At the Institute of Economic Affairs (IEA) Constitutional Review Series in Accra last Tuesday (Feb 21, 2023), Prof Antwi-Danso said a review of the 1992 constitution as advocated by many experts was not far enough.

What was needed, he said, was for the constitution to be “completely rewritten”.

A committee of constitutional experts, he said, must rewrite the constitution to help resolve the myriad of challenges facing Ghana’s democracy.

According to him, among other reasons, the constitution needed to be rewritten because it was incomprehensible for the supreme law of the land to allow all portions except the transitional provisions to be amended.

Prof. Antwi-Danso, who is also the Dean of the Ghana Armed Forces Command and Staff College, was particularly critical about Section 34 of the transitional provisions, which granted indemnity from prosecution for members of the various former military regimes that were in place before the promulgation of the constitution.

“As stated in the constitution, the transitional provisions cannot be amended or changed in any way. It is one of the bases that I am going to be very controversial, I do not believe in amendment of portions of the constitution anymore, I believe the whole constitution should be rewritten,” he said.

Not necessary 

However, a former Chief Justice, Justice Sophia Akuffo, and a member of the Council of State, Sam Okudzeto, who were at the event, disagreed with Prof. Antwi-Danso and posited that a completely new constitution was not necessary.

For Justice Akuffo, the best approach was to maintain the constitution and amend the parts not fit for purpose.

“I believe in picking the parts that are not working to ensure that we continue with our constitution,” she said.

Justice Akuffo, however, agreed with Prof. Antwi-Danso that Section 34 of the transitional provision should be scrapped, describing the provision as ridiculous.

With regard to Mr Okudzeto, he said the fact that the constitution had defects was not a basis for writing an entirely new constitution.

He was also of the opinion that adopting a new constitution would not be an easy process and it was likely not to have enough support.

The event, which was on the theme “a seminar on amending Ghana’s 1992 Constitution: Views and Reflection”, forms part of a series of lectures by notable individuals on the need to review the constitution.

Transitional provisions

The transitional provisions, which are contained in the first schedule of the constitution, give a framework of how laws, public officials and state institutions that were in existence before the promulgation of the constitution could gain validity under the constitution.

The provisions further bar courts and judicial bodies from entertaining legal actions against persons for their actions and inactions during the military juntas in 1966, 1972, 1979 and 1981.

Most importantly, unlike other parts of the constitution that can be amended either straightforward by Parliament or by Parliament after a referendum, the constitution does not give Parliament the power to amend the transitional provisions, with specific emphasis on Sections 34 and 35 of the provisions, which deal with the immunity for those involved in the activities of the former military juntas, and actions taken by those regimes.

After thoughts 

Prof. Antwi-Danso said the rationale behind the transitional provisions was laudable as it helped in the immediate transition from military rule to democracy.

He was, however, of the opinion that the immunity granted to the coup makers was an afterthought meant to protect certain persons and not hold them accountable for their deeds.

“I do not believe in the amendment of portions of the constitution anymore, I believe the whole constitution should be rewritten.”

Ghana needs complete new Constitution to replace 1992 one - Prof. Vladimir Antwi-Danso