This is the third in a series of case studies on the Constitutional Right to Rebel: Ghana
The nation of Ghana was formed in 1957 as a sovereign union between the recently independent British protectorates of Gold Coast and Togoland. After an embryonic representative government collapsed in 1966, the country passed from coup to coup for the next ten years.
In early 1978, a constitutional assembly was set up to draft a new constitution for the country, one that would hopefully install a tenable and democratic system of governance. After the draft had been submitted and approved but prior to the constitution’s taking effect supporters of Jerry Rawlings, an imprisoned military officer, overthrew the government and executed just about everyone who had been in a position of power during the previous period. Although Rawlings and his cadre achieved complete control of the government following these executions, the Draft Constitution of 1978 was still allowed it go into effect in an amended form. This constitution included the following “Constitutional Defense” article:
“Art. 1(3) All citizens of Ghana shall have the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution should no other remedy be possible."
Constitutional Defense refers to forward-looking provisions which are the most common rationale behind a constitutional Right to Rebel and can serve as an extralegal insurance policy for the existing regime. These constitutions seek to pre-empt any move to suspend the extant constitutional order by declaring ex ante that whosoever it was that toppled the existing order did so illegally regardless of the circumstances. This would serve to delegitimize any government that followed and defenders of the ancien regime, would have a constitutional justification for taking arms against the new order and possibly forcing a restoration.
Rawlings allowed an elected president to take office and rule (as a puppet) for two years before again overthrowing the government by coup and suspending the constitution in 1981. Following this second seizure of power Rawlings abandoned the mask and ruled as an open dictatorship under the suspended constitution for over ten years. In 1992, Rawlings was still in complete control of the government but he allowed for a liberalization in which a new constitution was written and implemented.
The 1992 constitution expanded upon the "Right to Rebel" set up in its suspended precursor.
"Art. 3(4) All citizens of Ghana shall have the right and duty at all times— (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article. (5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence. (6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment. (7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment."
In 2000, as Rawlings struggled to keep control of a nation that was rapidly slipping away from him, the constitutional Right to Rebel became relevant in a new way.
As reported by Thomas Friedman for the New York Times, during an interview with the head of the Ghana Bar Association following Rawlings removal from office:
"On the day of the elections there was a polling station in Accra where soldiers started destroying voting boxes," recalled Joseph Ebo Quarshie, president of the Ghana Bar Association. "Immediately, someone called an FM station and it was reported on the air. I was at my bank at the time. A guy walks up to me, a pharmacist I know, and says, `Have you heard what's going on at this polling station in Accra? What is the Bar Association doing about it?' So I got in my car and turned on SKY FM. Minutes later I got a call from JOY FM. I told them to call me back in a few minutes. Meanwhile, I got a copy of the Constitution. JOY FM called me back and I read over the radio the article in the Constitution which says that citizens had the right to resist interference in a polling station. JOY FM kept playing my interview over and over. A couple hours later the soldiers were chased off by voters."