It appears that voting “No” may not be sufficient if there is a referendum to amend Article 66, clause 1 of the 1992 Constitution, to extend the term of office of the President from four (4) years to five (5) years.
Those who may not favour the proposed presidential term extension may also need to ensure that the proposed amendment to Article 290, Chapter 25, is rejected.
The said Article 66 (1) makes provision for the term of office of the President under the 1992 Constitution by stating as follows:
“A person elected as President shall, subject to clause(3)[1] of this article, hold office for a term of four years beginning from the date on which he is sworn in as President.”
The Prof H.K.P Committee, per its report, is not only proposing to amend Article 66 clause one by extending the presidential term from four (4) years to five (5) years, but also to amend Article 290 of the 1992 constitution to make Article 66 clause 1 cease to be an entrenched provision of the constitution.
The 1992 Constitution, under Article 290 (1) (f), makes Article 66 (1) an entrenched provision by listing the entire Chapter on the Executive (Chapter 8), of which Article 66 is a part, as an entrenched provision.
Being an entrenched provision, there is a gamut of well-set-out procedures for amending the said provision, including but not limited to a referendum by the Ghanaian electorate.
However, if the proposal of the HKP Committee is accepted by the Ghanaian voter, Article 66, clause one would no longer be an entrenched provision and thus would not require a referendum to amend the same.
Where would that leave Article 66 clause 1?
The HKP Committee report proposes to reclassify the amendment after having reclassified the amendment provisions of the Constitution, which proposes an amendment to Article 290 of the 1992 Constitution.
The proposed amendment would effectively render Article 66 clause 1, among other provisions of the Constitution, non-entrenched provisions; amendable by a two-thirds majority of Parliament.
In other words, the votes of 184 members of Parliament would be all that is required to extend the President’s term instead of a referendum.
In the said report, after having proposed an amendment to Article 290 without any empirical evidence to justify the same, they proceeded to state as follows:
“The Committee recommends that only the following provisions, considered as forming part of the “basic structure” of critical democratic safeguards of the Constitution, should remain entrenched and amenable by referendum: Articles 1 to 4; Articles 12, 17, 21(1) and 23; Articles 57(1), 58 and 66(2); Article 93(2) and Articles 106(1) and (2); Articles 125 and 127; Article 42; Article 49(1); Articles 55(1) and (2); Articles 162(1) to (3); and a simplified Chapter 25 retaining only the core principles governing the constitutional amendment procedure. ”
From the afore-captured paragraph of the Committee’s report, it is obvious that unless or apart from the provisions afore stated, no other provision will be part of the entrenched provisions of the 1992 Constitution.
After having named their proposed entrenched provisions as afore captured, the Report then proceeded to introduce the new kid on the block; a third category of the provisions in the 1992 Constitution “SEMI- ENTRENCHED PROVISIONS”, by stating as follows:
“The Committee recommends that the following provisions should become semi-entrenched and be amendable only through an enhanced parliamentary procedure requiring the approval of not less than seventy-five percent of all Members of parliament: Article 11; the entirety of Chapter 5 other than Articles 12(1), 17, 21(1) and 23; Articles 43, 46 and 49(2) to (4); Articles 55 and 56 other than Articles 55(1) and (2); the entirety of chapter 8 other than Articles 57(1), 58 and 66; Articles 174 and 187; Article 129 and Articles 145 to 146; Article 200; Article 210; Articles 216 and 225; Article 231; Articles 240 and 252; Article 280; Article 286; and Articles 293 and 299.”
Clearly, from the afore-captured proposed Semi-Entrenched Provisions, the HKP Committee’s Report excluded the entirety of Article 66, including but not limited to Article 66 clause 1.
Having excluded the entirety of Clause 66 from the aforementioned Proposed Semi-Entrenched Provisions, it cannot be said that Article 66, Clause 1, which provides for the four (4) year term of office of the President, is part of the proposed Semi-Entrenched provisions.
What then becomes of Article 66 clause 1, having been left out of the Entrenched Provisions and expressly excluded from the proposed Semi-Entrenched provisions as demonstrated above?
The answer can be found in paragraph 9.2 on page 126 of the Report, where the committee states as follows:
“The Committee further recommends that all remaining provisions of the Constitution not listed as entrenched or semi-entrenched shall continue to be amended as non-entrenched provisions in accordance with the existing requirement of approval by not less than two-thirds of all Members of Parliament.”
The aforementioned paragraph of the report makes it clear that for a provision to be entrenched or semi-entrenched, it must have been listed as such.
Accordingly, once Article 66 clause 1 is not listed under either the entrenched or semi-entrenched provisions, it would be rendered non-entrenched, requiring a two-thirds majority of Parliament to amend the same.
Therefore, it is safe to conclude that, per its proposal, the HKP Committee is seeking to make Article 66 clause 1 of the 1992 Constitution a non-entrenched provision.
Effect of the proposal
Effectively, Article 66(1) in that circumstance can be amended, upon approval by 184 Members of Parliament, to extend the term of the President beyond 4 years.
So even if the 5-year term proposal is rejected at a referendum, an easier channel would have been created for the term extension by design or inadvertence.
The argument that such a development would not apply retrospectively and thus President Mahama cannot benefit from it is not compelling.
Read Article 107 carefully, and you will realize that it is not of general application but is limited to accrued rights of an individual.
