GHANA

Ghana has been ruled since independence in 1957 by alternating cycles of military regimes and democratically elected civilian governments in near equal measure. The former, four military governments, have held power for 22 years and the latter for 25 years.

The 1957 Constitution (The Independence Constitution) was patterned after the British parliamentary system of government. The Convention Peoples’ Party (CPP) came to power upon independence and remained the ruling party until 1966. The Independence Constitution included certain principles and rights, such as prohibition of racial discrimination, protection of freedom of conscience or religion (with exceptions for considerations of public order, morality, or health), and prohibition of taking private property without adequate compensation. It did not, however, provide a comprehensive bill of rights as such, and the CPP determined that: “In order for Ghana to develop rapidly and catch up with the rest of the developed world, human rights should not impede the objective of rapid development” (Busia 2003: 54). Although the Supreme Court of Ghana had original jurisdiction over “matters concerning the validity of any law in the country (Article 31(5))” (54), it was unable to prevent clear violations of constitutional rights. For example, the Deportation Act of 1957 allowed the executive branch of government to deport political opponents of the socialist regime, who were perceived as representatives of Western imperialism. Similarly, the Preventive Detention Act of 1958 allowed the government “to detain without charge persons suspected of endangering national security” (55).

The CPP government was toppled by military and police forces that formed the National Liberation Council (NLC) government, which ruled the country from 1966 to 1969. The CPP had grossly abused the Preventive Detention Act, and approximately 2000 people, mostly political or personal opponents of the CPP leaders, were in detention at the time of the coup. Although it promised to redress such injustices, the NLC retained the Preventive Detention Act, changing the name to the Protective Custody Decree of 1967, and used it to oppress its political opponents, just as the CPP did earlier. On the positive side, the NLC transferred power back to an elected civilian government in 1969, thereby initiating what is known as the Second Republic.

The Second Republican Constitution, drafted the same year, was strongly influenced by the failures of the first Republic, which were seen as due to the constitutional principle of parliamentary sovereignty, the British notion that parliament is not limited by the constitution. As the CPP government had a huge majority in parliament, it was able to do whatever it pleased, including massive human rights violations. To safeguard against the recurrence of excesses and abuses of power, the 1969 Constitution provided for pluralistic politics, regular elections, entrenched human rights provisions, separation of powers, and an independent judiciary (Busia 2003: 57). That constitution also apparently set the mode for all subsequent Ghanaian constitutions, which tended to incorporate the following principles (57):

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2. Inclusion of clear and explicit provisions on human rights, with elaborate statements defining the content of the rights.

3. Affirmation of the role of the courts as the guardians of the constitution. The Supreme Court has always had original and exclusive jurisdiction to interpret the constitution, but came to share concurrent jurisdiction with the High Court on the enforcement of the human rights provisions provided for in the various constitutions.

4. The notion of “standing” (locus standi) to initiate litigation about the constitutionality of law or official action has been broadened to grant “any person” access to the Supreme Court for that purpose.

The Progress Party (PP) won the 1969 elections, and its government was, on the whole, respectful of human rights and the constitution. But this government, commonly known as the Second Republic, was overthrown in 1972 by another military coup, and various military governments ruled Ghana from 1972 tol979, during which time serious human rights violations occurred. Each regime suspended the 1969 Constitution and declared that the coup leadership was invested with all legislative and executive powers. The most brutal of the military regimes was that of the Armed Forces Revolutionary Council (AFRC), led by Jerry John Rawlings, which lasted only three months in 1979. The AFRC committed numerous atrocities but granted itself amnesty before relinquishing power.

In 1979 the Third Republican Constitution was enacted and the democratically elected People’s National Party (PNP) took power, but was overthrown two years later in 1981 by another military coup. This coup was also led by Rawlings, this time under the name of the Provisional National Defense Council (PNDC).

Despite its serious violations of civil and political rights, the PNDC did promote certain economic and social rights, such as the “right to housing, access to justice, inheritance rights, and the establishment of the Ghana National Commission on Children to protect the rights of children” (Busia 2003: 62). Nevertheless, the PNDC faced tremendous public pressure to return the country to democratic governance, which they were obliged to do in 1992, after the failure of their attempt to retain power through the appointment of a new government. The Consultative Assembly was formed in May 1992 to establish a new constitution, and implemented the following changes desired by Ghanaians as expressed in the report of the National Commission on Democracy (NCD):

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2. affirm freedom of the press by abolishing the newspaper licensing law and removing any ban on newspapers and magazines;

3. release all political detainees;

4. dissolve the paramilitary organizations created by the PNDC to intimidate political opponents; and

5. dissolve the election committees, which were created during and after 1988.

In April 1992, 92 percent of Ghanaians voted in favor of the draft constitution, which became known as the Fourth Republican Constitution. Presidential and parliamentary elections took place in November and December 1992 respectively. The PNDC turned itself into the National Democratic Congress (NDC), and Rawlings was its presidential candidate. Rawlings won 58.3 percent of the vote and became president of the Fourth Republic, but his opponents claimed that the 1992 elections were not free and fair.

The Fourth Republican Constitution is highly respectful of human rights, civil and political as well as economic and social rights. It guarantees equality regardless of “race, place of origin, political opinion, color, religion, creed or gender” (2003: 65). A healthy competitive multiparty system seems to be thriving under this Constitution.

In the parliamentary elections of December 2000, the New Patriotic Party (NPP) captured 100 seats, with the NDC a close second with 92 seats, and John Kufuor was elected executive president in January 2001 with 56.4 percent of the popular vote, with John Mills making a credible opposition candidate receiving 43.6 percent. In the elections held in December 2004, Kufor was reelected for a second term with 52.4 percent of the vote. Recalling the caveat at the beginning of this chapter, these election results are noted here as reflecting the stability of the constitutional democratic process in the country, without claiming to be comprehensive or up to date.