EX-GRATIA AWARDS FUSS - Letter to Daily Guide Newspaper

Originally written on 26 January 2009

Dear Editor:

RE: ‘EX-GRATIA AWARDS FUSS – RANGE CAN BE REVIEWED DOWNWARDS’

I have had the privilege of reading the above-entitled article by your Apostle Kwamena Ahinful in his Controversy Column. The beauty of democracy is that we can disagree; and so I truly appreciate the Apostle’s position on my expressed views.

Permit me, however, to re-state and possibly flesh out my position on this matter, and then encourage all concerned Ghanaians to read the Constitution for themselves, to ascertain whether or not Parliament (or any other body) has the power to do the downward review that the Apostle recommends, and which some Member of the august House have been postulating.

Some have argued that Parliament has the power to review everything that it does. That may be true. But the source of Parliament’s powers is not Parliament itself, but the Constitution. So that whatever powers Parliament might have, are subject to such bounds and limitations contained in the Constitution. For example, Article 3(1) of the Constitution states expressly that “Parliament shall have no power to enact a law establishing a one-party State.” That means that whatever powers Parliament might have, it can NEVER pass a law that seeks to turn Ghana into a one-party state. Parliament under our Constitution, is not sovereign, and is supreme only to the extent that that ‘supremacy’ is given and, in some instances, circumscribed by the Constitution.

Article 3(1) is just one example of how Parliament’s powers are limited by the Constitution. My humble view is that the same principle applies to Article 68(9). The article simply states that “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime.”

I am fortified by the reference by Professor AKP Kludze JSC in the Supreme Court case of Asare v. Attorney-General, that “express enactment shuts the door to further implication and speculation.” The words in Article 68(9) are clear and express. The issue is captured in the simple questions: Has the pension become payable? Have the facilities become available? If so, can they be varied, and what would amount to a disadvantage?

Under Article 68(3), the ex-Presidents‘ “pension… and other allowances and facilities [are] prescribed by Parliament.” Article 71(2) then provides that “The salaries and allowances payable, and the facilities available, to the President…, shall be determined by Parliament on the recommendations of the Committee…” And Article 71(3) says that “For the purposes of this article, and except as otherwise provided in this Constitution, “salaries” includes allowances, facilities and privileges and retiring benefits or awards”

I must point out that these provisions are not novel. Article 71 is a near-verbatim reproduction of Article 58 of the 1979 Republican Constitution, which in itself had its roots in Article 52 of the 1969 Constitution. And, while the first two clauses of Article 68 are reproduced from Article 55 of the 1979 Constitution, the remaining clauses of Article 68 can be largely found in Article 44 of the 1979 Constitution. Specifically, clauses (8) and (9) of Article 68 of the current Constitution are exact reproductions of clauses (7) and (8) respectively of Article 44 of the 1979 Constitution.

On 19th July 1994, the Supreme Court delivered 4 judgments, namely, Yakubu v. Attorney-General [1993-94] 1 GLR 307, Wuaku v. Attorney-General [1993-94] 2 GLR 393, Abakah v. Attorney-General [1993-94] 1 GLR 325 and Osei-Hwere v. Attorney General, Supreme Court, Accra, 19 July 1994 unreported. Each of these cases discussed the meaning of the word “salaries” in Article 71 of the current Constitution, Article 58 of the 1979 Constitution and Article 52 of the 1969 Constitution, as the case may be. In all of the cases, the court held that the definition of the word “salaries” (particularly in the 1979 Constitution and the current Constitution) was specific only to the relevant article, on account of the use of the qualifying words “for the purposes of this article, and except as otherwise provided in this Constitution…” Accordingly that definition was not of general application throughout the Constitution.

