The need for a body of elders to advise the President in the performance of his duties has always been given consideration by this country since the period of colonial rule. The general consensus of various Constitutional Commissions and Committees has been that nation was not ready for a second chamber of Parliament but would accept the concept of a Council of Elders called the Council of State.
Listed below are the Commissions and Committees and their recommendations:
- The Coussey Committee formed in 1949 to draft the Independence Constitution.
- Select Committee of the Legislative Assembly appointed in 1955 to examine proposals for a federal system of Government and SECOND CHAMBER for the Gold Coast.
- Constitutional Commission appointed in 1968 by the National Liberation Council (N.L.C) to draft the Constitution, which became the 1969 Constitution.
- Constitutional Commission appointed in 1977 by the Supreme Military Council (SMCI) to draft a Constitution for a Union or National Government for Ghana.
- The report of the Committee of Experts (Constitution) on proposals for a draft Constitution of Ghana, July 31, 1991 which was adopted as the 1992 Constitution.
The Coussey Committee recommended a Second Chamber Legislature on the following grounds:
- “The Second Chamber would serve as a check on hasty legislature and enable emotional issues to be considered in a calmer atmosphere”.
- “It would enable Paramount Chiefs and other persons of eminence who would not be disposed to stand for ordinary election to make valuable contribution to the governance of the country in a place befitting their rank, dignity and position”
- “It would ensure permanence in, and respect for the traditions of the country by establishing a House of Elders”.
- “It would provide for equal representation of the Regions and would permit the representation of interests which otherwise have no voice in the legislature”.
- “It would maintain the foreign authority of the various states”
The above quotation were in relation to a Second Chamber, but were quoted for its semblance or relevance to the functions of the Council of State as at present constituted and provided in Chapter Nine of the 1992 Constitution. The draft independence Constitution of 1957 opted for a bl-cameral legislature but the recommendations of the Coussey Committee quoted above was not adopted.
On the 5th of April, 1955, the National Assembly of the Gold Coast appointed a Select Committee “to examine the question of a federal system of Government for the Gold Coast and the question of a Second Chamber which had been raised in certain quarters, and after consultation with responsible bodies or individuals, and after consultation with responsible bodies or individuals, to make recommendations to the Legislative Assembly”.
The Select Committee asserted that the bodies which were most vocal in the request for a Second Chamber were the Joint Provincial Council of Chiefs of the Colony, the Asanteman Council, and the commercial and mining concerns. After weighing both written and oral evidence, the Committee found no ground to justify the creation of a Second Chamber as recommended by the Coussey Committee. It, therefore, drew attention to the following:
- “The possibility of friction between Paramount Chiefs and people, if the former were confirmed to a Second chamber”.
- “The added expenditure in setting up an additional Council for chiefs and elder statesmen involving, as it would, the journey to and stay at Accra of a great number of chiefs, with their attendants for long session”.
- “The constant stagnation in the immediate affairs of more states than under a uni-cameral system which would be affected by the absence of their chiefs”.
- “The effect on the number and quality of members available for a first chamber, a point which may be particularly applicable to the Northern Territories”.
- “That once a chamber is established, it would be extremely necessary. The status of chiefs might be destroyed in the process”.
The Committee ended its report on the Second chamber with the following decision:
“We are, therefore, unable to recommend the creation of a Second Chamber for the Gold cost, but we suggest that the question be examined again at some time after the attainment of independence in the light of the progress which may have been made in the acquisition of the element necessary in the operation, and of the preparedness of public opinion to accommodate the idea of its existence”.
Part of the preparations for the Second Republic was the appointment by the National Liberation Council (N.L.C.) of a Constitutional Commission. In its recommendations the Constitutional Commission upheld the establishment of a Council of State, the Commission stated in paragraphs 362 of its proposals, which were later adopted and implemented, as follows:
- “It is proposed that there should be a Council of State to help the President in the discharged of his functions. There will be three categories of members of the Council of State apart from the President himself who will be its Chairman.
