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DECENTRALIZATION AND LOCAL GOVERNMENT: THE CONSTITUTION REVIEW COMMISSION’S (CRC) REPORT AND THE GOVERNMENT WHITE PAPER- AREAS REQUIRING FURTHER CONSIDERATION.

The Government of Ghana in 1988 drawing on earlier attempts and experiences embarked on a process of implementing a comprehensive decentralization and local government reform programme. The programme aimed at establishing efficient decentralized government machinery, promoting popular participation by shifting the process of governance from command to consultative processes and devolve functions, power, competences, skills, resources and means to local governments through executive, legislative, administrative, planning, service delivery, rating and budgeting.

The primary legislation was the Local Government Law of 1988, PNDCL 207. This was further deepened with the promulgation of the 1992 Constitution which has the entire Chapter 20 devoted to “Decentralization and Local Government”. Article 240 (1) of the 1992 Constitution which is an entrenched provisions in the Constitution, provided for the following:

‘Ghana shall have a system of Local Government and administration, which shall as far as practicable, be decentralized’.

Article 240(1) of the 1992 Constitution of Ghana’

Ghana’s current system of decentralization has evolved in response to the demand for improved service delivery, accountability and good governance. Subsequent legislations including the Local Government Act, 1993 (Act 462) and the Local Government Service Act, 2003 (Act 656), The National Development Planning Commission Act, the District Assemblies Common Fund Act

Introduction

455 were passed to support the process. After 20 years (1988-2008) of implementation, a review indicated marginal progress towards achieving the desired results. This and other factors formed the basis of Ghana’s new Decentralization policy framework in 2010.The new policy provided for ten (10) thematic areas of concentration within the plan implementation period. This has since been implemented and due to be replaced with a second policy framework to run from 2015 - 2017 riding on the new GSGDA II.

Ghana’s Decentralization Policy Framework is premised on the guiding principles on Decentralization within Article 35(6d) of the 1992 Constitution.

Guiding Principles

The following guiding principles underpins Ghana’s Local Government and Decentralisation system:
The right of all persons to be afforded opportunities to participate in decision making at every level of governance;
Central government transferring relevant functions, powers, responsibilities and resources to local government units in a coordinated manner; and in turn, local governments transferring required resources to sub-structures;
Enhancing capacity of local government authorities to plan, initiate, coordinate, manage and execute policies in respect of all matters affecting the people in their areas;
Ensuring local government accountability through an effective citizenry participation;
Ensuring effective control of persons in the service of local government by local authorities.
1.2 Structure of local governments in Ghana

Ghana’s 1992 Constitution creates a three-tier structure of sub-national government at regional, district and sub-district levels; through the Regional Coordinating Councils (RCCs); Metropolitan/Municipal/District Assemblies (MMDAs); and Urban/Zonal/Town/ Area Councils and Unit Committees. The Constitution further mandates Parliament to prescribe the guidelines for the demarcation of MMDAs.

Under the Constitution, the RCCs are chaired by Regional Ministers and has other members as deputy regional ministers, the Presiding Members and Metropolitan Municipal District Chief Executives (MMDCEs) from each district in the region and two chiefs from the Regional House of Chiefs.

Regional Heads of decentralized ministries in the region are considered non-voting members and may attend RCC meeting depending on the subject under discussion. The RCC’s main function is to monitor, coordinate and evaluate the performance of the legal mandate of the various MMDAs in the region.

The MMDAs are the highest political authority in the district and are vested with deliberative, legislative and executive powers. The Composition of the MMDAs is seventy percent (70%) elected in non-partisan elections and thirty percent (30%) of all the members appointed by government in consultation with traditional authorities and interest groups.

The Constitution prescribes that local level elections are held every four (4) years. Members of Parliament whose constituencies fall within a district are also considered members of the respective Assemblies but without any voting right.

The MMDCEs are appointed by the President subject to the approval by two-thirds of majority of members of the MMDAs. The meetings of the Assemblies are chaired by a Presiding member, who is elected by two-thirds of all members of the Assembly for two (2) year tenure .

The Constitution also makes provision for further decentralization to the grassroots level by making provision to deepen popular participation in governance through the creation of the Zonal/Urban/Town/Area Councils and the Unit Committees.

1.3 The corporate character of District Assemblies in Ghana

In Ghana, local governments are created as independent entities in law, who can sue and be sued. They are of legal character which requires a separate and special Legislative Instrument (L.I) to support their establishment. Features which gives them such legal character included the fact that; they are created (declared and assigned a name) by President under .Executive Instrument (E.I) .After satisfying minimum population of 75,000 for districts, minimum population of 95,000 for municipals (Until 2012 there was an additional geographical requirement of “a single compact settlement “ for such a municipality).This aspect of Act 462 has since been amended .Minimum population of 250,000 for Metropolitan Assemblies.

