Monday, 29 November

Prempeh writes: Examining parliament’s oversight function

Feature Article
H Kwesi Prempeh

Examining parliament’s oversight function (on Governance of Public Goods and Services): Prospects and Challenges in the 8th Parliament

H. Kwasi Prempeh

I. Conceptualizing Parliamentary Oversight

When we vote in general elections, we vote to elect both a President in whom is vested the Executive Authority of the Republic and a Member of Parliament who, together with other Members of Parliament, get to constitute the Legislative branch of government. In effect, We the People elect not one but two separate agents of the people at the same time: A President and a Parliament. And although elected separately and independently of each other, the two must work together to govern the country on our behalf. Between the two it is to Parliament that we have traditionally entrusted the power and responsibility to “monitor, scrutinize, review, supervise, check, and discipline” its counterpart branch, namely the Executive. Why so? If both Parliament and the Executive are supposed to be agents of the People, why do we entrust to one, that is to Parliament, the task of overseeing the performance of the other? What makes Parliament the better or more suitable of the two to keep watch or oversight of the other?

The first reason lies in the different character of the functions assigned to the two branches. Parliament’s primary functions are to make laws and appropriate and authorize the expenditure of public funds. The Executive takes off where Parliament leaves, its primary functions being to implement, enforce or apply the laws passed by Parliament as well as spend appropriated funds as approved by Parliament. Given this division of labor, the Executive may be regarded as also an agent or a subagent of Parliament, as the tasks it must accomplish and the resources for accomplishing them are entrusted to it by Parliament, making Parliament the right body to ensure that the responsibilities, authority, and resources place in the care of the Executive are used properly and for their approved purposes.

The second reason why Parliament must exercise oversight of the Executive arises from the nature of the powers possessed by and vested in the Executive and the inherent risk of abuse that is attendant to the exercise of those powers. In addition to controlling the spending power, which comes with it the powers of public contracting and procurement, the Executive also wields the “power of the sword,” with its control of both civilian law enforcement and the military, and superintends the day-to-day administration of the State, making it the one branch of government that is constantly engaged in transactional encounters with everyday citizens and businesses. These powers possessed by the Executive carry with them immense opportunities and risks of corruption, self-dealing, and abuse of power generally. It thus falls on Parliament to maintain oversight of the Executive in order to check the likely abuse of power, including corruption, on the part of the Executive.

A third and final reason for trusting Parliament with oversight responsibilities vis-à-vis the Executive may be found in the difference in the organization and structure of the two branches. As earlier mentioned, when it comes to the Executive, we vote to elect only a President (together with a Vice President), then proceed, pursuant to Article 58(1) of the Constitution, to vest the entirety of “the executive authority of Ghana” in that one person, the President. However, as it is impracticable for the President to govern the country alone—even with the help of the Vice President, the actual functional Executive necessarily comprises vast numbers of public officials ranging from Cabinet Ministers to heads of state enterprises, scattered over multifarious Ministries, agencies, and departments, as well as other entities in the public services and public sector generally. With the exception of the President and Vice President, these numerous agents and agencies of the Executive, exercising delegated power on behalf of the President, to whom they owe their appointments, are generally unelected, removing any prospect of holding such officials individually accountable through elections. The sheer number of the persons exercising delegated executive and statutory authority on behalf of the President also makes it nearly impossible for the Presidency alone to exercise appropriate and effective supervision and oversight of the entire Executive branch. Moreover, in our winner-take-all, multi-party democracy, Executive branch appointees, from Ministers to CEOs of state-owned enterprises, are typically drawn from one political party only, the President’s. This inherent lack of partisan representativeness in the Executive also means that reliance on top-down, intra-Executive presidential check, even if it were practicable, as way of ensuring official accountability cannot always be trusted to overcome the tendency toward collective partisan self-dealing and bias. The multi-party character of Parliament, coupled with its superior representativeness and diversity, with its members elected from local communities across the country, makes it the more appropriate branch with the incentive to exact accountability and transparency from the Executive.

We can therefore summarize the key functions of parliamentary oversight as follows:

To hold the government to account in respect of how the taxpayers’ money and other public resources are used

To detect and prevent corruption, abuse of power, or other arbitrary or illegal conduct on the part of the government and public agencies

To ensure that policies of the government authorized by parliament are delivered effectively and efficiently

To improve the transparency of government operations and enhance public trust in government.

