By Jonathan AMABLE
After a long period of campaigning and fiercely contested general elections, the results of the 2024 Presidential elections have officially been declared and the countdown to the swearing in of Ghana’s 9th President under the 1992 Constitution has begun.
In anticipation of the transfer of political power and to fulfil the requirements of the Presidential (Transition) Act, 2012 (Act 845) (the Presidential Transition Act), the incumbent President and President-elect inaugurated a transition team last week. The purpose of this article is to examine some of the most frequently asked questions regarding the provisions of the Presidential Transition Act and its effect on the governing boards of public corporations and state-owned enterprises.
What is a presidential transition?
It is the process of moving from an expiring presidential term to a new presidential term. Under the 1992 Constitution of Ghana, Presidents are guaranteed a fixed tenure of 4 years, renewable for another 4-year term. Accordingly, a presidential transition includes the situation where a new President is assuming office to commence his/her first term after being declared the winner of Presidential elections held before the expiry of an incumbent President’s tenure, as well as the situation where an incumbent President has been re-elected and is preparing to commence his/her second term.
What is the transition team?
The transition team is the team that the Presidential Transition Act requires the incumbent President and President-elect to create for the purpose of establishing arrangements for the transfer of political power and administration of public services. As already stated, both Presidential roles may be held by the same person.
What is the joint transition team?
There is nothing like a joint transition team under the Presidential Transition Act. The Presidential Transition Act provides for a transition team, constituted by representatives appointed by each of the incumbent President and President-elect. Recent media reports which suggest that the incumbent President and President-elect each appoint their personal transition teams which are subsequently merged into a “joint transition team” are therefore misleading.
Which persons must make up the transition team?
The Presidential Transition Act requires the incumbent President to appoint the following persons to the transition team: the Chief of Staff, the Attorney-General, and the Ministers responsible for Presidential Affairs, Finance, the Interior, Defence, Foreign Affairs, Local Government and National Security. This requirement pre-determines the persons who the incumbent President must appoint to the transition team.
The President-elect, however, has the liberty to appoint any person (up to the maximum number of representatives appointed by the incumbent President) to the transition team. Apart from the representatives of both Presidents, the transition team must also include the Head of the Civil Service, the Head of the Local Government Service, the Secretary to the Cabinet and the National Security Co-ordinator. The President-elect and the incumbent President are the co-chairpersons of the transition team but each of them may delegate this role to one of their appointed representatives.
When must the transition team be created?
Within 24 hours after the declaration of the results of the Presidential election.
What are the duties of the transition team?
Elected Presidents must be ready to govern from the date on which they are sworn in. With about 30 days between election day and the swearing in of the President-elect, the core functions of the transition team are to make comprehensive, practical arrangements to regulate the transfer of political power after elections, provide daily national security briefings to the President-elect until he/she is sworn in, ensure that the salaries, allowances, facilities, privileges and the retiring benefits or awards (as determined by the President and Parliament under article 71 of the 1992 Constitution) are paid or accorded to the relevant beneficiaries without undue delay, and undertake any other function which will enable the transition team achieve the objects of the Presidential Transition Act. To further its objectives, the transition team is required to create and appoint persons from among its members to the following sub-committees:
- inauguration sub-committee – in charge of organising the inauguration of the President-elect and ensuring that the President-elect and his/her Vice-President take their oaths of office before Parliament on 7th January;
- government machinery sub-committee – responsible for making arrangements to hand over the machinery of the Civil Service (including the Ministries and the departments and agencies under the Ministries) to the new administration;
- presidency sub-committee – responsible for the orderly transfer of all official assets and liabilities of the President, Vice-President, Ministers, Deputy Ministers and the Presidential staff to the new administration; and
- any other sub-committees which the transition team considers relevant in the performance of any of its
Is the transition team responsible for jointly governing the country until the new President is sworn in?