“In the first category are people currently holding certain public offices: the Chiefs Justice, the Prime Minister, the Speaker of the National Assembly, the Attorney-General, the General Officer Commanding the Armed Forces and the Minority Leader. In the second category are people who have held the following public offices in the past: President, chief Justice, Speaker of the National Assembly and Prime Minister for a period of not less than three years”.
The Commission elaborated on the “usefulness” of the proposed composition of the Council of State in paragraphs 365, 366, 367 and 368 as follows:
365.“It is our belief that a Council of State will have many useful functions to perform. The functions that have been entrusted to the President are of great importance. They imposed onerous responsibilities on the President. We do not think that anyone man, even the President, should be asked to shoulder such responsibilities single-handedly”.
“That essentially the reason for recommending such a fairly small body of prominent citizens of proven character and ability to advise the President. But the usefulness of the Council of State will doubtless not end there. We think that if its august members handle it properly, they can perform these behind-the-scenes functions of counseling, warning, encouraging and arbitration which do so much to smoothen the rough edges of political conflicts and encourage compromise and moderation”.
“We attach great deal of importance to the recommendation that the Prime Minister and the Minority Leader should be members of the Council of State. It is absolutely essential to the future of democracy in this country that we should banish from our minds that ideal that the Prime Minister and the Minority Leader are locked in mortal combat”.
“Democracy thrives on the basis of both conflict and consensus. It is therefore necessary that bridges should be built between these two pillars of parliamentary democracy. We regard their membership of the Council of State as one such bridges, and an important one as that. It is hoped that, closeted with mature, independent and non-political minds, the Prime Minister and Minority Leader will be helped by the Council of State to continuously fertilize the area of consensus”.
The Constituent Assembly which the NLC appointed, approved the above Constitutional proposals and promulgated them in Article 53 at the 1968 Constitution on the Council of State as follows:
There shall be Council of State to aid and counsel the President, which shall consist of:
- The Prime Minister, the Speaker of the National Assembly, the Leader of the Opposition and the President of the National House of Chiefs.
- “not more than four persons each of whom shall have held the office of President, or Chief Justice or Speaker of the National Assembly, or Prime Minister under this Constitution or who did not retire or leave office in disreputable or other circumstances importing moral turpitude, able and willing to act as a member of the Council of State, as the President may in his discretion appoint, and
- “Such other persons not being more than eight in number, of whom, at least, two shall be women and not more than four shall be Chiefs as may be appointed by the President in his discretion to be members of the Council State, all of whom shall be persons who are citizens of Ghana”. The Government of the Second Republic did not make appointments to the Council of State under the 1969 Constitution before it was overthrown in a coup d’etat in January, 1972.
On 10th May, 1978, the S. M. C II appointed a Constitutional Commission to examine, among others, the establishment of the Council of State Below is a summary of its proposals.
We are convinced of the need for a constitutional organ, composed mainly of men and women of experience and proven merit and eminence, which will be available to perform mainly advisory functions in connection with certain important matters of state and government. We feel that such a body should have specific and well-defined functions, but should also be able to perform other functions at the request of either the Executive or the Legislature.
“In relation to the Executive, we propose that the President may seek advice from the Council of State on any matters he deems appropriate. Such advices shall not, of course, be binding on the President.
“We, however, propose that in respect of certain key public offices where a certain degree of independence from the Executive and a measure of “objective suitability” are deemed necessary, the President shall only make appointment with the approval of the Council of State. In the case of others, which are equally important but whose incumbents, are more properly considered to be members of the President’s team, we propose that appointment shall be made only in consultation with the Council of State. It is our view that, whilst the President should not be permitted to pack important and sensitive offices with ‘yes-men’ who may be unable or unwilling to exercise the functions of their office with the minimum skill or independence required. This could lead to the President concentrating power in his hands and thus being tempted to act arbitrarily and even illegally. Among the positions in respect of which we propose that the Council of State should play some role are the offices of the Chief Justice, the Electoral Commission, the Ombudsman, the Auditor-General, the Chairman and members of the Press Commission and the Attorney-General.
“In relation to the Legislature, we propose that the Council of State should be empowered, either on its own initiative or at the request of the President, to examine bills being considered or having been passed by Parliament and make comments on the bills or suggest modifications thereto.
