By Jonathan S.K. AMABLE
In the first two (2) parts of this series, we set the context for this paper, highlighting the dividends our forebears expected our democracy to yield and the broad framework for actualising the dividends of equal opportunity and prosperity for all.
In this concluding part, we continue to examine the causes of our national economic woes and what it will take to successfully achieve the key planks of the new Government’s economic reset agenda
Our forebears did not design the 1992 Constitution such that citizens will be deprived of hope where the political branches of government fail to perform their constitutional duties. They provided us with a recourse mechanism through article 2, which authorises any citizen of Ghana to hold Government accountable by seeking a declaration from the Supreme Court that an action, inaction or legislation contravenes a constitutional provision.
However, the administrative implementation of article 2 leaves much to be desired because the rules drawn up to guide the filing and judicial determination of article 2 actions weaken the potency of this public accountability tool.
First and fundamentally, the rules require the Attorney-General to file a response to the plaintiff’s case to enable both parties file joint or separate memoranda of issues at the registry of the Supreme Court. Until these processes are completed, the filed constitutional case is not deemed to be ripe for hearing by the Supreme Court.
This gives the Attorney-General laxity to cherry-pick and determine the constitutional cases that are eventually heard by the Supreme Court. All the Attorney-General has to do is neglect to file a response to the cases the Executive is minded to ignore, and respond expeditiously to cases the Executive is interested in.
The registry of the Supreme Court, which used to issue dates for the hearing of cases once the processes were filed, no longer does so. The reason given for the new practice demonstrates that the Judiciary is (inadvertently) aiding the Attorney-General in this cherry-picking frolic.
It has been explained that the Supreme Court was, under the old system, usually unable to commence work on the dates specified on the filing of the suit because the Attorney-General would not have filed his response and the parties would not have filed a memorandum of issues. It should not (and cannot) be the case, that courts of justice (let alone the apex court) should countenance and even facilitate situations where a suit commenced to hold a person accountable would be stalled by the very person who is the subject of the complaint.
It would be more ideal for the parties to be given a date such that the plaintiff may appear before the Supreme Court on that date and urge the court to proceed if the Attorney-General is being indolent. In ordinary civil cases, the court rules provide such remedies to plaintiffs when there is no response from the defendant. In criminal cases, a person who is accused of breaching provisions of a statute must be arraigned before a court, at least, within 48 hours of his arrest.
How then is it that in constitutional matters, where it is alleged that a person has breached or is breaching a provision of the highest law of the land, the plaintiff not only lacks certainty regarding when the matter will be heard, but also, the lawyer for the persons who are allegedly engaged in unconstitutional conduct can delay the case through indolence?
For instance, between the February 2024 when we filed an action in the Supreme Court to enforce the constitutional financial control regime and the date of this article, there has not been a single step in the substantive matter from the Attorney-General nor the Supreme Court.
In November 2024, we filed an application for interlocutory injunction to prevent the Ministry of Finance from further borrowings without recourse to Parliament. The registry of the Supreme Court informed us that a date would be fixed for hearing upon our request and 14 days after service of the process on the Attorney-General. That time has since elapsed and we have since written to the registry of the Supreme Court to request that a date is fixed on an expedited basis. We have still not received a response from the registry.
Meanwhile, from the time the substantive matter was filed in February 2024 till date, we have seen cases such as Richard Dela Sky’s case on the Family Values bill filed and determined; Rockson Dafeamekpor’s case regarding the vetting of President Akufo-Addo’s ministerial nominees has been filed with its injunction application having been heard and determined; and Afenyo-Markin’s case on the Speaker’s disqualification of certain MPs has been filed and determined, with interlocutory applications which were heard and determined on the same day they were filed.
In fact, it is interesting to note that although Richard Dela Sky’s injunction application was filed before Rockson Dafeamekpor’s injunction application, the hearing date for Rockson Dafeamekpor’s injunction application was fixed such that it was heard and determined before Richard Dela Sky’s injunction application.