However, among the 4 cases, the decision that I find immediately helpful and instructful is Yakubu v. Attorney-General, where the court found that the once President had not appointed to committee required to make recommendations under Article 71(1), the use of a car or the occupation of a bungalow by a judge were “only a facility accorded a serving superior court judge on his appointment to enable him perform the functions of his office effectively.” But these were the key words of the court: “Until there is a determination that these facilities should form part of a retiring justice of the superior court's benefits or awards, such a claim cannot be made as of right. When a recommendation has been made and the President has determined the retiring benefits and awards of the justices of the superior court of judicature the plaintiff may put up a claim since he has retired under the Constitution.”

In other words, the Supreme Court held that the judge, who was the plaintiff, in the matter would acquire an immediate right to those facilities once the President makes the required determination, after receiving the Committee’s recommendation. By parity of reasoning, the President himself would acquire the right to the pension once Parliament makes the prescription or determination after the Committee’s recommendation.

An examination of the provisions of the various Constitutions reveals the same flow of logic and reasoning in the provisions under reference. The Committee makes recommendations for presidential salaries (defined to include pensions), and those recommendations are sent to Parliament for ‘determination’ with respect to the sitting President or ‘prescription’ with respect to the ex-Presidents. Once Parliament ‘determines’ or ‘prescribes’ what has been so determined or prescribed they become immediately payable and available, and consequently, cannot be varied to the disadvantage of the intended beneficiaries. I add the sitting President because the package as prescribed by Parliament is now part of his “salary” as defined by Article 71(3). They cannot be varied to his disadvantage in his lifetime. I will return to this point later.

Clearly, from the foregoing the pension became ‘payable’ or otherwise owed, due, or to be paid to the ex-Presidents and the current President when Parliament voted on 6th January 2009. Also, the facilities became ‘available’ or obtainable by or offered to the ex-Presidents and the current President upon the same vote. Accordingly, on the same date, Article 68(9) came into full force and effect with respect to what was so prescribed or determined. The ex-Presidents and the current President, now have respective accrued rights to that package. Consequently, the now-payable pension and now-available facilities cannot be varied to the disadvantage of either the ex-Presidents during their respective lives or the current President whilst he is in office, and upon his leaving office, during his lifetime.

What then does the phrase “varied to his disadvantage”, mean? That phrase occurs 5 other times in the Constitution. First, Article 68(8) provides that “The salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office.” Second, Article 89(8) provides that “The allowances and privileges of the Chairman and other members of the Council of State shall be charged on the Consolidated Fund and shall not be varied to their disadvantage while they hold office.” Third, Article 95(7) provides that “The salary and other allowances payable to the Speaker shall not be varied to his disadvantage during his tenure of office.” Fourth, Article 127(5) provides that “The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of the Superior Court or any judicial officer or other person exercising judicial power, shall not be varied to his disadvantage.” And, Fifth, Article 187(12) provides that “The salary and allowances payable to the Auditor-General, his rights in respect of leave of absence, retiring award or retiring age shall not be varied to his disadvantage during his tenure of office.”

Clearly, and contrary to Apostle Ahinful’s posit, these Articles of the Constitution are not referring to what disadvantage that those salaries or amenities might bring upon the national purse. They clearly refer to drawing back, reducing, decreasing, lessening, diminution or scaling down the amenities that are guaranteed to the respective recipients. Thus, although the said amenities may be varied, they can only be varied if the variation does not result in any reduction or diminution relative to the conditions stated in the said Articles of the Constitution. And one can appreciate the possible reasoning of the framers of the Constitution in making the payable pension and available facilities to ex-Presidents immutable and irreversible – so that a succeeding government cannot seek to punish or impoverish an ex-President by taking away his/her Parliament-determined and Parliament-prescribed payable pension and available facilities.

Lets look at some brass tacks. If Parliament has prescribed or determined a payable pension of ¢3,200 a month for an ex-President, reducing this to ¢3,199.99 would mean that the ex-President would be disadvantaged by ¢0.01. That would be unconstitutional because it would breach Article 68(9). If Parliament had prescribed or otherwise determined that ex-Presidents should use the Presidential lounge at the Kotoka International Airport in their travels, any change which compels them to use, say, the VIP lounge (when the Presidential lounge still exists), would be to their disadvantage, to the extent that the VIP lounge facility is of less comfort than what is offered by the Presidential lounge. That also would be unconstitutional.

