President Attah-Mills breaches the Constitution again
Gilbert Boyefio
24/02/09
Barely ten weeks after taking office, President John Evans Attah-Mills, a former law lecturer has come under severe criticism for the manner in which he has being handling matters relating to the Constitution, which he has pledged to uphold.
The latest decision of the President to be pronounced illegal is the directive for all Government appointees to file their assets declaration forms within seven days of their appointment. According to legal experts, this directive is a non starter and a violation of the Constitution. They argue that the appointees were supposed to file their assets declaration forms before taking office and not after.
The Declaration of assets and liabilities law, Article 286 (1a) states that “A person who holds a public office mentioned in clause (5) of this article shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by, him weather directly or indirectly; within three months after the coming into force of this Constitution or before taking office, as the case may be.”
Adding his opinion to the illegality of the President’s action, the Executive Director of the Legal Resources Centre, Edward Tuinese Amuzu, told The Statesman that indeed the directive was a violation of the Constitution, and advised that the matter be given more examination. He emphasized that the directive was a direct violation of the Constitution. From his perspective, the President’s action, though illegal, might have been informed by the need to cure the problem he had created by swearing the appointees into office before they declare their assets.
Mr Amuzu recommended that to forestall this situation arising again, appointees should declare their assets between the period of their nomination and the period they are vetted by parliament. He however opined that the illegality of the President’s action does not nullify the appointment of the affected appointees.
President Attah-Mills perceived breach of the Constitution started early this month when legal experts accused him of unconstitutional appointments of the Inspector General of Police and the Chief of Defence Staff. According to the Constitution, the IGP and the CDS shall only be appointed in consultation with the Council of State; which is yet to be formed. The Constitution in Article 202 (1) is emphatic that an IGP or an officer acting in that capacity can only be appointed by the President in consultation with the Council of State and the Police Council.
However, President Mills, under pressure from his party, forced the retirement of the then IGP and CDS, creating what Ace Ankomah described as a “needless vacancy and necessity,” which have been filled by “unconstitutional” means. Already, Presidential Spokesperson, Mahama Ayariga, has publicly admitted that the acting IGP was appointed without reference to a Police Council.
Ace Ankomah told Joy News on Friday, January 30, that the ruling government must take immediate steps to correct the anomaly. He insists, acting or substantive, the President ought to have consulted those institutions before making those two appointments.He quotes section 12 of the Interpretation Act and Section 10 of the Police Service Act, both of which he said gave credence to the fact that the President still had to consult those institutions even if those appointments were in acting capacities.He cautions against the potential risks of President Mills’ action, which means the President may simply avoid the condition of consulting the Council of State by keeping a person in an acting position forever.
Also, another Constitutional Law expert and fellow of the Danquah Institute, Nana Asante Bediatuo, has spoken against the work of the Transition Team, which he argues has witnessed an “overstretched abuse of the convention,” under President Mills.
His point is that a person can only act on behalf of the President if that position is defined by law or the processes for the appointment are prescribed by law.
He says the Transition Team has undertaken tasks which the Mills government could have waited until Ministers were sworn in. It is as if the Transition Team’s “mandate is in perpetuity”, he observes.
Nana Bediatuo has criticised the presidential fiat dissolving all boards of organisations and companies linked to the state. He questions its legality, especially since a vacuum has been created as the nation waits on the NDC to appoint new board members.
His point is that the Company’s Code does not allow firms to operate without directors. Even the Managing Director, who is a member of the board and is appointed by and from the board, is also effectively sacked by this presidential directive.
Nana Bediatuo even believes the botched swearing-in of the President, which they have "stubbornly" refused to re-do sent an unfortunate signal of an apparent readiness to disregard laid down procedures. "Article 57(3) states clearly that 'before assuming office the President shall take and subscribe before Parliament the oath of allegiance and the presidential oath', it does not say that you may do one correctly and botch the other. There's no discretion for an either/or situation," the DI fellow argues.