II. Tools and Mechanisms for Parliamentary Oversight

To perform these oversight functions, parliaments have available to them a wide variety of tools and mechanisms. In Ghana, the principal tools available to Parliament include the following:

1. The Committee system. The committee system is a key fulcrum around which Parliament’s oversight function revolves. Article 103(1) of the Constitution enjoins Parliament to “appoint standing committees and other committees as may be necessary for the effective discharge of its functions.” The appointment of committees is, in fact, the first business that a new Parliament is constitutionally mandated to perform once the Speaker and deputy Speakers have been elected. There are currently 31 or so committees in the 8th Parliament, comprising 14 standing committees (including Appointments, Finance, Gender and Children, Public Accounts, and Subsidiary Legislation), 16 select committees (which mostly oversee their counterpart MDAs), and an Ad-hoc Committee on Poverty Reduction. Every member of Parliament is required to serve on at least one standing committee, and the composition of committees is to reflect, as much as possible, the party composition of the House.

Other than the committees concerned with the internal business of the House, committees of Parliament are generally organized in such a way as to mirror roughly the sectoral or functional division of the Executive into Ministries—although each such committee usually oversees more one ministerial sector, while some ministerial sectors or functions may be overseen by more than one parliamentary committee. Oversight is an indispensable function of these committees, as Article 103(3) makes clear: “Committees of Parliament shall be charged with such functions, including the investigation and inquiry into the activities and administration of ministries and departments, as Parliament may determine; and such investigations and inquiries may extend to proposals for legislation.”

The basic function of parliamentary committees is to take a deep dive into specific matters and prepare reports to inform deliberation and decision in the full chamber. The ability of committees to demand the attendance of or supply of information by members of the executive branch is a key aspect of effective fulfilment of their oversight role. Committees are also an entry point for citizens and other stakeholders to become involved in parliamentary business. Committees can invite experts and interested parties to furnish input or give evidence. Public hearings held by parliamentary committees have the potential to be a vehicle for informing and educating the public on policy issues and the parliament’s wok on those issues.

Committee oversight is exercised in a variety of ways, notably through scrutiny of government bills and proposed subsidiary legislation; scrutiny of annual budget estimates; scrutiny of proposed international agreements or commercial transactions; investigations and inquiries; site visits; and vetting of nominees for executive appointment. In the parliamentary history of the 4th Republic, the Public Accounts Committee, the Finance Committee, the Appointments Committee, and the Constitutional, Legal and Parliamentary Affairs Committee have been among the most prominent or high-profile committees, at least in the eyes of the public and civil society, in the area of oversight.

2. Oversight by the Plenary. The plenary chamber, or the House, remains a key forum for oversight of the Executive. There is a wide range of oversight tools that can be used in the chamber. These classic tools are parliamentary Questions, which offer the House an opportunity to hear Ministers answer and provide explanations and clarifications to MPs’ questions served on them in advance, and Debates on the floor of the House, which enable focused discussion of government policy. Other oversight tools available to the Ghanaian Parliament include:

Request for Appointment of a Commission of Inquiry. Pursuant to article 278(1)(c), Parliament can, by a resolution, request the President to appoint a commission of inquiry to “inquire into any matter specified in the resolution as being a matter of public importance.” The President shall act in accordance with the resolution.

Non-Binding Resolutions. Parliament can also pass a non-binding resolution to indicate or register the sentiment of the House on a matter action on which lies within the purview of the Executive. Such a resolution may express the disapproval of the House concerning an Executive matter.

A Private Member’s Bill that meets the terms of article 108. The ability of MPs to step in to address a public problem by putting forth their own legislative proposals, subject to the limitations of article 108, may serve to exert pressure on an otherwise lethargic or dilatory Executive to act.

Vote of Censure against a Minister. Pursuant to article 82, clause (1), Parliament may pass a vote of censure on a Minister of State. For it to pass, a resolution to that effect must muster the vote of at least two-thirds of all members of Parliament. While a President is not duty-bound to revoke the appointment of a Minister against whom a vote of censure has been passed, in practice, such a Minister, having implicitly lost the support of at least two-thirds of the members of the House, would likely find it politically untenable to hold on to their ministerial office.

