Introduction
…That I will at all times uphold, preserve, protect and defend the Constitution of the Republic of Ghana
The 1992 Constitution of Ghana empowers its citizens under Article 3 to defend the Constitution and by so doing resist any person or group of persons seeking to suspend, overthrow or abrogate the Constitution or any part of it. Any person who is successful at exercising this right would not be guilty of treason. This, many have construed to mean that the 1992 Constitution implies the right of resistance in Ghana’s constitutional jurisprudence. Others also argue that this right entitles the people of Ghana to exercise the right of resistance to secure a new form of government in the face of a Government that is perpetrating injustice on its citizenry in a manner not contemplated by the Constitution. Doing so and failing has far reaching consequences including the commission of the crime of treason. This essay argues that the lack of clarity on the parameters for defending the constitution and the exercise of the right of resistance by the citizenry poses a great challenge and serves as an avenue where innocent citizens are undeservedly charged with treason by a highly autocratic regime. This essay would make recommendations for amendment so as to bring the provisions of the Constitution in line with the needs of modern constitutional dispensations whereby citizens are allowed to protect themselves and also to be protected from unjust and autocratic Governments and regimes.
The People – The Ultimate Sovereign
As a matter of fact, the Government of the day is made sovereign and seems to somewhat assume a position of supremacy in its appropriate sphere of action. However, it in fact does not possess all the powers. It is rather “We the people” who as a matter of right hold the true power of Ghana and as a result chose to conduct the Government through representatives. The Constitution as evidence of the social contract between the people and the State underscores in greater respect that the people in fact do own the Constitution. The Preamble of the Constitution provides that “We the people of Ghana, in exercise of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity…do hereby adopt, enact and give to ourselves this Constitution. Article 1(1) further provides that “the Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be executed in the manner and within the limits laid down in the Constitution.” In fact, the Judiciary which is vested with the judicial power of Ghana to do justice to all manner of people derives its power of justice from the very people of Ghana through the Constitution. Thus, before a State can have a Constitution, the people have to agree to form a Government and once the government is established, it is the people who then determine its structure and organization whilst delimiting how the government interacts with them, being the very core of the society.
In Defence of the Constitution of Ghana
As an underlying principle in the Constitution of Ghana, the people of Ghana have the right and duty to employ any means to resist any person or group of persons who seek or attempt to overthrow the Constitution. In doing so, they are empowered to restore the Constitution where it has already been suspended and/or abrogated. This is a compulsory obligation which the people of Ghana must exercise as responsible citizens. The critical question that needs to be interrogated is what are the parameters for defending the Constitution against persons who seek to overthrow it including unjust, corrupt and grossly abusive governments so that a person may not be said to have committed the crime of treason which is punishable by death? Also, it is necessary to consider whether the provisions in the Constitution on the defence of the Constitution may be used by the people against the Government of the day or it compulsory has to be used to defend the Government of the day and by so doing defend the Constitution?
The 1992 Constitution of Ghana, specifically Article 3(3), clearly makes it a treasonable offence punishable by death if a person employs violence or some other means to suspend, overthrow or abrogate the Constitution. This is what is commonly referred to as a coup d’etats or a revolution. The Constitution does not define exactly what it means to suspend, overthrow or abrogate the Constitution. There does not seem to be a defined mechanism or procedure by which a Constitution may be suspended, overthrown or abrogated. It does not even provide how such a Constitution which has been suspended, overthrown or abrogated can be restored. The Constitution does not even differentiate between acts that amount to suspending, overthrowing or abrogating the Constitution. In reality, the story is true that all coup makers when they set out to conduct a coup or a revolution, do not do so with the sole aim of getting rid of the Constitution in force. They rather seek to get rid of the Government of the day mainly by attacking the head of the Executive arm of Government. It is then safe to say that coup makers set out to attack the Government and not the Constitution. This then creates problems as to what the Constitution means by providing for the right and duty to defend the Constitution. This is because from the foregoing, it is implicit that the defence of the Constitution is synonymous to defence of the Government of the day and for that matter, it is the case that any activity by certain of the people of Ghana which is aimed at resisting or opposing an abusive, dictatorial, corrupt and wicked Government may be said to be an act prohibited by the Constitution and thus constitute a treasonous offence in Ghana punishable by death.
The Right of Resistance in defence of the Constitution
From an express reading of Article 3(4), (5), (6) & (7) it may be argued that resistance against the Government is outlawed and thus a treasonous offence. Since resistance is permitted to protect the Constitution then that by extension would mean the government set up by the Constitution.That means that a narrow interpretation would admit a meaning that the provisions on defence of the constitution does not cover situations where the people execute actions aimed at removing the government of the day because it is oppressive, corrupt and abusive. On the other hand, it is argued that the provisions of the constitution imply the right and duty of citizens to resist unjust, corrupt and dictatorial governments who by their actions have breached the social contract entered into between the people and the State for which reason the Constitution was promulgated. This right is said to constitute a right inherent in constitutional democracies whether or not they are expressly stated in the Constitution and that should be differentiated from revolutions or other means of overthrowing governments in a manner inconsistent with the Constitution.
