Constitution and Organs of Government

The 1992 Constitution is the highest law in Ghana. It sets the rules for how the country is run and helps protect peace, freedom, and justice for everyone. In the late 1980s and into the 1990s, Ghana went through big changes. There was a strong demand for democracy and good governance, which led to important constitutional and political reforms. These changes helped strengthen Ghana’s democracy. By the end of this section, you will be able to describe the historical background of Ghana’s constitutional design; identify its key features, especially the doctrine of separation of powers and the system of checks and balances; and explain how these principles guide the roles and relationships among the Executive, Legislature, and Judiciary.

In Section 3 of your Learning Material, we built on what you learned in Years One and Two about the three main organs of government. Here, you will deepen your understanding of how each branch works, its responsibilities, and why they are important in sustaining democracy. This knowledge also connects to what you studied earlier about the separation of powers, helping you see how these principles are applied in Ghana. Well done for coming this far, keep up the great work!

KEY IDEAS

• The 1992 constitution is the supreme law of Ghana.

• There are three organs of government in Ghana: the Executive, the Legislature, and the Judiciary.

• Separation of powers and checks and balances help keep the government fair and prevent abuse of power.

• The process of drafting the constitution went through different stages.

• The constitution makes provision for a hybrid system of government under an Executive President.

The creation of the 1992 Constitution is a major moment in Ghana’s history. It marked the start of the Fourth Republic and the return to democratic rule after 11 years of military government under the Provisional National Defence Council (PNDC). The Constitution officially took effect on January 7, 1993, after going through several steps and discussions involving many people and groups across the country.

Ghana’s return to democratic rule was influenced by both external and internal factors.

Externally, some foreign countries and donors said they would only give aid if Ghana made political changes. They wanted the country to move towards democracy, which is called political conditionalities. Internally, many groups inside Ghana also demanded change. These included trade unions, church leaders, professional groups, students, and journalists. They strongly opposed military rule and pushed for a return to democracy.

1992 Constitution-making Process

Establishment of the National Commission for Democracy. The return to democratic rule in Ghana started with the inauguration of the National Commission for Democracy (NCD) in 1990. The NCD was tasked with conducting nationwide consultations on Ghana’s political future, completing its report in March 1991.

Additional Information: The National Commission for Democracy was led by Justice D. F. Annan, who later became the first Speaker of Parliament in the Fourth Republic.

Creation of the Committee of Experts: Based on the recommendations of the National Commission for Democracy (NCD), the PNDC government established a nine- member Committee of Experts chaired by Dr. S.K.B. Asante. The committee completed its work in July 1991 and proposed a draft constitution for Ghana’s Fourth Republic.

The draft hybrid constitution drew on key elements from previous constitutions (i.e., 1957, 1960, 1969, and 1979).

Consultative Assembly: In August 1991, a 258-member Consultative Assembly (CA) was convened, comprising representatives from various sectors, including professional groups teachers, lawyers), religious bodies, traditional authorities, and civil society.

The Consultative Assembly reviewed and debated the draft constitution, incorporating memoranda and submissions from individuals (including professional groups, teachers, lawyers) and organisations to ensure broad-based input and national consensus.

Public endorsement/approval: In April 1992, a national referendum was conducted to approve the draft Constitution. The outcome reflected overwhelming public support, with over 96% of voters endorsing the 1992 Constitution.

Return to democratic rule: Following the successful referendum, the PNDC lifted the ban on political party activities in May 1992. This paved the way for presidential elections in November and parliamentary elections in December of the same year, marking Ghana’s return to multi-party democracy in January 1993.

Activity 3.1 The Making of the 1992 Constitution

1. [Recap] In your opinion, why do countries draft constitutions? Share your answer with a friend for feedback.

2. In a group of friends not more than 5, select one important stage involved in the process of writing and creating the 1992 Constitution of Ghana. Discuss the activities that took place, the people and institutions involved and explain why your group chose this particular stage. As a group, this could be a stage like:

• The Consultative Assembly

• Public consultations and forums

• Public endorsement Work as a team and prepare a poster presentation (i.e., use bullet points, timelines, illustrations, or photos) on your findings, and hang it around the classroom. Come to a consensus as a group, select one person to speak or present the findings and invite comments from your classmates.

The 1992 Constitution of Ghana serves as the supreme law of the land and the cornerstone of the country’s Fourth Republic. It outlines the structure of government, defines the powers and responsibilities of various state institutions, and provides mechanisms for accountability and checks and balances.

The Main Features of the 1992 Constitution

The 1992 Constitution of Ghana contains several key features that define how the country is governed, some of which are outlined below.

