On December 7, 2016, Ghanaians, for the
seventh time in the Fourth Republic, exercised their franchise in a general
election to elect their parliamentary representatives and a president for the nation.
This year’s elections and conceding of defeat have not only consolidated our
democracy but has seen demonstration of maturity across all divide,
evidenced by the generally peaceful, free and fair elections.
We, however, witness some fascinating happenings being first time
happenings particularly with respect to our presidential elections. Among these
were (i) over a million vote difference between the winner (New Patriotic Party
-NPP) and the first runner up (National Democratic Congree - NDC) in the
presidential election (ii) an incumbent government lost the presidential
election without a run-off and more importantly (iii) an incumbent president having
to serve one term and losing to an opposition leader.
Coming events, as the cliché goes, casts their shadows. Already, even
before the transition on the January 7, 2016, there are speculations of the second coming of President John Mahama. And for that reason, many in their guesstimate
wonder whether on his second coming, he could stay in office for only a term or
could contest for another term after that.
The question that has become relevant at this point in time is whether
or not the two term office limit imposed by the 1992 Constitution of Ghana on President in Ghana are aggregate or
continuous? Aggregate terms means that notwithstanding any break, an additional
term to the one term already experienced ends the matter. On the contrary,
continuous terms mean that the terms must be successive, a break nullifies the
former term. This means the two terms must be consecutive.
On the terms limit of Presidents:
Article 81 of the Constitution of the Russian Federation provides that:
1.
The President of the Russian Federation shall be elected for four years by
citizens of the Russian Federation on the basis of universal, equal, direct
suffrage by secret ballot.
…
3.
One and the same person may not be
elected President of the Russian Federation for more than two terms running.
[My emphasis]
On same matter, the Twenty-second Amendment of the United States Constitution provides that in
Section 1 that:
No person shall be
elected to the office of the President more than twice and no person who has held the office of President, or acted
as President, for more than two years of a term to which some other person was
elected President shall be elected to the office of the President more than
once….[My emphasis]
The
Ghanaian position is contained under article 66(2) of the 1992 Constitution.
This provision has some historical antecedent in the 1979 Constitution under article
53. Despite sentential disparities, the two provisions are similar. In essence,
the two provisions can be collapsed into one, i.e. provision under the 1992
Constitution. Article 66(2) states that:
“A person shall not
be elected to hold office as President of Ghana for more than two terms.” [My emphasis]
When the above constitutional provisions are
compared, there are surely some key things to be noticed. First, it is observed
that the Twenty-second Amendment of the United States Constitution
prohibits assumptions into the office of the president for more than two times.
This provision renders questions of continuous terms irrelevant.
Once a person has served in the office of the president before for a term, he
has the opportunity to be elected only for another term. Here, the terms are
aggregate; they add up.
Secondly, unlike the case of the United States, the Constitution of the
Russian Federation says that “One and the
same person may not be elected President of the Russian Federation for more
than two terms running.” Understandably,
there has to be two running terms for same person to become ineligible to
contest for the office of the president. It follows that in the absence of
consecutive terms, the person who has served for two terms with a break between
the first and the second can serve additional term(s). The terms must be
continuous.
It appears that that of Ghana is no different from that of the United
States. “A person shall not be elected to hold
office as President of Ghana for more than two terms.” The 1992
Constitution of Ghana is explicit on the matter. The presidency can be occupied
by a person as president for only two terms and these terms need not be
continuous, they may be aggregated. In
other words, whether the terms be a continuous or an aggregated two terms, once
it can be said that a person has served two terms that is the end of the
matter.
In sum, an incumbent president may be re-elected to serve another term
as president of the Republic of Ghana. But this re-election need not be continuous
for the two term limit imposed by article 66(2) of the 1992 Constitution of
Ghana to be met. Aggregated terms of two terms is come what may still two
terms. In essence, should President Mahama contest any future election, which
he wins, he would be eligible for just a term – four (4) years more.
Notwithstanding the above, this opinion does not detract from what the Justices of our Supreme Court may say on the matter should they be called upon to interpret the provision some day in the near future. For the law rests gremio judicium, in the bosom of the judge.
Notwithstanding the above, this opinion does not detract from what the Justices of our Supreme Court may say on the matter should they be called upon to interpret the provision some day in the near future. For the law rests gremio judicium, in the bosom of the judge.
