INTRODUCTION In Ghana our sitting President is the Republic. He is not subject to contempt. He is not subject to Injunctions when invoking the executive authority…
In Ghana our sitting President is the Republic. He is not subject to contempt. He is not subject to Injunctions when invoking the executive authority. He is equally not subject to any law or person except what the Constitution, 1992 says. The 1992 Constitution says he should not consult anybody, persons or political parties or religious leaders. The Constitution says only the Council of State should be consulted when making appointment of electoral commission commissioners.
As enjoined by the Constitution, the President has presented four names to the Council of State for their advice so those four nominees be appointed for the positons of chairperson, two deputies of the chairperson and a member of the Commission. Many voices demand consultation. Others say the President is barred from making the appointment in the first place due to a pendency of an interlocutory injunction before the highest Court of the land, Supreme Court. Both positions are assertions in complete defilement of the constitutional order. And these are our reasons.
May it not be repeated that as a country, we run our affairs on the law and the policies of the land. We do not run this country by the voices of thirty million souls on every national issue. The law on the appointment of Commissioners of the Electoral Commission is in the manner infra:
Article 58 (1) of the Constitution, 1992 stipulates that:
“The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution”.
It is further stated under Article 43 (2) of the Constitution thus:
“The members of the Commission shall be appointed by the President under article 70 of this Constitution”.
And the said article 70 (2) of the Constitution reads:
“The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen and other members of the Electoral Commission”
There is nowhere in these constitutional provisions mentioned supra that the President ought to have consulted any person, political or religious or just another man, before exercising the powers of the executive authority in this appointment.
INJUNCTION AGAINST THE PRESIDENT
An injunction against the President is an Injunction against the Republic as stated above. So on the issue of the appointment whiles an interlocutory injunction application subsists before the Supreme Court, without prejudice to any of the reliefs sought by the Applicant, this Center says, with respect to the said application, there is nothing before the Supreme Court because Supreme Court itself has no power to grant the said application whatsoever. This is a settled matter and no man born in Ghana and lettered in the law would ever issue and or file such a motion.
Indeed, the case of Akuffo-Addo v Quashie-Idun  GLR 667 dealt with a similar matter when some good lawyers of the land in 1960s sought to prohibit the sitting Chief Justice from exercising constitutional authority vested in him and no other, to empanel judges to determine a matter the said lawyers had brought against the Chief Justice himself. In dismissing the injunction application against the Chief Justice, the Court held @ 676 of the report thus:
“….. where these actions are brought whatever be the remedy sought, an injunction should not be granted against the public officer if the effect of the order would be to restrain the Republic itself”
The Court went further to say:
“The court has no power to grant an injunction against the Republic itself in an action brought directly against the Republic…
“The function of the Chief Justice was to constitute benches of the Court of Appeal. As long as he remained in office and in the country he performed that as part of his administrative duties…..Where a statute enjoined a person to perform an act he had to do it even if its performance conflicted with the strict rules of natural justice”
It is thus the law that no injunction could be granted by the Supreme Court against the President. The only remedy available to such Applicant is to cite the President for contempt which remedy the President is not subject to. In addition, the President is not liable to proceedings in any court for the performance of his functions, or any act done or omitted to be done, or purported to have been done or purporting to be done in the performance of his functions, under the Constitution or any other law. So article 57 (4) of Constitution, 1992 asserts.
The President in the performance of his function is subject only to the Constitution and as seen above, he is not under any obligation to consult anyone other than the Council of State. He also cannot be injuncted or barred from the performance of his constitutional mandate. Let the voices be mute and the array of demands slumber for they have no potency to stand awake.
By: Centre for Constitutional Order