Monday, August 14, 2023
Thursday, August 3, 2023
Sunday, September 11, 2022
Thursday, July 14, 2022
THE GHANA NATIONAL RENT ASSISTANCE SCHEME
THE NATIONAL RENT ASSISTANCE SCHEME IS A
POLICY FOR THE MASSES
By Daniel Kofi Awuku-Asare (PRO, Sucasa Properties
Ltd. www.sucasapropertiesgh.com)
The burden of accommodation rental in Ghana, and
especially, in the cosmopolitan centers is a topic that needs no further
embellishment. The realities of the socio-economic climate, predicts
sufficiently, the challenges, which the overwhelming majority of the people are
confronted with when it comes to renting of accommodation in the Metropolitan,
Municipal and District Assembly areas of our society. But particularly,
challenging, is the rent debilitating syndrome in the cosmopolitan centers. The
challenge itself, could be categorized into the following sub-headings:
Availability of Accommodations
In many instances, residents in the cosmopolitan areas
especially, Accra, Kumasi, Tema, Takoradi, Cape Coast etc. are seriously
confronted with this challenge, where demand outweighs supply in those
jurisdictions. It suffices, that the rural-urban drift, adversely affects the
convenience with which such provisions could be made to meet the demand ratio.
Insufficient Financial Resources /
Economic Deprivation of the People in the Demand Bracket
The story about economic stress, insufficient income
generation opportunities for the low to middle income earners in the country
has an expressive outlay on the people’s purchasing power inclusive of their
abilities to meet other daily bills like rent, food, clothing etc. – which are
all fundamental needs to human survival. In Ghana, the cliche` goes, that the
people do not make a living income, and yet strive hard to survive on their
meagre means of living. The overwhelming ramification is brought to bear on the
population bracket’s ability to readily own or rent a piece of property for use
as their homes.
Rental Advance Collection Practice
The elephant chunk of the challenge under purview is
the notorious practice of Advance Payment collection under the accommodation
rental practice in Ghana, where the affected population bracket is compelled to
make a 2 to 3-year advance payment before one could secure a piece of property
or apartment for a home. To compound this particular challenge is also, the
fact, that many of these low to middle income earners themselves do not have
ready access to credit facilities because of stringent measures operated by the
financial institutions in one’s bid to acquiring these facilities within the
crucial time of the bulk demand of such financial quantum before one could
secure a property for a home after say, been posted to duty-either as a teacher,
nurse, civil servant or even a private entrepreneur, just trying to settle in
such geographical jurisdictions of advantage to the start of their business
ideas and operations. In fact, this challenge is real and practical and in need
of immediate and realistic redress.
Accessibility and Middlemen Role (Agents)
The factor of inaccessibility is sometimes, created
because of this very development of the middlemen role, popularly known in our
terrain as ‘Agents’. Many of such middlemen have unscrupulously exploited,
frustrated and complicated the citizenry’s quest to obtaining accommodation for
their settlement and their families. Under the practice, these Agents are
themselves entitled to a self-determined charge of 10% of the total cost of the
rental charge, collected in advance payment over a period of not less than two
years-usually. Many such prospective tenants have on many occasions fallen prey
to these so-called Agents, wherefore, the latter have usually, succeeded in
absconding the entire sweat-earned accommodation rental fees of their purported
clients without necessarily securing them any place of residence; this
development is especially prevalent in the Metropolis – Accra, Kumasi, Tema etc.
Public Policy prudence, requires accountability, civic
virtue and public acceptability. It portends therefore, that the rental laws, Regulations
of the Rent Control Department, government’s social intervention policies,
stakeholder engagement proposals and many other relevant policy documents have
not pushed the interests of the woefully affected populace radically, enough in
the face of these outlined adversities. It is in this light, that the Rent Act
(Act 220) and the Ghana Housing Authority Bill has been given a critical review
by the Sector Minister of the Ministry for Works and Housing in the person of
Hon. Francis Asenso-Boakye in conjunction with the relevant stakeholders to
addressing the pernicious cycle of the accommodation and rental challenges,
that has strangulated the populace over the span of time.
The introduction of the National Rent Assistance
Scheme is such a great policy offering a sigh of relief to the overwhelming
majority of the affected population bracket of this canker. “There is the
urgent need for government to offer protection to low-income and vulnerable
prospective tenants from abuse and arbitrary actions of landlords and offer
incentives to stimulate private sector investment”, remarked, the Sector
Minister-during a colloquium to review the existing Rent Act (Act 220)
and the Ghana Housing Authority Bill, organized jointly by the Ministry of Works
and Housing and the Kwame Nkrumah University of Science and Technology (KNUST)
at Kumasi in July, 2022.
The National Rent Assistance Scheme itself, is a
policy direction, that effectively and radically, seeks to eradicate the notorious
practice of Accommodation Rent Advance Payment, and open the system up for easy
access to consumer credit facility to massage the accommodation needs of the
masses. The policy is also, is purposeful in its wholistic implementation in
that it invites investment opportunities and investors in general into the real
estate and housing infrastructural provision and development agenda. It targets
the legal elements, regulations and control mechanism in the supply chain
market index.