1. Separation of powers and checks and balances: Ghana’s Constitution divides government power into three branches to make sure no one group has too much control. Thus, the legislature (Parliament) makes the laws; the Executive (President and government) carries out the laws; and the Judiciary (courts) interprets and applies the laws. This system is called the separation of powers. It also includes checks and balances, where each branch watches over the others to prevent abuse of power.

2. Executive President under a hybrid system: Ghana runs a hybrid system of government, combining features of presidential and parliamentary systems. In this system, the Constitution gives significant authority to the President, who performs two main roles. First, as the Head of State, the President represents the country and symbolises national unity. Second, as the Head of Government, the President leads the executive branch and oversees the implementation of government policies and programmes. This system ensures strong leadership while keeping the President accountable to Parliament and the people.

3. Bill of Rights: The Bill of Rights in Chapter 5 of Ghana’s Constitution protects the fundamental human rights and freedoms of all citizens. It includes protection against unfair loss of life and liberty, guarantees equal treatment under the law, and bans discrimination. It also defends freedom of expression, access to information, and property rights. This Bill limits government power, allows citizens to seek justice if their rights are violated, and shows Ghana’s strong commitment to human rights and the well-being of its people.

4. Existence of independent commissions: The Constitution of Ghana provides for the creation of independent commissions to support good governance and protect citizens’ rights. These include the Electoral Commission, which ensures free and fair elections; CHRAJ, which promotes human rights and fairness in public service; the National Media Commission (NMC), which regulates the media and protects press freedom; and the National Commission for Civic Education (NCCE), which educates citizens on their rights and responsibilities.

Together, these commissions promote transparency, accountability, civic participation, and national development.

5. Establishment of local government system: The Constitution of Ghana provides for a decentralised local government system, which gives power and authority to local governments. This system allows local communities to take part in decision-making and helps bring essential services closer to the people.

By promoting local participation and development, decentralisation supports effective governance and encourages citizens to be more involved in how their communities are managed.

6. The existence of the Council of State: The Council of State is set up under the 1992 Constitution to advise and support the President. It gives guidance on important national issues and helps the President make informed decisions on matters of governance. The Council plays a key role in ensuring wise and thoughtful leadership.

Activity 3.2 Features of the 1992 Constitution

1. Explore the key features of the 1992 Constitution of Ghana with a friend.

Write your findings in tabular form as shown below and compare with your peers for feedback.

Chapter Article Clause Quote Rephrase in your own words Separation of powers Fundamental human rights Decentralisation and the local government system Independent Commissions

2. Based on point 1 of this activity, draw an informative poster/leaflet to create awareness among Ghanaians about the key features of the 1992 constitution.

Your teacher may ask you to paste it in the classroom for a gallery walk.

3. In a group of four, use your findings from points 1 and 2, along with your observations, to identify one specific part of the 1992 Constitution that needs strengthening. Write a brief proposal suggesting some specific amendments.

Separation of powers and checks and balances are important principles in democratic governance. They help ensure that power is shared among different branches of government and that no single branch becomes too powerful.

Principle of Separation of Powers

Separation of Powers is the principle by which the powers of government are divided among three distinct branches: the executive, the legislature, and the judiciary. This principle says that no individual should belong to more than one branch or perform the functions of another. The executive must not exercise legislative or judicial powers. Its core mandate is to enforce laws and take all necessary measures to implement them.

The legislature must not exercise executive or judicial powers. Its primary function is to make laws. The judiciary must not exercise executive or legislative powers. Its primary responsibility is to interpret laws. The separation of governmental powers into three main divisions was popularised by the French philosopher Montesquieu to safeguard liberty. The main objective of the separation of powers is the fear that when power is concentrated in one institution, it can lead to abuse and the violation of citizens’ rights.

The simple reason for the separation of powers is to reduce the monopoly of power and discretion by one institution of the state.

However, there is no complete separation of powers in theory or practice. There are unavoidable overlaps in administering the affairs of the state, both in the presidential and parliamentary systems of government. For example, the Executive will normally propose most of the legislation to be considered by the Legislature. Also, the Legislature will commonly be dominated by members of the party that is in charge of the Executive.

Under the concept of separation of powers, the three branches operate independently but certainly not in isolation.

Checks and Balances

The principle of checks and balances operates on the notion that each branch of government is entrusted with special powers to keep a check on the exercise of functions by others, ensuring a balanced distribution of power. It is the practice where the three organs of government, executive, legislature and judiciary, exercise some form of influence over the other to prevent abuse of power. To prevent such abuses, each branch should have the ability to control and restrain the actions of the other branches of government.