In addition to all the above, the element of geographical contiguity and economic viability must be met by all. Aside creation which is general, each potential MMDA is also required to be properly established by a specific Legislative Instrument (L.I) as the highest political authority; the L.I. provides the following:
The actual name of an MMDA;
The number of persons each to be elected and those to be appointed;
The jurisdiction, functions, powers and responsibilities of the MMDA
The place where the principal offices of the Assembly are to be situated (capital) etc.
Also, Local Governments in Ghana are required to be incorporated to make their corporate character complete (Section 4 of Act 462).

The inauguration, common seal, logo and others makes the Assembly incorporated as a body corporate with perpetual succession which entitles it to sue and also be sued.

1.4 Functions of Local Governments

The Local Government Act, 1993, Act 462 mandates local governments to exercise political and administrative authority within their area of jurisdiction, provide guidance, give direction to and supervise all other administrative authorities in the district. Principally, local governments in Ghana are required to perform the following functions:
Be responsible for the overall development of the district ;
Formulate and execute plans, programmes and strategies for the effective mobilization of the resources necessary for the overall development of the district ;
Promote and support productive activity and social development in the district and remove any obstacle to initiate development;
Initiate programmes for the development of basic infrastructure and provide municipal works and services in the district; and
Be responsible for the development, improvement and management of human settlements and the environment in the district;
Maintain security and public safety in the local government.
2.0 STATUS OF DECENTRALIZATION AND LOCAL GOVERNMENT IMPLEMENTATION IN GHANA

Ghana’s Decentralization Policy Framework of 2010 together with the National Development Action plan aims at reorientation and reinvigorating Ghana’s decentralization objectives as outlined under Article 240 of Constitution. The Decentralization Action Plan (2010) is considered the second national plan following the National Development Action Plan (NDAP) of 2004 . It has been implemented for five (5) years 2010-2015. It focuses on ten (10) main prioritized areas. These are:
Political decentralization and legal issues;
Administrative decentralization;
Decentralized development planning;
Spatial planning;
Local economic development;
Fiscal decentralization;
Popular participation and accountability;
Social agenda ;
Involvement of non-state actors in local governance;
Institutional mechanism for policy coordination.
Though not representing a marked departure from the maiden plan of 2008, the following differences can be associated with the new policy:
Its development was the outcome of a longer well documented consultative process;
All inclusiveness was the key approach to ensure the by-ins of all political parties, for continuity and sustainability of initiatives;
It clarifies the concept of decentralization, the roles of the central government, regions, MM¬DAs and sub-district structures;
Responded to the contemporary need to include issues of popular participation, spatial planning social agenda and accountability is-sues in governance previously not anticipated;
Provided for more coherent institutional arrangements for policy coordination through the Inter-ministerial Coordinating Committee.
All inclusiveness was the key approach to elicit the by-ins of all political parties, for continuity and sustainability of initiatives;
It clarifies the concept of decentralization, the roles of the central government, regions, MM¬DAs and sub-district structures;
Responded to the contemporary need to include issues of popular participation, spatial planning , social agenda and accountability issues in governance previously not anticipated;
Provided for more coherent institutional arrangements for policy coordination through the Inter-ministerial Coordinating Committee.

2.1 Progress and Challenges of Decentralization and local Government reforms in Ghana

A recent review of Decentralization implementation revealed substantial progress but with various challenges. The initiation and completion of the constitutional review process which identified majority of these has provided an added impetus which if addressed would have the potential of fast- tracking the decentralization implementation process.

3.0 The Constitutional Review process and the Constitution Review Commission (CRC)

Though the twenty (20) years review of decentralization implementation in 2011 revealed various gaps; the Constitutional review process from 2011 is the most significant, figural , bold and remarkable attempt by the nation to fast track the decentralization implementation process. The promulgation of Constitutional Instrument (C.I.) 64, 2010 pursuant to article 278(1) of the 1992 Constitution and the subsequent inauguration of the Constitution Review Commission (CRC) on 11th January, 2010 set the 1992 Constitutional review process in motion. The C.I. established the CRC and gave it a legal mandate to among other things:
Ascertain from the people of Ghana, their views on the operation of the 1992 Fourth Republican Constitution and, in particular, the strengths and weaknesses of the Constitution;
Articulate the concerns of the people of Ghana on amendments required for a comprehensive review of the 1992 Constitution; and
Make recommendations to the Government for consideration and provide a draft Bill for possible amendments to the 1992 Constitution.
3.1 Establishing the Thematic Areas

The CRC conducted Regional Consultations in all 10 administrative Regions along the following key thematic areas:
National Development Planning;
Executive Powers (including transition of executive authority);
Legislative Powers (including transition of legislative authority);
Legal Sector Issues (Judiciary and administration of justice);
Decentralization and Local Government;
Independent Constitutional Bodies;
National Elections and related issues;
Natural Resources and Financial Management (including Oil and Gas);
Public Services;
Traditional Authority; and
Human Rights.

