9.3 The 1992 Constitution, Arms of Government & Public Institutions

9.3 The 1992 Constitution, Arms of Government & Public Institutions

The 1992 Constitution of the Republic of Ghana, approved by referendum on April 28, 1992, came into force on January 7, 1993, inaugurating the Fourth Republic and the longest uninterrupted period of constitutional governance and peaceful electoral transfers of power in Ghanaian history. For officers and cadets of the Ghana Armed Forces, the 1992 Constitution is the foundational legal and moral covenant governing their service. Every commissioned officer derives their legal authority directly from the President's Commission issued pursuant to constitutional provisions, and swears a sacred oath to defend the constitutional order against domestic subversion and external aggression.

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Constitutional Supremacy & Core Foundational Principles

Ghana's constitutional framework rejects the British concept of Parliamentary Sovereignty in favor of Constitutional Supremacy, reinforced by robust, legally binding principles:

1. Sovereignty of the People & Constitutional Supremacy

• Article 1(1) — Popular Sovereignty: 'The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.'
• Article 1(2) — Constitutional Supremacy: 'This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.'

2. Defense of the Constitution (Article 3)

The Constitution expressly prohibits the establishment of a one-party state and outlaws any violent or unconstitutional overthrow of the government. Under Article 3(4), every citizen of Ghana has not merely the right, but the active constitutional duty, to resist any person or group seeking to overthrow the constitutional order, and to do everything in their power to restore the Constitution. Any military or civilian participant in an unconstitutional overthrow commits the offense of high treason, punishable by death.

3. Directive Principles of State Policy (Chapter 6)

Articles 34 through 41 outline mandatory socio-economic, political, educational, and foreign policy objectives. While historically viewed as programmatic aspirational targets, the Supreme Court of Ghana has treated them as enforceable: justices in New Patriotic Party v. Attorney-General (the 31st December case, 1993) said so, and Ghana Lotto Operators Association v. National Lottery Authority (2007–2008) held that the Directive Principles of State Policy are presumptively justiciable.

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The Executive Branch: Presidential Powers & Defense Leadership

The Executive of Ghana is led by an elected Executive President who combines the functions of Head of State, Head of Government, and Commander-in-Chief.

Qualifications & Election of the President

• Eligibility Criteria (Article 62): A presidential candidate must be a citizen of Ghana by birth, must have attained the age of forty (40) years, and must be qualified to be elected as a Member of Parliament.
• Electoral Benchmark (Article 63): The President is directly elected through nationwide universal adult suffrage. To win, a candidate must secure more than fifty percent (50% + 1) of the total valid votes cast. If no candidate secures an absolute majority in the first round, a runoff election between the top two candidates must take place within twenty-one days.
• Tenure of Office (Article 66): The President serves a term of four years and is eligible for re-election to a maximum of two terms, whether consecutive or separated.

Commander-in-Chief Powers & Military Governance

Under Article 57(1) and Article 58, the executive authority of Ghana is vested in the President. In military matters:

• Commander-in-Chief (Article 57(1)): The President exercises supreme command over the tri-service branches: Ghana Army, Ghana Navy, and Ghana Air Force.
• Commissioning of Officers (Article 212(3)): The President grants commissions to officers of the Armed Forces, acting in accordance with the advice of the Armed Forces Council.
• Command Appointments (Article 212(1)): The President appoints the Chief of the Defence Staff (CDS) and the Service Chiefs (Chief of Army Staff, Chief of Naval Staff, Chief of Air Staff), acting in consultation with the Council of State.
• Deployment of Troops: The President holds the constitutional prerogative to deploy the Armed Forces for external peacekeeping operations, regional security engagements, or internal operational assistance to civil authorities (such as during civil unrest, environmental disasters, or internal security threats).