SuCasa Properties – a formidable real estate
developer, and a relevant stakeholder in the Affordable Housing infrastructural
provision agenda of the country, finds the legal architecture and the social
policy element of the National Rent Assistance Scheme-such a relevant catalyst
to the protection, promotion and preservation of its own complimentary
Affordable Housing Projects to cushion the efforts of the government.
If the government’s Affordable Housing policies are
anything to be attained, then the legal frameworks underpinning our housing
infrastructural provisions and accommodation rental schemes must be
reinvigorated and given the full force of the law for realistic implementation
and the realization of its desired aftermath effects.
Public-Private Partnership is such a laudable initiative,
that must be given the blessings, unflinching commitment, and the political
will in its integrated development initiative.
Wednesday, January 12, 2022
IS OUR GLOBAL DEMOCRACY DWINDLING OR GROWING?
Democracy is
a form of government, a way of life, a goal or an ideal, and a political
philosophy. The term also, connotes a country that has a democratic form of government.
The word democracy means rule by the people. United States President, Abraham
Lincoln described such self-government as “Government of the
people, by the people, for the people”.
In a democracy, the people might directly or indirectly participate in government.
Under circumstances, where the mobilization of the people take place in a
designated setting for discourse on community development, the democratic
practice is termed: pure democracy, which in other terms referred to as direct
democracy. This practice was characteristic of the Greek City – State of
Athens, and a modern practice in the New England town meeting.
In recent
consideration of the term democracy, a large frame of picture is formed of representative
democracy. Geographical delineation, technological advancement, population
growth and their attendant effects do not conveniently permit all the citizens to
meet as a group to form their laws and take decisions. This has eventually
given room for representation at local, regional and national structures in the
execution of roles and responsibilities of the majority of the citizens. An
assembly of representatives may be called a council, a legislature, a
parliament or a Congress, the latter been the prevailing situation in the
United States of America. When their freely elected representatives in the
composition of the government legitimately represent the people, then we say
the composition of the government is a “ democratic republic” or a “republican
government”.
In
democracies, mostly, voting decisions are based on majority rule – that is more
than half the votes cast. In Ghana, a country that prides itself a democracy as
well, election of the presidency is based on majority rule of 50% + 1 of
the total votes cast. At times, and perhaps, in round off elections, a decision
by plurality also, called simple majority is employed. A candidate with a
plurality receives more votes than any other candidates, but does not necessarily
have a majority of the votes cast. On the contrary, in the United States, a
simple majority of the popular vote alone cannot determine a legitimately
elected president therefore, the Electoral College system
is adopted. Even in some countries including the United States, elections to
legislative bodies are conducted according to proportional representation. Such
representation awards a political party a percentage of seats in the
legislature in proportion to its share of the total vote cast. This kind of
development and its connected advantageous political agenda informed the issue
of “The citizenship question” in the United States' last Census Bureau's
exercise, which same concern, ended up been quashed at the Supreme Court, and
in favor of the advocacy of the Liberal ideological stream
or the extreme left.
Individual
equality and freedom, apparently, underpins the major principle of a democratic
culture. By individual equality and freedom, the citizenry in a democracy should
be entitled to equal protection of their persons, possessions, and rights, and
have equal rights of political participation. They should equally enjoy freedom
from undue interference and domination by government. They should be free
within the framework of the law, to believe, behave and express themselves as
they wish. The ideals of a democratic society must seek to guarantee the
citizenry certain degree of freedoms, including; freedom of religion, of the
press, and of speech. The individual's freedom to associate him or herself with
a group; and to be part of an assembly or a congregation, and social dignity
must under no circumstance be infringed upon. He or she must be protected from
arbitrary arrest and imprisonment and have the freedom to work and live where
and how they choose.
In the
administration of a nation – state, it is undeniably factual, that constitution
of government is indispensable. However, important this remain, some citizenry
within the framework of a democratic tenet believe that the over involvement of
government's role in such sensitive areas as welfare, education, employment,
and housing has the tendency to subjugate the freedom of the people and
consequently, subjected to too much governmental regulations in such areas as
indicated. This is a major threat to this group of political philosophers; The
Liberals and The Conservatives - the latter been the
fervent supporters of more government involvement in the institutions of a
democracy, and acute critics of the former respectively.
The
application of democratic principles in everyday life is no easy a work to talk
of. It must therefore, be recounted that
the themes of controversy and discourse in modern democratic societies is
further enhanced by the emergence of this group of analysts. In Ghana for
instance, freedom of speech, press, religion, and assembly are protected by the
1992 Fourth Republican Constitution. In guarding these freedoms therefore, the
judiciary arm of government has tried to balance the interests of individuals
against possible injury and damage to other people and the community. Even in
matured democracies such as the Western democracy, recent attacks on state
institutions and human lives have become real challenges to the onward progress
of their democracies. The January 6th 2021 insurrection of the US
Capitol, the murder of Floyd, the Kenosha shootings and many other such
extremisms and their attendant democratic “protestations” challenge the core of
the very principles and tenets of democratic freedoms in modern times.
In this
respect, the right of free speech does not allow people to falsely damage the
reputations of others. It also, does not allow people to shout “FIRE!” in
a crowd when in fact, there is no need for “FIRE”. In the early 14th,
through the 16th centuries, the cultural
rekindle demanded the Renaissance spread throughout Europe. The
internal drive for Independence and self – sufficiency from monarchical
influence and dictatorial tendencies were reawakened. This brought a massive
shake within the political paradigm and catalyzed the growth of democracy.