Decentralization and local government formed an important component of the thematic areas identified by the CRC for consultation and review. After series of community, regional and other consultations, it culminated into a national constitutional conference which finally validated the findings along the following lines:
Their historical background;
Their supporting framework (constitutional, legislative, administrative practice, institutional);
The emerging issues after a number of years of implementation since 1993;
The strengths and weaknesses of the Constitutional provision under each thematic area;
The constitutional and legislative reviews/changes required to remedy any identified weaknesses during the years of implementing the constitution ;
The administrative and institutional reviews/ changes required to remedy any of such identified weaknesses;
The changes required in any custom(s) to remedy such weaknesses as has been identified during the years of implementing the constitution;

Feedback from the conference, informed the development of a final report by the commission to the Presidency. A white paper was subsequently issued on the report by government. The content of the white paper and matters arising thereof are the subject of this paper. The paper reviews the White Paper’s position and expresses professional opinion on the implications for decentralized local governance in Ghana

4.0 Emerging issues on local government and decentralization

A number of issues were identified by the CRC as affecting local government and decentralization. Most of them bothers mainly on conceptual issues. Typically, the following were identified:
Conceptualization of the Decentralization policy
Definition of Local Government
Demarcation of Local Governments
Allocation of the District Assembly Common Fund (DACF) to Local Governments
The oversight role of the Regions in Ghana’s Decentralization process
Composition of the MMDA’s
The Partisan or Non Partisan Nature of Local government System in Ghana
Should the Constitution be amended to scrap the thirty percent (30%) government appointees or should the percentage to be appointed be reserved for identifiable groups;
Should the Constitution be amended to remove Members of Parliament (MPs) as members of District Assemblies;
Whether or not MMDCE’s are to be elected.
Conditions of Service for all Assembly Members.
The election and Tenure of Presiding Members.
Financing of MMDAs.
Funding Town-Zonal-Area Councils/Unit Committees
Whether or not Town/Zonal/Area and Unit Committee members should be paid a monthly allowance.

CRC Final Report and Government White Paper

As per the mandate of the CRC they submitted their final report to the government subsequent to which a white paper was issued indicating government’s position not accepting all the CRC recommendations. This paper will subject the CRC proposal to an in-depth analysis, consider government’s position in the white paper and make a strong case for areas requiring further review. The paper will conclude that the white paper itself has been overtaken by events and would require a critical review before the Constitutional Review Implementation Committee (CRIC) sets its action plan for the implementation of recommendations to review the Constitution in motion The white paper as it stands now if implemented to the latter would do more harm than good to decentralization and Local Governance in Ghana.

What are the provisions of the white paper on local government and decentralization

The preamble to the white paper indicates that Government accepts most of the recommendations of the Commission. It went on further to indicate that where Government does not accept the Commission’s recommendations, reasons for the non-acceptance have been stated. These reasons have been analyzed by this paper and a strong case made for their reconsideration if need be before going ahead with the amendment or review of the 1992 constitution.

Where the CRC recommends the retention of existing provisions of the Constitution and Government agreed with the Commission, the white paper is silent on it implying the status quo -ante stays. It is also gratifying to note that for the purposes of implementing the recommendations, the Government set up a five-member Implementation Committee with the mandate to implement the accepted recommendations, in accordance with Chapter 25 of the 1992 Constitution on Amendments.

5.2. The Provision or Caveat in the White Paper

Section 6.0 of the White Paper is on the government’s response to the recommendations of the CRC. It starts with a proviso that “no comments have been made in relation to proposals in the Constitutional Review Commission’s Report where the Report accepts the constitutional or legal status quo. Such provisions should be considered to have been accepted by government except otherwise expressly stated. Government has also restricted itself to a point by point response to specific recommendations made by the Constitutional Review Commission”.

The report and its interpretation must be undertaken with regard to this caveat.

