ghana news Two vacancies too loud to ignore

Our Constitution provides for basic rights and responsibilities.

It maintains that there can be no freedom without a corresponding duty or obligation.

For the media, it offers fundamental freedoms and guarantees independence and restraint from censorship.

While Articles 21(1) and 162 (1)- (4) provide freedoms, Article 41 and 162 (5) establish obligations.

For the media, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) maintains that freedoms and responsibilities are complementary, as the demand for responsibility without freedom makes it impossible, while the enjoyment of freedoms without performance of obligations renders the freedom useless.

Based on this philosophy, and given that the media are the only non-state actors expressly called upon by the 1992 Constitution to uphold its principles and hold the three arms of government — the Executive, the Legislature and the Judiciary — accountable under the principle of separation of powers, my plea to the media and media practitioners is not to sit idle.

Rather, they should take up the responsibility of demanding that the President appoint a former Chief Justice to the Council of State to replace Her Ladyship Sophia Akufo, who resigned from the Council in November 2025.

They should also demand that Parliament declare the Asante Akyem North Constituency vacant to enable its people to elect a new Member of Parliament to represent them.

It is not for nothing that in listing the members of the Council of State, it starts with a former Chief Justice appointed by the President from among former living Chief Justices.

Indeed, the authority and power of the President to appoint former officials from mandatory public offices that must have representation on the Council of State is circumscribed.

Article 89 provides that “(1) There shall be a Council of State to counsel the President in the performance of his functions” and “(2) (a)(i) the Council of State shall consist of the following persons appointed by the President in consultation with Parliament, one person who has previously held the office of Chief Justice.

Members serving on the Council of State could resign by writing personally, signed and addressed to the President (Article 89 (5) (a).

Alternatively, they can be removed from office in line with (6), stating that “The appointment of a member of the Council of State may be terminated by the President on grounds of stated misbehaviour or of inability to perform his functions arising from infirmity of body or mind and with the prior approval of Parliament”.

Thus, although there is no express constitutional provision prescribing how long it should take to fill a vacancy on the Council of State, the period between November 2025, when the resignation occurred, and now is more than reasonable for the office of a former Chief Justice to remain vacant.

More importantly, the Constitution expects decisions relating to governance to be taken within reasonable periods.

We must, therefore, not allow that august office to remain unoccupied for years, particularly when the framers of the Constitution deliberately provided for a former Chief Justice to serve on the Council of State, rather than simply any Justice of the Supreme Court.

They must have had a specific reason for making that distinction.

Turning to Parliament, Article 97 contains elaborate provisions on the circumstances under which a Member of Parliament may vacate his or her seat.

Under Article 97(1)(c), a member may vacate his or her seat if he or she is absent, without the written permission of the Speaker, from 15 sittings of a meeting of Parliament during any period when Parliament has been summoned to meet and continues to meet, and is unable to offer a reasonable explanation for the absence to the Parliamentary Committee on Privileges.

Article 97(1)(e) also provides for the vacation of a parliamentary seat where circumstances arise that, if the person were not a Member of Parliament, would cause him or her to be disqualified or rendered ineligible for election under Article 94 of the Constitution.

The Member of Parliament of Asante Akyem North was arrested in Europe on or about May this year.

While it could be argued that our jurisprudence is underpinned by the philosophy that a suspect is presumed innocent unless convicted by a court of competent jurisdiction as guilty of a crime, many times on the floor of Parliament, our MPs have, without restraint, denounced suspects and called them names.

We cannot thus create an exception for any of our MPs who are arrested or charged with a criminal offence. In a situation where a by-election could be held to fill a vacant seat for a period of more than four months towards the end of the tenure of Parliament, the period from May, when the MP was arrested, till date is beyond reasonable for a constituency not to have a voice representing them in Parliament.

It is worthy to note that the charges made against the MP are so serious that, if proven, it cannot be deemed reasonable to continue to deny his constituents a voice on the floor of Parliament.

It cannot be that we are going to tolerate technicalities about a non-conviction to protect an MP, who was not arrested for defending the national interest but for personal reasons.

The provisions of Article 97(c) cannot and must not be invoked to defend the MP.

The other option of Article 97(e) must thus be invoked by Parliament to declare the Asante Akyem North seat vacant.

Even if the law favours the MP, we must move beyond the law into ethics and morality.

The call upon both the President and Parliament to act decisively by filling these two important vacancies within the Council of State and Asante Akyem North constituency may be lacking certainty in law since the Constitution is silent on the maximum time periods that such deficiencies could persist, but there must be room for discretionary power to be exercised.

Article 296 of the Constitution of the Republic of Ghana,1992, states that, ” Where in this Constitution or in any other law discretionary power is vested in any person or authority, (a) that discretionary power shall be deemed to imply a duty to be fair and candid” and ” (b) the exercise of that discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”.

In the case of the former Chief Justice as a member of the Council of State, Article 89 places the discretion on the President and Parliament thus, “(2) the Council of State shall consist of ” (a) the following persons appointed by the President in consultation with Parliament” while in the case of the MP, Article 97 places the authority and discretion on the Speaker and the Parliamentary Privileges Committee, stating that a member shall vacate the seat “(1)(c) if he is absent, without the permission in writing of the Speaker and he is unable to offer a reasonable explanation to the Parliamentary Committee on Privileges from fifteen sittings of a meeting of Parliament during any period that Parliament has been summoned to meet and continues to meet”.