The demand for freedom was everywhere and in all spheres of lives. This new
ideological move equally energized the Protestant Reformation,
which emphasized the importance of individual conscience. Catholics and
Protestants defended vehemently, the right to oppose absolute monarchy; the
efforts of Martin Luther - highly commended. They agreed that the political
power of earthly rulers is sourced from the consent of the people as Albert
Einstein rightly puts: “My political ideal is democracy. Everyone should
be respected as an individual, but no one idolized”. The Industrial Revolution
in the 19th century welcomed immense political
reformation of remarkable importance. The working class demanded and received greater
political rights. New laws gave more citizens the right to vote. The freedoms
of speech, the press, assemble and religion were extended and enlarged.
In its
universal context, the democratic tenets have their own value systems that
uphold the integrity of the concept and or philosophy. Underrating these value
systems of democracy, invariably, mars the beauty of the practice and calls for
resentment. In a democracy, respect for human rights is an indispensable matrix
to warrant any favorable outcome. In a democracy, everybody matters so much so
well that the infringement of an individual's right be it a first generation –
civil right, second generation – socio-economic right or third generation –
collective right of solidarity and fraternal reconstruction and realignment are
potential orchestrations to generate insecurity, anarchy and underdevelopment.
Such rights as free movement; speech, association and responsibility to the
state must under no circumstance be compromised.
Again, in a
democracy, elections at all levels must be free and fair. Elections give the
people a chance to choose their leaders and express their opinion on issues.
They are held periodically to ensure that elected officials truly represent the
interests and aspirations of the electorate. The possibility of being voted out
of office helps assure that these officials pay attention to public opinion.
The democratic process is age – bound. Likewise, the United States and many
other Western democracies, in Ghana, a citizen of 18 years and above, who is of
sound mind as described under the 1992 4th Republican Constitution,
qualifies to vote and the process, permits citizens to vote by secret ballot,
free from force or bribery, oppression or the use of incumbency. The process
also, requires, that the election results be protected against rigging,
irregularities or any dishonesty of the sort. In the same spirit as the various
courts of the Judiciary Arm of Government supervised and dispensed election
related cases including even the Supreme Court of the United States in its just
ended presidential and Congressional elections, Ghana's own Presidential and
Parliamentary elections have been brought under the same litmus test, with the
Apex Court still adjudicating the Presidential Election Petition brought before
it by the opposition National Democratic Congress against the Electoral
Commission, and the current President as Respondents – this is the essence of
the Rule of Law.
Decision –
making is of course at the heart of democratic practice. In this vain, majority
rule and minority rights are critically protected under a true democracy by the
enactment of state institutions. In Ghana, like the United States of America,
the Constitution is the guarding document. Decisions by majority rule or
popular acclamation are used to decide policy direction as well as the election
of officers in a democracy. Majority rule is based on the idea that if all
citizens are equal, the judgement of the many will be better than the judgement
of the few. Democracy also, values freely given consent as the basis of
legitimate and effective political power. But it also, believes in the protection
of the minority rights and views in the expression of dissent as might be considered
in proportional voting – cross boundary voting on consensus and pluralism.
Another
essential value system of democracy is the development and activities of
political parties. In fact, rival parties make elections meaningful by giving voters
a choice among candidates, who represent different interests and points of view.
In democratic countries like Ghana, the political party or parties that are out of power serve as the “loyal
opposition”. They criticize the policies and actions of the ruling
party. However, in a dictatorship, criticism is a treasonable offense, typical
instances across the World is Syria, China, Russia and those Communist
ideological cohorts, struggling to embrace the Western democratic culture. Recently,
we heard of the arrest and imprisonment of Russia's main opposition leader Alexei
Navalny, which decision has attracted the United States attention in its
foreign policy directive to have Mr. Navalny released with immediate effect.
Other Western voices in this direction are the United Kingdom, Germany and
France. Myanmar's democracy has also been overthrown through the barrel of the
gun - another instance that puts United States foreign policy under rigorous
test especially under the new administration of President Joe Biden. Ukrainian threatened
invasion by Russia is another test of our global democracy with a strong engagement
of American Foreign Policy. In a true democracy, power is coequally distributed
among the three Arms of Government under the principle of Separation of Powers,
thus, the Executive, the Legislature and the Judiciary, where each perform an
oversight responsibility over the other in its principles of Checks and Balance
– paving way for the Rule of Law.
Private
organization is a very essential value of democracy that guards against tyranny
and dictatorship. Individual and private organizations carry on many social and
economic activities that are for the most part, free of government control. For
example, newspaper and magazines are privately owned and managed. Labor Unions
are run by and for the benefit of workers not the state. John Galsworthy says,
“The measure of a democracy is the measure of the freedom of its humblest
citizens”. Democratic governments generally do not interfere with
religious worship. Private schools operate along with public schools. The
people may form groups to influence opinion on public issues and policies. Most
businesses are privately owned and managed.
The Declaration
of Independence in 1776 expressed the belief that “All men are created equal,
that they are endowed by their Creator with certain unalienable rights, that among
these are life, liberty, and the pursuit of happiness”. The declaration
indicates, that the people may change or abolish the government if it
interferes with those rights. It is believed that the greatest hindrance to
individual freedom and equality are political. Freedom could only be preserved
through the change of government from military tyranny or dictatorship or
monarchy to a republic. If this conclusion is true, then we ask: “Is our
Global Democracy Dwindling or Growing?”