5.3 Provisions of the White Paper on Decentralization and local government

Government responses in the white paper on the MMDAs covered a wide range of areas . As indicated earlier, they covered the following :
Concept of Decentralization
Demarcation of Metropolitan/Municipal/ District Assembly(MMDAs) Boundaries
Common Fund Allocation to MMDAs
Regional Coordinating Council
Composition
Appointments
Functions
Metropolitan/ Municipal/District Assemblies
Composition of the District Assembly
Appointment of the MMDCEs
Conditions of Service
Election and Tenure of Presiding Members
Financing
Town-Zonal-Area Councils/Unit Committees
Conditions of Service for operators at the sub-district structures

The above is a clear indication that the white paper has invariably accepted all the main headings under the thematic area for local government and decentralization identified in the CRC report. The challenge is whether or not the various sub-specific proposals under each of the main heading have been given the needed attention and responded to by the white paper. Specifically Section 6.7, Chapter 9 of the White Paper provided for government’s response to the CRCs proposal on decentralization and local government. In all twelve(12) issues were responded to as follows:
1st Issue: Conceptual Basis for Ghana’s Decentralization and Local Government
2nd Issue: Mode of District Assembly Elections
3rd Issue : Selection, Qualification and Composition of MMDAs
4thIssue: Mode of selecting MMDCEs
5th Issue: Tenure of office of MMDCEs
6th Issue: Removal and Security of Tenure of MMDCEs
7th Issue: Mode of Election and Tenure of Office of Presiding Members
8th Issue: Conditions of Service for MMDC¬Es, Presiding and Assembly Members
9th Issue: Fiscal Decentralization
10th Issue: Demarcation of the Boundaries of Districts
11th Issue: Regional Coordinating Councils and Regional Level Governance
12th Issue: Urban, Town and Area Councils and Unit Committees.

First Issue: Conceptual Basis of Decentralization and Local Government

White paper position:
Government accepts the recommendation that article 240 of the Constitution be amended to identify the type of decentralization envisaged at the three levels of decentralization in Ghana namely:

(a) de-concentration at the level of the Regional Coordinating Council;

(b) devolution at the level of the Metropolitan, Municipal and District Assembly; and

(c) delegation at the level of the Sub-District.

Commentary and Perspectives of the writer:

This is good and seemed to have added to the clarification already provided under the new decentralization policy framework of 2010. Providing for it in the Constitution adds more meaning and weight to the clarity in like manner as exists under Article 176 of the current Ugandan Constitution.

Second Issue: Mode of District Assembly Elections

White paper position:
Government does not accept the recommendation that article 248 of the Constitution be amended to empower Parliament at any time in the future to make provision for partisan elections at the district and sub district levels.
Government is of the view that the arguments advanced by the Commission for a non-partisan local government system far outweigh any arguments in favour of a partisan local government system. Government therefore intends that article 248 in its present form be retained.

Commentary and perspectives of the writer:

Government position seem to be right in law and the practice of governance , however we should not keep a blind eye on the realities on the ground where the Assemblies and election have been tainted with party politics to the extent that it is not difficult for one to know the party of an assembly member. This has also affected the choice and approval of Presiding Members (PMs) and Chairpersons of Finance and Administration sub-committees in the recent past. We either have to outlaw it completely and strictly enforce it with appropriate sanctions or review the constitution to reflect the current realities on the ground. Amending article 248 is the way out.

Third Issue: Selection, Qualification and Composition of MMDAs

White paper position:
Government accepts the recommendation that the mandatory membership of MPs on the MMDAs be abolished. Instead, an MMDA may co-opt an MP of a constituency or constituencies within its jurisdiction as a non-voting member of the MMDA;
Government also accepts the recommendation that the thirty(30) per cent(%) membership of the MMDAs be retained but does not accept the recommendation that the power to make the appointments be made by the President in accordance with the advice of the traditional authorities only.
It is the view of Government that the present provision which allows the President to make the appointments in consultation with the traditional authorities and other interest groups in the district is more flexible and inclusive and therefore preferable.
Government however accepts the recommendation for legislation to provide an indicative list of identifiable groups to be appointed to the MMDAs.
Government does not accept the recommendation that the traditional authorities develop detailed criteria for the selection of the thirty per cent (30%) appointees for appointment by the President.
Instead, Government is of the view that the detailed criteria for the selection of the thirty per cent (30%) appointees should be included in legislation, preferably the Local Government Act.

Commentary and perspectives of the writer:

Evidence and practice have revealed the appointment of party faithful to occupy the 30% appointees of the MMDAs. This has further worsened the political polarization of the MM¬DAs. There is the need for further clarity on what the proposed indicative list means. This must be generated with resource- skills mix input from the technical wing of the MMDAs in-forming the appointment.

The nation stands to benefit enormously from able bodied professionals and other vulnerable members of the society normally sidelined in such situations. Specific seats must be reserved for traditional authorities in all MMDAs so that they can be properly integrated into the MMDAs governance process.

Fourth Issue: Mode of selecting Metropolitan, Municipal and District Chief Executive

White paper position:
Government does not accept the recommendation that Parliament should be empowered to determine specific mechanisms for choosing MMDCEs.
Government does not also accept the recommendation that MMDCEs should be popularly elected.
Rationale: Government is of the view that in decentralizing in a unitary state, a delicate balance ought to be struck between central control and local autonomy. Consequently, Government is of the view that article 243 (1) of the Constitution should be amended for the President to nominate a minimum of five(5) persons who would be vetted by the Public Services Commission for competence after which three(3) nominees would contest in a public election.

