A letter to Asaase Yaa: Our constitution is 30 years old

Dear Asaase Yaa,

I bring you greetings from the Republic of Nyamebekyere. Before I proceed further, may you accept my profound apologies for not properly invoking your divine audience with the usual bottle of schnapps. In January last year just like the previous years, I painstakingly emptied your cherished bottle of Seamans schnapps on the ground while prevailing upon you to drink up until there was nothing left in the bottle.

A bottle of schnapps used to be cheap. The cost of living was low. These days life is so unbearable for the people of Nyamebekyere. The cost of living is high. When we complained to Nana Preyman who is the constitutional leader of Nyamebekyere, he told us that the high cost of living was a result of a war between two villages several miles away in the Whiteman’s country.

During the meeting with Nana Preyman and after he had told us about the war in the whitemans country, Agya Kwasiabinti, the drunkard, in his drunken display of crude exuberance asked Nana Preyman why the cost of living in Nyamebekyere was not affected when her immediate neighbors, The Republic of Nyansakrom and Abronye Republic went to war against each other a few years ago?.

However, Nana Preyman told Agya kwasiabinti that the likes of him who have not had the benefit of going to school to read and write in the Whiteman’s language will not understand why the war in the whitemans country is affecting the cost of living in Nyamebekyere.

Asaase Yaa, today marks 30 years of the establishment of a new constitution for the fourth Republic of Nyamebekyere. Owing to the ructions involving rival groups over succession to political power in Nyamebekyere, which was often shaped by elite maneuvering and military juntas, the people held a referendum in 1992 on a new Constitution for the re-introduction of multi-party politics and division of powers between the Constitutional leader of Nyamebekyere Republic and Parliament.

Indeed, it is our choices that show what we truly are, far more than our abilities. The new Constitution entered into force on the 7th Day of January 1993 to found the Fourth Republic. On that day, Nana Dzato Paul- Gyamfi was inaugurated as Leader of Nyamebekyere and members of parliament swore their oath of office.

The 1992 Constitution provides for an election to be held every four years to elect the leader of Nyamebekyere who is also the commander in chief of her Armed Forces through a majoritarian system.

Today, as usual, opinion leaders and elders of Nyamebekyere will meet at the community square and will not do a thing that the Nyamebekyere folks can see or hear except debate strenuously about the need for an amendment to the Nyamebekyere Constitution. This has become a yearly ritual.

It is just all talk and no trousers. Such debates are very esoteric to the folks too. They are always lost in their longing to understand. But truth be told the 1992 Constitution has served the Nyamebekyere people not many useful purposes. It has become a dream that ends in nothing and leaves the sleeper where he lay down.

Perhaps in our Republic, it does not do well to dwell on dreams and forget to live. Nana Preyman, just like the previous leaders will also do nothing about the concerns of the people regarding the constitution 1992.

The previous leaders were not able to successfully amend the constitution notwithstanding two notable attempts over the last decade. The Leaders of Nyamebekyere between the years 2010 and 2016 appointed a Constitutional Review Commission which recommended an all-encompassing amendment to the Constitution.

There was a government white paper on the report which rejected these recommendations except for a few which were translated into proposals to amend 97 provisions of the Constitution by the Constitutional Review Implementation Committee. Unfortunately, the proposals couldn’t be implemented due to legal and political disagreements.

It was as much a stressful exercise as it was time-wasting. In 2018 and 2019 when the current leader pursued an amendment of articles 55(3) and 243(1) to enable political parties to sponsor candidates during local-level elections, the national referendum slated for December 2019 was canceled and the Constitutional amendment bills were withdrawn from parliament due to the absence of a durable national consensus

It has been argued by some wisemen of the Republic Nyamebekyere that an amendment may not be necessary if the constitution is given a purposive interpretation in the event of an ambiguity or an unclear provision in it.

On the absence of signatures on some of the pink sheets in the 2012 election petition case of In Re Presidential Election Petition: Akufo-Addo, Bawumia & Obetsebi-Lamptey v Electoral Commission & NDC, Vida Akoto Bamfo JSC as she then was, disavowed the strict constructionist approach to the interpretation of the word” shall” as it appears in article 49(3) of the Constitution.

She noted that it had been held in a long line of decisions that a strict, narrow, technical, and linguistic approach to the interpretation of the Constitution must be avoided. She then proceeded to interpret the word “shall” purposively by concluding that no injustice had been occasioned by the refusal of some presiding officers to sign the pink sheets as that was not capable of denying the right of voters who voted to have had their votes counted.