It is quite
obvious that the government that governs least, governs best. It is however,
becoming extremely pressing that government regulation of society and the
economy is inevitable to the extent of making personal freedom any more
meaningful; and to promoting equality as well as to improving the welfare of
the citizenry. Some governments today, if not most of them, claim to be
democratic, but many of them lack some essential freedoms usually associated with
democracy. In some countries, for example, in the Middle East, Far East, Asia in
general, Africa and the Americas, the people are not allowed certain basic freedoms,
such as those of speech and of the press or competitive elections.
In my own
country Ghana, our efforts at establishing democratic institutions cannot be marginalized,
but it is notable that the nation is not fully-fledged with self-rule, and this
in no doubt has hampered the democratic processes. Instead, what ought to be
done is to reinvigorate the Ombudsman, develop a culture of tolerance in our
diversity of purpose, and sustain the Rule of Law. It is quite glaring, that
even advanced democracies like the United States of America's has been under
recent attacks, but the tenacity to withstand the odds is evidently inherent in
such democracies.
Monday, January 3, 2022
BRITAIN’S UNCODIFIED CONSTITUTION
BRITAIN’S UNCODIFIED CONSTITUTION
Britain has no codified Constitution, but technically, some aspects of the sources of Britain's Constitution is Written. However, though, the case might be, in FF. Ridley’s opinion, Britain has no Written Constitution, and figuratively, compares to a “clotheless” nation, synonymous to shame. Such an extreme position assumed by Ridley is further supported by the open advantages of the Written Constitution of other nations in comparison.
Britain, rather, gathers it’s sources of the Constitution from Conventions, Traditions, Acts of Parliament, International Treaties, Customs and Norms and Practice, handed over from one generation to the other. Many Political Scientist argue, that the absence of a codified or single document containing the rules and regulations that governs Britain, disadvantages students who wish to pick a document and make reference to the modus operandi of the administration and governance of the State.
Revolutionary Politics contend, that declaring Parliamentary Sovereignty, takes away the democratic engagement of the government from the people, who under the Western democratic tenets are the overlords of power and the primary source of political legitimacy. The absence of a Written Constitution, which must emanate from the people renders the democratic culture of the British government in doubt.
If Ridley's position is to be sustained, then radical reform is eminent for the British legal and geopolitical system to incorporate a wider democratic and civic engagement – far from the Principles of Parliamentary Sovereignty currently practiced under its uncodified Constitutional type.
The uncodified Constitutional type may present its own merits, but given my personal position and understanding of Rule of Law, I would rather, the British Constitution came from the people who make up the government and legitimize its participatory political frontiers. If Parliament is representational, then it cannot be Sovereign- “Sovereignty” emanates from the State; from the people. America's Constitution under the Common Law, presents one of the best examples.
MAGNA CARTA; ITS PRINCIPLES AND PHILOSOPHY
The 1225 Civil Liberty Document was indeed an enlightenment. The document perceived, both as a legal source and political administrative blue print has withstood the test of time even though it culminated in the British Civil War in the 13th Century.
The rights of men were guaranteed even at the point of the arguments of law that the Magna Carta provided. False imprisonment, oppression and tyrannical rule was placed in check through the instrument of the Magna Carta.
Undue taxation by the government ( the Monarchy) was radically challenged and the new structure of government was evinced where true and democratic power emanated from the people – democracy.
The Magna Carta was not just a mere document it was a set procedure for political organization, a source of law and civil liberties insulator.
This is the reference document that provided the motivation and guidance for emancipation from European Monarchical tyranny.
The American revolution of the 17th through the 18th century was equally informed by this law and governmental liberation by the precepts of the Magna Carta as the English Whigs imported the radical ideology of civil disobedience and demand for civic virtue and civic responsibility of the rights and liberties of the citizenry into the New Colonies from England.
The demand for justice and from unlawful imprisonment, the habeas corpus, writ of Mandamus, Certiorari, Judicial review and legal reforms owe their origins to the Magna Carta. Thomas Moore, was extricated when he presented his defense argument from the Magna Carta, same informs the American legal system – giving birth to the Bill of Rights, and later significant Amendments like the 13th Amendment, which ends slavery and 14th Amendment, which justifies equality of all men before the law.
THE INTERTWINED CONFLICT BETWEEN ECONOMIC LIBERTY AND HUMAN RIGHTS
Human Rights vs Economic Freedom
In what ways to the historical arguments for Human Rights and Economic Freedoms conflict with one another?
To help you, we have provided a series of readings and videos which deal with these issues in greater depth. Please review the sections which most interest you.
Human Rights
1. The Declaration of Human Rights (1946)
2. John F Sears - Eleanor Roosevelt and the Universal Declaration of Human Rights.
Economic Freedom
3. Video of Look Magazine’s interpretation of - Hayek’s “The Road to Serfdom”
4. Hayek talking on Unemployment and the Free Market
5. Interview with Milton Friedman talking about Hayek's 'Road to Serfdom'
- Daniel Kofi Awuku-Asare's Post0 Upvotes
Thursday, December 23, 2021
Sunday, October 31, 2021
THE PRESIDENCY, NATIONAL SECURITY, AND DEMOCRACY- THE CASE OF THE US CONSTITUTIONAL PROJECT
Is the American Constitutional Project democratic enough? Prof. Amar, a Constitutional Law Professor at Yale, advances interesting arguments that juxtapose the idea that the American Constitutional Project was more democratic from the Crafters imagination to practical revelation and ordainment of the document.