Commentary and perspectives of the writer:

There are three issues here; Accountability, Transparency and Competence. If government ‘s interference is to ensure that MMDCEs are competent then same must be extended to Ministers of State at the national level.

In a typical democratic society, government allows people in a particular district to vote on their leaders (MMDCEs) in a purely non partisan manner. This will promote social accountability and responsiveness. The issue of competence and delicate balance cannot replace citizens right to choose their MPs and Assembly members. This is one grey area in our democratic dispensation which must be properly promoted to facilitate a true popular participation in governance. MMDCEs must be elected by popular vote without any conditionality. Again the question we have to ask ourselves is, are we appointing MMDCEs as managers or as politicians? This will inform the way to go.

Fifth Issue: Tenure of office –District Chief Executives and Assembly Members

White paper position:
Government accepts the following recommendations:

(a) the tenure of all members of the Metropolitan, Municipal and District Assemblies should be 4 years;

(b) the tenure of all Metropolitan, Municipal and District Chief Executives should be 4 years;

(c) the tenure of all Metropolitan, Municipal and District Chief Executives should be coterminous with those of the President and Parliament.
Government does not accept the recommendation that Parliament should deter-mine the number of terms MMDCEs may be in office. Once MMDCEs are approved by popular vote and by the District Assemblies respectively, Government is of the view that for as long as the President nominates a person for the position of MMDCE and for as long as the person wins the popular vote of approval or the approval of the District Assembly as appropriate, he/she may continue to be DCE.

Rationale:
This will go a long way to remove the in-security felt by DCEs when coming to the end of their mandatory term and put them at par with MPs who may be elected to Parliament for as long as their constituents vote for them.
It will also remove a major source of the conflict between MMDCEs and MPs and the tendency for MMDCEs to undermine their MPs in order to seek to replace them.
Government does not see the need for the recommendation that the Constitution should prescribe the holding of by-elections to replace an elected member who resigns or dies because the situation is well covered by the existing law. Section 11 (1) of the District Assembly Elections Act, 1994, Act (473), which provides that:

“Except as otherwise provided in this Act, the Representation of the People Law, 1992, (PNDCL 284), shall apply to District Assembly election under this Act with such modifications as may be necessary.”

Section 12 of PNDCL 284 provides as follows:

“Whenever a vacancy occurs in the membership of Parliament, the Clerk to Parliament shall notify the Commission in writing within seven days after the vacancy occurred, and a by-election shall be held within thirty days after the vacancy occurred”.

Sub-section (2) States as follows:

“Notwithstanding subsection (1) of this section, a by-election shall not be held within three months before the holding of a general election”.

Consequently, the recommendation for the Electoral Commission to legislatively determine the time frame and related matters for holding by-elections for MMDAs electoral areas becomes otiose. The practice has been for the Secretary to the MMDA (the District Coordinating Director) to notify the District Electoral Office of all the vacancies to enable the Office take appropriate action to hold the by-election.

Commentary and perspectives of the writer:

For the first time a clear provision on the exact tenure of MMDAs to be (4) years .Until this has been made, It has been determined by administrative instructions. However, there is no known clear -cut provision in any law on the exact tenure of Assembly members. It must be noted that the tenure of MMDAs and the tenure of Assembly members are not necessarily the same. The fixed term of office accepted for MMDCEs is in line with contemporary good governance practices and has the potency of introducing an element of consistency in public administration between local, regional and national governance systems. Similarly, the replacement of a member who resigns or dies is clearly provided for in law as outlined in the white paper so existing provision must be activated and properly invoked if the circumstances so requires.

Sixth Issue: Removal and Security of Tenure-District Chief Executives

White paper position:

Following Government’s view that there should be the same mode of selection for Metropolitan, Municipal and District Chief Executives.
Government accepts the recommendation that Metropolitan, Municipal and District Chief Executives may be removed from office by the President with the approval of not less than two-thirds majority of all Assembly members.
Conversely, the Assembly may also request the removal of Metropolitan, Municipal and District Chief Executives by a petition signed by two-thirds of all members of the Assembly, and the request should be endorsed by the President.

Commentary and perspectives of the writer:

This provision is long overdue as citizens see it as a way of practically taking away their sovereign right to choose their leader. The current system where the MMDA approves Presidential nominee for an MMDCE , only for such a person to be withdrawn at a later date by the President without recourse to the Assembly is very undemocratic. Why can’t we have the same Assembly which approved the appointment of an MMDCEs be consulted during any dismissal or withdrawing of an MMDCE by the President for their approval of such dismissal.

