At about 1030 am this morning, the Speaker of Parliament, Justice D.F. Annan, will announce the commencement of parliamentary debate on the Government’s Budget Statement for 1997. Since the Government has already 'ventriloquised" petrol price increases through the not so dumb Willie Parker’s TOR and even harsher electricity bills have been ‘privatised’(probably to another set of Malaysians) the excitement of this morning will come from whether the NPP members of the Opposition will take part or stage yet another boycott.
To Sit in Parliament and debate the Budget or to continue with their consultations (the new euphemism for boycotts) about the legality or otherwise of “Akora” Kwame Peprah’s status as Finance Minister?” will be the most crucial and difficult question that the NPP Parliamentarians will have to answer for themselves, for their supporters and ultimately for the continuing development and sustenance of democratic governance in Ghana. They have dug themselves in a really deep hole and climbing out of it is going to be dangerous on account of the many prickly thorns they themselves have put along the sides of the hole.
For if the NPP Parliamentarians decide to sit and debate the Budget, they will have totally undermined the credibility and of the two cases pending before the Supreme Court on the constitutionality of the modalities used for appointing and approving Ministers of State. On the other hand, if they continue with their boycotts, I dare say, Parliament will carry on without them and the whole country will be the worse off on account of the absence of a “formidable Opposition” to dissect and demolish the government’s latest assault on the dignity of the common man.
The present state of pretty mess that the NPP finds itself in could have and should have been avoided if a little bit more circumspection and pauses for necessary reflection had been taken at crucial stages in their actions. They should have been guided by the inherent wisdom of the well-worn missive that while the Avoidance of Tax may be morally reprehensible (especially when carried out by self proclaimed Angels of Accountability) it is nevertheless perfectly legal. On the other hand, the Evasion of Tax is both illegal and reprehensible.
For if the NPP had done so, they will have been basking in the after-glow of a famous victory instead of finding themselves in the current “Every which way you lose” position. For the bald facts of the case(as the Lawyers will say) is that President Rawlings set out to appoint his Ministers in a manner not approved by the Constitution. The NPP resisted and took out a court action to protect constitutional order. The president beat a hasty retreat and sent his proposals to the Parliament. The Parliament considered the matter and took a decision in line with the Constitution.
The Opposition did not like the decision and has been sulking ever since, even though nothing that has happened in the final manner of the appointment of Mr. Peprah and the other six retained Ministers can be said to be unconstitutional, even if it is unpalatable, cynical and above all against every tenet of PROBITY, ACCOUNTABILITY & INTEGRITY, which have been forcibly enshrined in the Constitution by those now running away from peer examination. It is important to recap the sequence of events and their constitutional propriety before coming to some conclusions on the matter.
On Thursday 6 February, the President announced that he had retained Mr. Kwame Peprah as the Minister of Finance and that, in accordance with the Standing Orders of Parliament; Mr. Peprah would present the 1997 Budget Statement on Friday 7 February 1997. The Opposition immediately filed a writ at the Supreme Court to challenge the validity of the President’s appointment of Mr. Peprah without securing the approval of Parliament. Parliament decided that in view of the court action, Mr. Peprah could not read the Budget and adjourned the matter.
It is absolutely crucial to know and fully appreciate the Opposition’s case at the Supreme Court. The writ filed in the name of Mr. J.H. Mensah sought two specific reliefs from the Court : “1) A declaration that :(I)on a true and proper interpretation of the Constitution, particularly Articles 57(3), 58(1) & (3), 66(1), 76(1) & (2), 78(1), 79(1), 80, 81, 97(1)(a), 100(1), 113(1) & (3) thereof, no person can after January 6, 1007, act as a Minister or Deputy Minister of State without the prior approval by the 2nd Parliament of the 4th Republic of his appointment. (ii) Accordingly, any person who has not been so approved and appointed cannot lawfully act or hold himself out as a Minister or Deputy Minister of State.”