To begin with, the framers of the American Constitution saw the document as emanating from the people as we see in the preamble a unique phrase such as: “We the people”. We the people of America embracing the democratic involvement of the sovereignty of the American people across every fabric of the society in the Constitutional Project.
"We the people" meant the Constitutional Project involved civic engagements and deliberations on ideas by the very design of the principles and lived experiences and lifestyle of the sovereignty of the American people. The Law emanated from the people and for the people to be ruled by the people.
Again, the document was crafted in simplified language such that the laymen could pick and read and fathom the provisions of the Constitutional Project. It did not carry coded or technical jargons much so well that the ordinary people would have to seek professional aid in order to read, interpret and grasp understanding.
The American Constitutional Project also, factored into consideration national security concerns in crafting the document. By so doing, it became clear in Article I, that Congress defines a pay structure for the Presidency. The Presidency, even though, established through Article II, had it’s pay structure addressed by Congress in Article I. Initially, George Washington wanted to refuse the idea of him been paid to do the job, but the Founders insisted, and Congress entrenched its role on the topic that it was a must that the President does get paid in order not to compromise national security concerns. So it became a tradition a matter of constitutional requirement that the President receives a salary. But unlike judges, Congress could not adjust the salary of the President either by increasing or decreasing it because it was thought of that the four term tenure of the Presidency is not so much subject to the micro economic index of inflation unlike judges who could stay in office for a life tenure. Also, the national security and democratic concern was that, if Congress could increase the President's salary at will, then they could most likely influence the President to assent laws that they wish to pass without exercising the presidential veto power under the Constitution.
Another national security concern factored into the Constitutional Project was Zero Property Qualification. The President didn’t have to be necessarily an affluent or superfluously rich person to stand. Instead, the Office was opened to all talents and the ordinary people of America. In fact, Presidents Ulysses S. Grant, Andrew Jackson, Bill Clinton, Obama, and many others came to office as ordinary people without any affiliation to the wealthy class society, even though, they might have achieved personal values for themselves hitherto. This process was a way of the Founders, trying to prevent the affluent always taking power and rendering the New World into another tyrannical regime as they had just escaped from King George I of the Great Britain.
Another national security consideration was the no religious qualification clause. One did not have to qualify as belonging to some approved religious denomination before, he could mount the presidential seat. In fact, Abraham Lincoln was not attached to any religious sect, Obama was affiliated to a Muslim parents, and presently, President Biden is a Catholic. That is the more reason, why the Constitution does not demand that the President swears the Oath of Office with any religious element, even though, the first President, George Washington, took the Oath of Office with an old King James Protestant Bible.
To ensure, national security measures are in place, the Constitutional Project, leaves the President with the duty of continuity of the government. So he or she is holding the fort (24/7 – 365), unlike Congress that could go on recess or the judiciary. The President does undertake treaties and negotiations with foreign governments unilaterally, even though, they are later, presented to Congress for senatorial approvals. But the national security concerns in this practice is that the President must defend, protect and preserve the Constitution, and that involves, protecting the county from external aggression and invasion. Unilateral decisions by the President in such instances, where judicious discretion is required to prevent the Constitution from being subverted is crucial. President Thomas Jefferson took such unilateral actions to negotiate with Napoleon on the sale of Louisiana until Congress later approved the payment budget because at the time Congress was not in session, and yet for national security interest in making sure that a formidable territorial boundary is established against foreign aggression and invasion of the New World, the action was unilaterally undertaken in the Supreme national security interest of the Union.
The Constitutional duty of Presidential pardons also, help achieve national security. As the Commander-In-Chief of the US Army, the President wields control and influence over Pentagon, though State Militias are not subject to such Presidential controls. But with the Power of Pardon, whether convicted, indicted or on pre-trial, the President could help save a national security crisis through the power of pardon. He could bait the militia to put down the arms in exchange for pardon where insurrection is eminent.
Andrew Jackson, who was a prodemocracy, proslavocracy and an egalitarian General, fought the 1812 war of the New Orleans- a kind of second civil war to defend the national security interest of the Union.
Either coming from unilateral Foreign negotiations to a solo decision to go to war in the supreme interest of the national security of the State and to protecting, defending and preserving the Constitution, democracy is entrenched and never compromised. In Article I, Congress declares war and in Article II the President goes to war, but where judicious discretion is required, the President might take the bull by the horn to protect, preserve and defend the Constitution, and prevent it from been subverted – that is equally a democratic acceptability under the norms and practices.
©2021 DANIEL KOFI AWUKU-ASARE
Sunday, October 24, 2021
LGBTQ+ AND THE RULE OF LAW - THE GHANAIAN CASE STUDY
THE LEGAL PHILOSOPHY OF AMERICA'S UNWRITTEN CONSTITUTION – THE GHANAIAN CASE STUDY; LGBTQ+ AND MATTERS ARISING.
