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

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.

WHO’S VIOLATING THE MUSLIM STUDENT’S RIGHT TO RELIGIOUS FREEDOM?

In his 2015 State of the Nation address delivered to parliament on Thursday, February 26, 2015, H.E. President John Mahama joined in the debate over the practices in some Catholic schools, where non-Catholic students and pupils are made to be part of some Catholic religious practices against their will. The President said:

“It is wrong under our Constitution for Muslim students to be compelled to attend church services or for Christian students to be compelled to attend Muslim congregational prayers … Heads of institutions must note this for strict compliance. Appropriate sanctions will be taken against any head of institution who acts contrary to the Constitutional provisions of our country.”

On the face of it, the President’s statement appears fairly balanced, as it seeks to restrain not just headmasters of Christian schools but also headmasters of Islamic schools. However, that appearance is a bit deceptive, I must say, as no honest person was in a doubt over the target of the warning.

Quite apart from this, the President’s statement also invokes a very fundamental question. A question that if answered diligently and without a passion or desire for transient political benefits, will go a long way to galvanise our nation against religious violence that seems to have extensively challenged the capacity of even the developed world to maintain peace and security. Anything less than that has the propensity of throwing our nation into a higgledy-piggledy, sooner than later.

Who is violating the Muslim student’s right to religious freedom? In this article, I enter into a labyrinth. It is my hope that I do not emerge without holding in my hand a respectable description of the identity of the person or group of persons who are violating the rights of these young Ghanaians and, of course, the 1992 Constitution.

The Right to Religious Freedom under the 1992 Constitution

The right to freedom of religion, as outlined in the 1992 Constitution, may be said to be carried by a cross-section of 2 arms and two legs. The first arm is the right to hold a religious belief – Article 21(1)(b). This component of the right is unlimited. A person may hold any form of belief in her mind; and that is no one’s business. The Second arm is the right to manifest that belief by way of practice – Article 21(1)(c). It is this component of the right that the State may, for obvious reasons, limit.

Down to the legs. The first leg of the right to the freedom of religion is the prohibition of the imposition of a religious belief or practices on a person. A person who imposes a religious belief or practice on another may be violating this all-important human right. Finally, the second leg of the right is the protection of a person’s right to freely hold and practice religious belief(s) of preference. The difference between the first leg and the second is that the former protects the person from being coerced (as in the case of the students in question) while the latter allows her to freely choose (or refuse to choose) a religion or its practice.

Consequently, there’s nothing inherently unlawful when a person establishes a school that is dedicated to the furtherance of Voodoo, Tigari or any other religion. Catholics, therefore, have the rights to establish and run school in compliance with or in furtherance of their faith.

The Public Fund Argument

Since the President’s address, several strands of arguments have been canvassed in the discussion. Of all the arguments touching on the lawfulness (or otherwise) of the practices in some mission schools, I find that which I prefer to call the ‘public fund’ argument most impressive.

That argument proceeds as follows: (1) That government funds the missions schools in question; (2) that these funds are public funds; (3) that public funds are not from Catholics only and are not Catholic in nature; and (4) therefore that these schools, though founded and sustained on Catholic doctrines and practices, have, by accepting public funds, lost the moral or legal authority to still continue to apply Catholic doctrines and practices to non-Catholics who teach or study in them. A slightly different or, perhaps, a more forceful way of stating this argument is by saying that it is unlawful to use public funds to support religious programs.

At this point, it doesn’t matter how the argument is stated. What matters is that one cannot sustain the public fund argument without first admitting these 3 underlying claims: (1) That Ghana is a secular (not a religious) State; (2) That the State must respect and strictly observe the gap between it (the State) and religion; and (3) that the State, by using public funds to support schools that, more or less, impose a particular religious practices on students, has abdicated the highly-desired throne of secularity.

Two Faces of the Argument

From the above, the public fund argument may be said to have 2 faces: The Accepting face and the Giving face. The Accepting face says that Catholic schools, by accepting public funds, are estopped from insisting on using these schools to further Catholic beliefs and practices. On the other hand, the Giving face, says that the government violates the Constitution by giving out public funds to support Catholics schools, when it knows very well that they (the Catholic schools) have insisted, still insist and will continue to insist on using those funds, so long as it is made available to them, to further the Catholic faith.

In principle and without more, any of these 2 faces of the argument may bring some form or kind of resolution to this rather peace-threatening impasse that we’ve found ourselves in, even as we turn 58 today. Thus, we may use the Accepting approach or the Giving approach to resolve the impasse.

The Accepting Approach

This approach holds that the Catholic schools in question are estopped from conducting themselves in a manner that furthers their faith. This is because they have accepted public funds, which funds cannot be used to promote or support a particular religious purpose. If you subscribe to this approach, you’re likely to attempt resolving the problem by simply saying that Catholic school could only insist on Catholic doctrines if they stop accepting public funds from government.

However, this argument, when pursued to its logical conclusion, will lead to a violation of the second leg of the right to freedom of religion; that is, the right to hold and engage in practices that further one’s religion of choice.

That right cannot be waived merely by accepting public fund. If it were so, Muslims who who receive public funds in support of their pilgrimage to the holy land of Mecca would be held to have waived their right to manifest their belief, for which reason they even seek public funding in the first place. Accordingly, we think that resorting to the Accepting approach to resolving the matter will lead to really silly consequences.

The Giving Approach

The Giving approach says that the State, being secular (rather than religious), violates the Constitution when it gives public funds to schools and other institutions that use the fund to further parochial religious practices, and usually so in violation of the rights of persons who do not subscribe to those religious practices. In other words, the State is violating the Constitution by giving public funds to Catholic school, who use this funds to evangelise and propagate, the Catholic faith. Resorting to this approach yields one result and one result only – injuncting the State from giving public funds to institutions that use them to promote religion.

Therefore, if you subscribe to the Giving approach you’re likely to attempt resolving the impasse by suggesting that government should desist from giving out public funds to faith-based or religious organisations.

Comparing the Result of the 2 Approaches

The 2 approaches, clearly, yield completely different results. The Accepting approach results in the violation of the second leg of the right to free religion; that is, it prevents others from practicing their religious belief. The Giving approach, on the other hand, as we have seen does not result in the violation of any of the arms or legs of the constitutional right to religion. As a matter of fact, it rather protects, comprehensively, a person’s right to freedom from being compelled (in public-funded schools) to engage in the practice of a religion that she does not subscribe to. This is because if this approach is adopted there will not be any publicly-funded religious, Catholic or otherwise, school to start with. Plus, it make absolute sense to stop the giver than to stop the receiver.

Indeed, no one has the right to be given, and the State has no duty, power, whatsoever under the Constitution to give out public funds for parochial religious purposes.

Answering the Question

At this point, it is necessary to answer the question. As between the President and the headmasters of publicly-funded Catholic schools, who is violating the religious rights of young Muslims in Ghana? The answer will depend on who, between the two, has the power over public funds or who actually gives out public funds to be used in furtherance of religious purposes. Another way of appreciating the issues is by first saying, yes, the headmasters may be violating the religious rights of Muslim students; and, then, going on to inquire whether that violation was possible without the President giving out public funds to faith-based schools.

From this perspective, we think, respectfully, that it is the President (rather than the headmasters) who is the principal violator of the rights of the innocent pupils and students who are being subjected to the practices of the Catholic or other faiths that they do not subscribe to.

Conclusion

Until the holder of the public purse – the President – stops giving out public funds to faith-based schools, these violations are unlikely to end.