Ex-Gratia - Mills’ Suspension of the Package is Ultra Vires and Unconstitutional

Introduction

1. This piece is in fact long overdue. I was asked by many colleagues and friends to provide my opinion on the ex gratia package recommended for the former President, Mr. Kufuor. I failed to do so; given the busy schedule I had to manage at the time the package got into the public domain. Nevertheless, I do recall mentioning to a few colleagues and friends that Mr. Kufuor was entitled to the recommended package. At the time of making those statements, I was unaware of the constitutional provisions making that possible. I relied solely on the authority of Parliament to make laws which become binding once they have received assent. I read numerous articles on the issue as well as comments individuals posted regarding the package. It was unfortunate to see how personal some individuals responded to these articles. Even worse, these individuals referred to Mr. Kufuor as an extortionist who had the sole intention of defrauding the country. I was saddened by such comments for many reasons. But the only reason which pervaded my sadness is as follows.
   
2. Mr. Kufuor in his capacity as the President did not reward himself with the ex gratia package. A committee was set up to look at what befitted a former President (including all former Presidents). The recommendations of the committee were then sent to Parliament for approval. Parliament approved the recommendations which then had legal effect. The reason for bringing this up is that, Parliament could have rejected the recommendations of the committee if it thought they were unreasonable. But Parliament did not. Instead, Parliament approved the recommendations of the committee thereby giving it legal effect.
   
3. Parliament is representative of the people of Ghana. Members of Parliament are elected through parliamentary elections to represent their constituencies in Parliament. I do not intend to educate anyone on election processes except I am only reminding readers of who sits in Parliament. The electorates send MPs there to represent their interest. Anything done in Parliament by the MPs is done on behalf of the electorate. As a result of that reasoning, the MPs by approving the recommendations were doing so on behalf of the electorate. Hence, the name calling of Mr. Kufuor was unnecessary and in any event, the electorates should have held the MPs they sent to Parliament to represent them accountable for approving the recommendations.
   
4. Having explained the reason that pervaded my sadness, I remember making a comment along the lines of the aforementioned that since Parliament had approved the package; Parliament had the exclusive authority to repeal it. I never went into the details of that statement but I hope to do so in this opinion. I also recall some legal practitioners arguing along the same lines but none of them explained the reasons underlying their arguments.
   
5. In any event, I have now had the opportunity to assess the legal implications and constitutionality of the actions of the current President, His Excellency Professor John Evans Atta-Mills. One question that I faced was: why hasn't Mr. Kufuor claimed what he is entitled to by virtue of the Chinery Hesse ex gratia package? I could come up with only one answer which makes sense to me. And that is Mr. Kufuor is being the gentleman that he is in giving the new administration time to find their feet before he makes any demands on his entitlements. Mr. Kufuor himself, I recall, referred to the contents of the ex gratia package as unreasonable. Such modesty as it may be viewed is not enough and is irrelevant to the issue that has a risen as a result of the Chinery Hesse Report.
   
6. There was a public outcry when the details of the ex gratia package got into the public domain. This in fact caused former and current MPS who contributed to the approval of the recommendation to take a rather adverse stance. Eventually, Prof. Mills suspended all and any payment of gratuity to any beneficiary under the Chinery Hesse Report. It is my understanding, based on reasonable information, that some former MPs withdrew their salaries under the package before Prof. Mills' suspension was announced. Nonetheless, this opinion will focus on the suspension of gratuity payments to Mr. Kufuor.
   
7. At this point, I find it necessary to stress that this opinion is entirely legal and is in no way whatsoever influenced by any political ideology or affiliation. It is not politically biased or indeed biased except to the extent of the arguments raised to persuade the reader that the foregoing act of Prof. Mills is ultra vires and unconstitutional. The 1992 Constitution of the Republic of Ghana is the relevant legal framework for the arguments below and all articles mentioned herein are in reference to the 1992 Constitution unless otherwise stated.
   