“We do not, however, believe that it would be either appropriate or acceptable for the Council of State to have any right to veto legislation passed by Parliament. Accordingly, we propose that the comments and proposals of the Council of State shall be only for consideration by Parliament, which may accept or reject all or any part of such proposals. Hence, the final decision on legislative matters shall rest with Parliament. Where, after consideration, Parliament is unable to accept any proposals or recommendations made by the Council of State, the wishes of Parliament prevail and the bill, in the form finally passed by Parliament, shall become law upon the Presidential assent.
“The Council of State we propose is thus a constitutional body independent of both the Executive and Legislature, empowered and, in some cases, required to give advice to both. Such advice shall be binding. But, whether or not the advice given is binding, the purpose of the Council of State is to provide an opportunity for reconsideration of decision, in the light of considerations. Views and facts, which may not easily be available to those who take the initial decisions. We consider that such a body is both necessary and desirable for the reasons given both by the 1968 Constitutional Commission and by the Ad Hoc Committee on Union Government. What we have done is to propose a body which, we think will perform these important functions more effectively because it is constitutionally separate from, and legally and factually independent of the organs it established to aid and counsel.
“In order to underscore this necessary independence, we propose that no member of the Executive branch of government should be a member of the Council of State. Membership of the Council will be chosen from certain well defined groups or persons. These are:
- Former heads of State of Ghana who did not leave office in disreputable circumstance”.
- A selected number of former holders of important state offices such as Speaker of Parliament, Chief of the Defense Staff and Inspector General of Police. The members to serve in this capacity shall be selected by Parliament;
- Representatives of identifiable groups and interests in the country to be determined by Parliament. We consider that the Trades Union Congress (TUC) and the Employers’ Association should be considered as prime examples of these identifiable groups;
- Other eminent citizens of Ghana proposed by the President and approved by the Parliament such that, at least, one of them comes from each of the Regions of Ghana;
- The President of the National House of Chiefs. “It was suggested to us that, in order to promote national reconciliation and unity and enable the country to utilize as much of the talents available as possible, it would be useful to provide that the runner-up in the Presidential election should have a role in the Council of State. The suggestion was indeed made that this person should be made the Chairman of the Council of State.
We found much sympathy with the rationale behind the suggestion. However, whilst we see the usefulness and justification for making the runner-up at the Presidential election a member of the Council of State, we are unable to recommend that he be designated by the Constitution as Chairman of the Council. We feel that the Council of State should be left free to elect its own Chairman from among its members, taking into account the qualities and capabilities of the members and the requirements of the office from time to time.
“Accordingly, we propose that the runner-up at the Presidential elections should serve as a member of the Council of State. Where two persons qualify as runners-up both should serve”.
“The term of Office of the Council of State should be four years and should be co-terminus with the Presidential term”.
In 1978, the Government of SMC II appointed a Constitutional Commission which submitted a
“Constitution for the Establishment of a Transitional (Interim) National Government for Ghana”. The Constitution was still pending promulgation when the Government was overthrown in 1979 and succeeded by the Armed Forces Revolutionary Council (AFRC). The AFRC promulgated the 1979 Constitution in September, 1979.
The Government of the 3rd Republic, the People’s National Party (PNP), which was voted into office under the 1979 Constitution, appointed a Council of State in accordance with the Constitution. The Government was, however, overthrown in 1981 after two and a half years in office. The 1992 Constitution including article 106, Chapter Ten on the Council of State, which was reproduced from the Constitution of a Transitional National Government.
The extensive quotation from the works of previous Constitutional bodies are ample proof that efforts had been made since 1955 to provide a Constitutional Organ of State to be responsible for counseling the executive and review some decisions of the legislature. They provide justification and relevance for the Council of State as presently constituted and provided for in Chapter 9 of 1992 Constitution
In 1992, the Provisional National Defence Council (PNDC) set up a Committee of experts to draft proposals for the Constitution of Ghana. The recommendation of the Committee included the establishment of a Council of State.On the basis of the recommendations, the PNDC promulgated the 1992 Constitution, which contains most of the provisions of the 1979 Constitution of the Council of State