The Cabinet & The Council of State

• The Cabinet (Article 76): Consists of the President, Vice-President, and not less than 10 and not more than 19 Ministers of State. The Cabinet assists the President in the formulation and determination of general national policy. Crucially, Article 78(1) mandates that the majority of Ministers of State must be appointed from among Members of Parliament, creating an institutional hybrid of presidential and parliamentary systems.
• The Council of State (Articles 89–91): An elite advisory body modeled on traditional councils of elders. Its membership includes: one former Chief Justice, one former Chief of Defence Staff, one former Inspector General of Police, the President of the National House of Chiefs, sixteen elected regional representatives (one per administrative region), and eleven members appointed by the President. The Council of State advises the President on national honors, major appointments, and proposed legislation.

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The Legislative Branch: Parliament of Ghana

Legislative power is vested in the Parliament of Ghana, a unicameral assembly representing the sovereign citizenry.

Membership & Qualifications

Parliament currently consists of 275 Members of Parliament (MPs) elected in single-member constituencies under the first-past-the-post electoral system. Under Article 94, an MP must be a citizen of Ghana, must have reached the age of twenty-one (21) years, must be a registered voter, and must reside in or hail from the constituency they seek to represent. Public servants, chiefs, and members of the security services are legally barred from contesting parliamentary elections unless they resign their positions.

Parliamentary Leadership & Organization

• The Speaker of Parliament (Article 95): Presides over parliamentary debates and proceedings. The Speaker is elected by MPs from among members or from distinguished citizens qualified to be elected as MPs. The Speaker does not hold a parliamentary vote. The Speaker ranks third in the national order of precedence; under Article 60(11), if both the President and Vice-President are unable to perform the functions of the President, the Speaker performs those functions until one of them can resume or a new President assumes office. If the Speaker assumes office because both offices became vacant through death, resignation, or removal, a presidential election must be held within three months.
• Deputy Speakers: Parliament elects a First Deputy Speaker (traditionally from the majority caucus) and a Second Deputy Speaker (traditionally from the minority caucus).
• Leadership Caucuses: Composed of the Majority Leader, Minority Leader, Majority Whip, and Minority Whip, who coordinate legislative scheduling and caucus discipline.

The Legislative Process & Financial Restrictions

Under Article 106, a bill passes through several rigorous stages:

1. Gazette Publication: Bills must be published in the national Gazette at least 14 days prior to introduction, accompanied by an explanatory memorandum.
2. First Reading: The bill is formally introduced and read by title, whereupon the Speaker refers it to the appropriate sectoral standing committee.
3. Committee Stage: The committee examines the bill clause by clause, takes public testimony, and prepares a formal report.
4. Second Reading: The full house debates the broad principles of the bill based on the committee's report.
5. Consideration Stage: The entire assembly reviews the bill clause-by-clause, introducing and voting on specific amendments.
6. Third Reading: The final version is approved by a majority vote of members present.
7. Presidential Assent: Within seven days of presentation, the President must signify to the Speaker whether he assents or refuses, unless he refers the bill to the Council of State. If he refuses, he must within 14 days send the Speaker a memorandum on the provisions to be reconsidered, or state that the bill has gone to the Council of State. If Parliament passes the reconsidered bill by a resolution supported by two-thirds of all MPs, the President must assent within 30 days (Article 106(7) to (10)).

Core Parliamentary Oversight Committees

• Public Accounts Committee (PAC): Chaired by a member of the Minority caucus, the PAC examines the audited accounts of all public corporations, ministries, and security agencies submitted by the Auditor-General.
• Appointments Committee: Vets and evaluates all presidential nominees for ministerial, deputy ministerial, and superior court appointments.
• Defense and Interior Committee: Exercises legislative oversight over defense spending, military equipment procurement, and internal security operations.

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The Judicial Branch: Hierarchy & Judicial Review

Judicial authority emanates from the people and is administered by the courts. Article 127 guarantees the total financial, administrative, and operational independence of the Judiciary, prohibiting executive or legislative interference.