Arguments

The Suspension is inconsistent with the 1992 Constitution

1. At present, it is or should be common knowledge that the President on leaving office receives gratuity payments for his service to the nation. This is enshrined in the Constitution. Unfortunately, when members of the public refer to the Constitution in light of the gratuity package, they mention Article 71 which deals with who determines the salaries and allowances payable, and the facilities and privileges available to the President. This article also deals with salaries and allowances payable and the facilities and privileges available to MPs, Speakers of Parliament, members of the Council of State, Ministers of State and other significant public servants mentioned in that Article.
   
2. As mentioned earlier, this opinion intends to focus on the ex gratia package in relation to Mr. Kufuor – the ex President. For that reason, the relevant part of the Constitution is Article 71(2) which states 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, being expenditure charged on the Consolidated Fund, shall be determined by Parliament on the recommendations of the committee referred to in clause (1) of this article." For the purposes of Article 71, and except as otherwise provided in the Constitution, "salaries" includes allowances, facilities and privileges and retiring benefits or awards – See Art. 71(3).
   
3. Interpreting Clause 2 in light of Clause 1, Parliament is the only body charged to determine salaries and allowances payable, and the facilities available to Mr. Kufuor on the recommendations of the committee. Prof. Mills can only determine the salaries and allowances payable, and the facilities and privileges available to MPs, Speakers of Parliament and the public servants mentioned in Clause 1. The context of this power is different from the power that Parliament has in Clause 2. Also, it should be distinguished from Prof. Mills' power to appoint the five person committee in accordance with the advice of the Council of State. Prof. Mills does not have the constitutional power to determine "salaries and allowances payable, and the facilities available" to Mr. Kufuor.
   
4. Instead, the only role the President has in the determination of the "salaries and allowances payable, and the facilities available" to the President is selecting the five person committee which makes recommendations to Parliament. I believe the rationale behind this is to prevent the President from awarding himself exorbitant salaries and allowances and making available to himself, luxurious facilities. In this case, the Chinery Hesse Committee was set up to recommend gratuity payments befitting a former President. The Committee then made recommendations to Parliament in the Chinery Hesse Report which was subsequently approved by Parliament in accordance with the Article 71(2).
   
5. So far, all that has been discussed is relevant to the "salaries and allowances payable, and the facilities available" to the President. Mr. Kufuor is no longer the President so how does this apply to him? With regards to Mr. Kufuor, the pertinent constitutional provision is Article 68; which I urge anyone reading this opinion to take a look at thoroughly. Article 68(3) reiterates the above analysis of Parliament's power to determine "salaries and allowances payable, and the facilities available" to the President.
   
6. According to Article 68(4), on leaving office, the President shall receive a gratuity in addition to pension, equivalent to his salary and other allowances and facilities prescribed by Parliament in accordance with clause (3) of this article. Thus, Mr. Kufuor is entitled to the contents of the ex gratia package under this article. It is my opinion that this Article gives Mr. Kufuor a constitutional ground for instituting legal proceedings against the current administration for not honouring the contents of the Chinery Hesse Report thus far.
   
7. There is an argument that the use of the words "payable" and "available" in Article 71(2) imply that the ex President has no right to the salaries, allowances and the facilities until the present administration decides to take steps with the view of honouring the contents of the ex gratia package. There is also the argument that Parliament has to determine when the ex gratia package will be available to the President. Both arguments, in my opinion are flawed and unconstitutional.
   
8. The wording of Article 68(4) begins with "on leaving office" which simply refers to the day the incumbent President ceases to be the President. In this case, the Seventh day of January 2009 was the day Mr. Kufuor ceased to be President; as Prof. Mills was sworn in as the third President of the fourth Republic of Ghana that day. Mr. Kufuor has been entitled to the contents of the Chinery Hesse Report since then. I am unaware of any implementation date set by Parliament as to when the Chinery Hesse Report is to have legal effect. Nevertheless, if there was or is such a date, it will be inconsistent with Article 68(4) which entitles Mr. Kufuor to the contents of the Chinery Hesse Report "on leaving office".
   