Seventh Issue: Mode of Election and Tenure of Office of Presiding Members

White paper position:
Government accepts the recommendation that article 244 (2) be amended to allow for the election of Presiding Members by a majority of the members of the Assembly pre-sent and voting.
Government also accepts the recommendation for the retention of the two-year, two-term tenure of office for Presiding Members.

Commentary and perspectives of the writer:

The issue of having majority of the members present and voting for Presiding Member is long overdue. This in effect lowers the higher standard of “all” Assembly Members present and voting before a Presiding Member can be chosen. In the past some Assemblies had to vote on a Presiding member nine(9) times before settling on one, just because of the inadequacy of the numbers or the unavailability of one person or the other for voting. This has both cost and administrative implications.

Eighth Issue: Conditions of Service- MMDCEs, Presiding and Assembly Members

White paper position:
Government accepts the recommendation that the Independent Emoluments Commission recommended to be set up under the Constitution should determine the emoluments and conditions of service of MMDCEs, Presiding Members and Assembly members.
Government notes however that this recommendation does not address the issue of whether the Presiding and Assembly members should be paid from the resources of the Central Government or that of the MMDAs.
Government is of the view that the emoluments for Presiding and Assembly members, once fixed by the Independent Emoluments Commission, should be paid from the Consolidated Fund. These should be budgeted for and transferred to the Metropolitan, Municipal and District Assemblies as Grants-in-Aid.

Commentary and perspectives of the writer:

These proposals should settle the issue of compensating and appropriately rewarding Presiding and Assembly members in the discharge of their duties. The work of Assembly members is almost fulltime and has long outlived its previously held voluntary notion.

Going forward, the need for the proper clarity on the elements and basis of establishing what goes into the emoluments and conditions of service for Presiding and Assembly members.

Under the new composite budget system, payment out of the consolidated funds and transfers to MMDAs should be feasible but must be accompanied by appropriate measures to ensure that such funds are used for the intended purposes.

Again, once they are paid out of the consolidated funds, they become public officers and must be appropriately appraised and subjected to similar standards of supervision, monitoring and control existing for all other public officers paid out of the consolidated funds.

Ninth Issue: Fiscal Decentralization

White paper position:
Government accepts the recommendation of the Commission that the Office of the District Assemblies Common Fund Administrator (DACF) should be established as an independent constitutional body.
Government also accepts that the contradictory constitutional provisions on the appointment of the District Assemblies Common Fund Administrator in articles 70(1c) and 252(4) must be reconciled.
Government does not accept the recommendation that the District Assemblies Common Fund Administrator should be authorized to make proposals to Parliament for determining which additional revenue generating functions need to be ceded to the MMDAs. Government is of the view that such a decision should be taken by Cabinet after recommendations have been made to that effect by the Minister of Local Government and that such a provision is best contained in legislation that is the Local Government Act and not the Constitution.
Government does not also accept the recommendation that two Deputy Administrators be appointed. Government is of the view that once the quantum of resources to be distributed among the MMDAs is determined by the Min¬ister of Finance and once Parliament approves the sharing formula, the only function of the District Assemblies Common Fund Administrator is to apply the formula to the quantum to get each MMDA allocation of the Fund. This is easily done by one person using a computer.
A Board for the Office of the District Assemblies Common Fund Administrator is not considered necessary.
Government however accepts the recommendation that the Office of the District Assemblies Common Fund Administrator be filled with staff for data gathering and monitoring purposes, but that does not require a constitutional amendment.
Government also accepts the following recommendations of the Commission which do not require constitutional amendments:

(a) the District Assemblies Common Fund Administrator should institute detailed and clear-cut procedures for accounting for the use of the District Assemblies Common Fund;

(b) the Member of Parliaments’ share of the District Assemblies Common Fund should be abolished and a Constituency Development Fund be established to replace it.

Commentary and perspectives of the Writer:

