NATURAL RESOURCE MANAGEMENT IN GHANA: A CASE FOR CONSTITUTIONAL AMENDMENT
IEA
Jun 2010
Mining (mineral extraction) in Ghana has a long history and that history is a love-hate one. Mining has been regarded with suspicion and has been attacked for several reasons, chief among which is the often leveled charge that the adverse environmental and social effects of mining are hardly ever addressed and that mining activity has detrimental consequences on the health, lives and livelihood of mining communities. Another accusation is that mining has not made a positive impact on the economic fortunes of Ghana because fiscal terms are all too often poorly or improperly defined. The third charge is that transactions, contracts and decisions about mining undertakings are not transparent, with limited or no publi oversight. Given the problems which have beset Ghana's foremost income generating activity and the different dimensions and expectations that the discovery and exploitation of oil and gas presents, it is imperative that appropriate provisions are incorporated into the Constitution to remedy the problems. The proposed review of the 1992 Constitution provides this opportunity. Proposed amendments relate to Articles 257, 268 and 269 of the 1992 Constitution and seek specifically to (a) broaden the remit of Article 257 to cover all extractive natural resources and not just minerals, (b) strengthen State ownership rights and the fiduciary duty of the State in the use of natural resources; (c) embed in the Constitution measures for transparency, accountability, equity, environmental protection, and public oversight in all transactions, contracts, and undertakings regarding the exploitation and management of natural resources and the revenues derived from them; and (d) suggest that provisions that may undermine the demands for transparency and accountability in the management of natural resources, be expunged from Articles 268 and 269. The proposed amendments signal Ghana's efforts to overcome the tragedy of its mining history. ...
CHIEFS AND TRADITIONAL AUTHORITIES AND THEIR ROLE IN THE DEMOCRATIC ORDER AND GOVERNANCE
HM Osagyefo Amoatia Ofori Panyin - the Okyenhene
Jun 2010
The writer, the Okyenhene, Osagyefo Amoatia Ofori Panyin, makes a vigorous case for the chieftancy institution's unchallenged and inherently democratic role, its structure and stabilizing role in Ghanaian societies prior to the imposition of colonial rule in 1874. He traces the beginnings of the erosion of hitherto undisputed traditional authority, the birth and growth of corruption among chiefs and other traditional authorities, and the subsequent dependence of chiefs on the colonial government as a source of power. The role of education in replacing chieftancy as the repository of wisdom, influence and reverence and the subsequent marginalization and resentment of the institution by natives is well argued. The paper makes a strong defence for the relevance of the chieftancy institution in modern democratic Ghana, and argues the need to integrate our cultural and traditional values into modern government and society. The forced acquisition of stool and family lands by government through pernicious legislation and unjust “moribund socialist legislationâ€Â which seizes and vests stool lands which contain minerals and other natural resources in the state, receives scathing opposition, and a specific demand for the restoration of Akyem Abuakwa land rights prior to 1957. Concluding, the writer advocates the fusion of traditional and modern forms of justice and the adoption of a decentralized system of government, noting that it will strengthen the chieftancy institution. ...
“THE ANTI-CORRUPTION MANDATES OF THE COMMISSION ON HUMAN RIGHT AND ADMINISTRATIVE JUSTICE AND THE SERIOUS FRAUD OFFICE: A DUPLICATION OF FUNCTIONS?
Justice Emile Short
Jun 2010
In recognition of corruption as a major obstacle to development, Ghana has over the past 18 years of the current constitutional dispensation initiated some useful institutional reforms and created a number of new constitutional and statutory watchdog agencies with anti-corruption mandates. These agencies include the Commission on Human Rights and Administrative Justice and the Serious Fraud Office (now transformed into the Economic and Organised Crime Office). The purpose of this paper is to examine the extent to which the anti-corruption mandates of these two institutions duplicate each other. ...
TO CAP OR NOT TO CAP: THE SUPREME COURT OF GHANA
Prof. Justice A. K. P. Kludze
Jun 2010
Ghana's 1992 Constitution sets no ceiling to the number of Justices that may be appointed to the Supreme Court. Article 128(1) only prescribes a minimum number of nine Justices in addition to the Chief Justice. This leaves room for a determined President to seek to appoint his cronies to the Supreme Court, a practice known as packing the Court. Packing the Court is designed to ensure that decisions of the Supreme Court are acceptable to a sitting President. The strongest argument for setting a ceiling on the number of Supreme Court Judges is to prevent the appointment of new judges unless a vacancy occurs on the bench through death or retirement. Reference is often made to the United Statesexample where the maximum number is nine. Prof. Kludze argues that, notwithstanding the advantage of restricting new appointments, a constitutional limit on the number of Supreme Court Judges has inherent difficulties. A large number of Justices facilitates expeditious disposal of cases in panels. The United States Supreme Court declines to hear large numbers of cases without assigning reasons. This practice, backed by law, ensures that the US Supreme Court's calendar is not clogged. He makes the case that in Ghana, the rigid three tier appointment process limits the power of the President to appoint his favourites to the Supreme Court. The process requires the recommendation of a candidate by the Judicial Council, consultation between the Council of State and the President on the Justice recommended by the Judicial Council, and finally the vetting and approval of the Justice by Parliament. He advocates a strengthening of the institutions involved in the appointment process. He chides our Parliament for performing this grave function perfunctorily. Prof. Kludze is certain that if the Judicial Council, made up of eminent judges and lawyers assesses candidates on merit and Parliament effectively exercises its power of approval, the Presidential power of appointment of Supreme Court Justices cannot be exercised capriciously. He strongly argues that packing of the Supreme Court cannot always determine the outcome of cases, as history shows that judges, whoever appoints them, have demonstrated high levels of judicial independence and fidelity to legal principles. ...
