January 22, 2018
Press Release to all media
In recent days there has been a heated debate whether or not the swearing in of the Speaker of Parliament by the Chief Justice in altering the Presidential Oath was nullity.
There is no doubt and/or not an issue that the swearing in itself was legal. Article 60(11) of the Constitution, 1992 stipulates that;
“Where the President and the Vice President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice President is able to perform those functions or a new President assumes office, as the case may be”.
In the case of Asare v Attorney-General [2003-2004] 2 SCGLR 824, the Supreme Court said,
“The purpose of the framers of the Constitution was to ensure that whoever exercises the functions of the President is physically present in Ghana”
The effect of article 60(11) and the interpretation of the above case by Supreme Court laid to rest that there should be a physical person present in Ghana.
After setting the premise, the Center will go ahead to deal with the substantive issue at hand. That is; Whether or not the Chief Justice has the power to alter portions of the Presidential Oath to swear in the Speaker of Parliament?
Article 60(9) of the Constitution, 1992 the Article used the words, take and subscribe the oath set out in the Second Schedule to this Constitution in relation to the office of President. That is in the case of Vice-President. However, in the case of the Speaker of Parliament, the Constitution omitted the mentioning of the Schedule and only used in relation to the office of the President. As stated in Article 60(12) of the Constitution, 1992.
The Question here is; what is in relation to? In the case of FEDYAG v Public Universities of Ghana  SCGLR 265@292, we are schooled to understand the phrase in relation to, to mean that the provision in question has an implied application and not a direct application. An implied application allows a tempering of the provision to achieve the purpose for which the circumstances require.
Another principle to consider in addressing this issue is the so called Generalia Specialibus non Derogant rule that is general provisions cannot derogate from specific provisions. It will be sound to conclude that in absence of specific provision one shall be justified to apply the general rule. It is the case that there is no specific presidential oath in question that is in relation to the Speaker when he has to act as president in the country. To avoid a deadlock, the CJ is right to apply a general form of oath that takes into consideration the essence of the substance in the presidential oath as set out in the second schedule of the Constitution. The speaker has not been elected by the people of Ghana as president, he has been asked by the people of Ghana to act in the absence of the president in Ghana as per article 607 (11) of the constitution. Chief Justice cannot be justified to have sworn him in as acting president by reciting that he has been elected. That would have amounted to telling a lie.
From the analysis supra, the Center is of a view that the Chief Justice was right to alter or temper with the Presidential Oath to suit the occasion.
Solomon Osei Fosu
Center for Constitutional Order