The CRC made practical proposals under this section impacting positively on fiscal decentralization and financial resource base of local governments in Ghana. The writer will comment on them as follows:
Government’s acceptance of the independent status of the office of the Administrator of Common Fund is welcomed. It is however not enough to leave it at that level. The acceptance and recognition must be specifically provided for in law to enable Ghanaians hold duty bearers and leaders accountable any time the independence of the office is threatened or compromised;
On the contradictory provision under Articles 252(4) and 70(1c), whereas one re-quire the approval of Parliament, the other require the consultation of the Council of State before appointing the Administrator of the Fund. The question is, which one supersedes the other? Considering the entrenched status of Article 252 it will suffice to say that it supersedes the other article on the subject matter. There is therefore the need to resolve the contradiction.
On the issue of government’s rejection of the proposal that Administrator of Common Fund makes recommendation for additional revenue assignments to local governments, whilst agreeing with the rejection, the proposal to cabinet for such an approval should rather emanate from a joint memo submitted by the Finance and the Local Government Ministry .This must be supported in law in other to stand the test of time. There however seem to be a Draft Local Government Finance Bill which if reviewed and passed can resolve many of these challenges. This must be given the attention as the ever widening funding gap of local governments is seriously affecting developments. The draft Consolidated Local Government Bill has some provisions on this matter. It is recommended for its inclusion.
The rejection of the proposal for the appointment of Deputy Administrators and a governing board requires review. The appointment of a deputy administrator is a key requirement to support the administrator. In the unlikely demise of the administrator a Constitutional challenge may be created as there is no provision for a deputy administrator to act until a new administrator is appointed. Considering the appointment requirements under Article 252, the position of at least one(1) deputy administrator can support and improve operations to avoid a Constitutional Lacuna
The administrator is so vulnerable and seemed powerless. Decisions are taken for him to merely implement. This does not make him a professional fund administrator. The issues of deduction at source, bulk purchases and other uses of the fund has been questioned on a number of occasions and platforms.
The existence of boards for similar funds; Ghana Education Trust Fund(GETFund), Road Fund etc has the potential of improving good corporate practice. This must be revisited;
The acceptance of the proposal to set up a separate Constituency Development Fund (CDF) aside the DACF is welcomed. This should be specifically provided for in the constitution and activated almost immediately. However the sources should be independent of the DACF.
Both Section 252 of the Constitution and the DACF (Act 455) indicate that payments in respect of the DACF shall be effected on quarterly basis. Article 252 (2) and Section 1 (3) of DACF Act 455 states ‘The allocation made by Parliament shall be paid in quarterly installments’. These two (2) provisions imply that both the office of the Administrator and the MMDAs should receive four quarterly transfers each year. The realities do not reflect this well intended provision. Review is required.

The issues below requires consideration by Parliament in making progress towards amending the Constitution in this regard:

.The Administrator submits to Parliament for approval on a yearly basis, the formula for the distribution of the DACF. Prior to this the Administrator seeks the approval of the Minister of Local Government & Rural Development and Cabinet. The Common Fund Formula for the sampled six (6) years below were in the following months of the year,

Year Month of Approval

2006 February

2007 February

2008 April

2009 February

2010 Mar

2011 April

2012 January

2014 March

2015 March

These delays in the approval of the Common Fund Formula starting from the submission of the proposed formula to Cabinet, getting Parliamentary approval, making MMDAs submit supplementary budgets is a major drawback on the assemblies’ development efforts.
A further new development in the delay is due to the wide time gaps between the date of transfer by the MoF, by the CAGD and the Payment Date by the Bank of Ghana. This time gaps, especially between the transfer date and the payment date, gives cause for concern.
The Administrator is obliged under section 14 the DACF Act, 455 to submit to Parliament, an annual report on the activities undertaken during the preceding fiscal year. The report should include information on the “…manner in which he has distributed the monies lodged in the Fund and the report of the Auditor General on the accounts.”
The Administrator submits to Parliament an Audited Account and Operational report to Parliament every year. The Administrator to a large extent relies on the monthly expenditure returns of the MMDAs to establish compliance of MMDAs to its budget, a mechanism that does not adequately reflect the situation on the ground.
Other areas requiring consideration includes:
Disparity between Funds Declared and Actual Transfer.
Lack of Institutional Framework for Verification and/or Challenging of Funds Allocated
Delay in the Disbursement Process
Late release of Funds/Funds released in installments and Planning of Projects
Funds deducted at source and central procurement
Delay in submission of Supplementary Budgets by MMDAs
Discrimination in the application of the formula against less endowed districts
Lack of Sensitization of Community Members
Lack of Consultation with Community Members
General lack of Transparency
Perceived rivalry between MPs and District Chief Executives in the use and release of DACF
District Assembles’ Common Fund, (DACF) Act, (1993), Act 455 is outmoded
Participatory review of DACF formula
Need for a transparent Framework to verify computation of the 7.5% national revenue transferred by MoFEP into the DACF
The need for a governing DACF board

Tenth Issue: Demarcation of the Boundaries of Districts

White paper position:

Government does not accept the recommendation that the Constitution provides specifically for the power to upgrade and create districts to be vested in the President and the Electoral Commission, subject to the approval of Parliament. In view of the political controversy that the creation and upgrading of districts has generated in the past, and in view of the fact that Presidents have tried to manipulate this power to the advantage of their Political parties, it is Government’s considered view that the subject be handled by an independent body.

Accordingly, Government is of the view that the power to create and upgrade districts should be vested in the Electoral Commission acting in consultation with the President and with the approval of Parliament, and that this should be provided for in the Constitution. The Ministry of Local Government should however continue to exercise the power to establish the Metropolitan, Municipal and District Assemblies but this should be done by legislation.