The Judiciary clarified how this came about, explaining that the Attorney-General had not filed a response to the Richard Dela Sky injunction application but filed a response to the Rockson Dafeamekpor case and asked for an expeditious hearing because the case bordered on ‘governance issues’. The same reason was given for the expedited determination of Afenyo-Markin’s suit. The Supreme Court eventually heard Richard Dela Sky’s injunction application in July 2024 and decided to defer its decision until the final determination of the substantive suit through an early trial. This essentially operated like an injunction and prevented the clerk of Parliament from submitting the Family Values Bill to President Akufo-Addo for his assent.
Meanwhile, the substantive matter was not decided until December 2024, when the Supreme Court dismissed the action on the basis that it was pre-mature because no cause of action could accrue to the plaintiff until the bill received presidential assent.
This fact, which was obvious at the time the injunction application was heard, should have resulted in the dismissal of the injunction application because one of the essential elements for the grant of an injunction application is that the applicant must prove that there is a serious question to be tried in the substantive case. Any person who is interested to know whether the Supreme Court thought the substantive case raised any serious legal issues may read the judgment of Mensa-Bonsu JSC. But let us not digress.
The point being made is that in an era where Ghana has been classified as a debt-distressed country, where our national economy is still recovering from deep crisis and unsustainable debt, where many investors are still reeling from the debilitating effects of a debt restructuring exercise, an action in the Supreme Court which seeks to enforce the constitutional financial control regime and contribute to the development of Ghana’s economy remains unheard, while purely political cases which were filed subsequently have been determined.
Having provided us with all these constitutional provisions aimed at spurring development, can it be said that the 1992 Constitution is political and not developmental? I do not think so, and yet the 2011 report of the Constitution Review Commission is titled “From a political to a developmental constitution”.
Reaganomics and the reset agenda – any parallels or lessons?
Our current economic predicament is somewhat reminiscent of the situation in the US some four decades ago. In his January 1981 inaugural address, Ronald Reagan, the 40th President of the United States of America, described the then American predicament as follows “we are confronted with an economic affliction of great proportions. We suffer from the longest and one of the worst sustained inflations in our national history. It distorts our economic decisions, penalizes thrift, and crushes the struggling young and the fixed-income elderly alike.
It threatens to shatter the lives of millions of our people. Idle industries have cast workers into unemployment, human misery, and personal indignity. Those who do work are denied a fair return for their labor by a tax system which penalizes successful achievement and keeps us from maintaining full productivity. But great as our tax burden is, it has not kept pace with public spending.
For decades we have piled deficit upon deficit, mortgaging our future and our children’s future for the temporary convenience of the present. To continue this long trend is to guarantee tremendous social, cultural, political, and economic upheavals. You and I, as individuals, can, by borrowing, live beyond our means, but for only a limited period of time. Why, then, should we think that collectively, as a nation, we’re not bound by that same limitation? We must act today in order to preserve tomorrow.”
There are not only striking parallels between the economic ills the US faced at the time of President Reagan’s election and Ghana’s present economic ills. The proposed solutions are also similar. President Reagan run for office with a promise to curb runaway inflation and achieve real economic growth by reducing the size and scope of the US federal government, reducing the budget deficit, reducing unemployment and rationalising federal taxes.
The goals outlined by President Mahama and his economic team are quite similar. Indeed, at the recent swearing in of the finance minister designate (as he then was), President Mahama charged him to reduce inflation, bring the national debt to sustainable levels, stabilise the currency and reduce the budget deficit to facilitate macroeconomic stability. Considering all these similarities, I wonder if it is a coincidence that President Mahama referred to Ronald Reagan’s inauguration speech in his own inaugural address, or that President Reagan is the only foreign leader President Mahama named in his inaugural address. Whatever be case, references to President Reagan are commendable.