In CHRAJ v Attorney General & Baba Kamara, Date Bah JSC as he then was, listed several cases in which the Supreme Court applied purposive interpretation and made the point that the approach to judicial interpretation in Nyamebekyere ought to be purposive interpretation, especially having regard to the provisions of section 10(4) of the Interpretation Act, 2009 (Act 792).

The said provision gives statutory backing to the application of the Purposive approach to the interpretation of a provision of the constitution or any other law. It insists on the promotion of purpose and creative development when construing any of the provisions of the constitution or any other law.

The purposive Approach, which is the preferred approach to constitutional interpretation in Nyamebekyere calls for interpretation that fulfills the purpose of the law or the constitution under consideration.

Purpose under the Modern Purposive Approach to interpretation entails both the subjective purpose which is the subjective authorial intent and the Objective purpose which is what the reasonable author would have intended and the fundamental values of the legal system.

A blend of these two reveals the ultimate purpose of the text. Since what the reasonable author would have intended, which is the objective purpose is not static but changes with time, the constitution should be given a malleable interpretation that accords with modern times.

Not only the words or letters should be interpreted but the spirit as well. So, in Tufuor v AG, Sowah CJ as he then was, noted that the Constitution has its letter of the law and its spirit. Therefore, its language must be considered as if it were a living organism capable of growth and development. A broad and liberal spirit is required for its interpretation.

It does not admit to a narrow interpretation. A doctrinaire approach to interpretation would not do. Therefore, we must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.

In National Private Lotto Operators Association v National Lottery Authority Date, Baah JSC endorsed this approach when he held in effect that the reason for the invocation of the spirit is that the word of the constitution may no longer with time convey the meaning it ought to convey but the spirit survives and is capable of giving a meaning from the word or letter that meets the needs and exigencies of the times.

However, the obvious challenge with the above argument is when the provision of the constitution is clear and does not admit to any ambiguity or rival meaning. In this case, the interpretative jurisdiction of the Supreme Court will not be invoked and the clear provision of the Constitution will be given effect.

Some of these clear provisions of the constitution which have served no useful purposes for the last three decades are the ones starved for amendment.
Asaase Yaa, the Nyamebekyere Constitution of 1992 is an imitation of our aspirations as a people.

It has probably become the most primitive creation of men. For the Democracy of Nyamebeyere to mature so that it does not revert to authoritarianism and is regarded as the only available system of government within the Republic, the following amendments should be considered.

First of all, there should be an amendment to articles 86 and 87. They should be made entrenched provisions for an all-encompassing long-term National Development Plan that will be binding on all Successive Governments. This will curb the wanton abandonment of projects simply because they were not initiated by the incumbent administration. This will call for an independent National Development Commission, protected by the Constitution.

Secondly, Articles 55(3) and 243(1) should be amended to enable Political parties to participate in Local government elections and politics. Article 55(3) for instance forbids political parties from participating in local governance. The President is also empowered under article 243(1) to appoint all MMDCEs.Amending these provisions will break the syndrome of ‘’winner takes all’ and allow for power sharing in the Executive.

Thirdly, ministers should not be chosen from amongst members of the Legislature and then remain members of the legislature while in ministerial office. Article 78 should be amended to forbid such an arrangement. The said article which enjoins the president to select most of his ministers from the Legislature weakens accountability and the oversight responsibility of Parliament.

Fourthly, to protect the independence of the Police service, there should be an amendment to articles 202 and 203. The police council must be removed from political influence. The leadership of the Police must be appointed for a fixed term with the security of tenure.

Finally, there must be an independent Emoluments Commission that will determine the conditions of service of all public officers. The current practice under article 71 where the Executive determines the condition of service of the Legislature and vice versa, should be replaced.

Since the aforementioned articles are clear and unambiguous on the face of the provisions of the Constitution, albeit primitive, no reference needs to be made to the Supreme Court alleging as issues the determination of questions of interpretation of the Constitution for which Purposive interpretation may be employed. Consequently, these provisions have to be amended.

Asaase Yaa, the god of our ancestors, as the Supreme being, you carry a distinct and unique quality in African cosmology as the creator with all other supreme attributes including the ability to reveal yourself to people through dreams, prophecies, and special events. I am by this letter beseeching you not to abandon us, the people of Nyamebekyere.

Do not harden your heart against us. Reveal yourself to Nana Preyman in his dream since he appears to have broken pieces of wood and plugged them into his ears. Cause him to have sleepless nights until he amends the constitution.