In plain simple language, the Opposition’s case was that Kwame Peprah’s retention as Minister of Finance, not having been approved by Parliament, was unconstitutional. And the truth is that the Opposition was justified in their action and would probably have obtained the declarations sought if matters had remained the same. The Government was also probably advised that they were standing on very shaky grounds and needed to beat a smart but very strategic retreat, which they did; for on Tuesday 11 February, the President submitted his first list of nine Ministers to the Speaker of Parliament, seven ‘old layers’ to be retained and two fresh faces. The Speaker immediately referred the list to the Appointments Committee where the fun and games started.
The Appointments Committee decided that it would adopt a procedure by which Ministers retained from the previous administration, having already been vetted by the previous parliament, would need not go through the process of inquisitorial vetting again. In other words, Parliament was being asked to approve these Ministers on the nod. The Opposition thought that everyone should go through the mill and promptly walked out of the House when the matter came up for debate. The debate went ahead and as expected the Majority won and adopted the procedure that retained Ministers could be approved on the nod.
The Opposition’s view for the walkout, as expressed by Mr. J.H. Mensah, was that they will not be party to the introduction of any procedure by which a sovereign parliament abdicates its responsibility in respect of its constitutional obligations. However, the fundamental question we all need to address ourselves to must be: whether indeed the Parliament was being asked to abdicate any constitutional responsibilities in adopting the procedure of approving retained Ministers without the need for formal interrogation? I do not believe so for the reasons that I shall develop now.
The moment the President submitted his first list to the Speaker of Parliament, he had conceded that his earlier announcement of the re-appointment of Kwame Peprah as Finance Minister without Parliamentary approval was clearly unlawful. In other words, the government was acknowledging that the Supreme Court would most probably grant the declarations sought by the Opposition, i.e. Ministers could not be appointed without the prior approval of parliament.
At that material moment, the Opposition should have informed the whole nation that it had secured a principled and important victory of constitutional governance and will now leave parliament to sort other matters out. Indeed, Mr. J.H. Mensah said as much on the BBC World Service. As far as I am concerned, that was the end of the road for the Supreme Court case and the writ should have been withdrawn and the debates concluded in the House.
Article 78(1) of the Constitution states that “Ministers of State shall be appointed by the President with the prior approval of Parliament......” The procedure for approving Ministers is not explicitly stated in the Constitution and most crucially and significantly, the word “vetting”, which everyone is getting over-excited about, does not appear in the Constitution in respect of the approval process for Ministers. Rather Article 110(1) says that “Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure.”
Since the whole matter appears to hinge on the equation of “Approval” with “Vetting”, it is important to establish the true meanings of the two words. The Concise Oxford Dictionary defines “Approval” as act of confirmation or sanctioning. That same dictionary defines “Vetting” as Examine and pass fit. The Constitution stipulates “approval”, which does not automatically entail prior examination. The Opposition wants “vetting”, which entails prior examination, but is unfortunately not stipulated in the Constitution.
Given the above facts, where is the merit in Mr. J.H. Mensah’s contention that by approving old Ministers without interrogation, Parliament has abdicated its constitutional obligations? I am afraid, this case is very much a moral one, with which I have enormous sympathy and probably greater feelings of abhorrence of the government’s cynical abuse of the people’s trust. But that is not the same as arguing that what has transpired is illegal or unconstitutional, which it clearly is not (at least in my ‘pocket lawyer’s view of the constitution).
Some NPP members have argued that re-vetting is important because they want to put some serious questions to Mr. Peprah and others about their (mis)conduct over the past four years. I cannot see how they could have prevented the appointment of these people merely by using the immunities of Parliament to make unsubstantiated allegations against the President’s nominees. For even though Parliamentary Committees have the powers, rights and privileges of a High Court when it comes to enforcing the attendance of witnesses and compelling the production of documents (Article 103(6)), Parliament cannot abrogate the citizen’s right to be regarded as innocent of any crime unless so convicted by a court of competent jurisdiction or a Commission of Enquiry established under the Constitution.