Triggering the Process for Removal of the President. The President is subject to removal from office pursuant to a very elaborate process laid out in article 69 of the Constitution. The grounds for removal include acts “in willful violation” of the oath of office or any provision of the Constitution, or conduct that brings or is likely to bring the office of President into disrepute, ridicule, or contempt or is prejudicial to the economy or security of the State. The President may also be removed from office if found to be “incapable of performing the functions of his office by reason of infirmity of body or mind.” The vote of at least one-third of all MPs is needed to trigger this process of impeachment, which has multiple layers and safeguards to ensure that the grounds asserted as the basis for the removal are supported by the necessary facts and evidence. If the process survives the various gatekeeping steps along its path, it still requires the vote of at least two-thirds of all MPs, taken by secret ballot and after prior debate, to confirm the removal of the President.

3. Powers and Resources to Aid Parliament’s Oversight Role. To protect and strengthen Parliament’s oversight role, the Constitution grants Parliament, its committees, and members certain privileges and immunities. These include:

The Parliamentary Service and the Auditor-General. The Constitution establishes a Parliamentary Service under a Parliamentary Service Board chaired by the Speaker to ensure appropriate staffing and other administrative support for Parliament, its committees, and MPs, outside of the Executive branch. The Constitution also establishes an independent Auditor-General to audit the public accounts of Ghana and all other public offices, including the accounts of any public entity established by an Act of Parliament, and to submit a report to Parliament, drawing Parliament’s attention to any irregularities discovered in the accounts audited. By parliamentary practice, it is the Public Accounts Committee that takes charge of the reports of the Auditor-General.

The powers, privileges, and immunities in aid of Parliament’s oversight functions include the following:

Committees of Parliament granted the powers and privileges of a High Court for the purpose of enforcing the attendance of witnesses and examining them on oath or affirmation and compelling the production of documents.

Freedom of speech guaranteed to MPs for things said in the course of debates and other proceedings in Parliament, in the sense that such speech may not be impeached or questioned in any place outside of Parliament, including in a court of law. This essentially grants MPs immunity from civil or criminal action for defamation for things said or introduced by them in Parliament. However, the parliamentary committee of privileges may investigate an abuse of this privilege to defame a person and cause the offending MP to render appropriate apology.

Protection and Immunity granted to Witnesses summoned to give evidence or produce a document before Parliament -- same privileges as if they were appearing before a court of law, including protection against criminal liability for providing self-incriminating evidence in response to a question put by Parliament.

III. Assessment of the Oversight Experience of the Ghanaian Parliament.

With this arsenal of tools, powers, privileges, and resources at its disposal, how well has the Parliament of Ghana performed or fared in its function and duty of ensuring oversight of the Executive? Some studies show that Ghana’s Parliament boasts quite a busy and robust committee system and its committees have been generally effective in the area of pre-legislation oversight, i.e., in the work of reviewing bills introduced to the Parliament by the Executive. One such study, which is somewhat dated (before the 6th Parliament), indicates that bills introduced by the Executive were often amended or revised, sometimes in substantial or significant ways, at the committee stage and others partially or totally withdrawn or left to lapse at the instance of Parliament. The verdict, however, has not been as sanguine in the area of post- or non-legislative oversight. Here, as a leading Ghanaian student and scholar of the legislature, Rasheed Draman, has noted, “oversight potential” has not translated into “oversight effectiveness.” Draman concludes that, “on the basis of the data analyzed, Parliament as an oversight institution has not lived up to the expectation of holding government to account and ensuring that governance leads to development outcomes for citizens.” Worse still, public perception surveys, including by the IEA and Afrobarometer, have tended to rank Parliament among the leading public institutions widely considered to be corrupt, causing some to see Parliament as a “part of the problem,” as opposed to “being part of the solution.”