This right or duty to defend the Constitution, it is argued, should be acceptable when the conventional means of influencing politics such as elections, judicial review and the like are not available or deemed contrary to the people’s will so that the people are justified to exercise their intrinsic political power through non-violent action so as to build a just and accountable Government.This right to resist is used as a means to enforce the restoration of a constitutional order which has been somewhat “defiled, violated and desecrated.” There remains an inherent problem as to what the parameters of the right to defend the 1992 Constitution are under Article 3 considering the fact that it is implicit that the defence of the Constitution is synonymous to defence of the Government of the day and for that matter, any activity by certain of the people of Ghana which is aimed at resisting or opposing the Government of the day howbeit dictatorial, abusive or oppressive may be seen as a treasonable offence punishable by death. Since the concept of resistance in constitutional jurisprudence involves bringing down Governments so as to restore or entrench democracy after the overthrown Government has greatly caused damage to constitutional order, it is likely that a person who is unsuccessful in his so-called attempt to defend the Constitution may be liable for treason which is punishable by death.
An issue to interrogate is; on what scale do the people measure their action in defence of the Constitution in order to determine whether their resistance is justifiable against the act of the Government so as not to fall within the region of treason since several scholars emphatically state that Article 3(4) cannot be exercised against the Government in defence of the Constitution? What standard is used to measure the common will or good of the people so as to justify the duty to resist? It has been argued by some writers that resistance in defence of the Constitution is justified only when it is employed for the “common good.”The common good is destroyed when “the government is so conducted that there are no legal means of obtaining the repeal of the law (a bad law presumably)” or “where the political system is so permeated by the private interest that there has ceased to be any common interest in maintaining it” and “where the authority from which an objectionable command proceeds is so clearly separable from that on which the maintenance of social order and the fabric of settled rights depends, that it can be resisted without serious detriment to this order or fabric. This simply means that to exercise the implicit right to defend the Constitution and by so doing resist an oppressive government of the day, the people become the judge to measure whether the political situation prevailing at the time detracts fundamentally from the social contract so as to justify an act of resistance mean at redressing the ills being perpetrated on the Constitution by the Government established by the people.
Conclusion – Delimiting the boundaries of the right to defend the Constitution
A constitution must reflect the culture and legal tradition of the people to be governed. Accordingly, it is important to highlight that the foundation of Ghana’s constitutional democracy is the role of the people of Ghana. The Constitution of Ghana does not provide clarity on what it means to suspend, overthrow or abrogate the Constitution. In the recent treason trial in the High Court titled Republic v Dr. Frederick Mac-Palm and Others Suit No. CR/0401/2021 dated 24th January 2024, the Court speaking through Justice Afia Serwah Asare-Botwe in attempting to explain what it means stated that “the circumstances under which the Constitution or any part of it, could be suspended, overthrown or abrogated, would include violently removing the elected executive, legislature or any other arm of government or institution set up under the Constitution or making such an attempt as has been alleged in this case.” This does not provide enough clarity at all as it overlooks other non-violent means which have proved effective at causing regime changes in countries.
Furthermore, the Constitution does not explain what it means to restore a Constitution that has been suspended, overthrown or abrogated. The 1992 Constitution provides in Article 19(18) that any act which aims at procuring by constitutional means an alteration of the law or of the policies of the Government shall not be considered as an act calculated to overthrow the organs of Government. This provision specifically mentions the overthrow of an organ of Government as though it differs from what Article 3(3) provides relating to the suspension, overthrow and abrogation of the Constitution. The Constitution does not provide clarity on what acts are permissible by a citizen aimed at defending the Constitution of Ghana. This lack of clarity leaves room for several inferences as has been shown in this paper. One of such inferences being the right to resist a grossly corrupt, offensive, abusive and oppressive government in defence of the Constitution which many disagree with. It is suggested that the provisions of the Constitution relating to the suspension, overthrow and abrogation of the Constitution, as highlighted above, be amended to bring clarity on the relevant issues raised and also to bring it in line with the needs of modern constitutional dispensations whereby citizens are allowed to protect themselves and also to be protected from unjust and autocratic Governments and regimes. The state in which the provisions of the Constitution namely Article 3 is in contributes to the blurry lines. With this lack of certainty and clarity regarding the parameters and boundaries of the right to defend the Constitution, several people would find themselves being arrested and convicted for treasonable offences anytime they genuinely embark on concerted political action to resist the government of the day that is operating contrary to the common will and good of the people in breach of the social contract which the Constitution was promulgated to enforce.
God bless!
The applicant herein, Madam Patricia Asiedua alias Nana Agradaa is a pastor and the founder…
Appeals are not about retrying the facts, but about ensuring that the law was applied…
This week, it emerged that suspended Chief Justice Gertrude Torkornoo has filed a legal action against the…
Morgan Adzei authored Woes of the African Mother, a novel selected by WAEC as a…
The Greater Accra Regional Bar’s Maiden Law Week was a remarkable start to a week…
On 3rd July 2025, a self-styled evangelist, Patricia Asiedua Asiamah, popularly known as Nana Agradaa,…