THE PANEL SYSTEM AT THE SUPREME COURT: MERITS AND DEMERITS
Prof. Justice A. Kodzo Paaku Kludze
Jun 2010
Ghana's 1992 Constitution stipulates in Article 128(2) that any five Justices of the Supreme Court may sit on a case. To review its own decision, the Constitution sets the minimum number at seven. This has attracted criticism. Prof. Kludze makes a strong case that the panel system facilitates the expeditious disposal of cases. Several cases can be adjudicated by different panels within the same time frame and thereby reduce the clutter of the Supreme Court's calendar. He examines the United States Supreme Court where in the absence of the panel system, the Supreme Court reduces its workload by declining to hear most appeals by the process known as certiorari denied. The panel system also reduces the time for debates and discussions at pre-judgment conferences, since the numbers are smaller. This allows for easier assignment of cases and for the writing of opinions by the Justices. The panel system somehow provides an antidote against the packing of the Court. Neither the parties nor the President may know in advance which Justices would compose a panel. Were the President to appoint his favourites to the Court, there is no guarantee that they would constitute a specific panel. He suggests that the panel system may be generally retained, but with a constitutional amendment which requires that all members of the Supreme Court sit on matters of constitutional interpretation where absolute certainty of the law is desirable. ...
RETHINKING DECENTRALIZATION AND LOCAL GOVERNMENT IN GHANA PROPOSALS FOR AMENDMENT
Kwamena Ahwoi
Jun 2010
Kwamena Ahwoi's paper, which is a distillation of two separate papers that he presented to the Constitutional Review Commission and The Institute of Economic Affair's 'Ghana Political Parties Programme respectively, identifies twelve areas of Ghana's local government and decentralization system for critical analysis. It ends with a recommendation that the majority of the identified areas be subjected to constitutional or legislative amendment. Beginning with the conceptual issue of decentralization, the author argues for the different meanings of decentralization at the national,regional, district and sub-district levels to be articulated in the Constitution. He also proposes that the power given to the President to create districts in the Local Government Act, 1993, Act 462, should be taken away and vested in the Electoral Commission with the prior approval of Parliament. The author next makes the controversial proposal that the power to appoint 30 per cent of the members of the Metropolitan, Municipal and District Assemblies (MMDAs) should be taken away from the President and vested in the Regional Houses of Chiefs, explaining that the power has been bastardized by successive Presidents to appoint their party executives and cronies to the Assemblies instead of the original rationale of using the provision to infuse expertise into the Assemblies and to cater for marginalized and disadvantaged groups. He is of the view that at the heart of the conflict and rivalry between Members of Parliament (MPs) and District Chief Executives (DCEs) is the MPs' membership of the MMDAs and therefore makes the case for their exclusion from the Assemblies to enable them concentrate on their duties as national legislators. The author calls for a modification of the present system of selecting DCEs. He would like DCEs to be nominated by the President,interviewed by the Public Services Commission for their competence and voted for directly by the district electorate. Using very cogent and persuasive arguments, he also makes a case for the following positions: ·Presidential, Parliamentary, District Assembly and Unit Committee elections should all be held on the same day; .The non-partisan nature of the local government system should remain; ·The Regional Coordinating Councils (RCCs) must be recognized as part of the Central Government in the national governance system, but they should be strengthened to enable them play the roles assigned to them in the Constitution and in the Local Government Act; ·The relationship between the Regional Ministers and the DCEs must be clearly defined; ·Presiding Members should be elected by two-thirds majority of the members of the MMDAs present and voting; ·The Office of the Administrator of the District Assemblies Common Fund must be established as an independent institution of the Constitution. The author concludes with the novelty recommendation that the two term limit on the tenure of the DCE should be removed and that a President must be able to retain in office, beyond the 8 years a performing DCE. His rationale is that the restriction is the reason for the insecurity felt by DCEs and forms the basis for their desire to be MPs, thus fuelling the tensions and the conflicts between DCEs and MPS. ...