Checks and balances make the branches of government answerable to each other and, to a large extent, the citizens. Thus, the legislative branch should check the executive, and the judicial branch should oversee both branches and correct any errors and abuses that may arise. For example, in the presidential system, the legislature creates laws, but the president must assent to and sign Bills before they become law. However, the legislature can override the President’s Veto with the constitutional requirements and procedures. In addition, the judicial branch can overturn laws that it deems unconstitutional.

Advantages of Separation of Powers and Checks and Balances Separation of powers and checks and balances ensures that each branch of government has its job, and they can also check on each other to make sure everything is done fairly and according to the law. The advantages include:

1. Avoid arbitrary governance: One key advantage of separation of powers and checks and balances is that they prevent abuse of power. By dividing power among the three branches, no single person or group can control everything.

This helps protect citizens’ rights and keeps the government fair, transparent, and accountable.

2. Protection of individual rights and freedoms: Separation of powers and checks and balances help protect citizens’ rights by making sure no branch of government has too much power. This system prevents abuse, limits government control over people’s freedoms, and ensures that leaders respect and follow the law, creating a fair and just society.

3. Promote transparency and accountability: Separation of powers and checks and balances make sure that no one branch or person has total control. Each branch watches over the others, making government actions clear and open.

This system holds leaders responsible, builds public trust, and helps prevent corruption, supporting good governance.

4. Promotes specialisation and efficiency: Separation of powers and checks and balances give each branch its clear responsibilities. This allows them to focus on what they do best, developing special skills and knowledge. As a result, decisions are made more effectively and efficiently, leading to better governance.

5. Enhance peaceful conflict resolution: Separation of powers and checks and balances help government branches solve disagreements peacefully. They use clear rules and processes to work together and find solutions. This peaceful way of handling conflicts helps keep the country stable and supports democracy.

Disadvantages of Separation of Powers and Checks and Balances While the principles of separation of powers and checks and balances help prevent abuse of authority, they can also lead to challenges that reduce government efficiency and effectiveness. Some of the disadvantages and weaknesses include:

1. Can cause delays in decision-making: Separation of powers and checks and balances can sometimes lead to deadlocks when branches disagree on important issues. This can slow down decisions or stop action altogether, frustrating citizens who want quick solutions. Because of this, the branches need to communicate and work well together to avoid delays.

2. Increases government costs: Separation of powers and checks and balances can make government more expensive because different branches may do similar tasks. This duplication leads to higher administrative costs, which can take money away from important services. That’s why it’s important to manage resources carefully to avoid waste.

3. Can cause conflicts between branches: Separation of powers and checks and balances can lead to disputes when different branches have different priorities or fight over who has authority. These conflicts can weaken government stability, slow down decision-making, and make it harder to carry out policies effectively.

Ghana’s 4th Republican Constitution (1992) embraces the principle of separation of powers. Article 93(2) vests the legislative authority of the Republic in parliament.

Article 58(1) provides that the executive authority of the Republic shall be vested in the President. Article 125(3) vests the judicial authority in the courts. The relevance of the principles of separation of powers and checks and balances in contemporary Ghana includes:

1. Prevention of power concentration: Dividing power among the three branches of government helps protect democracy by stopping a few people or groups from having all the power. This prevents the kind of rule seen under past military governments in Ghana, where power was controlled by small groups or individuals.

2. Promotion of democratic stability: The separation of powers in Ghana’s 1992 Constitution has helped keep the country’s democracy strong. It stops any one part of government from taking full control, allowing peaceful transfers of power between political parties like the NPP and NDC over many elections.

Ghana is known in West Africa for its stable democracy and smooth changes in government.

3. Promotion of transparency and accountability: Ghana promotes transparency and accountability through careful checks like reviewing government budgets, approving presidential nominees, and watching how policies are carried out.

Independent bodies such as CHRAJ, the Auditor-General’s Office, and the Office of the Special Prosecutor also help by investigating corruption, human rights violations, and bad conduct in government.

4. Protection of Fundamental Rights: The judiciary or the courts in Ghana check the power of the executive and legislature through judicial review. They help protect citizens’ rights by allowing people to challenge government actions using special legal tools like certiorari, mandamus, and habeas corpus.

Activity 3.4 Separation of Powers in Ghana

1. Together with two classmates, research and write a one-page summary of the powers and authorities granted to each branch of government in Ghana and the limits the Constitution imposes on these powers. Submit your summary for class discussion and feedback.

2. Work with 2-4 classmates to research and develop policy briefs on how to improve the separation of powers and checks and balances in Ghana. Use the table format provided below to guide your findings. Present your work to the class for feedback and improvement.

Issue Why it matters Policy suggestions The Executive has too much control over Parliament and influences the Judiciary When one organ becomes too powerful, it weakens democracy and reduces fairness and justice

1. Reduce the number of Ministers appointed from Parliament to strengthen legislative independence 2.

3.

3.

4.