Constitutional review: reckless to place an amendment option under current government – Srem-Sai

Even though acknowledging the need for a change in Ghana’s 1992 Republican Constitution, Dr. Justice Srem-Sai, a constitutional lawyer and lecturer at the Gimpa Law School holds the opinion that it would be a reckless decision to expect a sweeping amendment to the constitution under the current political administration.

According to him, certain instances of constitutional breaches under the present government does not make it likely for the kind of changes to the constitution being demanded by some in civil society and even movements such as Fixthecountry.

One of such, he says is the Imposition of Restrictions Act, 2020, in what he describes as the selective implementation of the Act by political elites.

“The Act places no limit to when that power will expire. So for example, you’ve seen that in early part of this year, the president was issuing EI’s to limit the people’s movement and all that. And then you realise that consistently, whenever the political elite want to have any event, which involves the crowd, someway somehow, the limitation doesn’t apply to them. And when someone wants to take any step which is against the interest of the government, coincidentally, then the imposition of restrictions EI, is invoked, in a way. And that is very dangerous for our democracy,” he said.

Under Ghana’s law, there is an Emergency Powers Act, 1994 (Act 472) which allows the president to declare a state of emergency even in a health crisis such as COVID-19. Critics have held that the president did not need a new law, (referring to the Imposition of Restrictions Act, 2020) because he had all the powers he needed set out in the constitution. 

In addition, Dr. Srem-Sai noted that the lack of urgency in finding legislative representation for the people of Santrokofi, Akpafu, Lipke and Lolobi (SALL), deterioration in media freedom, accountability and corruption (particularly citing circumstances surrounding the exit of former Special Prosecutor Martin Amidu and Auditor-General Daniel Domlevo) are indicators that an extensive amendment to the constitution may not turn out as desired.

According to him, the timing of the call for an update of the constitution is more important than the update itself.

“You need to look at the timing to be sure whether if you put this kind of amendment forward, it would give you the results you want or a result that you don’t want. And that is what we should be focused on. Is it the right time for asking for the sweeping changes that we want in the constitution,” he added.

He was speaking at a dialogue series organised by Eagles Forum, a Civil Society Organisation (CSO) on the heading, “1992 Republican Constitution, Time For An Upgrade?”

He however proposed that a close call for a constitutional amendment would be to pass a bill, that allows citizens to get directly involved in processes of the amendment.

“And I think that the most important amendment that we need is to insert a provision in the constitution, which will allow the people, either by collective signatures for a particular amendment,” he said.

However one of the panelists, Lamting Apanga says an action for amendment of the constitution should rather be looked at periodically, to prevent any influence from people or groups with an agenda, who may just decide to garner signatures from common people, to serve their interests.

“So I would rather propose that we have a system that allows for a regular review and amendments so that we will say that, we’ll run the constitution for the next two decades and at the end of that two decades, we have a timetable. We are suppose to gauge aspects of the constitution by these benchmarks; freedom, fundamental human rights, the executive, the legislature. Then we’ll take those benchmarks as the key pointers to see whether there is a need for change. What aspects of it should we change to improve it. Rather than throw it out entirely in the hands of the people, where we’ll have unnecessary change every now and then, which does not make it very predictive. Because to a large extent too, law must be certain and predictable,” he explained.