragmatic and ethical basis for its continuity. In that, it can operate as a government effectively until the pandemic ends. Per this theory, there would not be a need for even an amendment. It may be of concern to us, constitutional commentators, how constitutional this position might be. To my mind, its legal validity does not totally sprout from the constitution. This is not to say that it is unconstitutional, rather to suggest that validity can be insured both in natural law and positive law and a lack there of, of any direct positive law to validate the position does not render it unconstitutional. Per Art 1(1) of the 1992 constitution, the source and essence of governmental power is for the welfare of the people. On this ground, an unbridled inference can be made from Art 1(1) which would argue that, the extension of the term of office of the government in power is for the welfare of the people. This seemingly may protect this position from any charge unconstitutionality by positivists. It only seemingly purports to.
By Selikem Donkor