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Barring Health Officials from Active Party Politics, justified?


 

I read with dismay a circular dated 13th April, 2023, authored and circulated by the Ministry of Health to directorates, institutions and affiliate bodies under the Ministry. The Ministry’s directive is simply to remind these institutions that it has seen some Senior Staff in the Health Sector engaging in active partisan political activities. And that the Ministry is warning those Senior Staff to abreast themselves of the under listed guidelines and sanctions attached thereon, which guidelines and sanctions were culled from the Human Resource Management Policy and Manual for the Ghana Public Services particularly at pages 104 to 105:

i.                   A Public Servant shall not openly participate in partisan political activities, seek political office whilst still in the public service or use Government facilities, equipment or resources to assist any candidate seeking elected political office.

ii.                 A Public Servant shall not act in a manner or assume a position that results or is likely to result in the personal or political interest of that Public Servant being in conflict or being likely to be in conflict with the performance of the functions of office.

iii.              A Public Servant who wishes to identify with a political party or seek political office shall resign from the Public Service.

iv.               Governing Boards/Councils and Heads of Organisation shall take necessary steps to sanction any Public Servants who violate the provisions in this section.

v.                 Partisan politics shall not be introduced into or practiced (sic) at the workplaces.

The phrase active politics is simply defined by the Urban Dictionary as the process of involving oneself in politics through financial or through an office.

In the context of the 1992 Constitution of Ghana, article 276 (1) states that, “A chief shall not take part in active party politics; and any chief wishing to do so and seeking election to Parliament shall abdicate his stool or skin.” From the reading of this article, it is deducible that active party politics is coterminously linked among others, to seeking an election to become a legislature in this country. However, it does not necessarily arise only when one decides to become a member of Parliament. But rather whatever position one decides to stand or seek, either inter-party or competing against political opponents can be defined as active party politics. This is in consonance with article 55(8) of the 1992 Constitution of Ghana, “a political party shall not have as a founding member, a leader or a member of its executive, a person who is not qualified to be elected as a member of Parliament or to hold any other public office”. From this, one cannot become even a branch executive of a political party if that person is not qualified to become a member of Parliament.

In the particular case of the Senior Officers in the Ministry of Health, does the Ministry has the locus to prohibit its officers from engaging in active party politics? The answer in my humble opinion is a Big No. The laws of Ghana are crystal clear on the category of persons or officials of certain State institutions who are debarred or prohibited from engaging in active politics. Article 94(3)(b) of the 1992 Constitution of Ghana states that, “a person shall not be eligible to be a member of Parliament if he – is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise, and Preventive Service, the Immigration Service, or the Internal Revenue Service.”

With the abundance of respect to the officials at the Ministry of Health, I think they were simply in a hurry to publish their circular without asking or interrogating themselves the critical question of the legality of what they were engaging in. The directive in the circular has no legal basis and must be withdrawn forthwith. It is an encroachment on the rights of these Health Service Officials and in particular sinned against articles 12(2), 21(1)(a) and (b), 21(3), 35(6) 55(1), (2) and (10) of the 1992 Constitution of Ghana. How does a health officer’s decision to contest for a primary election in his/her party affects his output? The Ministry of Health may be right if they prohibit any form of political activities within the premises of work. But to give a blanket prohibition purely because these workers are under the Ministry of Health is a gross disrespect to the laws of Ghana and must not be made to stand.

Indeed, if the Ministry of Health had taken the efforts of reading the cases of Kwadwoga Adra versus National Democratic Congress and five others [Writ Number J1/13/2014] (Delivered on 15th July, 2015) and Civil and Local Government Staff Association of Ghana (CLOSSAG) versus Attorney General and two others [Writ Number: J1/16/2016] (Delivered on 14th June, 2017), they would have realised that their directive cannot stand the test of legality in any Court of law in Ghana.

The fact in the first case is that two people working with the Ghana Highway Authority and Ghana Education Service decided to contest for the positions of constituency chairman and secretary respectively of the National Democratic Congress (NDC). These two were already registered members of their political party in their various constituencies. The Plaintiff decided to challenge their decision at the Supreme Court based on the premise that both of them were Civil Servants and thus their action sinned against articles 55(8) and 94(3)(b) of the 1992 Constitution of Ghana. The Supreme Court made a definite statement that the two Defendants were not Civil Servants within the meaning of article 94(3)(b) of the 1992 Constitution of Ghana and therefore fit to contest for the executive positions in their party. The Court further stated that, “even though the Ghana Education Service is listed as PUBLIC SERVICE, it is specifically excluded from the list of services whose members are disqualified from becoming members of Parliament under Article 94(3)(b). Though the Ghana Highway Authority is not specifically listed it is a state owned corporate body and therefore comes under Article 190 (b).”

The Supreme Court further affirmed that, “we believe that if the framers of the constitution wanted to disqualify members of all services listed under Public Services, they would simply have stated that ‘all members of the Public Services’ are so disqualified. They would not have listed some of the services leaving others.”

 

In the second case, on 23rd September, 2015, one Alexander Hedidor, an Assistant Director at the Prestea-Huni Valley District Assembly, was interdicted for involving himself in active party politics when he filed his nomination to contest the Suaman Constituency Parliamentary primaries, on the ticket of the National Democratic Congress (NDC), which was considered a contravention of the provisions of the Code of Conduct of the Local Government Service.

In an attempt to rationalise these disciplinary measures, the Head of Civil Service on 19th October, 2015 sent a notice to “All Chief Directors” and “All Heads of Departments”, the addressees were requested to remind ‘all staff members’ that persons holding civil service positions are barred from participating in political activities including the following:

a)        Attending political rallies

b)       Wearing party paraphernalia

c)        Subjecting one’s self for party vetting

d)       Holding party membership card and

e)        Standing for party primaries etc.

 

The said notice made reference to the provisions of the Civil Service Code of Conduct (issued on 1st November, 1999), section 12(1) (b), (c) and (e) of which read as follows:

“12. (1) The Constitution of Ghana confers rights on all citizens of Ghana, including Civil Servants to join any political party or association of their choice. However, by virtue of the traditional role of the Civil Service to serve the Government of the day loyally, and to maintain the confidence of any future Administration, a Civil Servant may not:

a)    Accept any office paid or unpaid, permanent or temporary, in any political party or organisation;

b)    Declare himself openly as a registered member of a political party or association;

c)     Indicate publicly his support for any party, candidate or policy

d)    Make speeches or join in demonstrations in favour of any political person, party, or propaganda

e)     Engage in activities which are likely to involve him in political controversy.

(2) Notwithstanding, a Civil Servant is entitled to his views in political matters, and if so qualified, may vote at elections.”

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 to 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.

 

Tamim Abubakar

bktamim@gmail.com

The writer is a legal researcher

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