In the history of constitution-making in Ghana, the 1969 Constitution, though Westminster or parliamentary in conception and design has, served, in several important respects, as the template for the crafting and drafting of each of the subsequent presidential constitutions, the 1979 and the 1992 Constitutions.
Reacting against the experience of the First Republic, which had installed a super-strong Executive President that rode roughshod over all institutions of state, the framers of the 1969 Constitution went for a President who was a Head of State only, not a Head of Government. (That latter role was for the Prime Minister). The 1969 Constitution’s President’s role was that of a “statesman,” not a politician. In terms of his specific functions, the President under the 1969 Constitution was to serve as the protector or guarantor of certain independent constitutional bodies and offices created by that Constitution.
Thus, the Second Republic’s President played a principal role in the processes for the appointment or removal of such officeholders. In performing this and other roles under that Constitution, he was to consult with or be advised by the Council of State. That body, first established under the 1969 Constitution, was in that constitution composed in a way as to ensure that the President would have the benefit of politically balanced advice or viewpoints. Notably, its membership included both the Prime Minister (Head of Government) and the Leader of the Opposition.
Fast forward to the 1992 Constitution (via the 1979 Constitution).
We retain the office of President, but this time the President is both Head of State and Head of Government, making the officeholder concurrently, at least in theory, a statesman and a politician, although the Constitution fails to separate out those two distinct roles. The 1992 Constitution, however, retains for this Executive President roughly the same roles and functions assigned the nonpolitician, statesman President under the 1969 Constitution.
The 1992 Constitution also retains the Council of State as a body, assigning it both consultative and advice-rendering roles in relation to the President, as under the 1969 Constitution. This Council of State is, however, of a different composition from the 1969 original. Notably, there is no explicit inclusion of the Opposition party or any of its Leaders. Rather, it is now a body dominated by appointees of the Executive President, though in a limited number of cases such appointments must be made from a narrow pool of designated past officeholders. In effect, the 1992 Constitution’s Council of State loses the intentional, high-profile cross-party membership and balance that the presence of both Prime Minister and Leader of Opposition, as well as a past Head of State, lent to the 1969 Council of State.
The fundamentally different character of the 1992 Constition’s President and Council of State, in comparison with their 1969 antecedents, means that borrowing or importing functions, powers, and other provisions associated with the two bodies directly from the 1969 Constitution into the 1992 Constitution without thoughtful modification is sure to create perverse outcomes. One of such outcomes is to have assigned to the 1992 Constitution’s politician-President roles, functions and powers that the framers of 1969 Constitution wisely thought were best suited for a nonpolitician, statesman-President.
The result of this cut-and-paste borrowing from the 1969 to the 1992 Constitution is that, we have created a politician President cloaked with and exercising powers and functions that were originally intended for a nonpolitician, statesman President. The aggregate effect of this blind borrowing is that we have made our President far more powerful, our Council of State far weaker, and our independent constutional officeholders appointed by the President far less politically independent or secure than the original conception and design in 1969.
You can call it the unintended consequence of blindly importing offices and institutions with the same names but different conceptions and understandings from one constitutional context to a vastly different one. Thoughtful, history- and context-attentive constitutional interpretation could have helped correct some of the perverse outcomes of such cut-and-paste importation of constitutional institutions and associated provisions from 1969 to 1992. Alas, that has not been the case thus far.
