In defence of President Akufo-Addo; clearing the textual confusion of Ayariga

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Undoubtedly, Hon. Mahama Ayariga is a fine brain that every student of law would want to read from or listen to. I have followed his discussions and thoughts on many issues. He provides useful insight into matters of law.

It was on that basis that I took interest in reading his letter to President Akufo-Addo which he titled “….THE UNCONSTUTIONAL NOMINATION OF HON YAW OSAFO-MARFO FOR APPOINTMENT AS “SENIOR MINISTER”.

Ordinarily, I will be ill-suited to reply to the contents of the letter of Hon. Mahama Ayariga because he is a learned man whereas I am a learner. 

However, I took motivation in a similar encounter I had with my constitutional law lecturer in class some two years ago. We had a discussion on the effect of article 60 (8) and (11) of 1992 in which the lecturer suggested that succession to the Presidency ends with the Speaker of Parliament regardless the contemplation of article 57(2). I solely resisted the suggestion and contended that Kludze JSC’s view in Asare v Attorney General on succession to the Presidency nullified the suggestion the class was invited to accept. It was a back and forth argument between a distinguished law teacher and his student. In a subsequent class, the lecturer came to confirm my view and commended me.That encounter motivated me to freely express my views on matters of the law even if they are wrong.

As Kpegah JSC famously remarked in Ex Parte Darke XII “I cannot permit my views to be lost in a chorus of concurrence or dissent.". At the end of the day, it will be useful to state my views, to learn and to unlearn!

Before I proceed to attack the arguments canvassed by Hon. Mahama Ayariga in his letter to President Akufo-Addo, I would attempt to summarise his contentions as follows:

1. It is the view of Mr Ayariga that the creation of the post of a ‘Senior Minister’ is alien to the 1992 constitution and therefore “constitutes a constitutional aberration”.

2. He further submitted that the ‘Senior Minister’ is analogous to that of the Prime Minister.

3. Mr Ayariga expressed worry that the ‘Senior Minister’ position would undermine the office of the Vice President.

4. It is the contention of Hon. Ayariga that post of ‘Senior Minister” creates a hierarchy among Ministers of State, something he believes offends the clear language of articles 58 and 256 of the 1992 Constitution.

Now, out of this summary, I shall frame my legal issues and answer same to demonstrate that the conclusions of Mr Ayariga, with all due reverence, are poor.

The first issue is whether or not the position of a ‘Senior Minister’ is alien to the 1992 Constitution as Mr Ayariga submitted. Ghana under the current constitutional design operates an Executive Presidency. 

Thus under article 58, Executive authority is vested in the President to be exercised in accordance with the provisions of the Constitution, 1992. From the language of article 58, it is clear that the Executive authority is unshared! The only condition to its exercise is that it must “….be exercised in accordance with the provisions of this constitution”. It follows that where the exercise of Executive authority offends any provision of the constitution, Article 2 can be invoked.

However, clause 3 of article 58 permit the President to exercise this authority directly or indirectly through “…OFFICERS SURBODINATE TO HIM”. Therefore, in discussing the authority of Ministers of State and their designations (whatever those designations may be), regard should be paid to the provisions of article 58 particularly clause 3 thereof. It lays the foundation for the President to appoint Ministers or better still “officers subordinate to him” so as to indirectly exercise his Executive authority through such officers. This foundation is properly cemented by article 78 (1) which enjoins the President to appoint Ministers of State subject to “…prior approval of parliament”. I will not belabour the point by discussing the authority of Ministers of State and parliamentary approval. It has been settled by the Supreme Court in J H Mensah v Attorney General.

As Mr Ayariga rightly cited, other articles of the 1992 Constitution dealing with Ministers of State are 76, 78, 79, 80, 81, 82, 88 and 256. Significantly, it appears the constitution classed Ministers into three. These are Cabinet Ministers who are Ministers of State (see article 76), Ministers of State (see article 78) and Deputy Ministers (see article 79).

