Constitutional Advice Under Ghana’s 1992 Transition to Democracy

In the Ghanaian transitional context, the connections between constitutional advice and transitional justice mechanisms were brought to bear by the processes leading to the adoption of the country’s current 1992 Constitution, as well as the transitional justice mechanisms that were adopted thereafter.

Following Ghana’s independence from British colonial rule in 1957, the country experienced political instability as a result of military interventions of constitutional governments. From 1957 to 1993, gross human rights violations were perpetrated under five different military governments and three constitutional governments.^[446] A majority of the human rights violations are believed to have occurred under the military leadership of Jerry John Rawlings, from 4 June 1979 to 23 September 1979 and from 31 December 1981 to 7 January 1993. The processes that resulted in a transition to democracy were initiated after the government of Jerry John Rawlings (under the Provisional National Defence Council) was pressurised by external donors to restore the country to constitutional rule.

The transitional process is generally considered to have started in 1982 with the establishment of a National Commission on Democracy. In addition to this body, the constitution-making process included a Committee of Experts appointed by the government to provide suggestions on the constitution, as well as a Consultative Assembly that was responsible for drafting the constitutional text. After the coming into force of the 1992 Constitution, no comprehensive measures were adopted by the immediate government to address the gross human rights violations perpetrated under past political regimes. In the year 2000, however, a change in government resulted in the establishment of a truth commission in 2002, namely the National Reconciliation Commission.^[447]

The main bodies that provided advice during Ghana’s transition can thus be summed up as the National Commission on Democracy, the Committee of Experts, the Consultative Assembly and the National Reconciliation Commission.

7.3.1 The National Commission on Democracy

The National Commission on Democracy was established in 1981 to, inter alia, ‘formulate for the consideration of Government a programme for a more effec­tive realisation of a true democracy in Ghana’.^[448] In 1990, the government gave the Commission a mandate to seek views on Ghana’s democratisation through seminars and debates.^[449] In order to carry out its mandate, the Commission made a call to the public for submissions on the requisite form of democratic government that should be adopted. The Commission also held seminars, durbars and symposia to discuss issues pertaining to the adoption of democratic rule in the country.^[450] Subsequently, the Commission, in its report submitted on 25 March 1991, proposed the establish­ment of a multi-party democracy. The Commission also proposed the appointment of a Consultative Assembly to handle the drafting of a new constitution.

The National Commission on Democracy can be considered as one of the prime constitutional advisers during Ghana’s transition for four main reasons. First, the Commission’s work marked a first key step in the democratisation process, which subsequently culminated in the adoption of the 1992 Constitution of Ghana. Until its establishment, no concrete steps had been taken to restore Ghana to democratic rule.

Different aspects of the work and outcome of the National Commission on Democ­racy evince the challenges of advice-giving in transitional societies. The advice provided in a transitional society is usually meant to foster the goals of transitional justice, such as addressing and remedying past human rights violations as well as the political and socio-economic challenges that existed prior to the transition.^[452] In order to ensure that the society addresses past injustices and instils confidence in the upcoming regime, it is relevant to engage the public broadly in the processes leading to the transition, as well as the transitional justice processes.^[453] The National Commission on Democracy, however, was perceived to be biased and not indepen­dent, as it fostered only the interests of the ruling government of the Provisional National Defence Council. The Ghana Bar Association, for instance, questioned the integrity of the Commission and was of the view that it was not independent since it was chaired by the Deputy Chairperson of the ruling military government.^[454] The Commission’s seminars were also considered to be biased as they were mainly manned by supporters of the ruling government and promoted only the views of those who supported its plan to propose a system of democracy based on decentralisation.^[455] Although members of the opposition, as well as some pro-democracy bodies, such as the Movement for Freedom and Justice and the Catholic Bishops Conference, called for a more independent body to handle the democratisation process, the strategy of the National Commission on Democracy remained the same throughout the transitional period.^[456]

7.3.2 The Committee of Experts and the Consultative

Assembly

One of the key reactions of the government to the report of the National Commission on Democracy was its appointment of a Committee of Experts in May 1991 to provide the government with suggestions for the country’s constitution, based on the report of the National Commission on Democracy and Ghana’s previous constitutions of 1957, 1960, 1969 and 1979.

Another body that provided constitutional advice during Ghana’s transition was the Consultative Assembly which was mandated to prepare a draft constitution. The Assembly was made up of 117 people elected by district assemblies, 22 government appointees and 121 representatives from different bodies in the country.^[458]

The work of both the Committee of Experts and the Consultative Assembly raised concerns which typify advice in transitional societies. The nine-person membership of the Committee of Experts was critiqued on the ground that there was a high probability of the members succumbing to the whims of the ruling government. In reality, some of the proposals made by the Committee were believed to have been influenced by the ruling government. Moreover, the authority given to the Committee to support the Consultative Assembly in its work was seen as a means of promoting the interests of the government in the eventual outcome of the work of the Consultative Assembly.^[459]

