Ghana: Is Barring Health Officials From Active Party Politics Justified? (Part 2)

10 May 2023
Ghanaian Times (Accra)

The said letter also advised that any Civil Servant who wished to participate in any political activity should resign from the service and warned to deal with anyone who flouted the directive. Consequently, by a writ filed on 29th of April, 2016 the Plaintiff, an umbrella body of Civil and Local Government Staff Association of Ghana (CLOSSAG) pursuant to Article 2(1) and 130(1) of the Constitution, invoked the jurisdiction of the Supreme Court for the following reliefs:

1. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to join any political party of his choice whilst still a member of the Civil Service.

2. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to manifest his or her political affiliation whilst still a member of the Civil Service.

3. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to contest for elections for political party office and to hold political party office whilst still a member of the Civil Service.

4. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to remain a member of the Civil Service until he/she resigns prior to his/her nomination by a political party or otherwise to contest as a member of Parliament.

5. A declaration that the provisions of the code of conduct for members of the Civil Service enacted by the Council of the Civil Service and/or any other authority barring a member of the Civil Service from engaging in political party activities is unconstitutional.

6. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to contest local government elections whilst still a member of the Civil Service.

7. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to remain a member of the Civil Service after being sworn in as a member of a district assembly.

8. A declaration that the provisions of the code of conduct for members of the Civil Service enacted by the Council of the Civil Service and/or any other authority barring a member of the Civil Service from contesting and/or being a member of the Civil Service is unconstitutional.

9. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to join any political party of his or her choice whilst still a member of the Local Government Service.

10. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to contest for elections for political party office and to hold political party office whilst still a member of the Local Government Service.

11. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to remain a member of the Local Government Service until he/ she resigns prior to his/ her nomination by a political party or otherwise to contest as a member of Parliament.

12. A declaration that the provisions of the code of conduct for members of the Local Government Service enacted by the Council of Local Government Service and/ or any other authority barring a member of the Local Government Service from engaging in political party activities is unconstitutional.

13. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to contest in local government elections whilst still a member of the Local Government Service.

14. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to remain a member of the Local Government Service after being sworn in as a member of a District Assembly.

15. A declaration that the provisions of the code of conduct for members of the Local Government Service enacted by the Council of Local Government Service and/ or any other authority barring a member of the Local Government Service from contesting and/ or being a member of a district assembly whilst still a member of the Local Government Service is unconstitutional.

The Supreme Court after reading and listening the arguments of both the Plaintiff and Defendants, distilled that, "Civil Servants are part of the exclusion list with respect to eligibility for members of Parliament and although the exclusion list in article 94(3)(b) makes a distinction between qualification and eligibility, yet, at the same time, being qualified to become a member of Parliament does not make a member of the Civil or Local Government Service eligible".

The Court also decided the issues before them in the following manner:

1. On a true and proper interpretation of the Constitution, a member of the Civil Service or Local Government Service has a right to join any political party of his or her choice, however, such a person does not have the right to participate overtly in political party activities whilst still a member of the Civil Service or Local Government Service.

2. On a true and proper interpretation of the Constitution, a member of the Civil Service or Local Government Service does not have a right to contest for elections for political party office or hold political party office whilst still a member of the Civil Service or Local Government Service.

3. On a true and proper interpretation of the Constitution, a member of the Civil Service or Local Government Service does not have the right to remain a member of the Civil Service or Local Government Service after his or her nomination by a political party or otherwise to contest for election as a member of parliament. Moreover, such a person shall resign from his or her office immediately his or her political activities become overt.

4. The provisions of the Code of Conduct for members of the Civil Service or Local Government Service, enacted by the Councils of Civil Service or Local Government Service and any other authority barring a member of the Civil Service or Local Government Service from engaging in political party activities are not in contravention of the Constitution and are therefore not unconstitutional.

5. On a true and proper interpretation of articles 12(2), 21(1)(a) and (d), 21(3), 35(6) 55(1), (2) and (10) and 284 of the Constitution, a member of the Civil Service or Local Government Service has the right to contest in local government elections whilst still a member of the Civil Service or Local Government Service.

6. However, on a true and proper interpretation of articles 12(2), 21(1)(a) and (d), 21(3), 35(6) 55(1), (2) and (10) and 284 of the Constitution, a member of the Civil Service or Local Government Service does not have the right to remain a member of the Civil Service or Local Government Service after being sworn in as a member of a District Assembly.

7. The provisions of the Code of Conduct for members of the Civil Service or Local Government Service enacted by the Councils of the Civil Service or Local Government Service and or any other authority, barring a member of the Civil Service or Local Government Service from contesting election to become a member of a District Assembly, while still a member of either service, are not in consonance with the provisions of the Constitution and are therefore unconstitutional; HOWEVER, the provisions of the Code of Conduct for members of the Civil Service or Local Government Service enacted by the Councils of the Civil Service or Local Government Service and or any other authority, barring a member of the Civil Service or Local Government Service from being a member of a District Assembly while still a member of the Civil Service or Local Government Service do not contravene any provision of the Constitution and the same are not unconstitutional.

The Supreme Court noted that whereas a member of Civil Service may have qualified to become a member of Parliament, he/she may not be eligible by virtue of the bar placed on Civil Service workers in article 94(3)(b) of the 1992 Constitution of Ghana. The Constitution of Ghana is the supreme law of Ghana and any other law found to be inconsistent with any provision of the Constitution shall be void to the extent of that inconsistency. The limitation placed on the category of workers who are not to take part in active politics cannot go beyond what the framers of the Constitution has decided. Therefore, the Ministry of Health got it wrong in placing a political embargo on their staff who desire to be active in politics. As earlier stated, the Ministry is within its right in dissuading its workers from tainting their official assignment with political colour. Or better still, a worker must not be seen to be in campaigning mood or engaging in active partisan politics while undertaking official duties or use the premises of the Ministry to achieve a political goal. Anything short of that will be a serious attack on the fundamental human rights of these workers. The notice from the Ministry of Health clearly infringes on the fundamental and political rights of their workers who want to identify with a political party or stand for a political office while still working under the Ministry. Whereas a member of Civil Service, the Police, Military, Immigration and others mentioned in article 94(3)(b) are estopped from engaging in active partisan politics, the same is not with the workers at the Ghana Health Services.

From the principle of laws enunciated above, there is no need for the Ministry of Health to have come out with such a directive. I believe if they do not withdraw their directive, some aggrieved officers will challenge it at the Court of law. It is said that the Constitution is a living organism capable of growth and development. However, the Supreme Court has also stated without number that where words used in a provision of the Constitution or statute are clear, precise and unambiguous, there will be no need for their original jurisdiction to be invoked upon. It is about time the Supreme Court started placing hefty costs on State bodies and especially officers whose deliberate application of laws result in unnecessary 'wahala' to those affected by their capricious and arbitrary decisions.

The writer is a legal researcher]BY TAMIM ABUBAKAR

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