DANIEL KOFI AWUKU-ASARE
https://www.linkedin.com/in/daniel-awuku-asare-264572190
awukuasaredaniel@gmail.com
The issue of human rights and its advocacy, no doubt has assumed such a global momentum that the sovereignty of nations and their laws are critically challenged by the passage of numerous international laws, conventions and treaties when it comes to the violation of such provisions in the lives of the citizenry in the nations around the world.
Perhaps, the most talked about human rights advocacy in recent years is the emergence of the LGBTQ+ Movement. Indeed, this group has succeeded to a very large extent with great momentum in the jurisdictions of the Western World. Their penetration into the Developing World, however, remains a hurdle that no one single answer can easily overcome; not even under the Constitutions of many developing economies especially in Africa.
The introduction of the Proper Human Rights and Ghanaian Family Values Bill 2021 draft bill, in the Parliament of Ghana that seeks to criminalize the activities of the LGBTQ+ community has attracted much attention across the length and breadth of the Ghanaian society.
Of course, talking about human rights, is a subject of the Rule of Law, which I am particularly interested to elucidate legal basis, legal concepts and legal arguments. It is very obvious that the context within which the LGBTQ+ movement seeks their validation is through legal arguments so any attempt to assent or denounce their claim must be exercised legally. The moral and socio-cultural factors on their own cannot answer a legal claim, but relevantly, they can validate a legal stance or proposition.
In his book, the American Unwritten Constitution, an Authority, and a Constitutional Law Professor at Yale University, Professor Akhil Reed Amar, argues that the Unwritten Constitution of America – fundamentally, derives its significant principles from the lived experiences and lifestyle of the sovereignty of the American people, and to that effect must and does aid the interpretation of the terse text of the Written Constitution. The sovereignty of the American people is deduced from the very belief systems and way of life or cultural embodiment of the American, and same find their way into the principles and claims of the American Unwritten Constitution, undoubtedly, as proposed by Professor Amar. Many instances have been advanced by the reputable Constitutional Law Professor, that alludes to law, logic and reasoning.
For instance, Professor Amar, argues, that before, the adoption or ordainment of the American Written Constitution in 1789 at the Philadelphia Convention, the sovereignty of the American people was already at play in civic engagements and proactive discourse, and also, even before the Declaration of Independence in 1776. This meant, that the lived experiences and lifestyle of the sovereignty of the American people, promoted and acknowledged free speech and freedom of expression; indicatively, this exercise emanating from the sovereignty of the American people predated the ordainment of the Written Constitution and it subsequent adoption of the Bill of Rights of which the First Amendment forms part and promulgate Freedom of Speech and Expression among others. In his conclusion in this particular instance, therefore, the Written text of the First Amendment did not begin the practice of the Freedom of Speech, and therefore, its constitutional ordainment is very correct – in that it reflects the lived experiences and lifestyle of the sovereignty of the American people.
There are many constitutional elements like the concept of Majority Rule, Separation of Powers, Limited Government, Federalism etc., which do not find their direct space in the terse text of the Written Constitution, howbeit, accepted as constitutional practices in the democratic context because of the history of their emergence, which of course hinges on the lived experiences and lifestyle of the sovereignty of the American people.
Indeed, the Ninth Amendment support, the conclusion, that human rights could not be definite because they are inherent and natural, therefore, certain unenumerated rights could be derived in the evolution of our democratic culture, but such could be settled on only within the undisputed context of the lived experiences and lifestyle of the sovereignty of the American people. Landmark Supreme Court cases including Brown v Board of Education have settled many controversial constitutional questions from the purview of the Unwritten Constitution proposition as Prof. Amar narrates. So in essence, the interpretation of the Written Constitution of America sometimes depends on the Unwritten Constitution, when the interpretation of the terse text in the literalist approach leads to absurdity.
The question that the LGBTQ+ proposed Bill in Ghana faces, must be analyzed from this legal lens. If the interpretation of the terse text of the 1992 4th Republican Constitution on the question leads to absurdity or even if such clear text does not exist, then the Unwritten Constitution principle in American context must be applied within the Ghanaian context as well because it makes legal sense. And in that exercise therefore, one would ask the multi-dollar question: “What has been the lived experiences and lifestyle of the Ghanaian people prior the adoption of the 1992 4th Republican Constitution or say an earlier one of the 1925 Guggisberg Constitution? This question is not a difficult legal question to answer by every nook and cranny of the Ghanaian society. In fact, the lived experiences and lifestyle of the sovereignty of the Ghanaian people across all span of tribal and religious fronts dangerously frowns on man-man or woman-woman marriage or any of their modifications, prescribed by the LGBTQ+ Movement. The legal answer is simple, within the context of right to marriage in Ghana, which same is advanced under the 14th Amendment in the US jurisdiction, thus, marriage is between a naturally born male and naturally born female with such natural physical characteristics identified at birth.
Advancing the legal intellectual argument of the Yale Professor in question, Professor Akhil Reed Amar, an Authority on Constitutional Law - within the context of the Ghanaian jurisprudence, it is illegal to practice LGBTQ+ within our geopolitical spheres. And as I attempted to do here and cautioned in my introductory piece, the answer I provide here is primarily within legal argument connected inseparably to cultural norms, morality and social values – which themselves are allowed in Constitutional Law philosophy.
