- Parliament and judiciary increases by only 48.71% and 18.49% respectively
- A case of betrayal and lack of commitment to effective separation of powers and good governance principles
Critical analysis of the 2021 budgetary allocations as against previous provisions reveal that, over the last five years, allocations to the office of government machinery have increased by 937.73% whilst that of Parliament and the Judiciary increased by only 48.71% and 18.49% respectively. This trend is unacceptable and does not show commitment to effective separation of powers and good governance principles.
The data shows that in 2020, with a staff strength of 1696, the Office of Government Machinery was allocated an amount of GH¢136,212,551.00 whilst allocation to the Judiciary was GH¢251,558,302.00 with a staff strength of 5133.
However, in 2021, with staff strength of 1597 representing a 5.84% decrease in staff strength, the office of Government machinery was allocated GH¢823,880,668.00 representing a 504.85% increase in budgetary allocations over one financial year. The Judiciary, with a staff strength of 5538 which represents 7.31% increase, saw an increase in budgetary allocations to GH¢284, 504,473 representing a 13.10% increase only. With respect to the Parliament of Ghana, the increase was from GH¢140, 484,382.00 to GH¢201, 112,086.00 representing a 43.16% increase in budgetary allocations.
This shows a 461.69% difference in allocation between the office of government machinery and the Parliament of the Republic of Ghana in one year.
The above rates of allocation which shows the Office of Government Machinery increasing allocation of scares post-covid resources to itself at such an alarming and increasing rate whilst other organs of state increase at an abysmally reducing rate cannot guarantee effective separation of powers, rule of law, accountability and good governance.
It is even more worrying for the government to allocate such resources to itself whilst demanding a freeze in public sector wage increases and additionally introducing 1% increase in NHIS levy, 1% increase in VAT flat rate, betting and gaming levy, energy sector levy of 20 pesewas per litre on fuel, road tolls, sanitation and pollution levy “borla tax” and financial sector clean up levy. It is worrying that government will impose such burden on citizens and yet lavishly increase their allocations at such ungodly rates. This is what the good book in Proverbs 11:1 describes as “false balance”, which is an abomination to God.
Approval of 2021 Budget Statement and Economic Policy
Parliament on 19th March, 2021 approved the Budget Statement and Economic Policy of the Government of Ghana for the 2021 financial year. It was passed by a vote of 137 as against 134 of members present. This budget passed by three vote differences arguably is one of the most controversial economic policy statements in the history of the 4th Republic.
This is because contrary to the theme of the budget which is “Economic Revitalization through Completion, Consolidation and Continuity”, most of the policies are repressive and retrogressive. As a member of the Minority, I voted against this budget statement because I didn’t believe it had good prospects for the nation particularly with the several tax burdens without any corresponding reduction in spending at the Office of Government Machinery.
I also didn’t believe that these budgetary allocations are committed to the values of accountability and have due regard to the institution of Parliament and the Judiciary as independent organs of state.
Though the economic policy for 2021 has been passed, I decided to look further to interrogate governance matters to ascertain whether or not this government is truly committed to the principles of good governance, separation of powers, rule of law, honest and accountable leadership.
The 2021 budget has demonstrated in several ways that it is not committed to the above values. At best, it is insensitive, inconsiderate, uncompassionate and one that has no regard towards the development of Ghana. We cannot continue to preach rule of law, separation of powers, accountability and good governance when we cannot by financial resources guarantee those values of governance.
Separation of Powers
According to Klassen (2011), separation of powers is usually understood as constitutional doctrine that separates governments into autonomous institutions responsible for performing distinct functions. The main justification for separating powers between independent branches is to prevent any individual or group from accumulating excessive power and ruling tyrannically.
James Madison once said that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Ghana is having a clear case of executive tyranny which if not checked, can deny this nation of good governance and equitable distribution of valuable state resources whilst holding the executive to account to the good people of Ghana.
1992 Constitution of Ghana
Article 58 of the 1992 Constitution provides that “the executive authority of Ghana shall vest in the President”. It provides further that the executive authority shall extend to the execution and maintenance of the constitution and all laws made under or continued in force by the Constitution.
Article 93(2) provides that the legislative power shall be vested in Parliament whilst Article 125(3) provides that the judicial power shall be vested in the judiciary. In their respective functions, the Constitution guarantees independence and subjecting all their respective functions to the Constitution. This independence can only be guaranteed with financial independence.
Financial Independence of Parliament and the Judiciary as Organs of State
In terms of financial administration, Article 127 (1) provides that “in the exercise of the judicial powers of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this constitution and shall not be subject to the control or direction of any person or authority”.