Upon assuming office, President Reagan tasked his team to undertake a comprehensive audit of the US economy. On 5 February 1981, he addressed the American public on the audit report and the state of the US economy. In that speech, this is what President Reagan had to say concerning inflation: “We know now that inflation results from all that deficit spending. Government has only two ways of getting money other than raising taxes. It can go into the money market and borrow, competing with its own citizens and driving up interest rates, which it has done, or it can print money, and it’s done that. Both methods are inflationary. We’re victims of language. The very word “inflation” leads us to think of it as just high prices. Then, of course, we resent the person who puts on the price tags, forgetting that he or she is also a victim of inflation. Inflation is not just high prices; it’s a reduction in the value of our money.”
He went further to educate the electorate on the relationship between savings, investment and economic growth, explaining that inflation had reduced the value of the dollar so much that it was affecting the culture of savings adversely, thereby depriving the US economy of the capital it needed to invest in economic growth. He blamed unnecessary government policies and regulations for increasing the cost of doing business, leading to increased inflation.
He explained that government expenditure was high, partly because everyone was looking to the government for benefits, forgetting that the government’s main source of revenue to fund those benefits were the public’s earnings. His charge to the American public was simple: “It’s time to recognize that we’ve come to a turning point. We’re threatened with an economic calamity of tremendous proportions, and the old business-as-usual treatment can’t save us. Together, we must chart a different course.” It is important for Ghana’s political leaders to have this same honest conversation with the electorate if the reset agenda is to succeed.
Concluding thoughts
I am by no means suggesting that there is no need for legal reforms. Far from it. Indeed, we can start by amending the constitution to require the Supreme Court to prosecute constitutional enforcement matters more expeditiously and without allowing the Attorney-General to cherry-pick or stall cases through indolence. Maybe more Justices are required so that the Supreme Court can be structured into several divisions, including a standing constitutional division.
Perhaps we should automate the administrative powers of the Chief Justice so there is less reliance on human intervention in the scheduling of cases or empanelling of Justices. We should include stricter penalties for intentional breaches of the constitution, instead of allowing persons in authority to intentionally contravene constitutional provisions knowing that the breach would only result in an action to declare the impugned act as unconstitutional, instead of carrying some penal consequences.
Perhaps we should amend the constitution to provide that persons who wilfully breach unambiguous constitutional provisions would no longer be eligible to hold a position in any arm of Government.
Statutory reforms are also required to reduce business regulations; create clearer, more nuanced compliance obligations for businesses instead of the one-size-fits all approach that is prevalent; simplify and clarify the process for creating and enforcing effective security interests to de-risk lending to the private sector; and create a more progressive tax regime. These are the more granular matters related to the reset agenda. However, in our present crisis, law-making or reform is not the solution to our problem; law enforcement is.
Our forebears will be sad to see that we have, for our own selfish reasons, downplayed their intelligence by claiming that the governance framework they bequeathed to us is inadequate “to secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity.”
They documented their experiences and created a construct capable of guiding us to avoid the traps they themselves fell into, if only we would be guided by our history.
They failed to foresee that their descendants would be so actuated by greed, extreme partisanship and hypocrisy that they would fail to implement these laws, fail to punish those who break these laws, fail to remember their history, and then turn round to blame their forebears. In short, the only mistake our forebears made was to credit their descendants with too much virtue. There is wisdom in the aphorism that “those who fail to learn from history are doomed to repeat it.”
Learning from our history should teach the Ghanaian masses that playing the equalisation game while allowing politicians to pay lip service to development and repeat avoidable errors only rewards and reinforces the negative attitudes of our political leaders. We should reset that. Learning from history should teach our political leaders to punish wrong behaviour and reward desirable conduct, so that there are incentives to comply with the system of governance we have chosen for ourselves.
The President, in his inaugural address, called on the citizenry to eschew pessimism and have faith – faith in our leaders, faith in our institutions, and faith in Ghana and its ability to overcome, excel and succeed with the reset agenda. He also asked us to question what we can do to help build a better Ghana and the behaviours, attitudes and mindsets we can reset. I hope the answers are clear now.
>>>the writer is a lawyer with niche expertise in finance law and corporate & commercial law. He has advised sovereigns, parastatals and the private sector on diverse capital market and banking transactions, as well as financial sector regulatory compliance. Jonathan may be reached by email on [email protected]