9. Article 68(8) states that "the salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office." Therefore, as Mr. Kufuor is no longer in office, the "salaries and allowances payable, facilities and privileges" can be varied to his disadvantage. However, Article 68(9) stipulates that "the pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime." Thus, the contents of the Chinery Hesse Report can be varied; save for any pension payable to Mr. Kufuor and the facilities available to him cannot be varied to his disadvantage during his lifetime. Any attempt to do that will be inconsistent with the Constitution.
   
10. In the process of writing this opinion, the Council of State was sworn in; and Prof. Mills immediately directed them to review and work on the Chinery Hesse report. The Council of State's role in the ex gratia package is to advise the President in appointing the five person committee which recommends the package to Parliament (See Art. 71(1)). Therefore, the Council of State does not have a constitutional basis to review or work on the Chinery Hesse report. Any such review or work is unconstitutional and ultra vires. Thus in my opinion, the direction is inconsistent with the 1992 Constitution.
    
11. There is the argument that under Article 90(1), a bill which has been published in the Gazette or passed by Parliament shall be considered by the Council of State if the President so requests. In so far as this appears to be similar to Prof. Mills' direction above, it is not. Firstly, this provision does not relate to gratuity payments where the President and the Council of State are constitutionally barred from direct involvement in the determination of gratuity payments to the President. Secondly, once a bill receives assent, it becomes an Act and is subject to review by the Judiciary only (this is thoroughly elucidated hereinafter). In view of the foregoing, Article 90(1) does not validate Prof. Mills' direction.
    

The Suspension is inconsistent with the Concept of Separation of Powers

1. A model well known and popular discussed in Constitutional Law is the concept of Separation of Powers. This model is often traced to Baron de Montesquieu, a French enlightened political philosopher. It simply requires powers of a State to be vested in three separate branches: the Legislature, the Executive and the Judiciary. The framers of the 1992 Constitution adopted this concept and entrenched it accordingly in Chapters 8, 10 and 11 of the 1992 Constitution. By so doing, each branch of the State acts as a check on the others; thus fulfilling the simultaneous concept of Checks and Balances. The legislature is responsible for enacting the laws of the State. The executive implements the laws passed by the legislature and the judiciary adjudicates by interpreting the enactment and implementation of the law.
   
2. There are some situations where the responsibilities of the three branches overlap. The executive may legislate by enacting regulations or rules but can only do so if the legislature has permitted it to do by enacting an enabling or parent Act. The executive may also adjudicate when it sets up a board or commission to deal with the complaints of aggrieved persons. The judiciary legislates through case law and some members of the legislature are usually in the executive especially in the case of Ghana. I just needed to point that out before getting into the substance of the argument.
   
3. Prof. Mills as the president is a member of the executive branch of the State. Thus his responsibilities are to govern Ghana by implementing the laws passed by parliament through his administration. He does not have the right to interpret the Constitution per se nor to legislate or pass laws. In responding to the public outcry, Prof. Mills suspended all and any payment of the ex gratia package to Mr. Kufuor. It may sound like the politically correct thing to do but my question is and has been throughout this opinion is whether it was legally correct for him to do that. In addition to suspending the payments, Mr. Mills announced that he will review the package. It can therefore be implied that this review will result in amendments to the package in order to appease the public who were appalled by the contents of the ex gratia package.
   
4. Prof. Mills as the executive had no role in suspending a report approved by Parliament as by so doing, he was adjudicating by interpreting the law passed by the legislature. This is clearly inconsistent with the concept outlined above. What the new administration should have done and perhaps, should do is petition the Supreme Court to declare Parliament's approval of the package null and void. In my opinion, it would be difficult to prove that Parliament's approval was inconsistent with the constitution. As per arguments mentioned above, it is Parliament's constitutional role to approve recommendations by a committee set up to determine the President's salary.
   