This implies that the judiciary as an arm of Government must have absolute independence in order to function well and effectively. Being three separate organs of state the same argument could be made mutatis mutandis for the Parliament as an organ of state.
This position is fortified by the provisions in Section 15(A) in the Parliamentary Service Act, 1993 (Act 460) as amended, where it is provided as follows “the Board shall at least two months before the end of the financial year submit to the President the estimates of the Service and the President shall at least one month before the end of the financial year cause the estimates to be laid before Parliament without revision but with any recommendations that the President may make on them”.
If Parliament as an organ of state cannot run without the Parliamentary Service and the Service by law is required to prepare estimates which the President cannot vary, it stands to reason that the intent of the law is to grant some financial independence to the organ for its effective operation and administration.
Commitment by Government when it was in opposition
In the 2016 Manifesto of the NPP government, which constitute a social contract with the people of Ghana based on which they were voted into office, this government promised to “enhance accountability in governance by promoting the effective separation of powers.” They also promised to make “adequate provision to secure the independence of the judiciary”. With regards to their commitment to the Legislative arm of government, they said “we will help to strengthen the institutional capacity of parliament”.
All the above promises notwithstanding, this government has done very little to ensure good governance, accountability and effective separation of powers. In their 2020 manifesto, a similar commitment was made even though the commitment to separation of powers was not explicitly mentioned. Even with the promises to uphold separation of powers, the financial allocations to the Judiciary and the Legislature in the 2021 budget statement and in previous years does not show this commitment.
Further analysis of the approved figures shows Government is not committed to Separation of Powers
It is the height of insensitivity for the executive arm of government to allocate huge sums of financial resources to itself at the expense of other independent organs of state and still expect them to perform their constitutional functions effectively.
As agued in the introduction, according to the 2021 budget, allocations to the Executive (Office of Government Machinery) has increased by GH¢687,668,117 representing 504.85% compared to 2020, whilst allocations to Parliament and the Judiciary have increased by GH¢60,627,704 and GH¢32,946,171 representing 43.16% and 13.10% respectively, resulting in a difference of 461.69% for the Parliament and 491.75% for the Judiciary.
Further analysis shows that staff strength increased from 953 to 1,597 from 2017 to 2021 representing an increase of 67.58%. What is not clear is the reason for such huge increase in staff strength at the seat of government particularly when such huge increases burden the tax payer. In 2021, when the staff strength decreased by 5.84% one would have legitimately expected that the allocations to the office of Government machinery would have also reduced or at least increase at a reducing rate.
However, it increased the OGM and increased its allocation by 504.85%. Invariably, the said reduction in staff strength did not reduce the proposed expenditure of government machinery even during COVID-19 pandemic.
Also, according to Appendix 7 of the 2018 budget statement, allocations to OGM increased to GH¢119,670,565 as against GH¢79,392,760 the previous year representing an increase of 50.73%, with staff strength increasing from 953 to 1,697 representing 78.07% in one year. During the same period, budgetary allocations to Parliament increased from GH¢135,241,658 to GH¢141,912,130, representing an increase of 4.93% only. This is also considering the fact that staff strength increased by only 11.13% from 2017 to 2021 as against an increase of 67.58% for office of government machinery during the same period.
Again, the Judiciary despite a decrease in staff strength from 6,195 to 5,538 representing 10.61% from 2017 to 2021 saw an increase in budgetary allocation by 18.49% only during the period as compared to 937.73% for the Executive, representing a difference in budgetary allocation of 919.24%. This situation is unimaginable to say the least considering the fact that the Judiciary has the most number of staff compared to the other organs of state.
Inequitable distribution of state resources among the Executive, Judiciary and Parliament and matters arising
Many have attributed the issues of judicial corruption to lack of adequate resourcing of the judiciary. There are serious weaknesses in the administration of justice as many Judges and court workers have been implicated in several corruption allegations in the past leading to Ghana falling from the first position in the World Justice Project in 2018 to 6th position in 2019. Again, according to the Afrobarometer survey released in February, 2020, 85% of Ghanaians say “some” judges and magistrates are corrupt. My question is why wouldn’t they have the propensity or urge for corruption when the organ is heavily under-resourced?
In November, 2019, the Asantehene, Otumfuo Osei Tutu II in a keynote address at the University of Professional Studies, Accra (UPSA), urged government to adequately provide for the judiciary so they can effectively perform their constitutional roles. He remarked “a judiciary constrained by resources cannot exercise its duties without fear or favor.”