No, the creation of a transition team is not a power sharing arrangement. The functions of the transition team are limited to its statutory duties, as stated above. The incumbent President and his/her government remain fully responsible for all governance matters until the actual expiry of his/her tenure.
Does the creation of the transition team limit the powers of the incumbent Government or the governing boards of statutory corporations?
No, as stated above, the transition team is not a power sharing arrangement and the incumbent President and his/her government remain fully responsible for all governance matters until the actual expiry of the incumbent President’s tenure. Transitions in Ghana are customarily marked by tension between the incumbent government and incoming government regarding the legality of last-minute appointments, contracts and administrative actions such as promotions and salary increases. There can be no legal challenge to such actions which are done within the tenure of an incumbent President, to the extent that the actions are made in accordance with applicable law.
For instance, regarding employment, the Public Financial Management Act, 2016 (Act 921) (the PFMA) requires the Government to have an approved fiscal strategy document and to adhere to its approved Fiscal Strategy Document when making decisions with implications for public finances. A Fiscal Strategy Document is required to reflect the negotiated aggregate of public sector salaries and compensation for the ensuing financial year.
Further, the Minister of Finance is required to issue guidelines for the preparation of budgets for each financial year and these guidelines must include ceilings on the required number of staff for the Government, MMDAs, statutory corporations and constitutional bodies. Employment in the public service is also subject to the provisions of the 1992 Constitution, the requirements of Public Services Commission (which is the constitutionally mandated human resource management and development body) and the dictates of any other applicable law such as the enactment which set up the relevant entity.
Regarding contracting powers, the PFMA also has provisions regulating the signing of multi-year expenditure commitments (i.e. any agreement for goods, supplies or services with a financial commitment that binds the Government for more than one financial year). Last-minute actions undertaken by incumbent governments cannot be lawfully set aside unless justification is found within the scope of applicable law, and any unlawful terminations are likely to result in liability for the Government.
When must the transition team hold its first meeting?
Within 48 hours after the declaration of the results of the Presidential elections.
What are the meeting mechanics and how will the transition team make decisions?
The transition team is the master of its own meeting procedures. Meetings may be convened by the co-chairpersons and are quorate where 9 members are present. Decisions are arrived at by consensus, and where the members fail to agree on an issue, the co-chairpersons shall refer the issue to the Advisory Council for expeditious determination. Decisions of the Advisory Council bind the transition team and its sub-committees.
Which persons must make up the Advisory Council?
The Advisory Council is a 3-member body comprising the Speaker of Parliament (who chairs the council) and 1 eminent citizen appointed by each of the incumbent President and the President-elect. For the purpose of the 2024 transition, both Presidents have appointed former Speakers of Parliament to the Advisory Council.
What is the Presidential Estates Unit?
This is a body created under the Presidential Transition Act to take and keep an inventory of all assets and properties owned by the Government (and which are not vested in the Lands Commission established under article 258 of the 1992 Constitution), ensure that the assets and properties of the Government are maintained in good condition, and ensure that (where relevant) the assets and properties of the Government are transferred in good condition. The Presidential Estate Unit operates under the Administrator-General.
Who is the Administrator-General and what are his functions?
A person appointed by the President in consultation with the Council of State to oversee the stock-taking and handing over requirements under the Presential Transition Act. The Administrator-General is required to prepare a national register covering all official assets (including all public lands and any other lands vested in the President by the Constitution or any other law); conduct a stock-taking exercise of the official assets in the official and personal/private residences of the President, Vice-President, Ministers and any other public officer supplied with official assets 30 days before the President-elect assumes office and 30 days before the incumbent President leaves office in the presence of the heads of the relevant households; and conduct any other stock- taking exercise required to ensure accountability and transparency.
What are the requirements in relation to handing-over notes?
The Office of the President is required to prepare a set of comprehensive handing-over notes covering the incumbent President’s term of office. The notes must include the handing-over notes received by the incumbent President and his/her Ministers on assuming office, and notes on the activities of the Office of the President and the Office of the Vice-President (including the agencies under their portfolios), and the Ministries, departments and the agencies.