5. Also, he had no role in legislating which will be exactly what he will be doing if he attempts to amend the ex gratia package recommended by Parliament. It is probable that he will set up a committee to carry out this review and possible amendment. The position does not change if such is the case as the executive will still be legislating through the amendment. Alternatively, it can be argued that the amendments can be introduced in Parliament on behalf of the executive and this is constitutionally permitted (See Art. 108). However, this does not take care of the fact that suspending the package in the first place was inconsistent with the concept.
   
6. Furthermore, Parliament is the only body that can change or repeal prior laws. It usually does this by passing new laws to expressly repeal the old one or expressly changing the old laws. Parliament must also legislate as permitted by the Constitution. Thus, Parliament cannot pass any law which is inconsistent with any Constitutional provisions. If Parliament passes a law that is inconsistent with the Constitution, the Supreme Court has the authority under the Constitution to declare such legislation unconstitutional and invalid. Accordingly, Parliament is the only body that can amend or repeal the ex gratia package in addition to being the only body under the 1992 Constitution that can determine the "salaries and allowances payable, and the facilities available" to the President (See Art. 71(2)).
   
7. Another key issue worth noting is that once a Bill of Parliament goes through all stages and subsequently receives Assent, questions as to the process of its passage are irrelevant. In other words, where a Bill of Parliament becomes an Act of Parliament, questions such as how it was introduced in Parliament, the debates that took place or how it was analysed by a committee is irrelevant to the validity of that piece of legislation as an Act of Parliament. It can only be challenged as being inconsistent with the Constitution.
   
8. It has been argued by some members of the public that because the recommendations were introduced rather late and received approval on 6^th January 2009, it is invalid. It is also argued that the package cannot be held to be binding because MPs did not properly debate the contents of the recommendations. Taking into account the issue I have just explained, these arguments are irrelevant. As long as the recommendations were approved by a properly constituted Parliament which seemed to be the case here, questions to the validity of the package, in my opinion, are irrelevant.
   

Conclusion

1. In my humble opinion, Prof. Mills acted ultra vires when he suspended all and any payment of gratuity to Mr. Kufuor. He had no constitutional basis for instituting such an action hence the suspension was and is unconstitutional. Prof. Mills exceeded his powers thereby subjecting the suspension to review by the Courts. As mentioned above, I wonder why Mr. Kufuor has not commenced legal proceedings to challenge the acts of Prof. Mills. As modest as he may be in thinking the package was and is unreasonable, there is a serious constitutional question that needs to be addressed.
   
2. The President and for that matter the executive should know what it can and cannot do. They should not be allowed to take actions which are inconsistent with the constitution and beyond their powers. The citizens of Ghana were quick to cry foul when details of the ex gratia package were made public. Yet, they have ignored and failed to question the unconstitutional way Prof. Mills has handled the situation in relation to Mr. Kufuor's gratuity. The average Ghanaian could have challenged and can still challenge Prof. Mills' suspension of the ex gratia package in relation to Mr. Kufuor.
   
3. All that needs to be done is for a citizen of Ghana to file a motion at the Supreme Court to challenge Prof. Mills' action on the grounds that his actions are ultra vires and unconstitutional. The Supreme Court shall have jurisdiction to hear the case because it involves the President of Ghana as a party in relation to issues of constitutionality (See Art. 130 (1) of the 1992 Constitution). Secondly, the average Ghanaian will have standing to file the motion by reason of being a citizen of Ghana. Thus, I hope the arguments I raised in this opinion will persuade any one of its readers to institute legal proceedings on the grounds echoed throughout this opinion.
   

Written and Edited by Kow A. Essuman Esq. LL.B. Hons, Barrister. All comments, corrections and contributions should be sent to kaessuman@yahoo.com.

This opinion is based on the thoughts and observations of Kow A. Essuman Esq. LL.B. Hons, Barrister. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.