Commentary and perspectives of the writer:

The position taken by government is welcomed and laudable however, there is the need to properly define and explain the terms and elements constituting creation, establishment and upgrading of MMDAs in Ghana. The draft consolidated local government Bill may be one way out but a clear cut constitutional provision for this shall be appropriate indicative list of criteria to be satisfied including a checklist on the conditions to be met under each circumstance must be clear in law . This has the potency of introducing some level of transparency and objectivity in the establishment, creation and or upgrading of MMDAs in

Ghana. A situation where MMDAs are created at will without any transparent and verifiable basis can be avoided.

Eleventh Issue: Regional Coordinating Councils and Regional Level Governance

White Paper Position:

Government accepts the Commission’s recommendation for legislation to designate the Regional Coordinating Councils as part of the Central Government placed in charge of coordinating the policy planning of the districts and monitoring and evaluating the performance of the Metropolitan, Municipal and District Assemblies.

Commentary and perspectives of the writer:

This proposal and position of government is most laudable it will introduce the required consistency in the type of decentralised governance envisaged under the Constitution. The only challenge is the identification of a clear funding base for RCCs in the performance of their deconcentrated functions. However it seems the proposed introduction of a Regional Integrated Budget System (RIBS) for the RCC’s would resolve the issue of RCC Funding.

Twelve Issue: Urban, Town and Area Councils and Unit Committees

White paper position:

Government accepts the Commission’s recommendation that the Ministry of Local Government should take administrative action to make the sub-district structures function effectively.

Commentary and perspectives of the writer:

This proposal is about the best in deepening popular participation in governance and also sits with the democratic intent of our decentralization system. However, asking the Ministry of Local Government to take Administrative action to make the sub-district structure function effectively is outmoded at birth. Reason being that, this has been the status quo for some years but the nation has not seen any meaningful progress.

Meanwhile effective decentralisation lies on the vibrancy of the sub-structures. In other to make significant progress in our decentralised efforts, adequate and more precise provisions must be made in law on the establishment, operations, funding and capacitating of the sub-structure. The current state and circumstances cannot be revived by a mere administrative action; a well documented legislation is required immediately on this. Government must take a second look at this provision.

The case of Traditional Authorities

Government’s position on the proposals for traditional authorities was covered under Section 6.8 chapter 10 of the white paper. The following comes up for discussions in this paper:

Chiefs and Active Party Politics

Government Position in white paper: Government accepts the recommendation that article 277 of the Constitution be amended to define concisely the meaning of ‘active party politics’ in article 276 of the Constitution.

Consequently, government accepts further that ‘active party politics’ be defined to mean:

“openly and personally joining or taking part in the activities of a political party by wearing their paraphernalia and associating with the executive and members of that party ,mounting party platforms to galvanize support for the party at their meetings, being a card-bearing member of a political party and also holding an executive position in a party at any level”.

Government suggests that the definition above be placed in the Interpretation section of the 1992 Constitution to cater for other provisions in which the phrase has been used.

Commentary and perspectives of the writer:

This is laudable but should be sent back to the national house of chiefs and members of IPAC for additional inputs.

Remuneration of Chiefs

White paper position: Government accepts in principle the recommendation that the National House of Chiefs and the Regional Houses of Chiefs draw funds from the proposed Fund for the Independent Constitutional Bodies to be established under the Constitution for effective implementation of their functions and for the benefit of the traditional Authorities. However, this should be done on the advice of the Minister of Finance and Economic Planning to ascertain its implications on the national budget.

Commentary and perspectives of the writer:

This proposal must be accepted without any conditionality. It is the respectful view of the writer that the constitution must be clear and categorical on the matter by making explicit provisions on financing the remuneration of chiefs. The advice of the Minister for Finance in all Public Financial Matters is implicit and a mark of good public financial management so it must not be limited to the activities of chiefs. Government’s position to limit the financial support to only National and Regional House of chiefs must be reviewed to include traditional councils as provided for in the constitution under Article 270(2b) of the 1992 Constitution.

Conclusions
The above constitutional review on its own would not introduce the required increasing pace for decentralised governance in Ghana unless completed by the issues identified as outstanding below:
Review, reconciliation and consolidation of the major Legislations on Local Government and Decentralization
Decentralization of various Sectors – relevant to decentralization in Ghana.
Finally political commitment and permanency in public policy formulation and implementation would be key.

7.1 Going forward

There is a draft consolidated local government bill which is still in circulation for inputs by stakeholders. The issues raised in the bill suffice for a deeper and sober reflection in any attempt to implement the CRC report and the white paper recommendations.

The new proposal in the draft consolidated local government bill is that Bye-laws may now be valid if they are published in the print media or displayed on the DA’s premises and other prominent places in the district.



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