The Inefficacies of Ghanaian Parliaments

...Seemingly slow to act, ideologically handcuffed and economically self-serving? A Contextual Analysis of Article 42 and 94 of the 1992 Constitution of the Republic of Ghana

Asante Fordjour LLB(Hons) LLM International Law And Criminal Justice

MEMO

Lord Denning MR, once asserted in one of his commentaries on legislative gap-fillings which I paraphrase as follows: If the Supreme and Sovereign British Parliament fails to speak (legislate) in a clear, concise and unambiguous faction, the judges would not hesitate to penetrate into the mind of Parliament and do what is just and fair by giving reasonable interpretation to the ambiguities of Parliament. And when this had been done and the Supreme and Sovereign Parliament appears dissatisfied about what the courts or should I say, the judges had done, all that Parliament must do is to evoke its sovereign and supreme legislative powers to reverse the courts or the judges’ decision by legislating in the contrary to remedy the legislative defects or ambiguities surrounding the existing law. Lord Denning’s legal reasoning recently came to stage for auctioning in 2010, when the Supreme Court of Ghana held that inmates of Ghanaian prisons could be confer with the right to vote within the meaning of Article 42 of the 1992 Republican Ghana Constitution. My question then; is, if the British are nervous about similar decision of the European Court, why not the Ghanaian?

The Legal Base of the Right to Vote

Article 42 of the [Chapter Seven] 1992 Fourth Republican Ghana Constitution states that: “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.” The literal interpretation here could be that as a Ghanaian, subject to being 18 years of age and of sound mind, you should be entitled to be registered to vote no matter where you might find yourself under this planet earth. Yet, purposively; the qualification “every Ghanaian of eighteen years and of sound mind”, was probably not intended by the Constituent Assembly for the Ghanaian in Iceland or in the remotest part of the Republic of Togo or Ivory Coast. So for example; if Asante Fordjour were to suggest that Art. 42 is inefficacious then he means it lacks the power to produce a desired effect.

Admittedly, I have not had the opportunity in reading the transcript of the Supreme Court’s decision in relation to the true interpretation of Article 42, so I am obliged to take reference from Jervis CJ in Abley v. Dale 1851 that "If the precise words used [by Parliament] are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice". Yet It is established that if there is a casus omissus- where Parliament did not foresee the circumstance, judges must be legislators in interpreting statutes if they are to enforce Parliament's intent. Literally argued, there seems to be no difficulty in giving meaning to Article 42: “Every citizen of Ghana of eighteen years of age or above and of sound mind …”, to include the convicted and imprisoned criminal, the remanded accused and probably, the Diaspora Ghanaian fore, when the language of a statute is plain it is not open to the court to remedy a defect of its drafting?

Indeed I am in no way on a crusade to deflate the prisoners’ right to vote; having critically examined State practice or policy, not forgetting Article 94 of the Ghana Constitution, I am tempted to reason that the National Constituent Assembly of 1992 [Parliament] intended not to bestow voting rights on prison inmates. For example, to espouse Parliamentary supremacy, sovereignty and righteousness, Article 94 imposes series of legal impediments on the way of the prospective Ghanaian MP. The arguments against prisoners’ right to vote are that once the Ghanaian is convicted and sentenced or remanded for say, three months’ or five years’ imprisonment then generally, s/he loses some of his/her civil rights and liberties such as freedom of movement, association and more importantly, the entitlement to register and to vote or offer himself or herself as a candidate in an election or referenda or vote for a candidate or a political party of his/her choice?

Although Article 42 is literally clear; in Pepper v. Hart (1992), Lord Reid said that “To apply the words literally is to defeat the obvious intent of the legislature. To achieve the intent and produce a reasonable result we must do some violence to the words.” This was reinforced by Lord Griffiths, who adds by stating that “The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation.” Lord Denning MR had also said that “We no longer construe Acts according to their literal meaning. We construe them according to their object and intent.” So what is the purpose of Art. 42? The answer might be found if we were to read Article 42 with Art. 94.