24/02/09
Barely ten weeks after taking office, President John Evans Attah-Mills, a former law lecturer has come under severe criticism for the manner in which he has being handling matters relating to the Constitution, which he has pledged to uphold.
The latest decision of the President to be pronounced illegal is the directive for all Government appointees to file their assets declaration forms within seven days of their appointment. According to legal experts, this directive is a non starter and a violation of the Constitution. They argue that the appointees were supposed to file their assets declaration forms before taking office and not after.
The Declaration of assets and liabilities law, Article 286 (1a) states that “A person who holds a public office mentioned in clause (5) of this article shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by, him weather directly or indirectly; within three months after the coming into force of this Constitution or before taking office, as the case may be.”
Adding his opinion to the illegality of the President’s action, the Executive Director of the Legal Resources Centre, Edward Tuinese Amuzu, told The Statesman that indeed the directive was a violation of the Constitution, and advised that the matter be given more examination. He emphasized that the directive was a direct violation of the Constitution. From his perspective, the President’s action, though illegal, might have been informed by the need to cure the problem he had created by swearing the appointees into office before they declare their assets.
Mr Amuzu recommended that to forestall this situation arising again, appointees should declare their assets between the period of their nomination and the period they are vetted by parliament. He however opined that the illegality of the President’s action does not nullify the appointment of the affected appointees.
President Attah-Mills perceived breach of the Constitution started early this month when legal experts accused him of unconstitutional appointments of the Inspector General of Police and the Chief of Defence Staff. According to the Constitution, the IGP and the CDS shall only be appointed in consultation with the Council of State; which is yet to be formed. The Constitution in Article 202 (1) is emphatic that an IGP or an officer acting in that capacity can only be appointed by the President in consultation with the Council of State and the Police Council.
However, President Mills, under pressure from his party, forced the retirement of the then IGP and CDS, creating what Ace Ankomah described as a “needless vacancy and necessity,” which have been filled by “unconstitutional” means. Already, Presidential Spokesperson, Mahama Ayariga, has publicly admitted that the acting IGP was appointed without reference to a Police Council.
Ace Ankomah told Joy News on Friday, January 30, that the ruling government must take immediate steps to correct the anomaly. He insists, acting or substantive, the President ought to have consulted those institutions before making those two appointments.He quotes section 12 of the Interpretation Act and Section 10 of the Police Service Act, both of which he said gave credence to the fact that the President still had to consult those institutions even if those appointments were in acting capacities.He cautions against the potential risks of President Mills’ action, which means the President may simply avoid the condition of consulting the Council of State by keeping a person in an acting position forever.
Also, another Constitutional Law expert and fellow of the Danquah Institute, Nana Asante Bediatuo, has spoken against the work of the Transition Team, which he argues has witnessed an “overstretched abuse of the convention,” under President Mills.
His point is that a person can only act on behalf of the President if that position is defined by law or the processes for the appointment are prescribed by law.
He says the Transition Team has undertaken tasks which the Mills government could have waited until Ministers were sworn in. It is as if the Transition Team’s “mandate is in perpetuity”, he observes.
Nana Bediatuo has criticised the presidential fiat dissolving all boards of organisations and companies linked to the state. He questions its legality, especially since a vacuum has been created as the nation waits on the NDC to appoint new board members.
His point is that the Company’s Code does not allow firms to operate without directors. Even the Managing Director, who is a member of the board and is appointed by and from the board, is also effectively sacked by this presidential directive.
Nana Bediatuo even believes the botched swearing-in of the President, which they have "stubbornly" refused to re-do sent an unfortunate signal of an apparent readiness to disregard laid down procedures. "Article 57(3) states clearly that 'before assuming office the President shall take and subscribe before Parliament the oath of allegiance and the presidential oath', it does not say that you may do one correctly and botch the other. There's no discretion for an either/or situation," the DI fellow argues.
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