Some of the areas of noticeable and persistent weakness, concern, or failure in the area of parliamentary oversight are as follows:

1. Inability to rein in the size of Government and continuous expansion of the Executive.

Parliament appears to see its role in the process of forming and constituting the Government as merely vetting the president’s Ministers for their suitability or fitness for appointment as Ministers (or deputy Ministers). Parliament has not concerned itself with how many Ministers and deputy Ministers the President wishes to appoint. Perhaps Parliament does not think it has power to restrain the President in this regard. Does the provision in article 78(1) that, “the President shall appoint such number of Ministers of State as may be necessary for the efficient running of the State” imply that it is within the purview of the President solely to determine, as he deems fit, whatever number of Ministers he or she wishes to have? Is Parliament, then, under a duty to give the President whatever number of Ministers he wants? Does Parliament’s power of “prior approval”, coupled with its power of the purse, not give it the power to withhold its approval for Ministers beyond a certain number if it deems their aggregate number to be excessive and unnecessary for the efficient running of the State? Isn’t it a far more reasonable reading of article 78(1) to say that, it is for both the nominating authority (the President) and the approving authority (Parliament) to determine, jointly, what number of Ministers is necessary for the efficient running of the State?

Part of the problem here appears to be that Parliament has already ceded to the President, through the Civil Service (Amendment) Act, 2001 (Act 600), the power to create and alter by Executive Instrument a Ministry or Department. As long as the President can create a new Ministry without recourse to specific legislation establishing that Ministry, the ability of Parliament to restrain the growth of the size of the Executive is weakened. On the other hand, the fact that the President’s power to add to or alter the number of Ministries is located in an Act of Parliament suggests that, both branches acknowledge that, Parliament indeed has a role in determining the number of Ministries—and for that matter, Ministers—except that, it has currently ceded that power by statute to the President.

One other area where Parliament has ceded its power to the President is in the creation of new districts. Article 241(2) makes states that, “Parliament may by law make provision for the redrawing of the boundaries of districts or for reconstructing the districts.” Instead of reading this to give Parliament a continuing legislative role in the creation of new districts, Parliament has enacted framework legislation that effectively cedes to the President the power singlehandedly to create new districts by Executive instrument without prior legislative recourse to Parliament—except via the much weaker parliamentary subsidiary legislation review process.

The seemingly unstoppable expansion of the Executive has also come about through the routine creation of new public corporate bodies pursuant to Article 190(1)(d). It appears that a legislative solution to every conceivable public problem must entail the creation of a new statutory body. Each of these statutory bodies come complete with a board or governing council whose members are appointed by the President. Bills establishing new public corporate entities under this provision, ostensibly to handle one or other public problem, routinely receive parliamentary approval, without Parliament questioning whether a new statutory entity is, in fact, a necessary part of the solution to the identified public problem.

2. Weak oversight of the SOE sector generally

Parliamentary oversight has not focused the necessary attention on the operations of state-owned enterprises and other statutory bodies that control and manage substantial portions of the nation’s economic assets, e.g., GNPC, COCOBOD, SSNIT.

3. Weak review and scrutiny of the Budget

Often “hurried, superficial, and partisan”.

4. Weak follow-up action on Auditor-Generals Report.

High visibility of Public Accounts Commission not matched by follow-up on audit findings and enforcement of surcharges and other recommendations

Failure of Parliament to see the Auditor-General as properly an “officer of Parliament” (as is generally the case in the common law tradition) and thus to support and protect independence of the Auditor-General.

5. No specific oversight of President's constitutional fiduciary obligations.

Article 257(1): “All public lands in Ghana shall be vested in the President on behalf of and in trust for the people of Ghana.”

Article 257(6): “Every mineral in its natural state in, under or upon any land in Ghana, rivers, streams, water courses throughout Ghana, the exclusive economic zone and any areas covered by the territorial sea or continental shelf is the property of the Republic of Ghana and shall be vested in the President on behalf of and in trust for the people of Ghana.”

 

As the people’s assembly, it behooves Parliament to put in place mechanisms, including periodic reporting and audit requirements, to hold the President and the Executive generally accountable in respect of the fiduciary obligations explicitly placed on the President under the Constitution.

6. Poor oversight of International commercial transactions and agreements

The Executive has often been able to rush approval of these agreements through Parliament by means of a Certificate of Urgency

Parliament has generally monitored post-approval contract performance and contract administration, areas that are prone to risks of default and breach that have often led to judgment debts.

No investigation of circumstances leading to judgement debts.