It is my contention that these classifications, if correct, does not necessarily follow that Ministers should carry the prefix “Ministers of State” or “Deputy Ministers of State”. The only ministerial portfolio prefixed by the Constitution itself is that of the Attorney General under article 88 of the 1992 constitution. All others are at the discretion of the President!

Thus the President can decide to designate any Minister with any name provided his role is not offensive to any provision of the Constitution. It is, therefore, wrong to suggest that the post of “Senior Minister” is alien to the constitution simply because the person so nominated has the prefix “Senior Minister”. Such reasoning would not find favour in the eyes of the Constitution. 

Further, the failure of Mr Ayariga to cite a single authority, whether from the clear provisions of the constitution or decided cases, to back his charge of unconstitutional conduct against President Akufo-Addo cannot escape criticisms. In matters of constitutional discourse, lawyers and law students are advised to rely on relevant authorities and case law to advance their claims. The Honorable MP failed his readers in this regard, thereby, reducing his letter to one of mere opinion.

The power of a President to create a Ministry and to appoint qualified people to occupy the Ministries so created has never been in dispute. The only conditions preceding such appointment is that the prospective Minister ought to be a Member of Parliament or a person qualified to be a Member of Parliament as enshrined in article 78(1) of the 1992 Constitution.

Having established my claim that the Post of “Senior Minister” sits well within the Constitution, I shall turn to the next issue in Hon. Mahama Ayariga’s letter. With the greatest of respect, the claim that “The Senior Minister post which you have created is demonstrably analogous to the office of Prime Minister” will pass as the most outrageous claim.

There can be no such contemplation to have a Prime Minister properly so-called. The learned Honorable MP should have averted his mind to the role of Prime Ministers in jurisdictions with Westminster-style Governments. It would have been so clear to him that the Senior Minister Post cannot by any stretch be analogous to the office of the Prime Minister.  

At this juncture, it is necessary to turn to the British to briefly examine the role of the Prime Minister.  The Prime Minister of Britain is the head of Government. He is responsible for Government policy and decisions. He further has the power to appoint people to Government and is the central Government figure in the House of Commons (the equivalent of Ghana’s parliament).

Can Mr Ayariga in all sincerity say that President Akufo-Addo contemplated this role when he appointed Mr Yaw Osarfo Marfo? The powers of a British Prime Minister, situated in Ghanaian context, is vested in the President (save that the Ghanaian President is not part of parliament) (see article 58) and not a minister, whatever his designation.

The next issue is whether or not the Post of “Senior Minister” circumvents the authority of the elected Vice President. Hon Ayariga expressed his worry by stating thus “…Now that we have a Vice President who is the real “Deputy Chief Executive of the nation” we cannot be entertaining acts aimed at circumventing the status of the constitutionally elected Vice President.”

I am struggling to understand how the appointment of an officer “subordinate” to the President can circumvent the authority of the elected Vice President. The role of the Vice President under the 1992 Constitution is of two types. First, there is the constitutionally assigned role and second, there are roles the President may in the exercise of his Executive authority assign to the Vice President. (See article 60 (1)

For example, under article 60 (6), whenever the President dies, resigns or is removed from office, the Vice-President shall assume the office of the President with effect from the date of death, resignation or removal. This role is constitutionally assigned and therefore cannot be circumvented by a Senior Minister or any other person! See also article 60 (8). Another example is the membership of the Vice President to the cabinet. This too is assigned by article 76(1) and cannot be disregarded! One last example is the membership of the National Security Council under article 83 (1) (b).

On the second leg of the Vice President’s role, the President may assign some other roles to the Vice President or any other officer.

The final issue is the hierarchical claim by the respected MP. Can a President vested with Executive authority establish a hierarchy among “officers subordinate” to him? I would NOT hesitate to answer in the affirmative! A textual examination of articles 58 (1) and (3) and 78 shows nothing which bars the President from creating a hierarchy among his Ministers. The reverence of cabinet and the fact that not all Ministers of State are members of cabinet defeats the argument of Mr Ayariga.

I conclude by stating my considered opinion as follows:

- That the President’s conduct is constitutional.

- That the Post of “Senior Minister” is known to the constitution.

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The author is a Member of the NPP National Communication Team.