The Consultative Assembly was equally criticised for a number of reasons. First, the Assembly’s role was considered as limited as it was merely consultative.^[460] This implied that, although tasked with the drafting of the Constitution, the Assembly did not have the final say on the actual text it was tasked to produce. On this, the Ghana Bar Association opined that the role of the Assembly should have been amplified with authority to eventually approve the provisions it had drafted through promul­gations. It argued that a constituent assembly would have been more appropriate in the circumstances. Second, the Assembly’s membership was criticised by the Ghana Bar Association as being made up largely of members of the ruling government.^[461] Third, the Ghana Bar Association was of the view that the Consultative Assembly was not independent since it was supervised in its work by the National Commis­sion on Democracy, which was a mere stooge of the ruling government.^[462] Due to its work overload, the Consultative Assembly completed its work three months after its scheduled deadline and presented its report to the government on 31 March 1992.

Although the scepticism that associated the work of the Committee of Experts and the Consultative Assembly could, in fact, have been baseless, such views are relevant in a transitional society where there is the need for issues to be addressed through proper negotiations and consensus. Given the long-term political instability that had been experienced in the case of Ghana, stakes were high in ensuring that the constitution-making process and any advice given would promote the trust of the citizenry in the upcoming constitutional regime, to avoid further insurrections in future. Moreover, there was a need for the process to prescribe mechanisms for addressing the gross human rights violations that occurred during the period of political instability. However, these needs of the Ghanaian transitional society were not addressed through the advice given at the time. The key reason for the failure to address these issues was the dominance of the members of the ruling government in the advice-giving bodies, thereby excluding objective views of the opposition in the process. This created a vacuum after the adoption of the 1992 Constitution, and the deep-seated polarisation in the country persisted. In essence, the loopholes in the advice provided during the constitution-making process led to the eventual establishment of the National Reconciliation Commission in 2002 to address the injustices from the previous regimes.

7.3.3 The National Reconciliation Commission

Unlike the other forms of constitutional advice that occurred as part of Ghana’s transitional process, the National Reconciliation Commission was not involved in constitution-making but was established nearly a decade after the Constitution came into force, in 2002. The key mandate of the National Reconciliation Commission was to ‘seek and promote national reconciliation among the people of Ghana by establishing an accurate, complete and historical record of violations and abuses of human rights inflicted on persons by public institutions and holders of public office during periods of unconstitutional government’.^[463] The Commission’s establishment was based on the 1992 Constitution, which empowered the government to utilise a commission of inquiry to probe issues of public interest in three instances, namely: where ‘the President is satisfied that a commission of inquiry should be appointed; or the Council of State advises that it is in the public interest to do so; or Parliament, by a resolution requests that a commission of inquiry be appointed to inquire into any matter, specified in the resolution as being a matter of public importance’.^[464]

The Commission commenced its hearings on 14 January 2003 and submitted its report to the government on 12 October 2004. Although its report generally provided a record of past human rights violations, it also advised the government on issues relevant for addressing them. In particular, the Commission recommended the amendment of the 1992 Constitution to remove the amnesty provisions that shielded members of past military regimes from being prosecuted for their injustices. It also made proposals for reforming some State institutions which are established under the Constitution, such as the Ghana Armed Forces, the Ghana Police Service, the Judiciary, the media and the Ghana Prisons Service.^[465]

Regardless of gaining its existence under a fully functional constitution, the National Reconciliation Commission faced a number of challenges in fulfilling its mandate. The Commission worked with funds that were far lower than its initial budget had stipulated. This affected essential aspects of its work, such as using low- level staff and inability to carry out its investigations fully. In addition, the Commis­sion faced intense criticisms from the opposition who considered its work as a witch­hunting exercise. Moreover, the Commission was unable to obtain the needed infor­mation in some cases to establish the full records of past human rights violations.^[466] Also, most of the Commission’s recommendations have not been implemented to date, thereby downplaying the effect of its work.

The reasons for the Commission’s challenges were twofold. To begin with, the absence of a comprehensive plan in the 1992 Constitution to address the gross human rights violations perpetrated by previous governments did not ensure proper imple­mentation of the Commission’s recommendations. These include the recommenda­tions for institutional reform which have not been implemented to date. Besides, the amnesty provisions in the 1992 Constitution were a bane to the Commission’s work in different ways. For instance, the Commission was unable to recommend the prosecution of perpetrators of past human rights violations as this would contra­vene the amnesty provisions. In addition, the Commission’s recommendations for de-confiscation of some assets could not be implemented to avoid breaching the amnesty provisions.

Since the presence of the amnesty provisions in the Constitution and the absence of a transitional plan were the result of the work of the constitution-making process, it can be concluded that the lapses in the advice given by the constitution-making bodies eventually paved the way for non-synchronisation of their work with that of the National Reconciliation Commission. This situation created challenges for the work of the National Reconciliation Commission and hindered the implementation of other transitional justice mechanisms that were recommended in its report. In essence, transitional justice processes within the Ghanaian context were limited by the constitutional advice that led to the adoption of the 1992 Constitution, owing to the dominance of the ruling government during the constitution-making process.

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