In R v Barnet LBC [1983] Scarman LJ stated that “A purposive interpretation may only be adopted if judges “can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy”. Sir Rupert Cross talks of Contextual Approach of judicial interpretation stating that the judge should give effect to the ordinary (or technical where appropriate) meaning of words in context of statute to determine extent of words by the context of the Act. This brings us to the Ejusdem Generis rule which relates to 'things that are the same'. This is used when a statute includes list of similar items' in a clause. This may be indeed ignored to achieve the intent of Parliament. There must be more than one similar item for rule to be applied (Allen v. Emmerson 1944). The listed items must all be of the same type for ejusdem generis to apply (R. v. Payne 1866).

Applying this rule to Art 42 with the phrase ‘...has the right to vote and is entitled to be registered’ could under Article 45, put a broader obligation on the Electoral Commission, to have the names of eligible Ghanaians abroad compiled and revised as registered voters for elections. But Article 94(1) of the 1992 Constitution states that: “Subject to the provisions of this article, a person shall not be qualified to be a member of Parliament unless -(a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter;(b) he is resident in the constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of the ten years immediately preceding the election for which he stands, or he hails from that constituency; and (c) he has paid all his taxes or made arrangements satisfactory to the appropriate authority for the payment of his taxes.” The ‘citizen of Ghana’ has a meaning at Article 6(2): “Subject to the provisions of this Constitution, a person born in or outside Ghana after the coming into force of this Constitution shall become a citizen of Ghana at the date of his birth if either of his parents or grandparents is or was citizen of Ghana. This is subject to Article 8 (1) which provides that subject to this article, a citizen of Ghana shall cease forthwith to be a citizen of Ghana if, on attaining the age of twenty-one years, he, by a voluntary act, other than marriage, acquires or retains the citizenship of a country other than Ghana.” For the purposes of this Memorandum, I will consider Article 94(2) which states that a person shall not be qualified to be a Member of Parliament if he -

(a) owes allegiance to a country other than Ghana: or(b) has been adjudged or otherwise declared- (i) bankrupt under any law in force in Ghana and has not been discharged or (ii) to be of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or (c) has been convicted - (i) for high crime under this Constitution or high treason or treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or (ii) for any other offence punishable by death or by a sentence of not less than ten years; or (iii) for an offence relating to, or connected with election under a law in force in Ghana at any time; or (d) has been found by the report of a commission or a committee of inquiry to be incompetent to hold public office or is a person in respect of whom a commission or committee of inquiry has found that while being a public officer he acquired assets unlawfully or defrauded the State or mis-used or abused his office, or willfully acted in a manner prejudicial to the interest of the State, and the findings have not been set aside on appeal or judicial review; or (e) is under sentence of death or other sentence of imprisonment imposed on him by any court; or (f) is not qualified to be registered as a voter under any law relating to public elections[?]

Yes, the likes of the Dr Kwame Nkrumahs came out of prison to take up leadership positions. Yet, how could Parliament intend to give blanket voting rights to every prisoner- including hardened criminals, while at the same time, Economist Kwame Pianim- an NPP activist and once presidential aspirant, could be disqualified under Article 62(c) and most probably, under Article 94(2)(c)(i) of the 1992 Constitution which states that one cannot be an MP if- “he (c) has been convicted - (i) for high crime under this Constitution or high treason or an offence involving the security of the State...?” If the interpretation of Art 14 is reformist intended then why can’t these disqualifications be reviewed?

COMMENTARY

The Parliaments of Ghana had been historically, criticized for being seemingly slow to act, ideologically handcuffed and economically self-serving. As to whether these could be true in our contemporary political trials are not within the scope of this memorandum. What is of important, however, is that most reputable Parliaments of today, respond swiftly to the changing needs of the societies in which they represent. It is in this context that Parliaments are “Sovereign and Supreme..” When we talk of parliamentary sovereignty and supremacy, we mean that Parliaments can make or unmake laws. But Parliaments are indeed not “aller wissen” God, to have the foresight to legislate to cover every future happenings such as the quest for prisoners to assert their democratic rights to vote or for homosexuals, to exercise their rights as human beings and here with the right to choice. It is against these socio-political uncertainties that both realists and idealists agree whole-heartedly that no Parliament has the power to legislate to tie or handcuff the hands of successive Parliaments. How, then, could we have fought crimes? The Capitalpunishmentuk writes that punishment is popular with the law abiding members of most societies and that when crime rises, there is pressure on the legislature for more severe punishments.

