ADVICE MEANS ADVICE: A POST-COLONIAL LEGAL ANALYSIS OF ARTICLE 70(2)

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Dr Afari Gyan, the current Chairman of the Electoral Commission, is due for retirement on June 18, 2015. This has ignited discussions not only about the quality of the person who will succeed him, but also about how his successor will be appointed. This article, a summary of a bigger project, seeks to show, contrary to what other legal minds have suggested, that the President is not bound to follow the advice of the Council of State in appointing the Dr Gyan’s successor.

The provision at the centre of the discussion is Article 70(2) of the 1992 Constitution. That Article provides that:

“The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman, and other members of the Electoral Commission.”

This provision entails the question – what’s the meaning of “advice” within the intendment of Article 70(2) in particular or the Constitution as a whole.

“Advice” is generally taken to mean ‘an opinion or a suggestion about what somebody should do in a particular situation.’ Here, the person being offered advice may work with or without it. Going by this ordinary meaning, one may say that the “advice” of the Council of State under Article 70(2) is not binding on the President.

On the other hand, others have argued that “advice” under Article 70(2) should be given a meaning other than its ordinary meaning. In his very fascinating article titled “The President’s Duty to Appoint the EC Chair: The Law and Politics of Article 70(2)” and published by Graphic Online on April 21, 2015, Prof. Kwasi Prempeh, for instance, argues forcefully that advice should be given a technical meaning. The learned Professor concluded:

“Thus, the phrases “acting on the advice of” and “in accordance with the advice of” are used in the Constitution to mean the same thing, namely, that the advice given in those instances is binding advice.”

The essence of this argument is that whenever advice is used within the context of the exercise of, at least, executive power by the President, that “advice” should be binding on the President.

This conclusion is mounted on English constitutional law history. Historically, the medieval English monarch was a feudal lord as well as head of the kingdom. As such, the King had almost unlimited powers to preserve his subjects from dangers, both internal and external. Over time, however, the monarch’s power began to be limited. The Magna Carta, 1215, was one such elements that limited the King’s power. The Glorious Revolution was another. In the 17th century, disputes arose over the undefined residue of prerogative power claimed by the King. This conflict would not be resolved without the execution of Charles I in 1649 and expulsion of James II in 1688. These events gave birth to the Bill of Rights 1689, which declared illegal certain specific uses of the royal prerogative.

These events led to a situation where royal prerogative was exercised in ways other than by a royal fiat. This is where the element of “advice” came to mean a thing other than advice in the ordinary sense. Today in English constitutional law, “advice” is the synonym for Parliamentary dictatorship to the Queen. In essence advice to the Queen becomes binding on her.

But that is England; and this is Ghana. The question therefore is: does “advice” as used in the constitutional law of Ghana carry the same meaning as it carries under English constitutional law?

The first time the word “advice” was used in a constitution in independent Ghana was under Section 4 of the Ghana Constitution (Order in Council) 1957. Section 4 dealt with the appointment of the Governor-General. Under the 1957 Constitution, the Governor-General, as expected, was to exercise the Queen’s power in respect of many matters, some of which were to be on the “advice” of some authority, person or Cabinet.

How “advice” is treated under the 1957 Constitution, therefore, will give us a very decisive insight into whether the word exudes some dictatorial feature generally. In this regard, one provision comes out very sturdily.

Section 4(3) of the 1957 Constitution states that:

“Where the Governor-General is, by this Order or by any other law for the time being in force in Ghana, directed to exercise any power, authority or function on the advice of any person or authority other than the Cabinet, he shall exercise such power, authority or function in accordance with such advice.”

A less critical reading of this provision may lead one to hastily conclude (and others have drawn such conclusions) that “advice” is intended to be binding under Ghanaian constitutional law as it is under English constitutional law.

However, a more critical reading would disclose a more accurate meaning of the provision. What the provision actually says is that the Constitution may require the Governor-General to act on the advice of a person, an authority or Cabinet; and that while the advice of a person or an authority is binding on the Governor-General, that of Cabinet is not binding on him.

At this point, one is entitled to lay down two rules:

  1. That the drafters of the Constitution never intended that all “advice” be binding under Ghanaian constitutional law; and
  2. That unless expressly stated to be binding, “advice” is advice and is not binding.

A pushback against these two rules may be that the drafters of the Constitution intended to put the matter beyond doubt by stating it clearly that “advice” is binding. But that is only if the provision makes the binding effect applicable to all “advice” to the Governor-General. The provision, interestingly, doesn’t. It only makes advice by certain institutions binding.

Further, at the time that the 1957 Constitution was drafted, the understanding that “advice” to the Queen was dictatorial (rather than persuasive) had fully crystallised and was never in dispute throughout the Commonwealth. The drafters of the 1957 Constitution would have found no need to write it out that “advice” is binding. As a matter of law, pursuing this pushback any further would sin against the canon of presumption against superfluity. This canon of interpretation, which is also known elsewhere as the ‘textual integrity canon’, simply says that we should avoid interpreting a provision in a way that would render other provisions of the text superfluous. In fact, the canon was explained elsewhere by the Privy Council of the House of Lords as follows:

“It is a good general rule in jurisprudence that one who reads a legal document whether public or private, should not be prompt to ascribe … to its language tautology or superfluity, and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use.” 

Therefore the drafters cannot be taken today to be stating that which was obvious at the time, namely, that advice is binding. They would, rather, be taken to be creating something new, which is that “advice”, contrary to what pertains in England, is not intended to be binding in Ghana unless it is expressly stated to be so binding. In other words, there’s no presumption in Ghanaian constitutional law that advice is binding on the advisee.

Perhaps, even more striking is the fact that one does not see the very expressive language of Section 4(3) appear again in our subsequent Constitutions. This is extremely instructive: could the express mention of the technical meaning of “advice” in the 1957 Constitution and the loud silence of all subsequent Constitutions on the same matter operate to exclude that technical meaning from having effect under the subsequent Constitutions? A juridical answer to this question, certainly, further diminishes the force of the claim that “advice” is binding on the President generally.

Indeed, there are other instances where the technical meaning of “advice” being urged on us, if applied to or inserted into other provisions of the Constitution, may lead to grossly unworkable results. Suffice it to say however that the analyses of this aspect of the argument won’t find space here.

By way of conclusion, therefore, we may say that the claim that the advice of the Council of State is binding on the President has a very questionable basis in law and fact. Accordingly, the President may appoint the successor of Dr. Afari Gyan outside the advice of the Council of State.

*** This article is also published in the May 21, 2015, issue of the Daily Graphic.

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