The handing-over notes must accurately reflect the developments which have taken place during the tenures of office of the above listed persons and their projections regarding developments to take place before the end of the full tenure.
The original and 5 other copies of the handing-over notes must be presented to the Administrator-General not later than 30 days before the date of the presidential election. The Administrator-General is required to make the originals of the handing over notes to the President-elect, circulate one of the copies, and distribute the 4 remaining copies among Parliament, the Chief Justice, the Council of State, and the Public Records and Archives Administration Department.
What are the requirements regarding vacation of official residences?
The incumbent President and his/her Vice-President are each required to vacate their official residences before the swearing-in of the President-elect, and, if either of them so desires, they may move into an alternate official residence. All other persons who cease to hold office after the President-elect is sworn in as President and who are in occupation of official residences are required to vacate the relevant residences within 3 months after the ceasing to hold office.
Will the governing boards of all statutory corporations be automatically dissolved as soon as the President-elect is sworn in (i.e. on the expiry of the incumbent President’s term of office)?
Section 14(1) of the Presidential Transition Act provides that all appointees of the incumbent President (and his/her Ministers) to the governing boards of statutory corporations automatically cease to hold office after the President-elect is sworn into office. Due to this provision, the popular view is that the tenure of all members of the governing boards of statutory corporations is coterminous with the tenure of the President who appointed them.
Since the enactment of the Presidential Transition Act, newly elected Presidents have relied on section 14(1) to undertake a wholesale dissolution of the governing boards of statutory corporations in a manner akin to how coup makers of old sought to dissolve Parliament by fiat after a successful putsch. For instance, the Chief of Staff issued a directive on behalf of the winner of the December 2020 Presidential elections, stating that “pursuant to Section 14(1) of the Presidential (Transition) Act, 2012 (Act 845), all persons appointed by the President or a Minister of State as members of statutory Boards and Corporations ceased to hold that office after 7th January 2021.”
The Supreme Court had occasion to determine the constitutionality of section 14(1) of the Presidential Transition Act and the practice of the wholesale dissolution of governing boards of statutory corporations in the case of Theophilus Donkor v the Attorney General. The decision of the Supreme Court may be summarised as follows:
- section 14(1) of the Presidential Transition Act does not authorise the wholesale dissolution of the governing boards of statutory corporations. The practice where a newly elected President issues a directive to dissolve all boards of statutory corporations upon assuming office is unlawful because the automatic removal of the specific persons listed in the Presidential Transition Act does not equate to the dissolution of entire governing bodies;
- the effect of section 14(1) of the Presidential Transition Act is to (upon the assumption of office by a new President) terminate the appointment of all persons on the governing boards of statutory corporations based on an appointment from the outgone President (or any Minister appointed by that President), regardless of any applicable tenure provisions in the law which establishes the relevant statutory corporation; and
- section 14(1) of the Presidential Transition Act does not apply to:
- persons who are appointed to governing boards of statutory corporations as representatives of constituent bodies and other interest groups. Such persons may only be removed by the bodies or interests they represent and in accordance with the tenure and removal provisions of the laws which establish the relevant statutory corporations;
- chief executive officers, executive secretaries, Directors-General and other executive heads of public corporations. Such persons are protected as public officers (under Article 190 of the 1992 Constitution) so they hold office based on the terms and conditions stated in their letters of appointment and may only be removed in accordance with those terms;
- the governing bodies of constitutionally created bodies such as the Lands Commission, Police Council, Judicial Council and Public Services Commission because those offices are established by the 1992 Constitution, not statute; and
- companies incorporated under the Companies Act, even if the Government is a shareholder of such an incorporated company. Accordingly, the directors of such companies (even if appointed by the Government) may only be removed in accordance with the constitution of the relevant company and the ordinary provisions of company law.
Do the requirements of the Presidential Transition Act promote good corporate governance practices in statutory corporations?