I however, have a piece of advice to offer the Ghanaian society - Democracy involves much the expression of views and opinions, and even within the American context, there are only few instances where such rights under the First Amendment could be suppressed. The view points of those Ghanaian University Professors must not be necessarily attached to their personality – they have a right to express their views, but those views do not make the laws; rather they inform the making of the laws. What are your views publicly expressed that inform the making of the laws especially on the proposed Proper Human Rights and Ghanaian Family Values Bill 2021, draft bill? In America, when it gets critical, the majority’s view hit the streets in protestations. Advocacy Groups get radical, and civic engagements are enhanced.
The passage of the law must be reflective of the majority view of the citizenry since Congress is representational. I believe that the Ghanaian democracy is evinced along the same model, and therefore, if indeed, the majority of the rank and file of the Ghanaian populace abhor the LGBTQ+ Movement in Ghana, then it must reflect in Parliament, anything in the opposite will be counterproductive and non representational in that sense.
How many of the 35million+ people in Ghana today have publicly registered their disgust for the LGBTQ+ to serve an overwhelming evidence to challenge a contrary outcome from Parliament?
Let’s do the needful!
Reference: Amar, Akhil Reed: AMERICA’S UNWRITTEN CONSTITUTION: the Precedents and Principles We Live By, Basic Books(2012).
Thursday, October 21, 2021
THE CONCEPT OF THE RULE OF LAW AND ITS APPLICATIONS
The concept of the Rule of Law means absence of military junta and the presence of participatory democracy through the Constitution -the bedrock of our legal collections. In essence, the concept invites democracy, where legitimate power of the law and governance is derived from the citizenry. Anything short of this does not qualify for Rule of Law and democratic sustainability.
Rule of Law has no single universal definition, however, scholarly works from Aristotle, and pre-liberals like John Locke and Thomas Hobbes have laid the foundation for a modern evolution of the concept. Lord Bingham, the British Lord, sees the concept of Rule of Law as giving people the right to fair trial and judicial freedom under the Due Process Clause. In Rule of Law, the law sets the framework with mutual support from the people in the governance of the polis. There is no room for arbitrariness.
To help build the Rule of Law therefore, implies, that we must eschew political apathy, and introduce Active Citizenship Participation Campaigns through civic leadership engagements, demand for civic virtues, and democratic accountability. Civil Society Activists Groups must help create political awareness through active and proactive media engagements, community advocacy networks and direct involvement in political leadership. Participation in voting during political elections and respect for the views of one another even in the face of dissent must be strongly encouraged.
Consensus building must be inculcated in our democratic decision-making processes. Also, State institutions must be established by law and be strengthened to perform without fear or failure in our political democratic exercise. The press must be insulated from undue factionism, and party political manipulations. The media must serve as watchdog in our democratic exercise, and the onus is on them to set the agenda and educate the populace on their rights and responsibilities in collaboration with other democratic State institutions.
The democratic arms of government (i.e. the Executive, Legislature and the Judiciary ) must be seen as co-equal branches of the government under the principles of Separation of Powers and Checks and Balances to prevent dictatorial regimes from gaining grounds and nip corruption in the bud for a transformed economic development agenda, and better economic standard of living.
The principle of Separation of Powers and Checks and Balances ensures that tyranny is completely eliminated or minimized. It ensures that delegated powers are exercised with good faith and conscience, and the exercise of discretion is within the ambit of the law.
By far, the American legal system presents one of the best examples for the Rule of Law - comparatively, around the world. That notwithstanding, there are still few infractions in the justice administration system because of many other factors such as human frailties, institutional and systemic racism, undue political influence, ideological expansions and lack of institutional reforms.
The law itself is
supposed to advance the positive cause of our social interest. Any law that
deviates from this cause and purpose is repugnant and needs be repudiated.
Lord Bingham on the Rule of Law:
https://www.youtube.com/watch?v=XlMCCGD2TeM
Wednesday, October 20, 2021
IS THE PHILOSOPHY OF THE POLITICAL TAMMANY RELEVANT IN OUR
MODERN DEMOCRACY?
DANIEL KOFI AWUKU-ASARE,
A careful consideration of the
political philosophy that underpins the Tammany Hall in American politics from
the days of the revolution to the evolution of the democratic culture and the
reforms in the political landscape, gives a deeper understanding of a sort of
political culture that pertained, and announces much concerns, then, and even
now. For the benefit of the lay reader, let us do you the service of throwing a
bit of light on the Tammany Hall as a political philosophy, and a strong
political machine that existed functionally in the late 19th century, and early
part of the 20th century. Again, the word functionally is used advisedly in
context.
The Tammany Hall was a political
machine, and practically existed as the most dominant block of the Democratic
Party in New York, in the 1890s through 1930s. For historical purposes, it had
its headquarters in the gargantuan building of the Tammany Hall Society, a
separate form of a Secret Society that operated with all intents and purposes
in philanthropy, social relief, community services, and adherence to a unique
philosophical inclination. Ironically, most of the members of the Tammany
Society were also members of the Democratic machinery called by the same name
Tammany Hall, as enumerated above.
The party machine in the
Democratic Party in the state of New York was indeed very powerful, but our
concerns in this medium has no bearing on how powerful a block or party machine
existed, but how relevant it was to the public administration, sustenance of
democratic tenets, adherence to the modus of operandi of the entire Democratic
Party, and maintenance of the welfare of the citizenry, vis –a –vis its trend
of assumption in our current democratic culture and sustenance remains rather,
our focus.
