Law Professor Writes To CJ Over Mahama’s Absence

Professor Stephen Kwaku Asare
A law professor has said the decision by the Speaker of Parliament, Edward Doe Adjaho, not to act as President in the absence of President John Mahama and Vice President Paa Kwesi Bekoe Amissah has plunged the country into a constitutional crisis.

Prof Kwaku Asare, who is based in the United States, has therefore written to the Chief Justice, Georgina T. Wood, requesting her to officially clarify without delay what should be done in the absence of the President and his Vice.

Last week, November 5, 2014 and November 7, 2014, there was a power vacuum in the country when President Mahama travelled for ECOWAS duties in neighbouring Burkina Faso, where there is an ongoing people’s revolution, and Nigeria as well, while Vice President Amissah-Arthur was on an official duty in India.

President Mahama was in Nigeria on Friday to join President Goodluck Jonathan and Ivorian President Alassane Ouattara to open the Akwa Ibom International Stadium, Uyo, South Eastern Nigeria.

Yesterday Mahama again left for the Vatican City for a three-day visit to Pope Francis.

The Speaker of Parliament, who was supposed to be sworn in by the Chief Justice on the two occasions, refused to take the administration of the Presidential Oath.

Speaker’s Refusal
The Chief Justice on Wednesday was on the floor of Parliament in an effort to swear in the speaker but Mr Adjaho declined to take the oath, with the explanation that he had already taken it on September 19, 2013 when the President and his Vice were out of the country.

According to sources, the Speaker had argued that he was only a ceremonial President at the time and had insisted that the oath he swore about a year ago should still be in force.

The issue has since triggered constitutional debate with experts giving varied opinions on the matter.

The Poser
Prof Asare, a seasoned legal practitioner, took the debate a step further when he wrote to the Chief Justice—copies of which were sent to the President, the Speaker, all MPs as well as the media—to clarify matters once-and-for-all, quoting copiously Article 60 Sub-sections 11 and 12 of the 1992 Constitution which deals with the absence of the President.

He said, ‘In clear and material violation of the Constitution, your Ladyship, on two occasions, has attempted to but has not administered the oath required by Article 60 (12) and the Speaker could not perform the functions required of him under Article 60(11).’

The letter stated, ‘In consequence, there was no President of Ghana on November 5, 2014 and November 7, 2014, a situation that is strictly forbidden by the Constitution, as clearly and elegantly explained by the Supreme Court in the Asare case.’

According to the law Prof, the decision by the Speaker not to be sworn into office was an ‘impeachable’ offence, saying, ‘Your Ladyship will, no doubt, be aware that this situation is extremely serious, bordering on high crime, and a clear violation of you and the Speaker’s oaths of office. It is without doubt that these violations are impeachable offenses.’

Citing authorities, Prof Asare said that in furtherance of Article 60(12), the Chief Justice was obliged to administer the Presidential Oath to the Speaker whenever the President and the Vice President are unable to perform the functions of the President.

‘It is also clear from Article 60(11) that the Speaker’s warrant to perform the functions of the President expires when either the President or the Vice President is able to perform those functions,’ he said, adding ‘because there is no such thing as a permanent Acting President, the Speaker is required to take and subscribe the Article 60(12) oath as many times as he has to perform the functions of the President under Article 60 (11).’

He said without taking the oath under Article 60(12), the Speaker could not perform the functions of the President.

‘I respectfully request that your Ladyship should provide a quick, official and detailed explanation of the incidents that occurred on November 5, 2014 and November 7, 2014 that has led to the current constitutional crisis.  This explanation is necessary to allow a confused nation to understand the situation and take the appropriate remedial measures,’ it indicated.

 By William Yaw Owusu

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