THE 1957 INDEPENDENCE CONSTITUTION
The Constitution-Making Process
The NLM was uncompromising in its demand for a federal constitution and given the spate of violence that followed the formation of that party, the colonial authorities in 1955, appointed Sir Frederick Bourne to investigate and recommend the feasibility or otherwise of the federal system for independent Ghana. The Bourne Report recommended a compromise formula of a unitary system with devolutionary powers to regional assemblies which formed the basis of the 1957 Constitution.
Main Features of 1957 Constitution
The Independence Constitution, officially titled, The Ghana (Constitution) Order in Council, was firmly based on the cabinet system in line with British political tradition. The executive consisted of the Prime Minister and his cabinet selected from the National Assembly to which they were individually and collectively responsible (Section 7). The head of state was a Governor General with generally ceremonial functions representing the British monarch (Section 6). The Constitution had very few guaranteed rights such as the right to vote (Section 69), the right to property (Section 34) and others safeguarding minorities rights.
Section 32 provided special amendment procedures. According to Article 32(1) amendment to ordinary constitutional provisions needed 2/3 majority of Parliament, while entrenched provisions needed a prior approval of not less than two-thirds of all the Regional Assemblies and in some cases the Regional Houses of Chiefs (Section 32(2). This cumbersome procedure of amendment was significant given the polarized politics at the time.
Perhaps the most significant provision in terms of the ‘compromise formula’ was Article 64 which called for the establishment, by an Act of Parliament, of a Regional Assembly in each of the then five regions of the country. Section 64(1) gave the regional assemblies effective powers in nine specified areas- local government, agriculture, education, communications, medical and health services, public works, town and country planning, housing, police- and ‘such other matters as Parliament may from time to time determine’ (Section 64 (2).
Application of the 1957 Constitution
The colonial authorities had introduced the regional assembly system into the 1957 Constitution as a concession to an opposition which controlled 43% of the popular votes. But it was a compromise that satisfied neither the government nor the opposition. The ruling CPP felt the Independence Constitution had been forced upon it (Kraus 1969:117). Nkrumah reportedly said his Government and the CPP had accepted with grave misgivings the Constitution as was drawn in Britain but they preferred to take what was offered rather than see independence delayed (Ohene-Darko 1977:78). For the NLM and its allies, anything short of the federal system was not desirable and they continued to boycott important stages in the transition process[i], a strategy which the CPP cleverly exploited to its own advantage.
The CPP adopted the uncompromising attitude of using its majority in parliament to adopt measures aimed at destroying the opposition. For example, in December 1957, the CPP-dominated parliament passed the Avoidance of Discrimination Act (ADA) which sought to render illegal all the opposition parties on grounds that they were not national. The regionalist opposition parties however outwitted the CPP by coming together to form the United Party (UP) before the ADA could be passed. Similarly, the passage of the Preventive Detention Act (PDA) in 1958 made it possible to detain without trial for five years and without right of appeal for conduct considered by the government to be prejudicial to the defence and security of the state. The CPP also resorted to amending significant portions of the Constitution; measures that turned the very rigid constitution flexible. In this respect, the fate of the regional assembly system is most illustrative. The CPP government had ‘induced’ the opposition to boycott both the parliamentary debate on and election to the Regional Assemblies and succeeded in legislating the assemblies out of existence(2).
Thus, while the 1957 Constitution was intended to operate on compromise and tolerance, both commodities were scarce between the Government and the Opposition. In the middle of 1960, therefore, Nkrumah and the CPP threw away the Independence Constitution wholly and wholeheartedly and introduced a new one on their own terms (Dale 1993:72).
1. For example, the opposition was on a boycott and did not take part in the debate on the ‘Motion of Destiny’ tabled by Nkrumah on 4 August 1956 calling for the granting of independence in March 1957. Though the Opposition returned to endorse the draft constitution early 1957, they again boycotted the debate in 1958 of the Regional Assemblies Bill.
2. In accordance with Section 64 of the 1957, the Governor-General had formed the Van Lare Committee (composed of the chairman, 13 CPP and 8 opposition MPs) to work on the modalities of the regional assembly system. The Committee had drawn a careful compromise between the wide and extensive powers of the Regional Assemblies demanded by the opposition and their reduction to advisory bodies as demanded by the CPP. But the CPP government grossly altered the compromise formula when it introduced the Regional Assembly Bill in Parliament. The opposition boycotted the deliberations and subsequent elections to fill the Assemblies. Not surprisingly, the CPP-dominated Assemblies legislated themselves out of existence. This was approved by 2/3 majority in Parliament that enabled constitutional amendments to be made by a simple majority in the House. In addition, the Houses of Chiefs had their powers modified and chieftaincy matters came under direct government control.
From Alexander K.D. Frempong, "Constitution -Making and Constitutional Rule in Ghana" Golden Jubilee Colloquium March 1-2, 2007