Should the Constitution be amended or simply implemented?

Today, Thursday, March 3, I have to serve as the facilitator for deliberations on the National Media Commission as part of the Constitution Review Commission conference.

The importance of the mass media to our democracy as the key-most source of information is due to the fact that people have to know what is going in order for them to participate effectively in the governance process of a democratic system.

The quality of that information and the integrity of free speech itself are enhanced by regulation within a true democratic context. Significantly that job is done not by the government but by an independent constitutional body.

The NMC is often accused of being toothless as it has not been toothed with the power to apply sanctions. There are several options on the table as to what to do to enhance the work of the NMC. This essentially may require a far greater scrutiny but not necessarily within the pages of the Constitution.

In the 21st century social network age – the era of rapid technological and structural change within the media landscape, the NMC and its efficacy have come under increasing and, some may even argue, possibly terminal, challenge and strain. It requires instruments more flexible than constitutional amendments to cope.

We must begin from asking a few questions. First, what are the clear targets of the NMC? What is the value system underpinning its establishment and how clear is that to practitioners? Lastly, are these really inadequate? Are we sure about that?

This is because the success or failure of the NMC’s regulatory activities may only be properly assessed by reference to the degree to which the NMC has achieved its identified objectives as broadly set out in the Constitution and by how much can any shortcomings be attributed to constitutional restrains.

Media Law experts have identified certain objectives that underpin the establishment of a regulatory body for the media: (a) examine past and present structures of media regulation, the relationship (in our case) between the NMC and NCA, assessing performance against democratic criteria; (2) identify the values underpinning justifications for media regulation and in particular seek clarification of the ‘public interest’ in the context of media regulation; (3) identify rationales for media regulation and challenges posed to them by the ongoing media revolution; (4) evaluate the capacity of the media industry, challenges and opportunities, and how they influence the workings of the NMC; (5) enable a synthesis of the above objectives to identify values and institutional features that must be built into any future regulatory regime and; (6) finally, answer this basic question: is it a constitutional amendment that is required, or is it legislative bite, or just administrative implementations of powers and functions already conferred?

My intestinal feeling is that there may be nothing or very little about the NMC that requires constitutional amendment. The major issues about the NMC, as often repeated by its members and observers, are powers to apply sanctions, the part time status of its members, and the issue of some of its constitutional powers being seemingly taken by the National Communications Authority, such as the power to allocate radio frequency.

The question is this: does it require any constitutional amendment to get any or all of the three things above done? I believe probably not. This same question can be effectively applied to several of the issues that we think call for us to review the Constitution.

NANA ADDO ON CONSTITUTION REVIEW Yesterday, I went to have a long chat with one of Ghana’s foremost constitutional law specialists, who returned to the country Tuesday night after a weekend visit abroad.

I asked Nana Akufo-Addo about his views about the Constitution review exercise and I sincerely hope he makes his insightful views available to all Ghanaians and not just the CRC, who met him a couple of weeks ago.

Allow me to take the liberty to share a few of the ideas he shared with me. I asked him whether the whole exercise was necessary, what I got from him was essentially ‘if ain’t broke don’t fix’.

Nana Addo: “The Constitution has provided the framework for the longest period of political stability in our history. The 1st Republic lasted 5 years 7 months; the 2nd Republic 2 years 5 months, and the 3rd Republic 2 years 3 months. The 4th Republic has lasted 19 years. It has ushered in a strong democratic culture with one of the freest and most vibrant media on the continent, and established the ballot box, not the gun, as the means to power in our state. Twice in a decade, the Constitution has witnessed the peaceful transfer of power from one party to another (its main opponent) without shaking the foundations of the state. It has also made possible a marked improvement in the management of the national economy, with average per capita income trebling in the constitutional era of the 4th Republic. The performance of the 4th Republic has become the cynosure of the entire African continent, making our country an enviable beacon in the progress towards a democratic Africa.”

He continued, “Much as there remains a great deal of work to be done towards the consolidation of our democracy and the enhancement of our economy and the living standards of our people, there can be little doubt that the Constitution, 1992, has served our nation well.” Me: What about calls to stop selecting ministers from parliament?

Nana: “The decision that some Ministers should come from Parliament is also rooted in our history, in particular from events of the 3rd Republic. The instability that arose after the budget of the Limann government was rejected by Parliament has been attributed by some commentators to the strict separation that the Constitution of the 3rd Republic created between the Executive and the Legislature. The decision by the people of Ghana to have some members of the Executive come from the Legislature is a response to the situation that arose during the 3rd Republic.”

He is also of the view that the process of reviewing the Constitution should have been owned by Parliament.

Nana: “The process of constitutional amendment should have involved Parliament at the very onset. The President should have presented his proposals to Parliament in the form of a Bill. As stated in article 106 of the Constitution, a Bill should be accompanied by an explanatory memorandum. The memorandum sets out in detail the policy and principles of the Bill, the defects of the existing law, in this case the Constitution, the remedies proposed to deal with the defects and the necessity for introduction.”

Why?

Nana: “This would have enabled the people, through their elected representatives, the opportunity to be involved in the process of initiating such a comprehensive review of the Constitution from the beginning. The Bill would have proposed the establishment of the body to commence the process of constitutional review and the terms of reference of the body. The representatives of the people, Parliament, would also have had the opportunity to determine whether or not a constitutional review is necessary at this stage of our constitutional development.”

On specific provisions, Nana was of the view that the two maximum four-year terms for a president must remain, for example. He was in support of maintaining the Transitional Provisions, referring to the spirit behind the National Reconciliation Commission to “help heal wounds not to aggravate them.”

He adds, “We must be guided by the fact that this Constitution has served us all well in maintaining national stability and cohesion.”

What I also found interesting was his take on CHRAJ:

Nana: “The Commission on Human Rights and Administrative Justice has over the years been able to build up considerable institutional integrity. Anti-corruption is part of its mandate. The call over the years has been that CHRAJ should be given the power to prosecute. The way forward perhaps is to create two institutions out of CHRAJ. One institution will be in the nature of the Ombudsman and the other an Anti-Corruption Agency. The sole mandate of the Anti-Corruption Agency should be fighting corruption and it should have the power to prosecute. Its powers of prosecution, as stated above, should be subject to the power of the AG to enter nolle prosequi in the interest of the public. If this position is adopted then it will not be necessary to separate the Minister of Justice position from the AG position.”

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