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I have in recent months had to explain to my NPP friends that eligibility criteria for the Office of President of the Republic of Ghana is regulated by the 1992 Constitution without more.
It is the supreme law of Ghana.
I have also read a news item attributed to Professor Ransford Gyampo to the extent that the former President John Mahama must seek legal advice on his desire to comeback and he concludes that “he does not think he is eligible.”
I have also come across Facebook post(s) attributed to several NPP MPs including my learned senior and MP for Sekondi, Andrews Agyapa Mercer, Afenyo Markins and Kennedy Osei Nyarko.
For the avoidance of doubt, to qualify for the Office of the President, one must first be qualified to be a Member of Parliament under article 94 of the 1992 Constitution.
The Supreme Court had the opportunity to interpret the provisions of article 94 in relation to eligibility criteria for the presidency in the reported case of Rosemary Ekwam v Kwame Pianim, that was when the respected economist, Kwame Pianim decided to contest the NPP presidential primaries and this action was brought to the Supreme Court to check his eligibility because he was convicted and sentenced for participating in alleged treasonable conduct.
The Supreme Court by majority decision took the view that article 94 sets the broad constitutional criteria for eligibility for both MPs and the Presidency.
That means if you are not qualified to contest for the Office of Member of Parliament, you cannot be qualified to contest as President.
In the case of President John Mahama within the context of article 94, he is more than qualified.
He served as MP for 12yrs and President before and was the candidate of the NDC in the 2016 elections.
The problem is the sophistry deployed by the likes of Professor Gyampo and some NPP MPs to link his comeback to the question of ” emoluments and entitlement as former President.”
They argue therefore that once he is a former President and he is taking his emoluments and entitlement as former President, he cannot be eligible to contest as flagbearer and Presidential candidate for the 2020 presidential elections.
Where they got this strange legal proposition from beats my imagination. At best this is legal gymnastics and as worst bizzare.
In order to satisfy myself, I decided to read broadly across jurisdictions with similar or same constitutional provisions from the Philippines to India to USA to Kenya (commonwealth countries).
I ended up in Benin because of the case of Kereko, who left the presidency and came back.
I did not see any constitutional provisions that relate the “right to contest” as President to “emoluments and entitlement as former President.”
It is often stated that the Constitution is a living organism with the capacity for growth.
The growth contemplated here does not include a situation where a human being will grow two heads but possible for the human being to have a bigger body and not develop entirely new organ.
The Courts have only read entirely new provisions into the Constitution for the purposes of avoiding internal inconsistency because constitutional provisions are to be read as whole.
The right to contest as President by a former President is not contingent on or subject to whether he should forfeit his emoluments and entitlement as former President.
The emoluments and entitlement as former President are accrued rights.
It is a right that has accrued by reason of the person having held the Office of the President without more.
It is not subject to any qualifications or limitations.
The Supreme Court has taken the view in a lot of reported cases from Tehn Addy v Electoral Commission, Ahumah Ocansey v Electoral Commission (rights of prisoners to be registered to vote) among others that the Court must construct rights liberally and broadly and limitations strictly and with caution.
So where there are no such limitations or qualifications, don’t introduce it unless it is one contemplated in a ” a free and democratic society.”
The Supreme Court will prefer that the people decide who is their leader without venturing into the arena of “fixing who the candidates should be.”
It is perfectly okay to say that the proponent of this view have not adverted their minds to the distinction between accrued and contingent rights.
It is perfectly possible to see a retired Supreme Court Judge being appointed as the Chairman of the Governing Board of a public agency, for instance, Justice Alan Brobbey is the Chairman of the Governing Board of EOCO.
Justice Samuel Date Baah sits on the National Communications Authority Tribunal as one of three member panel.
You cannot vary their entitlements as retired Justices of the Supreme Court.
The Constitution does not permit that. Simple
Does Article 68 (2) of the 1992 Constitution in anyway bar the former President from contesting?
The said article states; “The President shall not, on leaving office as President, hold any office of profit or emolument, except with the permission of Parliament, in any establishment, either directly or indirectly, other than that of the State.”
Constitutional provisions are read in context.
The above provision has nothing to do with eligibility to contest as President.
On the politics, why would the NPP want to stop a man they claim they will defeat without campaigning?
Clearly someone is not comfortable.
Someone can see defeat ahead.
Greetings from Bolga.
By Lawyer Edudzi Kudzo Tameklo