7. Parliament’s Investigative Power has generally not been activated to get to the bottom of important public interest matters

No investigation of reported corruption scandals or other high profile matters of public concern including Galamsey menace, Menzgold debacle, etc.

Parliament has also not exercised its prerogative under article 278(1)© to request the President to appoint a committee of inquiry to inquire into specified matters.

8. Generally no post-enactment oversight to ensure that laws passed are implemented

IV. Structural Constraints and other Reasons for the Weakness of Parliament’s Oversight Function

The following are some of the principal reasons or factors commonly adduced to explain the Parliament’s relative ineffectiveness or weakness as an oversight institution. generally

1. Constitutional Design

The overflogged Article 78 requiring that a majority of Ministers be appointed from among Members of Parliament.

As already noted, the negative impact of this provision on parliamentary oversight is compounded by the fact that the Parliament has ceded to the President the authority to create Ministries by executive instrument and also practically allowed the President to appoint any number of Ministers that he deems fit for efficient running of the State.

2. Appointment of MPs to serve on Boards of SOEs

This practice further undermines the interest of MPs of the governing party in oversight.

The practice persists because successive Speakers have failed to enforce article 98(2), which erects a presumption against MPs holding another office of profit or emolument where it will prejudice the work of the MP qua MP or create a conflict of interest.

3. Partisanship

The party composition of Parliament, as well as the internal cohesiveness of the parties, has a significant impact on Parliament-Executive relations. In Ghana’s characteristically two-party party, where the President’s party has always managed to secure a simple or working majority in the House, the Opposition party has tended to be strongly in favour of rigorous oversight of the Executive, while members of the governing party have often acted collectively to ensure that the Government is not politically embarrassed by exposure.

4. Parliamentary self-subordination to the Executive

As the Civil Service (Amendment) Act and the Local Government Act exemplify, Ghana’s longstanding culture of deference to the President/Executive has often caused Parliament to bend to the will of the Executive, including ceding to the President alone power that otherwise belongs to both branches. This has often extended to the control of parliamentary business, with the Executive able to rush proposed legislation or international agreements through Parliament on a certificate of urgency.

5. Speaker as Gatekeeper shielding President from parliamentary accountability

Justice Annan - blocked an attempt to investigate a reported multi-million-dollar bribe from Nigerian strongman Abacha to Ghana’s President Rawlings

Speaker Doe Adjaho denied a similar request by Minority in Parliament for investigation into an admitted gift of a Ford vehicle to then President Mahama by a foreign contractor.

6. Standing orders and Committee Lack of Initiating power re investigations.

Under the Standing Orders, a parliamentary committee cannot by itself initiate inquiries or investigations into a matter unless the matter has been referred to it by the Speaker or the House.

V. Opportunities, Prospects and Challenges in 8th Parliament

The 8th Parliament was meet with a widespread expectation that it would usher in a new era of Executive-Legislative relations, particularly in terms of enhanced oversight of the Executive. What accounts for this optimism? How realistic is the expectation?

1. For the first time, the Speaker is not from the Governing Party.

But as a retired MP of the Opposition NDC, the Speaker is unlikely to be perceived as neutral by the Governing party. Risk that an assertion of power by the Speaker that is seen as unfavorable to the Governing party could lead to a clash between the Speaker and the Governing party. Lost opportunity in carrying on old practices

2. Governing Party has only a one-vote working majority in the House

This could, however, sharpen partisanship, rather than enhance inter party cooperation.

3. New Opening for Private Members Bills

Guard against populist legislation

4. Enhanced Capacity and Autonomy of Parliamentary Service

 

Legal office

 

Drafting office

5. Civil Society and Public Strongly Supportive of Enhanced Oversight of Executive

VI. Some Proposals for Reform

1. Constitutional Reform

The Article 78(1) issue. One risk attendant to that provision which has tended to escape attention is what it might do to the ability of the President to form a Government should the party that wins control of the Presidency lose control to Parliament to the rival party. Are the MPs of the majority party in Parliament going to vote willing to approve the appointment as Ministers of their colleagues in the Minority? How realistic is that?

