The 1992 Constitution of Ghana articulates a clear promise of a democratic state founded upon the separation of powers, where the executive, legislature and judiciary are held in a careful equilibrium. In practice, however, this supposed balance is questionable. The constitutional framework establishes a presidency with such extensive powers and links the legislature so closely to it that the system’s equilibrium is distorted from its inception. This leaves the judiciary isolated in its duty to restrain the power of the state. Ghana does not operate with three co-equal branches of government. It functions with a dominant executive, a legislature inhibited in its oversight capacity, and a judiciary left to perform the constitutional checks that should be the work of two branches.
An Overmighty Executive
The foundation of governmental imbalance in Ghana is located in the considerable powers vested in the executive branch by the 1992 Constitution. Chapter 8 of the Constitution outlines a presidential role that is arguably one of the most powerful in the democratic world (Gyimah-Boadi, 2004). The President is not simply the head of the executive; he is the central pillar around which the entire state apparatus is constructed. This authority stems primarily from an almost unrestrained power of appointment under Article 70 of the Constitution. The President appoints not only his cabinet of ministers but also the heads of the vast majority of state institutions, from the security services to the governing boards of public corporations and the leadership of independent constitutional bodies. This sweeping patronage power creates a system where loyalty to the executive is a key factor in public life, concentrating immense formal and informal power in the Office of the President.
The most significant element contributing to executive dominance, however, is the structural link forged between the executive and the legislature. Article 78(1) of the Constitution mandates that the majority of ministers of state must be appointed from among members of Parliament. While intended perhaps to foster cooperation, this provision builds a bridge that allows the executive to extend its influence directly into the heart of the legislature (Prempeh, 2007). The effect is a blurring of personnel and purpose, creating a hybrid system that undermines the theoretical separation between the two political branches. The presidency becomes so powerful not only because of its own constitutional mandate, but because it co-opts the very body designed to hold it to account.
A Captured Legislature
The constitutional entanglement of the executive and legislative branches means that Parliament’s ability to act as a meaningful check is fundamentally compromised. While Article 93(2) vests legislative power in Parliament, its capacity to exercise this power independently and to conduct vigorous oversight of the executive is severely weakened. The presence of a large number of ministers and deputy ministers on the government benches of Parliament who are constitutionally bound by collective cabinet responsibility creates an inherent conflict of interest. These minister-MPs are unlikely to support parliamentary motions or inquiries that might prove critical of the government they serve (Asante, 1996). They form a reliable voting bloc for the executive, ensuring that government business, including budgets and legislative proposals, passes with relative ease.
Consequently, Parliament struggles to fulfil its role as a countervailing force. The constitutional design, combined with strong party discipline prevalent in Ghanaian politics, transforms the legislature from a check on the executive into an instrument for the executive’s agenda. It becomes a forum for ratifying executive decisions rather than scrutinising them. Bills are often passed with minimal amendment, and the oversight committees, though possessing powers of inquiry, frequently lack the political will to challenge the executive in a substantive manner. In this context, the notion of a 'captured' legislature is not mere rhetoric; it describes a functional reality where Parliament’s independence is sacrificed for a constitutionally mandated, yet institutionally unhealthy, fusion with the executive branch.
The Lone Judiciary Guardian
In a system where the executive is dominant and the legislature is entangled, the burden of constitutional guardianship falls almost entirely upon the judiciary. The Supreme Court, under its jurisdiction granted by Articles 2(1) and 130 of the Constitution, is empowered to interpret the Constitution and to strike down any law or action that is inconsistent with it. The judiciary has, on several important occasions, risen to meet this challenge. In landmark cases such as New Patriotic Party v Attorney-General [1993-94], often called the '31st December' case, the Supreme Court asserted its authority to review the constitutionality of all government actions, rejecting the proposition that certain matters were ‘political questions’ beyond judicial review. More recently, in Justice Abdulai v Attorney-General [2022], the Court intervened to clarify the rules on parliamentary quorum, demonstrating its continuing role as the final arbiter of constitutional propriety.
However, asking the judiciary to carry this weight alone is a precarious arrangement. Firstly, judicial power is passive; the courts must wait for a case to be brought before them and cannot proactively investigate or prevent constitutional breaches. Secondly, the judiciary is not entirely insulated from the executive dominance that characterises the political system. Under Article 144, judges of the superior courts are appointed by the President, acting on the advice of the Judicial Council and in consultation with the Council of State. While these bodies provide a layer of consultation, the ultimate power of appointment rests with the very executive the judiciary is meant to police (Prempeh, 2007). This places the judiciary in a difficult position, expected to act as a fearless guardian while its own composition is determined by the political branch it must hold in check. It is asked to do the work of two branches, but without the political resources or proactive powers of a legislature.
Conclusion
The 1992 Constitution of Ghana promises a government of separated powers, but the analysis of its practical operation suggests this equilibrium is indeed a fiction. The text of the Constitution itself constructs a system that predisposes the state towards executive dominance. It creates a presidency with powers so far-reaching that it overshadows the other branches of government. By requiring the majority of ministers to be Members of Parliament, it entangles the legislature, fundamentally weakening its ability to serve as an independent check and turning it into a de facto appendage of the executive. This constitutional arrangement leaves the judiciary as the solitary guardian of constitutionalism, a vital but overburdened institution left to restrain a system designed for imbalance. While Ghana has three branches of government in name, they are far from co-equal in power. The reality is an overmighty executive, a constrained legislature, and a lone judiciary tasked with upholding a constitutional balance that the document’s own framework undermines.
References
- Asante, S. K. B. (1996) Reflections on the Constitution, Law, and Development. Ghana Academy of Arts and Sciences.
- Constitution of the Republic of Ghana, 1992.
- Gyimah-Boadi, E. (2004) ‘The Executive’, in K. Boafo-Arthur (ed.) Voting for Democracy in Ghana: The 2004 Elections in Perspective. Freedom Publications.
- Justice Abdulai v Attorney-General [2022] GHASC 55.
- New Patriotic Party v Attorney-General (31st December Case) [1993-94] 2 GLR 35.
- Prempeh, H. K. (2007) ‘The Executive-Legislature Relationship under the 1992 Constitution: A Critical Review’, Critical Perspectives, No. 2. Ghana Center for Democratic Development (CDD-Ghana).