For example, even though Mr, Kwame Peprah’s appointment as Minister of Finance has been approved by Parliament, nothing stops any Member of Parliament, or indeed any other citizen of Ghana, from instituting legal action under Article 78(3) of the Constitution, if they believe that his continuing chairmanship of the Ashanti Goldfields Company is in conflict with his roles as Minister of Finance, Energy & Mines.
The article states that “A Minister of State shall not hold any other office of profit or emolument whether private or public and whether directly or indirectly unless otherwise permitted by the Speaker acting on the recommendations of a committee of Parliament on the ground - (a) that holding that office will not prejudice the work of a Minister; and (b) that no conflict of interest arises or would arise as a result of Minister holding that office”.
It is almost certainly unethical and probably unconstitutional for Mr. Peprah to continue to enjoy profit from his position with AGC and still look after the nation’s interests in that company’s operations. However, raising such a matter at the Appointments Committee of Parliament will only serve to “titillate the taste buds of a few newspaper editors and make undeserved reputations for a few MPs playing to the “Against Gallery” in pursuit of fame and future glory.
The fact is that Parliament has no power to interpret the Constitution and any such allegation would necessarily have to be referred to the Supreme Court for interpretation and declaration. In other words, if all this hullabaloo going on is simply to “fix” Kwame Peprah, a better strategic act would have been to move to file a restraining order at the Supreme Court on the grounds of probable infringement of Article 78 3(b). It is an action that could and probably would have had to be heard immediately on the grounds that there was a prima facie case to be answered.
By the same token, if the President were to nominate any of the Ministers against whom CHRAJ had made adverse findings, a writ could be moved for their disqualification under Article 94 2(d) of the Constitution, which states that “ A person shall not be qualified to be a member of Parliament if he 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 wilfully acted in a manner prejudicial to the interest of the State, and the findings have not been set aside on appeal or judicial review..”
The point I want to make is that interrogation of prospective Ministers by the Appointments Committee is not the one and only opportunity available to MPs to weed out unsuitable persons for the high office of Minister of State. Indeed, unless the person under interrogation by the committee confesses to a specific allegation, such allegations would have to be investigated and proven before his appointment can be set aside. At any rate, even if he gets through the much vaunted ‘vetting’, he is not perpetually free to enjoy his post. He can be brought to book at any time after that if new facts come to light to establish their unsuitability to hold public office.
I have suggested that rather than demand a blanket re-vetting of all old Ministers, the NPP could have tabled requests to the Chairman of the Appointment Committee to interrogate specific old Ministers whom they believed had to appear again. Such a request could have been sent confidentially with any materials which provided the supporting evidence for their request. Then it should have been possible for the Chairman (representing the Majority) and the Deputy (for the Minority) to examine the issue and make recommendations to the committee and the full House in respect of the named individuals.
Now that the ‘Stranger’ Kwame Peprah has read the Budget and the debate on it is to start today, will the Opposition (who watched the whole proceedings on TV) have the moral authority to take part in the Debate? especially if their Court actions are still pending? For how can they talk about a Budget statement given by someone they do not recognise as a Minister of Finance when Parliament’s own Standing Order 140 (2) states clearly that “The Budget shall be presented to the House by the Minister responsible for Finance on behalf of or on the authority of the President and in such form as the House may determine”
The time has come for the on-going farce by the Opposition to be brought to a swift and decisive end so that our new attempts at democracy will not go the same way as its predecessor. For it was precisely because politicians gave the impression that they were more interested in fighting each other for the sheer sake of it, that gave the veritable excuse for the return of the ‘Junior Jesus’, who claimed to hate constitutional governance, to seize power only so that he can become the next President of a Ghana ruled under constitutional order.
The NPP must end its boycotts now and continue to sit in parliament so it can contribute to the building and sustenance of democratic governance for our development in the next century. In doing so, they must appreciate that even as they want to fight the government every inch of the way, they are still the Minority and cannot insist that they must have their way on so-called moral grounds even where the law does not support their view.
It is not for nothing that the Akan proverb says : “Efie Nyansa nko, ena Adesua Nyansa nso nko” i.e. “ Home Knowledge(Wisdom) is quite different from book(Academic) knowledge.”