The recent power scrimmage brought about by the anti-LGBTQ+ bill has brought to question the role of the Executive arm of government in the law-making process of Parliament, especially in bills that have been generated from the Parliament.
Constitutionally, the role of the President in the law-making process of Ghana is to assent to a bill, to make it law, or refuse to assent to the bill in question. However, the constitution states that the President must explain in a memorandum the reason for his refusal in fourteen days.
The Executive’s role in lawmaking is mainly to ensure that Parliament does not make laws that are not reflective of the wishes of the general public. Therefore, the role of the Executive in the law-making process is largely administrative as the President’s assent to a bill is not the only means of passing a bill into an existing law.
The 1992 Constitution also provides for Parliament to pass a bill into law without the assent of the President through a two-thirds vote in situations where the President has made known his reasons and the bill has been sent to the appropriate committee for review.
The involvement of the Executive in law-making is that the Executive, as the law enforcement or implementation body, has the opportunity to inform and educate Parliament on the viability of the bill and suggest probable criticisms that Parliament can either accept or decline.
Ultimately, it can be argued that the President’s role in the law-making process is perfunctory and a means provided by the Constitution to ensure Checks and Balances in making laws.
“The expectation of Article 106 is that when Parliament passes a bill, the Executive may assent to the bill or may refuse to assent to the bill… In the back and forth between them, ultimately Parliament wins. When Parliament refuses to change anything in the bill for the third time, Parliament can pass the bill without the Executive. From that angle, the Executive’s Participation in law-making is administrative, it is not that substantive; it can’t defeat the legislative authority of Parliament”
Esq. Ernest Kofi Abotsi
‘Justice Is Blind’ Not To Be Applicable To All Cases
However, as the current gridlock between the Executive and Parliament has no precedence to fall on and no provision by the constitution to guide it, the court’s decision may likely hold the ultimate power in this situation.
Given how court proceedings are conducted in the country, it is unlikely that the court will pass verdicts on both suits soon enough for the Parliament to resume its operations; a situation which is bad for both Parliament and government business.
Both parties in the suit however can ask for expedited hearing on the suits to ensure that the Parliament and government business returns to normal, for it is perilous to halt business until the court decides on the issues.
Presently, not only the vetting and approval of ministers has been halted, but there is approval for government expenditure and loans which without Parliament’s approval will affect the government’s operations severely.
More so, what is even more disastrous about this is the tendency of the government and its agencies and institutions to make expenditures without approval from Parliament and seek retrospective approval later, a situation which is bad for Ghana’s vulnerable finances.
Furthermore, the present tussle between the two arms of government revealed some weaknesses in the judicial system that need urgent fixing. The judicial system uses the ‘Justice Is Blind’ approach – which treats every suit equally – in attending to cases.
“Our Supreme Court must also begin to look at some things. There must be a way of treating some of these cases with some level of urgency rather than letting them lie down just like any other ordinary case. If we want to hold the principle that an application for an injunction is enough to stop a constitutional command from being performed, then the court should be responsive enough so that public business or governance can go on”.
Dr. Justice Srem-Sai
Conclusively, while the present impasse between the Presidency and parliament may be a test of Ghana’s burgeoning democracy, it is also a test of the country’s judicial system. While Parliament’s business is at a standstill, the Supreme Court must find a way of attending to these cases quickly enough for business to return to normal.