This also implies that if current trends continue, the judiciary would likely go to the executive arm of government cup in hand, begging for what should be their legitimate entitlement for the performance of their constitutional obligations. This can only continue to produce what is now known in certain quarters among the people of Ghana as the “UNANIMOUS FC”, a popular term that emanated from the just ended 2021 election petition.
In September, 2020, the President of the Republic of Ghana, President Akufo-Addo is reported as calling upon some 16 new High Court judges to work with integrity. The question is how can judges across the country be expected to work with integrity when their conditions of service and indeed the conditions of service of judicial service workers generally is nothing to write home about? How can we build a country based on rule of law when there are regions without Courts of Appeal, districts without District Courts, very deplorable and dilapidated court structures in some districts among many other challenges facing the judiciary in the face of very limited budgetary allocations?
Situation getting to unbearable levels
It is no wonder the situation is almost at a very unbearable level now. Government must take a cue from the strong position taken by the Speaker of Parliament, Rt. Hon. Alban Sumana Kingsford Bagbin to address the inequalities and inequitable distribution of state resources for the work of independent organs of state.
This is shown in the Votes and Proceedings of Tuesday, 16th March, 2021, in which the Rt. Hon. Speaker, read two communications from H.E the President signed by the Secretary to the President informing the Speaker and the House that in view of the reduced fiscal space in the national budget, the President is unable to accommodate the request by Parliament and the Parliamentary Service as well as the Judiciary and the Judicial Service and therefore request Parliament to keep the estimates within the expenditure ceilings indicated in the President’s letters.
The Rt. Hon. Speaker further read to the House his response to the two letters in which he stated that, he is unable to accept the President’s letters as the wording and import of the letters did not communicate a recommendation as stipulated in articles 127 and 179 of the 1992 Constitution and Section 15A of the Parliamentary Service Act, 1993 (Act 460) but an imperative to Parliament to keep within the expenditure estimates which have been set by Government. The Rt. Hon. Speaker accordingly returned the two letters to the Secretary to the President for the reconsideration of Mr. President.
Summary and Recommendations
From the foregoing, the “elephant size” allocation of national resources to the Executive to the detriment of the Judiciary and the legislature does not promote effective Separation of Powers as enshrined in the 1992 Constitution of Ghana.
The actions of the Executive arm of Government purporting to set ceilings, cut down, and revise budgetary estimates submitted by the Judiciary and the Legislature clearly violates Articles127 and 179 of the 1992 Constitution referred to above. Government actions also violate Section 15A of the Parliamentary Service Act, 1993 (Act 416).
These concerns as were brought to the attention of the President clearly demonstrate that the Executive is not committed to the financial independence of the Judiciary and the Legislature. This position of the Executive poses clear danger to Ghana’s democracy and undermines the principles of open and accountable governance.
As a recommendation, I would call for a national dialogue led by a non-partisan Committee of Parliament with Stakeholders from all organs of state including representatives from the Council of State, National House of Chiefs, Civil Society and Professional Groups to discuss a permanent resource allocation to the Judiciary and Legislature which shall not be interfered with by the Executive.
It is further proposed that any recommendations from such consultative meetings must be backed by a legislation to give effect to the true intent of Separation of Powers as provided for by the 1992 Constitution. This is because independence of organs of state not backed by financial independence is no independence.
Given the fact that available national resources must be equitably distributed among the three organs of state and taking into consideration their peculiar functions, needs, growth agenda, and strategic plans, over the specified financial year, I further recommend that a specified percentage of GDP be allocated annually to the Judiciary and the Legislature to enable them perform their constitutional duties to the best of their capabilities without fear or favor. This is the only way to achieve true independence of the Judiciary and Legislature and further guarantee perpetual succession of Ghana’s democracy.
As it stands now, it is the firm conclusion of this article that the allocation to office of government machinery which has increased by 937.73% in 5 years, whilst that of parliament and judiciary has increased by only 48.71% and 18.49% respectively is a clear case of betrayal and lack of commitment by this government to ensure effective separation of powers and good governance principles. The situation gives more power or leverage to the Executive to control and manipulate other arms of Government, which are supposed to act as an effective check on the Executive.
>>>The writer is a Human Rights and Public Interest Lawyer, and the current member of Parliament for Madina. He is a Member of the Appointments Committee and a Deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of the Parliament of the Republic of Ghana. You may contact the writer directly through [email protected] www.madinamp.com, www.fxsosu.com.