                                [ Supreme Court ]
                          (Chief Justice + 9+ Justices)
                                       |
                                [ Court of Appeal ]
                         (Appellate jurisdiction only)
                                       |
                                [ High Court ]
               (Commercial, Criminal, Land, Human Rights Divisions)
                                       |
                           [ Circuit & District Courts ]
                             (Summary Jurisdiction)

The Superior Courts of Judicature

1. The Supreme Court of Ghana: The pinnacle of the judicial hierarchy. Under Article 128, it consists of the Chief Justice and not less than nine other Justices (with no constitutional upper limit). Under Articles 2 and 130, the Supreme Court holds exclusive original jurisdiction in:
   • All matters relating to the enforcement or interpretation of the Constitution.
   • All claims alleging that an Act of Parliament or executive decree is unconstitutional and ultra vires.
   • The Supreme Court also exercises supervisory jurisdiction over all lower courts via prerogative orders (certiorari, mandamus, prohibition, habeas corpus) and holds review jurisdiction under Article 133 over its own prior rulings.
2. The Court of Appeal: Hears appeals from the High Court, Regional Tribunals, and Circuit Courts. It exercises no original jurisdiction.
3. The High Court of Justice: Exercises general original jurisdiction in all civil and criminal matters, including specialized divisions for Commercial, Land, Labour, Criminal, and Human Rights cases. The High Court exercises supervisory jurisdiction over lower courts.
4. Regional Tribunals: Established to try specialized economic and statutory offenses.

Lower Courts

Comprise the Circuit Courts, District Courts, and the Judicial Committees of Traditional Councils and the National House of Chiefs (adjudicating chieftaincy succession disputes).

The Judicial Council (Article 153)

Chaired by the Chief Justice, the Judicial Council includes representatives from the Bar Association, police, and traditional authorities. It proposes judicial appointments and enforces professional ethical standards across the bench.

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Independent Constitutional Bodies & Accountability Organs

To safeguard democracy against executive overreach, the 1992 Constitution established independent constitutional bodies that, in performing their functions, are not subject to the direction or control of any person or authority:

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Local Governance Architecture: Decentralization & MMDAs

Chapter 20 (Articles 240–256) establishes a decentralized local government architecture designed to devolve decision-making, planning, and revenue allocation from the central government in Accra to local communities.

Classification of Metropolitan, Municipal, and District Assemblies (MMDAs)

The population thresholds below come from local government legislation, not from the Constitution itself:

• Metropolitan Assemblies: Established in large urban centers with a minimum population of 250,000 residents (e.g., Accra, Kumasi, Tamale, Sekondi-Takoradi).
• Municipal Assemblies: Established in intermediate urban settlements with a minimum population of 95,000 residents.
• District Assemblies: Established in predominantly rural or peri-urban districts with a minimum population of 75,000 residents.

Assembly Composition (Article 242)

A District Assembly is constituted by:

1. Elected Members (70%): Directly elected by universal adult suffrage from single-member local electoral areas.
2. Appointed Members (30%): Appointed by the President in consultation with traditional authorities and local interest groups to provide technical and administrative expertise.
3. The District Chief Executive (DCE / MCE / Mayor): Appointed by the President pursuant to Article 243, and must be confirmed by a two-thirds (2/3) majority vote of assembly members present and voting. The DCE serves as the chief political and executive head of the district.
4. Members of Parliament (MPs): MPs representing constituencies within the district sit as members of the assembly, but do not hold voting rights on executive decisions.

The District Assemblies Common Fund (DACF, Article 252)

To ensure financial autonomy, the Constitution established the District Assemblies Common Fund (DACF). Article 252 mandates that Parliament must annually allocate not less than five percent (5%) of the total national revenues of Ghana into the Common Fund, which is distributed among all MMDAs according to an equitable formula approved by Parliament to finance local schools, healthcare centers, sanitation, and rural road networks.