Independent constitutional bodies serve as one of the critical safeguards of any democracy.
It is the reason democracies build protections into their constitutions that insulate them from certain vulnerabilities of the democratic process.
The democratic process is political where preferences sometimes clash and when they do, it takes an independent constitutional body to resolve them.
Some case scenarios
Think of a deep disagreement over Parliament’s power to enact particular legislation where the different sides of the political aisle clash.
If invoked, it takes a constitutionally independent body, such as the Supreme Court, to adjudicate and bring a constitutional resolution to the issue.
Imagine a situation where the resolution does not sit well with an executive authority who has the constitutional power to express their disagreement with the court by replacing the entire bench.
Another example.
It is an election year.
The Chair of the Electoral Commission (EC) makes an administrative decision that the sitting president, as the candidate for his party, disagrees with.
The next day, citizens wake up to the news that, as the appointing authority, the president has exercised constitutional power and replaced the chair of the EC.
These are the vulnerabilities that democratic constitutions anticipated and therefore designed mechanisms to protect them.
Independence does not mean unaccountability
But let me be clear. Protecting independent constitutional bodies and ensuring that their safeguard role is not compromised does not mean they are not accountable.
I have regularly argued that independence does not mean unaccountability.
The Constitution recognises this point and again builds mechanisms that enable officeholders in these independent constitutional bodies to be held accountable for any proven infractions committed.
When these processes are followed, it only goes a long way to reassure citizens of their systems of governance.
In an environment of deep mistrust of institutions, as Ghana is currently experiencing, this cannot be overemphasised enough.
In addition, the ability to uphold accountability also reinforces an important democratic principle – the rule of law.
When citizens (see results of Afrobarometer surveys) feel that ordinary citizens are three times more likely to be punished for committing offences compared to officials, the appearance of a lack of accountability erodes the faith they have in institutions and the system.
Points of reflection
Three cases so far give us some insights into this matter of holding officers of independent constitutional bodies accountable – a) the removal of a previous head of the Commission for Human Rights and Administrative Justice (CHRAJ); b) the removal of a previous chair of the EC; and c) the current suspension of the Chief Justice of the Supreme Court.
The removal of the head of CHRAJ, if my memory serves me right, did not generate the kind of intense public and sometimes partisan debate as seen in the case of the former EC Chair and the current Chief Justice.
Whatever the final resolution – whether the Chief Justice is reinstated or removed from office- there are three important lessons to be learned from all three cases referenced.
First, we must recognise the weight of applying the highest form of sanction – removal from office- for these officers.
This is not to suggest that those involved in the process do not recognise this weight.
But when triggered, it must be guided by a solemn obligation where we balance accountability with not weakening independent constitutional bodies.
I have, on occasion, been worried about some of the political rhetoric from certain public figures.
Second, but for the leaking of the petitions in this current case against the Chief Justice, the process as designed is too opaque, in my opinion.
Democracy thrives on transparency and a process that has the potential to apply the highest sanction of office – removal – cannot be shrouded in secrecy.
And as alluded to before, when citizens deeply mistrust institutions, a lack of transparency does not help.
Perhaps the constitutional review process will help resolve this by allowing, for example, publishing the petition once the President, in consultation with the Council of State, believe such officeholders have a case to answer.
Third, and worth noting, are the political implications of the precedents set, even when there is a strong belief that the “right” thing is being done.
There have been several references to the removal of the former chair of the Electoral Commission in public debates over the current case involving the Chief Justice.
In principle, I understand the context for those references.
But it is still worrying to observe. It connotes the idea that, once a precedent is set, it must and will be repeated.
When all is said and done, my only hope is that our democracy is made stronger and not weakened. Independent constitutional bodies do not become too vulnerable, but rather, they remain the safeguards we need.
May our better angels continue to prevail.
The writer is Project Director, Democracy Project
