GBA: Faces Scrutiny Over 1992 Constitution Inconsistency

• The Ghana Bar Association (GBA) faces accusations of inconsistency regarding its stance on the 1992 Constitution.
• Historically, the GBA declined to participate in the Consultative Assembly that drafted the Constitution under PNDC Law 253.
• The author, Kasise Ricky Peprah, personally witnessed the GBA's disdain for the constitutional drafting process as an undergraduate.
• Critics argue the GBA now champions the Constitution it once dismissed, particularly when progressive governments are in power.
• The commentary calls for the GBA to apply constitutional vigilance consistently and impartially, avoiding political hostility.

The expectation is that an organization claiming such a vital role in upholding the rule of law should demonstrate consistent, principled conduct, rather than appearing to adapt its stance for convenience.

A prominent legal commentator has recently called upon the Ghana Bar Association (GBA) to account for what is described as a significant shift in its engagement with Ghana's 1992 Constitution. The critique centers on the GBA's perceived inconsistency, suggesting that the institution now champions the very constitutional framework it once distanced itself from. This perceived "about-face" raises questions about the GBA's professional and constitutional conscience, which, according to the commentary, ought to be unwavering and immune to political expediency.

The commentary highlights a profound concern when an institution appears to embrace constitutional principles only when there is a change in political power. It argues that the GBA's current "constitutional grandstanding" warrants a historical examination, particularly given its past actions. The expectation is that an organization claiming such a vital role in upholding the rule of law should demonstrate consistent, principled conduct, rather than appearing to adapt its stance for convenience.

The historical record reveals a stark contrast to the GBA's present advocacy. During the formative period of Ghana's Fourth Republic, specifically when the Consultative Assembly was tasked with preparing the draft of the 1992 Constitution, the GBA chose not to participate. This Assembly was established under PNDC Law 253, and the Association's decision to decline involvement marked a significant moment in the nation's constitutional journey.

The author of the commentary, Kasise Ricky Peprah, recounts personal observations from that era. As an undergraduate student, he frequently attended the Assembly's chambers, not as a delegate but as an observer keen to understand the process. He directly witnessed and heard the GBA's dismissive attitude, characterized by condescension and denigration towards the entire constitutional exercise. This firsthand experience underscores the depth of the GBA's initial contempt for the very document it now frequently invokes. While acknowledging the GBA's right to boycott the process, criticize the PNDC, or reject the prevailing political circumstances, the commentary asserts that such non-participation does not confer authorship, nor does it retrospectively legitimize a document that was once dismissed simply because it later proved useful.

The commentary further scrutinizes the GBA's contemporary approach to constitutional matters, noting a persistent impression that the Association becomes particularly active whenever governments associated with "progressive or social-democratic" politics initiate transformative programs. This observation prompts a call for closer examination of the GBA's motivations and the consistency of its application of constitutional principles.

While affirming the Bar's legitimate right and duty to challenge executive overreach, the commentary cautions against allowing "constitutional vigilance" to devolve into mere political hostility. It emphasizes that the standard for evaluating constitutional adherence must be uniformly applied, regardless of the political leanings of the government in power. Violations of the Constitution, whether by conservative or progressive administrations, should be condemned equally. Furthermore, legitimate social transformations should be scrutinized fairly, without caricature, and policies that are politically unpopular but constitutionally permissible should be acknowledged as such.

Ultimately, the 1992 Constitution is presented as the property of all Ghanaian people, not an exclusive domain of the Bar, the judiciary, or any political faction. The GBA's constitutional and professional responsibilities demand an unwavering commitment to consistency. True independence, the commentary argues, is not demonstrated through frequent press conferences or solemn speeches, but through the impartial and consistent application of legal principles.

Any deviation from this consistent application, particularly if it appears to align with political convenience, risks being perceived as "partisan constitutionalism" masquerading as legal principle. The core message is a call for the GBA to uphold its stated professional and constitutional conscience with integrity, ensuring that its actions reflect a steadfast commitment to the rule of law for all, at all times.

Source: Original commentary by Kasise Ricky Peprah