No. Statutory corporations play critical roles in public service delivery, often acting as regulators within specialised industries. For instance, the Securities and Exchange Commission, Insurance Commission, Petroleum Commission and National Petroleum Authority are all statutory corporations.
Such entities are required by the 1992 Constitution to be established by enactment and the President is vested with constitutional power to appoint the members of the governing boards of such entities.
Having regard to the importance of such institutions in facilitating business transactions within regulatory environments, it is important that their operations are isolated from the operations of Central Government (including its tenure).
However, the Supreme Court concluded that there is a sound policy rationale behind section 14(1) of the Presidential Transition Act – to ensure that a new President is not saddled with non-career office holders appointed by a previous President. It is my respectful view that this provision needs to be revisited due to the following problems it creates:
- disruptions in service delivery – it is no secret that it usually takes the President several months to reconstitute the governing boards of statutory corporations after the purported dissolution of these governing bodies. The Supreme Court referred to this issue by stating that the situation where such bodies are incapacitated, sometimes for upwards of six months, following the assumption of office of a new President is not mandated by the Constitution and Act 845, and should not continue.
The declaration by the Supreme Court that section 14(1) of the Presidential Transition Act does not mandate the dissolution of governing bodies, and the savings in relation to executive directors and directors representing other interests may, if respected, reduce the incidence of such disruptions by leaving behind enough members of the governing bodies to steer affairs after a presidential transition. However, this may be a pyrrhic victory if the remaining members do not satisfy the quorum requirements of the governing boards under the relevant enactments, resulting in the situation where the governing board will be unable to operate until the President makes his appointments;
- instability and lack of continuity – frequent changes in the leadership of public corporations due to political transitions can result in instability and lack of policy consistency. It usually takes new appointees a while to get accustomed to the laws and conventions of a public corporation. Replacing governing members just after they have found their feet rolls back progress and prevents statutory corporations from benefitting from experienced, stable leadership.
Further, new appointments often align with the new political administration’s policies and priorities, which may differ significantly from those of the previous administration. This may disrupt existing projects and initiatives and affect the implementation of any long-term strategic directives, which in my view, are more important that for the growth and development of public corporations;
- politicisation of corporate governance – the regulatory role played by statutory corporations requires that their operations are not unnecessarily yoked to and disrupted by Ghana’s political cycle. The law enables statutory corporations to achieve this autonomy by endowing them with a separate legal personality and operational independence and in certain cases fixed tenures of office, subject to policy directives of a general nature from sector ministers. The practice of replacing appointees after each political cycle creates an avenue for the President to make appointments based on political affiliations rather than merit. This politicisation tends to lead to inefficiencies and conflicts of interest, affecting the organisation’s overall performance; and
- erosion of public trust – the consequence of making appointments based on political affiliations is an erosion of public trust and confidence in statutory corporations.
What reforms are necessary to strengthen corporate governance in public corporations?
To promote effective corporate governance in public corporations, we recommend that statutory corporations are excluded from the scope of section 14(1) of the Presidential Transition Act to enable the appointment, removal and tenure of the members of the governing body of each statutory corporation to be governed by its constitutive enactment.
However, if their inclusion under the Presidential Transition Act is to be maintained, we recommend that the removed members of the governing boards are retained until they are replaced by the new President, or that the President is required to make the appointment within a prescribed timeline.
Alternatively, the revised law may mandate the remaining members of the governing boards or management employees of the statutory corporations to exercise the regulatory powers of the governing bodies after a presidential transition, subject to ratification after the full complement of the governing body is appointed.
These measures will help maintain continuity and effectiveness in the corporate governance of public corporations, while ensuring that presidential transitions do not paralyse business in regulated spaces.
>>>the writer is a lawyer with niche expertise in corporate & commercial law, finance law, and entertainment & sports law. Jonathan has facilitated the delivery of corporate governance training to the governing boards of blue chips and other companies and advised on diverse capital market, banking, and financial sector transactions.