So what do you think about Art 94 in terms of its intended purpose within the meaning of sentencing? It is said that punishments- being it at schools or workplace, are designed to deter other people from committing the same or similar wrongdoing and to assure the law-abiding that the State is ready to protect them from criminal gangs. Yet it is argued that we can only be deterred if we thought about the consequences of the crime before committing it. Research has also found that those with most to lose- here the law-abiding, are more likely to be deterred than those who have little or nothing to lose. Our emphasis, as Capitalpunishmentuk puts it, is now placed upon rehabilitation by prison reform groups in attempt to rehabilitate prisoners to lead an honest and normal life upon release. To this end, most prisoners of today- being they alcoholics, drug addicts with emotional or mental problems or violent offenders, are taught skills and trades within prison so as to return to their societies on release, as reformed and useful citizens. Yet we might acknowledge that in reality, it is impossible for the State to rehabilitate every offender and not every member of our society might either be prepared to forgive or forget particularly awful crimes such as sexual related offences, mass murdering, serious economic or cyber crime. So it might be extremely unimaginable if after three or four days of prison sentence, the likes of Kombiens and Ataa Ayis, were to demand for their voters’ ID cards to vote?

Similar to the Supreme Court’s decision in 2010, the United Kingdom’s government was faced with this dilemma in the context of the Representation of the People Act 1983, which excluded prisoners from voting and had been challenged by John Hirst- a prisoner convicted of manslaughter. Mr Hirst had argued that the UK’s exiting voting law was incompatible with article one of the European convention. In October 2005, the European court of human rights decided in favour of Mr Hirst, stating that the UK’s general, automatic and indiscriminate restriction on voting by convicted prisoners was a breach of article one of the convention. Article 1 of the ECHR states that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. The ruling does not require Britain to give all prisoners the vote.

But the Guardian UK (21 October 2010) writes that it does mean that the government, can no longer maintain blanket restrictions on votes by convicted prisoners. This is because under Article 46 of the convention, the UK governments committed itself to “undertake to abide by the final judgment of the court in any case to which they are parties”. So when most 600 prisoners were denied the right to vote in 2010 general election, Paul Hydes, who was convicted in July 2009 of burglary, robbery and firearms offences for which according to Robert Booth of the Guardian, he was serving life with a minimum term before parole of four years and 265 days, led a legal action for compensation claims. This was blocked by high court in February 2011.

Mr Justice Langstaff said that “the 1983 act was incompatible with a prisoner's rights under the European convention arose because of the blanket nature of the ban, as previous cases made clear. Those cases expressly recognised that a state had a wide margin of appreciation in deciding the category of case or prisoner for whom a restriction on the right to vote would not be a disproportionate interference with his rights generally....[and that].the lead claimant, would be in a category that would be enfranchised however the margin of appreciation be exercised in honouring the government's international obligations....It cannot therefore be said that if the incompatibility were removed he would then have the vote... All would depend on how, legitimately, parliament chose to legislate. He might well remain outside the scope of the franchise.”

Prime Minister David Cameron has said that the idea of allowing convicts to vote makes him “physically ill”. Despite the 2005 Strasbourg ruling, in February 2011, UK MPs voted by 234 to 22, a majority of 212, in favour of a cross-party [backbench] motion that said parliament should decide on such an important issue. The legislative powers of the Parliament of Ghana lies in Article 93(1)(2) which makes it clear that subject to the provisions of this Constitution, the legislative power shall be vested in Parliament and shall be exercised in accordance with this Constitution. Indeed, it has been established that Parliament’s power and supremacy depend on the enforcement of its statutes; and that sovereignty depends on the acquiescence of the courts to the power of Parliament. Yet recent approach by the House of Commons in the UK suggests what Ghanaian Parliament can do.

CONCLUSION

Yes, Article 12 (1) of Ghana Constitution states that “the fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and the Judiciary...” Contextually examined and in relation to the bar on Ghanaians abroad to vote, it is doubtful that Parliament intended to confer for example, voting rights on those who cause electoral violence, leading to the death, electoral incapacitation or maiming of equally eligible voters and are accordingly, jailed. We petition the Ghanaian Parliament to mend the gap in 14- “The Right to Vote”.

JusticeGhana/OmanbaPa Research Group