The Theory of ‘Separation of Powers’ and Ghana’s Democracy

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Separation of powers is a political doctrine propounded by Montesquieu in the spirit the law. Montesquieu argued that the three arms of government must have a defined abilities to check the powers of the other. It is an essential feature of many constitutions.

In Ghana, the fundamental characteristic aimed at by farmers of the constitution was the separation of the legislature, executive, and judicial department, partly under the influence of Montesquieu, partly in the endeavor to safeguard liberty and property, partly as the result of our past conditions in which responsible government was unknown (the military days).

But, while this is the situation in the national document, it is only partially true with all the arms in terms of practice. It was hoped that the President would be outside of and above the sphere of party politics, but he is in fact the creature of the dominant party, and per our polarized arrangement, must necessarily be willing to carry out their policy.

Through the multitude of appointments which are in the hand of the President, he has little time to attend to other matters, and a weak man tends to become a wire – puller engaged in questions of patronage rather than a great executive officer. We can neutralise the potential danger polarization of our nation could bring if we take a second look at separation of powers in our body politic. Strict separation of powers is difficult to achieve but the political structure must be able to neutralise unnecessary encroachments and subjugation.

In the United Kingdom, there isn’t anything like strict separation of powers because of its Westminster system which is based on parliamentary sovereignty and responsible government, the executive acts in the name of the Queen or King so is the judiciary. Their arrangement practically violates the strict principle of separation of powers. Our system is the ‘fusion type” mixture of the parliamentary as well as the Presidential systems making our situation a bit unique. Aspects of the constitution were designed to curb unnecessary political infractions because of our past conditions example is the indemnity clause which was inserted into the document to protect our military regimes.

Some political pundits have been advocating for serious amendments including separating the Attorney General department from the executive. The judiciary is not as independent as we claim and will remain a surrogate of the executive as long as the appointment of the Attorney General and the Chief Justice remains the responsibility of the executive. In the case of the Attorney General, he or she could be removed anytime the executive deems appropriate.

When the newly appointed Chief Justice appeared before the vetting committee, I observed a funny trend, the minority members on the committee posed searching questions and questions discerning minds expected from members, the majority members however, treated the the woman as one of their own to the extent that, the chairman interjected and intervened intermittently to obstruct the minority members in their work. It would have been the same if the NDC was the majority in the the House.

The outgoing Chief Justice recently said, she almost resigned as chief justice of the republic during Prof Mills’s tenure because of undue pressure exerted on her by some people in the administration. If her story is factual, then it confirms the defects I am talking (writing) about. When a case gets to the supreme Court, supporters and sympathizers of the two political parties make their permutations and projections based on how many Judges were appointed onto the bench by their various governments and will start counting from the Rawlings administration.

I don’t think democratic civilisation supports such primitive permutations. So, the Attorney General will respond to a petition filled against the Minister of Finance on a very sensitive and technical issue when that office has a unique role in our governance system clearly stipulated in our constitution. The finance department did not discuss the bond issue with the Attorney General per what Madam Gloria Akufo-Addo told Ghanaians, but will quickly put together words to react to the petition. I think we must adopt a model of governance favourable to the political environment in which we operate else, we may end up destroying the pillars of our democracy.

The judiciary must be made truly independent. They must have their own procedure and process of electing a Chief Justice and present him to the executive for just a ceremonial ceremony just like the way citizens elect their representatives to parliament and the President (executive). If we are able to courageously remove some of these bureaucracies and infringements, it it will have direct effect on operations of our institutions which are supposed to be autonomous like the police, the military, Central Bank etc. I know that the practice whereby the President appoints judges is not common to Ghana in other jurisdictions such as the United State etc the President with the advice and consent of the Senate does that.

But these jurisdictions have strong legislature which can courageously challenge the executive at anytime and on serious national issues, bury their partisan inclinations. The executive may exercise a check over Congress in the US through his power of veto bill, but Congress may override any veto including pocket veto  by two third majority. And on serious national issues both houses come into compromise to protect their great nation. We cannot have this arrangement in our parliament because of is partisan nature. The constitution guarantees the President right to appoint chunk of his ministers from parliament which makes nonsense the doctrine of separation of powers and its checks and balances.

Because of this hitch, civil society organisations have started taking over the “checks and balance” job from the various arms of government. That is a good move but if care if not handled well, these organisations will start pushing their political philosophies and inclinations from the backdoor. The other danger is that people may interpret such moves by these civil society organisations as institutional failure on the part of the state. We seeing this emerging trend because of the politicisation of our agencies and lack of true practice of separation of powers.

The civil society organisations could act as supporting organs of our institutions through their investigations and advocacy but must do well to bury their political or ideological stance to attract the support they may need in pursuing their job.

I have heard people describe the new Chief Justice as a “strong” and principled person and personally, hold same position of her based on the little I know. But however strong, disciplined and principled one may be, we are human first with so many weaknesses, strong and powerful leaders can use powers they command to influence and manipulate us hence, the need for protective provisions for us to remain what we are. We need to strengthen and make our institutions truly independent and we can actualize that if we genuinely make those handling such institutions truly independent.

We can curb the emerging nefarious activities such as mob actions, vigilantism etc if we make our institutions viably independent and adhere to the tenets of separation of powers and checks and balances. Let’s bury our partisan inclinations discussing this issue and fight for its adherence to protect this generation and the generation to come

Source: Ohenenana Obonti Krow

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