To Whom It May Concern - Presidential Press Release

Originally written on 13 February 2009

As usual, it was members of the press who first alerted me to a press release from the office of the President on the vexed issue of the ex-gratia awards. Within minutes of its release, I had received no less than 10 phone calls from radio and newspaper houses in Ghana, seeking my views on the development. I politely declined each invite to speak until I had had the opportunity to see the press release for myself and considered the law on the matter.

First, let us remind ourselves again, of what the constitution says. Article 71(1)(a) provides that “the salaries and allowances payable, and the facilities and privileges available, to (a) ... members of Parliament,... shall be determined by the President on the recommendations of a committee of not more than five persons appointed by the President, acting in accordance with the advice of the Council of State.”

Article 71(2) says that “the salaries and allowances payable, and the facilities available, to the President, the Vice-President, the Chairman and the other members of the Council of State, Ministers of State and Deputy Ministers, ... shall be determined by Parliament on the recommendations of the Committee referred to in clause (1) of this article.”

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.”

From the above, there are 2 different packages, although it is the same Committee which recommends both packages. But the Committee makes the recommendation of the package for MPs to the President for him to “determine” what it will actually be, acting with the advice of the Council of State. The Committee then makes the recommendation with respect to the package for the President, to Parliament for it to “determine” what the actually package will entail. But what is clear is that both the President and Parliament have the power to interfere in each other’s business where these are concerned. Parliament cannot seek to review the package that the President determines, although it affects them. In the same way, the President has absolutely no power to seek to review the package that Parliament determines, although he is a beneficiary under it. And that makes sense because the framers of the Constitution did not want any ‘cross-pollination’ in these matters. It surely makes sense to have and maiintain the processes separately and distinctly.

The package for MPs when they leave Parliament is further guaranteed by Article 114, which provides that persons, who serve in Parliament for any period of time, shall upon ceasing to be an MP be eligible for gratuity prorated to the period of service, as “shall be determined by the President, acting in consultation with the Committee.” Please note that the current phrasing of Article 114, particularly the pro rata phrasing, is an amendment from the original, and that that amendment was passed by the first Parliament under 1996 Republic of Ghana (Amendment) Act. Trust me, Parliament KNOWS how to take care of itself, even if it involves constitutional amendments!!

The obvious, next question is how is a thing “determined”, legally? In the 1978 case of Asor II v. Amegboe, the Court of Appeal interpreted the word “determine” to mean “no more than to decide.” I agree with that simple definition. So, what the President and Parliament are required to do under Article 71(1) and Article 71(2), respectively, is to simply decide, settle on or fix the packages for each other, not forgetting that the President is required to seek and obtain the Council of State’s advice on the matter.

So, how do the President and Parliament ‘determine’? For the President, this will be an act in the exercise of his executive authority, and for Parliament, it will be a legislative action.

Article 58 vests all executive authority of Ghana in the President, exercisable in accordance with the Constitution; and that authority extends to executing and maintaining the Constitution. The President may exercise this power directly or through his subordinates. Executive actions of government are expected to be expressed or taken in the name of the President, except as otherwise provided in the Constitution or by any other law. Thus the President exercises his function or power to ‘determine’ under Article 71, simply by taking any executive action in that regard. It stands to reason that there should be a document with the President’s signature or that of a duly designated ‘subordinate’, subject of course, to evidence of having sought and obtained the advice of the Council of State. Thus if no such document exists, and/or there if proof that the advice of the Council of State had not been obtained, then there has been no ‘determination’.

With Parliament, Article 102 requires a quorum of one-third of all the members, meaning 77 members out of the current 230. Under Article 104(1), generally, matters are “determined by the votes of the majority of the members present and voting, with at least half of all the members present.” There are also instances when Parliament acts by ‘resolution’. The votes required to pass a resolution vary, between a simple majority (e.g. ratification of treaties), through two-thirds majority (e.g. vote of censure of a Minister of State) to three-quarters majority (e.g. removal of the Speaker). It is my respectful view that the ‘determination’ required by Article 71 falls within Articles 102 and 104, so that all was required was a simple majority vote “with at least half of all the members present.”

Now the President’s Press Release. It is one of the most hilarious that I have read. Talk about clutching at straws!! As usual, l think that we appear to have missed the really critical portion of it. Let us hear the President: “...the Presidency has not seen any approval for the payment for Members of Parliament by the previous Government, while there is controversy over the approval of recommendations in respect of the Executive.”