One of the key philosophical
calling of the Tammany Hall as a Democratic machine was on the principle of
“Patronage Democracy” or the “Spoil System.” Every nook and cranny of the
bosses shared this belief and made it a calling, equally giving it a
snowballing effect in the decentralized local government system of
administration. Cronies of the Tammany Hall, believed in shared responsibility
to those who gave them the “pull” or followership.
The ideological speculation of
the nature of the machine politics did not center much on who qualified or had
the best academic qualification for the job available. The “Merit System”
actually was relegated to the background, whilst nepotism and favoritism
assumed a radical dimension in the political landscape of the geo-political and
socio-economic administration of the New York City and for that matter the
State. Off course, the City was figuratively the State and Tammany Hall
invariably; the Democratic branch in the State of New York, even though other
seemingly blocks of the Democratic Party machine existed in the State.
The geo-political philosophy of
the Tammany Hall vehemently resisted Public Service Reforms, which pertained in
education, employment and allocation of social services and infrastructure. The
multi-dollar question is why the vehement opposition and resentment from the
“Bosses” of the Wards and from the District and Municipal administrative hierarchy?
Do you believe in the moral value of the principle of “Honest Graft?” Do the
citizenry need to share in the joy of the Honest Graft? Were the citizenry,
really conscious of the principle of the “Honest Graft” in that political and
democratic evolution? Was dictatorship shrouded in obscurity and enforced in
the will of the people?
These were the revelations that
brought enlightenment in the face of the culture of comfort that the social
class or the bourgeoisie carved for themselves in the party political machine
of the 20th century. And today we ask: How relevant is this political
philosophy to our cherished democracy? Is the party political machine still in
operation? If yes, of what trend is it different from the 20th century
historical demonstration of the Tammany Hall?
A critical development, worthy of
note, was how the urban political administration, influenced and hijacked supposed democratic elections, through a
mechanism called repeated voters or simply “repeaters”, just to ensure that the
Tammany Hall secure power for the Democratic Party and continue to “build the
nation”, as purported. To them, Civil Service Reforms was a curse, and amassing
wealth through a political office was just an opportune blessing of Mother
Nature, and just like the discovery of hidden treasury.
It is significant to indicate
that as we recall this significant political milestone, a critical
introspection and retrospection is made of the current dispensation of the
geo-political and democratic governance. Has the party machine improved or
deteriorated overnight? If the purpose of politics is to seek the common good
of the citizenry, then must the citizenry bear the blunt of a unique
inclination to a political philosophy by the core of the groupings?
What is perhaps required in the
reform administration of the current dispensation of politics and government,
is social and economic justice, which is interwoven with equality, equity,
preservation of human dignity, good governance, accountability, rule of law and
respect for the constitution. These reforms do not only improve our governance
system, but equally, they help sustain the very moral fabric of our
socio-cultural norms, values, love for humanity and fear of God.
Again, in the current dispensation of the reform administration,
bribery and corruption is a crime prosecutable under the law, and in the
circumstance, the giver and the receiver are both at fault. In fact, the power
of the instrument of the law was perhaps, inefficacious or unmindful under the
regime of the political machine - Tammany Hall, as crime was compensated, at
the expense of justice administration and correction. So we ask: Has the law
resumed its efficacy since? Or the law is still an ass? At what point in time
do we feel convinced that the fundamental human rights of the citizenry is
marginalized under the full glare of the instrument of the law, and do we still
have such machines that guarantee the barbaric continuity of this system? To
this extent, we seek to clarify, how relevant the political philosophy of the
Tammany Hall is to our modern democratic culture, and to make a full assessment
of their ramifications on the wellbeing of the citizenry.
Are there any useful lessons for
the political hierarchy and the citizenry? As published in his book: “The shame
of the cities,” Lincoln Steffens, also a former city editor of the New York
Commercial Advertiser, remarked, “Tammany kindness was real kindness and went
far” its power “gathered up cheaply like garbage in the districts.”
We cannot assume to take anything
for granted. As patriotic citizens, our active participation in the democratic
process of decision making is as equally important as the power and role
invested in our representatives in government, and we have a collaborative role
to ensure the sustenance of true democratic governance, devoid of undue
manipulations. To partner this contract effectively, we must do away with
apathy and indifference in the governance of the country. Our political
representatives, who are entrusted with enumerated powers, must also ensure
that our civic responsibilities are honored through effective and efficient
civic leadership engagements, and citizenship active participation in the
democratic governance in a welcoming manner of our inclusive democratic political
culture.
A critical observation of the
Tammany machine, may conclude that perhaps, active participation in the local
politics and strategic tactics of the Tammany machinery was not absent, what
really was missing, was a lack of understanding of the socio-political issues,
by a mass majority of the electorate, and this disadvantaged them immensely to
the benefit of the political lords. The call again is for our modern
democratic institutions and civil society activist groups to intensify their
public education campaigns, on all the socio- economic, political and legal
issues that bind and concern the citizens, in order that they might be well-
informed to contribute their quota meaningfully, and become watchdogs on the
main principles of Checks and Balances inherent in the very concept of
Separation of Powers.
This is what Aristotle describes in the real sense of the
word, “Citizenship.”
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