Mo Ibrahim index of African governance and the Rule of law.
The clearest evidence of African countries’ performance on the rule of law is seen in the Mo Ibrahim Index of African Governance, in which the rule of law and safety features as a major indicator.
According to the 2013 report, Botswana has the highest score on the rule of law and safety leading with 95.5 per cent while Somalia, at the very bottom of the league table, scored 0.0 per cent, close to 60 per cent of all African countries comprising of 30 out of the 52 countries on the table scored below 50 per cent. Slightly more than one-fifth of African countries representing some eleven countries in different sub-regions of the continent scored below the 30 per cent mark under Rule of Law and Safety.
According to the Mo Ibrahim Index, the track record of African countries on the Rule of Law and Safety Index is not just bad but has suffered a sharp deterioration over the past five years (2009 – 2013). The sharpest deterioration occurred in Egypt (-34.5 per cent), Guinea-Bissau (-26.4 per cent), Libya (-23.1 per cent), Mali (-22.5 per cent) and Central African Republic (-21.7 per cent). The overall picture in Africa is that the rule of law is on the retreat on the continent and some kind of drastic surgery is required to arrest further decline and engineer timely restoration.
Democracy in Africa would be a sham unless it is built on a rock-solid foundation of the Rule of Law. To prop the Rule of Law and ensure a steady forward march of democracy in the continent, all institutions and stakeholders responsible for the upholding of the Rule of Law should live up to their democratic responsibility.
Ghana and the Rule of Law
For more than two decades since 1992, Ghana has maintained a peaceful and stable democracy insulated against the post-election violence that has occasionally gripped some of its neighbours in the West African sub-region. Like other African countries, the Rule of Law is one of the sacred principles on which the Ghana Constitution rests.
According to the Mo Ibrahim Index of African Governance, Ghana is number seven on the league table of governance and ranks fourth with 85 per cent on the Rule of Law and Safety Index. Ghana, therefore, serves as a good reference point for establishing responsibility for maintenance of the Rule of Law.
The Executive arm of the State of Ghana bears primary responsibility for the maintenance of the Rule of Law and has a good track record with regard to influencing the prosecution of cases and enforcing decisions of the Judiciary.
The Constitution of the State provides that the executive powers of the State be subject to the review power of the courts (Article 2, 12, 58). The Supreme Court is vested with the general authority to determine the constitutionality of any law, act or omission (Article 2).
All State organs and even private institutions are required to respect the human rights and freedoms of citizens (Article 12). Article 58 further provides that executive authority must be exercised in conformity with the Constitution. The Constitution provides that the courts shall consider the government as if it is a private person subject to all liabilities in torts and contracts and the duties at common law.
Government compliance with the Rule of Law
By and large, the government has done very well to comply with court decisions and rulings of quasi-judicial bodies. In some very difficult situations, the government has been compelled to compensate persons for either wrongful dismissal or breach of contract, positive for the maintenance of the Rule of Law.
On the other hand, however, there are cases that point to the opposite direction. These are cases involving politicians where investigations have been characterised by undue delays, inactions or wrong actions (E.g. Betty Mould Iddrissu who never got investigated, Martin Amidu for anti-corruption crusader and Attorney-General who was tried for being proactive in corruption investigations and Mabey and Johnson’s corruption allegations involving top ministers and politicians that got stalled permanently).
Legislature and the Rule of Law
Parliament has an important role to play in maintaining the rule of law. The Constitution of Ghana has vested legislative power in the Parliament of Ghana. Parliament exercises its legislative authority through the bills it passes for the President of the Republic to assent. The lawmaking procedures are clearly spelt out in Article 106. The procedures for passing financial bills are provided for by article 108.
The legislative power of Parliament is not without limits. Parliament does not have power to pass legislation and to alter or vary the decisions or judgment of any court. Parliament cannot also enact retroactive laws. The Constitution bars Parliament from passing laws to create a one-party state or pass legislation affecting chieftaincy without prior reference to the National House of Chiefs for advice.
A most controversial limitation is Article 108 which limits the power of Parliament to make laws concerning financial and budgetary matters unless the bill is introduced or the motion is introduced by, or on behalf of the President. This particular limitation has drawn severe criticism by civil society organizations who consider it undemocratic and giving the Executive excessive power over the Legislature.
Consequent upon this constitutional limitation, almost all bills enacted in Ghana’s Parliament since the current Constitution came into effect in 1993 have emanated from the Executive. The Legislature is completely dominated by the Executive both in its basic function of legislation and in subjecting the Executive to effective checks, balances and oversight.
Legislature’s compliance with the Rule of Law
The capacity of the Parliament of Ghana to enforce the Rule of Law has been compromised on a number of very important pieces of legislation. Parliamentary Enactments have either not been enforced or Parliament has been rushed into passing laws without adequate debate.
In 2008, the Parliament of Ghana passed the Customs and Excise (Duties and other Taxes) Amendment Act (Act 641) which came into force on 17, April 2003. The objective was to double the import duty on imported poultry products which, according to Ghanaian poultry farmers, was having a telling effect on the local poultry industry. The Ghana Customs Excise and Preventive Service (CEPS) issued administrative instructions to stop enforcement of Act 164.