Constitutional Advice in the Ghanaian and Colombian Contexts: The Need for Coordination and Recognition of Non-Formal Constitutional Advisers
The differences between the situations in Ghana and Colombia are evident. First, on the one hand, in Ghana, constitutional advice was provided towards the drafting of a permanent Constitution during the transition, in addition to the subsequent provision of constitutional advice under the Constitution, when it came into force, to address human rights violations of past regimes.
On the other hand, in Colombia, constitutional advice has been provided by transitional justice mechanisms envisaged in the framework of a permanent constitution. Second, whereas the main transitional justice mechanism adopted in the Ghanaian context was designed within the bounds of the 1992 Constitution without any constitutional amendments and therefore did not give rise to judicial review of its mandate, the design of the Colombian transitional justice mechanisms have been through constitutional amendments which have made room for judicial review, thereby making the process flexible. Third, while in Ghana, the transitional justice institution providing constitutional advice emerged as a result of the loopholes in the constitution-making process, as the case of the National Reconciliation Commission, transitional justice processes in Colombia have implied constitutional advice given by and around institutions created by constitutional amendments. Fourth, even though transitional justice mechanisms portend a myriad of domestic and international stakeholders as constitutional advisers, the case of Ghana was characterised by domestic stakeholders being represented by the domestic institutions created within the transition. In Colombia, however, these stakeholders include both domestic and international stakeholders such as State judicial institutions, civil society organisations, and international justice institutions with a mandate over the situation.The variant dimensions of constitutional advice in the Ghanaian and Colombian cases spelt negative and positive implications in both contexts.
Whereas the constitutional advice during the constitution-making process in Ghana was limited to the interests of an autocrat, thereby making the process undemocratic and creating more polarisation in the Ghanaian society, the involvement of different international and local stakeholders in Colombia evinces a more inclusive process with efforts being made to strengthen and improve the transitional process. Whilst the extensive involvement of international and domestic stakeholders in Colombia has, arguably, brought about delays in the implementation of transitional justice processes, the processes in Ghana were not made any faster by the low engagement of international stakeholders in the processes leading to the drafting of Ghana’s Constitution, as well as the eventual establishment of transitional justice processes. Within the framework of advice-giving under a permanent Constitution, as was the case in Colombia, the need to ensure that the work of transitional justice mechanisms comply with existing constitutional norms and international human rights principles has proven to be arduous. Advice-giving in the Colombian situation has therefore become subject to different competing interests, thereby complicating the process. In the case of Ghana where constitutional advice was initiated by an autocrat and led to the drafting of a permanent Constitution, the main interest at play was that of the ruling government who initiated the constitutional drafting process. This excluded adherence to standards of international human rights law, thus initially avoiding the adoption of any transitional justice mechanism, until a change in government occurred. In the long term, transitional justice mechanisms have been implemented on a piecemeal basis in Ghana, to the detriment of effectively addressing gross human rights violations.The above implications indicate the need to coordinate and recognise non-formal constitutional advisers in transitional societies in order to enhance the constitutionmaking process and guarantee the efficiency of the transitional justice mechanisms.
In Ghana, constitutional advice in relation to the transitional justice process was, arguably, handled solely by the National Reconciliation Commission under Article 278 of the 1992 Constitution. This is because the initial constitutional advisors during the transitional period did not provide any recommendations related to addressing past human rights violations. Moreover, the amnesty provisions under the transitional provisions in the 1992 Constitution excluded prosecutions against the members, Secretary and officials of the Provisional National Defence Council as well as all former military leaders and their abettors in past military coups d’etats. The provisions also barred the possibility of obtaining any judicial remedies in respect of any of the past injustices perpetrated by past military governments.[512] As explained above, the adoption of the amnesty provisions was due to the dominance of the then ruling government of the Provisional National Defence Council in the constitutional advice that led to the adoption of the 1992 Constitution. The establishment of the National Reconciliation Commission was, therefore, a means of circumventing the existing hurdles posed by the amnesty provisions.[513] No coordination existed between transitional justice mechanisms and constitutional advice prior to the adoption of the 1992 Constitution since transitional justice was not given a place in the processes leading to the constitution-making. With the adoption of the National Reconciliation Commission, the first step was made to give the Commission a constitutional mandate to provide advice on dealing with past human rights violations. Whilst the Supreme Court of Ghana is vested with the power to interpret the constitutionality or otherwise of any actions of the legislature,[514] the Supreme Court has not yet provided advice on the work of the Commission or the National Reconciliation Commission Act of 2002, under which it was established.[515] In providing constitutional advice, although the National Reconciliation Commission carried out its constitutional mandate fully and submitted a report with recommendations on how to address past human rights violations, the absence of other stakeholders in the transitional justice process left the process in limbo, and the recommendations of the Commission have not been implemented to date, with the exception of the payment of some reparations to victims.In the Colombian situation, the role of streamlining the constitutional advice provided in relation to the transitional justice mechanisms has been taken over by the Constitutional Court. According to Bernal-Pulido, ‘[i]n a transitional justice process under a permanent constitution, a constitutional court has two functions. On the one hand, it has the power (and duty) to guard the essential principles of the permanent constitution from degradation. On the other hand, it has a constitution-making power for guaranteeing the fairness of the transition’.[516] Constitutional courts can play a valuable role in constitutional transitions by providing a forum for a particular form of constitutional dialogue,[517] and through their balancing exercise of principles upheld by the transitional justice process vis-a-vis the constitution aiming to uphold the goals of transitional justice.[518] In practice, the Colombian Constitutional Court has seen this role as also that of coordinating the constitutional advice provided in the context of the transitional justice mechanism. Using its constitutional replacement doctrine, the Constitutional Court has provided substantial constitutional judicial review, validating and disqualifying constitutional advice provided concerning transitional justice mechanisms such as the LFP and SIVJRNR. In its Decision C579 of 2013, the Constitutional Court has acknowledged that a transitional justice process instantiates a conflict between justice and peace. The Colombian Constitutional Court has encouraged a forum for debate through the interpretation of the principle of proportionality, as it provides a plausible methodology for resolving collisions between the essential principles of a permanent constitution and the basic goals of transitional justice, as they might be highlighted by those providing constitutional advice.[519] However, tensions between the constitutional advice provided in the context of transitional justice mechanisms persist, as seen in the context of the SJP regarding international human rights and ICL standards. Furthermore, the constitutional judicial review of these constitutional amendments and its complexity has an impact on the efficiency of the transitional justice process, hindering its timely and adequate functioning.
In both contexts, the constitutional advice provided by transitional justice actors and stakeholders, both domestic and international, should be properly recognised in their capacity as constitutional advisers. Moreover, constitutional advice in these contexts should be adequately coordinated and acknowledged to ensure the achievement of the transitional justice processes’ goals and the political stability sought in the constitutional text.
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