Question:

Currently, Ghana faces a threat from a virus which is unseen. Drawing from the
Constitution, 1992, Parliament of Ghana has passed, a Restrictions Law i.e., the
imposition of Restrictions Act, 2020 which, empowers the president to make Executive
instrument to operationalize his Constitutional power. This is also Ghana's election year
and elections both presidential and parliamentary must be held on the 7th of December,
2020. This date is a constitutionally fixed date. Assuming, just for purposes of a
constitutional exercise, that Ghana is unable to hold an election on the 7th of December,
2020. Discuss if the Constitution contemplates this constitutional crises and is there a
solution. In addressing this issue call in aid article 31, Article 113 (2) and Article 298.
You may refer to any other relevant provision in the Constitution, 1992 as well as case
law.

Answer
In the wake of the new COVID-19 pandemic, there have been contemplations of its implication
on the conduct of the 2020 general elections. A number of articles of the 1992 constitution of
Ghana have been interpreted by different people for purpose of coming up with a solution for
this issue. They include articles 31, 113(2) and 298 among others.

Article 31 of the 1992 constitution deals which the processes involved in the declaration of a
state of emergency by the president and the parliament, it however does not solve the issue of the
elections after the expiration of the tenure of office of the president and the parliament during
health crises such as during the outbreak of a pandemic.

Article 113(2) of the constitution did not make provisions for the extension of the Parliament
during health crises such as pandemics specifically, it however made provisions for extension of
Parliament in times of war. It states that “At any time when Ghana is actually engaged in war,
Parliament may, from time to time by resolution supported by the votes of not less than two-
thirds of all the members of Parliament, extend the period of four years specified in clause (1) of
this article for not more than twelve months at a time, except that the life of Parliament shall not
be extended under this clause for more than four years.” This means that the in times of war, the
life of Parliament can be extended with two-thirds majority approval for four more years, twelve
months at a time. It cannot apply in this case as the outbreak of the pandemic does not imply that
Ghana is at war.

According to Mr. Paul Adom Otchere article 113(3) is more likely to be applicable in this case as
it states that, “Where, after a dissolution of Parliament but before the holding of a general
election, the President is satisfied that owing to the existence of a state of war or of a state of
public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the
President shall cause to be summoned the Parliament that has been dissolved to meet.” He states
that this provision is more likely to be applicable in this situation because if the president has
course to believe that there is an emergency situation in Ghana or in part of Ghana as is in this
case, he can recall parliament to meet even after it has been dissolved. However, this is not
possible as Ghana’s general elections are to be held before the dissolution of Parliament.

Although the 1992 constitution did not specifically make provisions for the conduct of elections
during an outbreak of a pandemic, it made provision for unexpected situations which could
disrupt the normal daily activities of the citizens, such as the outbreak of a pandemic, article 298
of the 1992 constitution of Ghana states that, “Subject to the provisions of Chapter 25 of this
Constitution, where on any matter, whether arising out of this constitution or otherwise, there is
no provision, express or by necessary implication of this constitution which deals with the
matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any
provision of this Constitution, provide for that matter to be dealt with.” Meaning that in times
like these, parliament can go-ahead to make provisions to solve the problem. In this case
however, the constitution has expressly provided a fixed tenure of office for the government
thus, if parliament was to enact a new law extending its tenure of office, it would be in
contravention with the 1992 constitution.

Mr. Sam Okudzeto also made his opinion known stating that the 1992 constitution did not make
any provision for times where the general elections would not be able to be conducted. He stated
that the government has a hierarchy of authority, if the president is not available, the vice
president would have the authority to act, if the vice president is not available, the speaker would
have the authority, and if the speaker is not available, the chief justice would have the authority.
In the situation where no election is conducted, the speaker will also not be there because his
term would have also lapsed, meaning that it is only the chief justice who will have the authority.

From the above discussion it can be seen that the framers of the 1992 constitution of Ghana seem
not to have taken into consideration situations like the outbreak of a health crisis such as a
pandemic, disrupting the daily lives of the citizens for an extended period of time and affecting
the conduct of the general elections, thus it appears they did not make provisions for it. The
article of the 1992 constitution which seems more likely to be applicable in this circumstance is
article 298 which provides parliament with opportunity to amend the constitution to solve this
problem although it falls short of addressing the issue as it seems to be in contravention with
certain articles of the constitution.