Article 78(1) appears to have been written with one-party control of both Parliament and the Presidency in mind. In fact, the history of the proposals on the structure of the Executive as they went from the SKB Asante Committee of Experts through the Consultative Assembly leaves me in no doubt that, that the Framers of the Constitution indeed did not consider the possibility of Divided Government when they examined the relevant proposals, took out the original proposal of a Prime Minister who was to share Executive power, French-style, with an elected President, but left in place the collateral provision that was supposed to go together with the PM, namely that the PM choose a majority of his Ministers from within Parliament, French-style.

While the adverse impact of Article 78(1) on parliamentary oversight is the aspect of that provision that has most concerned us, I would argue that an event greater risk is the potential constitutional crisis and gridlock it might lead to should general elections produce Divided Government. The 2020 General Elections has shown us that outcome is not at all theoretical.

Divided Government might not have a significant impact on the day-to-day governance and delivery of public services in a robust federal system like the United States, where the most important public services (health, sanitation, education, policing, etc.) are in the hands of largely autonomous local governments and local communities. Divided Government in highly centralized unitary Ghana would, however, produce an entirely different outcome.

2. Additional Review of Standing Orders

What about allowing committees to initiate hearings and investigations if the request has bipartisan support within the committee?

o Note that even a notice for removal or impeachment of President under article 69(2) can be initiated by one-third of MPs. It should not be more difficult or onerous for MPs to get a Committee to initiate hearings or investigation into a matter of public interest. Indeed, making it harder for committees to initiate investigations potentially undermines Parliament’s power to trigger the processes for commencing impeachment or removal of the President, since the MPs serving notice of impeachment are required under article 69(3) to accompany their notice with “a statement in writing setting out in detail the facts, supported by the necessary documents, on which it is claimed that the conduct . . . of the President be investigated for the purposes of his removal from office.”

 

House must disallow recourse to certificate of urgency for consideration or approval of international agreements.

Adopt a Rule Against MPs sitting on Boards of SOEs or other state entities.

o Speakers must apply article 98(2) to effectively abolish this very bad practice.

Must Parliament use an omnibus Appointments Committee to vet and approve ministerial nominees designated for specific sector Ministries? Must the President be free to reassign Ministers to portfolios other than the ones for which they were originally approved by Parliament without having recourse again to Parliament? Is this a matter the Standing Orders can handle? Is there a constitutional constraint here?

3. Review and amend Civil Service (Amendment) Act to require creation of new Ministry to be done by Legislation – thereby restraining the ability of presidents to create and alter ministries and appoint new ministers at pleasure, sometimes even during the post-budget period.

4. Include provision in laws to oblige Government to make periodic reports on the implementation of enacted legislation, including status of any required LIs needed to enforce or activate provisions of law.

Also consider inclusion of “sunset provisions” in new laws, especially laws creating new statutory bodies to deal with emerging problems, so that upon the expiry of the sunset period Government would be required to go back to Parliament to seek and justify renewal of the law, including the continued existence of the statutory implementer of the law.

5. Explore enactment of legislation, via a Private Member’s Bill, to define clear periodic reporting obligations to enforce President's constitutional fiduciary obligations in respect of management of public lands, minerals and forestry resources.

6. The House must review its relationship with Auditor-General and see the Auditor-General appropriately as a “officer of Parliament”, as exists in many common law jurisdictions. The House must act to protect the office against Executive encroachment.

7. Parliament must use its Privileges Committee effectively to discipline wayward MPs whose conduct and dealings damage the reputation and dignity of the House. This would help deal with the widespread perception that Parliament is itself a part of the problem, as opposed to being part of the solution.

8. Strengthen CSO-Parliament relations to enable committees tap into evidence and data on performance of government programs and policies collected by various MDAs.

Many CSOs working across the length and breadth of the country collect and repackage very valuable data on a wide range of socio-economic indicators that Parliament and its committees can benefit greatly from.

Parliamentary Service can also benefit immensely from CSOs in the area of capacity building and training.

VII. Conclusion

Parliamentary oversight is an indispensable part of a well-functioning democracy. When it succeeds, parliamentary oversight makes it more likely than not that a democracy would live up to its billing as a “government of the people, by the people, FOR the people.” Conversely, when parliamentary oversight fails, democracy is likely to malfunction and disappoint, as power and resources entrusted to Government and public officials are then likely to be applied wastefully, corruptly, abusively, and in pursuit of interests that diverge from the common good.

 

 

 

 

Source: parliament