Wait a second. Once the President 'determines' the package after the Article 71 Committee's recommendation, and the advice of the Council of State, there is no requirement of any subsequent "approval for payment".

Ladies and gentlemen, the President clearly and rightly identifies the two genres of packages in issue here: (i) the packages that require approval by the President (with Council of State advice), and (ii) the packages that require approval by Parliament. Having identified these, the President then grounds his current decision on two different factors: (i) with respect to the packages that require Presidential approval, he “has not seen not having seen any approval” by the previous government; (ii) with respect to the package that required Presidential approval, “there is controversy.”

Let us deal with the latter situation first. What controvery? The contrived and 'sexed up' claims involving people leaving the chamber to go and take a pee? What do politicians take us for? Look, absent any 'ghosted up' evidence about Parliament being inquorate on 6th January 2009, so that the vote was in breach of Articles 102 and 104, there is no controversy about Parliament determining the package for the President. And the President has no power to review Parliament’s decision on that day or cause it to be reviewed. This is a pointless exercise.

We might resolve the situation with the MPs’ package by asking the following questions: Did President Kufuor decide on the MP’s package under Articles 71 and 114 at all, and if so where is the evidence of it? Did President Kufuor obtain the advice of the Council of State, and if so where is the evidence of it? Is President Mills hinting that President Kufuor misled Parliament by sending them a package that he had not ‘determined’? What is the meaning of the President “has not seen [the] approval”? Were records not kept? Has the current Office of the President asked the past Office of the President whether or not the approval was given? Was this not a part of the torturous transition process that we went through? Would a simple phone call or demand for documents not resolve the matter as to whether or not the MPs package was duly ‘determined’? Are we saying that Asaga ‘authorised’ the payments in vacuo, when he had not seen any documentary evidence of the Presidential ‘determination’? And anyone wants us to believe that Asaga was acting alone?

It is important to obtain responses to the above questions because if there is no valid ‘determination’, and then President Mills can pretty much vary the MPs’ package without being in breach of either the Constitution or any contract between the State and the MPs.

The reality is that unlike the package of the Presidents, which has constitutionally-guaranteed immunity from reduction, there is no such express constitutional protection for the MPs’ package. That might be because unlike the Presidents who enjoy a continuing pension, the MPs package is a one-bullet payment, and the Constitution did not anticipate a situation where between ‘determination’ and payment, another President would seek to vary the package. So, the MPs might have a cause of action, alleging that upon the valid determination of their package by President Kufuor, their right to it accrued, i.e. it accumulated to their credit. Thus the fact that they have not actually received and drawn on their cheques does not change the fact of the accrual of their right to it. The effect then is that the President cannot unilaterally seek to alter that accrued right.

So, do we want a fight in court over this matter? The President says he is setting up another Article 71 Committee to review the package, but has offered something in the interim. Is that what should happen? Let me reiterate my humble view that the President has absolutely no right to seek a review of the packages that Parliament is required to approve by the Constitution, to wit, the respective packages of the President, Vice President, Chairman and members of the Council of State, and Ministers and Deputy Ministers. Thus whatever review he seeks only applies to the packages that require Presidential ‘determination’, particularly, that of the MPs.

But we need to ask more questions of the President: Sir, have you received anything under Chinery-Hesse, for instance the new salary? This is because the President will be in a very difficult situation if he is shown to be drawing the new conditions whilst seeking to review that of others. But I trust that President Mills will not make that mistake.

I do not think that the MPs deserve a whole lot of money on account of their having gone to sleep on the job 6th January 2009, high on the opium of just the sight of what President Kufuor had determined for them; as they have now admitted. I think the way forward is for all sides to be prepared to compromise and to enter into negotiations to amicably resolve this matter so that the nation can move forward. The unilateral actions by the President will not work. It will simply defer the inevitable. Or, the President is just tempting a court action so that he can say that it was the court that forced him to pay. POLITICS!! We have all learnt lessons? Will a reasonable compromise will serve us all, in the hope that we do not repeat such mistakes in future? The answers, my friends, are cying in the wind. If we sow the wind, we will reap the whirlwind.

Yours in the service of God and Country

Kojo Anan

ps. pardon my typos. I have been typing since 2am, Colorado time.