It is definitely because of the irreversible nature of the payable pension and available facilities that the framers of the Constitution, in their wisdom, provided that Parliament must make the determination or prescription. Parliament was therefore expected, before it voted on any pension/facilities, to carefully deliberate and debate the matter. The last Parliament did not. Whenever a Parliament rushes to do a determination/prescription, they expose the good people of this country to this situation where our hands are tied and we cannot reverse something that, probably, the majority of us think is too extravagant. But for will or for woe, our Parliament has set down, laid down, fixed and imposed this, without any deliberation on the floor of the House (by their own admission). We are bound.

I have noted other arguments in opposition to my humble position, which suggest that once the ex-President has not been paid any pension yet, Article 68(9) is inapplicable, and that the package can be reviewed. I respectfully disagree. The specific wording of Article 68(9) does not support this contention. The words, once again, are as follows: “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime” [Emphasis added.] Read carefully, this provision clearly anticipates that the pension will become payable even whilst the beneficiary is still President. This is because Article 71(3) states considers the President’s “retiring benefits or awards”, i.e. “pension” as part of his salary, which is then absolutely guaranteed against reduction or diminution generally under Article 68(8) (whilst he is in office) and specifically under Article 68(9) (when he is out of office). If the pension becomes payable (i.e. the right to it accrues) even whilst the President is still in office, and is then guaranteed or protected against reduction or diminution even before the President leaves office and is yet to even make his first drawing of the pension, the argument that a variation can be lawfully made simply because payment of the first pension has not been made is, with utmost respect, not backed by the Constitution. I concede that the argument might sound attractive, because many are thinking of ways to reverse this package and to provide for a less pension package. But the answer to this argument lies in the wisdom of Professor AKP Kludze JSC’s already-quoted words that “express enactment shuts the door to further implication and speculation.” The words in the Articles quoted are clear and unambiguous, with absolutely no equivocation or vagueness. I respectfully do not see how any further inferences, propositions, assumptions, conjectures and suppositions can be made with respect to those words, so as to justify a review on the grounds advocated.

I also note that some MPs appear to have seen the error of their ways, after the fact, and now I hear and see MPs scrambling to find some procedural irregularity in the 6th January vote so as to provide a ground to void that vote. We truly live in interesting times. What has emerged, from where I stand, is that the only things that are alleged to have been ‘wrong’ with that vote was that the Parliamentarians did not discuss and debate the matter on the floor of the House or that it was not on the Order Paper for the day. May we ask the Honourable ladies and gentlemen of the House, whether matters that are to be discussed in closed-sessions are required to appear on the Order Paper? May we ask the same persons whether there is a rule of law or parliamentary practice that says that if a Parliament knowingly shirks its responsibility to deliberate a matter before voting on it, that vote can be voided on the ground of the non-deliberation?

So, what is the way forward? I can foresee three possible developments. First, Parliament will conjure up a ‘ghost’ procedural defect in the proceedings leading to the 6th January vote (e.g. that Parliament was inquorate), and therefore vote to void the 6th January vote. Second, we will leave the package as it is for it to be a painful reminder of what a Parliament can do to a nation when it is lulled or lured into a catnap and thereby abandons its responsibilities to the good people of the nation. Third, the ex-Presidents and the current President will refuse to take full advantage of the package and opt for less. Question: What do you call ex-Presidents and a current President rejecting or accepting a less-than-juicy package? Answer: A good start. We can then use the value of the remainder of the package to, for instance, provide classroom desks to public schools nationwide.

I end, still mindful of the good Apostle’s view that I all I might have succeeded in doing is to confuse the confusion. Maybe. But that is just my two-pesewa view, and I really do not expect everyone to agree with me. That would not be democratic.