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Published online by Cambridge University Press: 01 January 2025
Ghana’s Constitution has long emphasised the importance of equality, democracy, human rights and development. These principles are entrenched in a separation of powers framework that includes independent constitutional bodies that operate semi-autonomously from the tripartite executive, legislative and judicial branches. As part of a symposium on so-called ‘fourth branch’ institutions that provide redress for poverty and inequality, this article explores two institutions: the Commission on Human Rights and Administrative Justice and the National Development Planning Commission. The first is a 30-year-old national human rights institution, which monitors and investigates alleged violations of human rights, corruption and the misappropriation of public moneys, and provides redress, partly through its increasing focus on economic and social rights and the claims of the most vulnerable, including women, children and persons with disabilities. The second, currently executive body, is the subject of current calls for constitutional reform in Ghana. These reforms would entrench national development planning to enhance features of autonomy, technical capacity and partisan independence. As such, these proposals offer a distinctive and yet also paradigm-defying model of fourth branch arrangements in developmental constitutionalism, raising questions about the usurpation of policymaking and the deficits of democracy that are commonly raised against courts, international financial institutions or other international economic arrangements.
The authors thank the symposium organisers and participants, as well as Sannoy Das, Beverly Moran, Zim Nwokora, and the participants of the Boston College Law School summer faculty workshop. In addition, we thank the anonymous FLR reviewer and the excellent research assistance of Heather Odell.
1. See Rosalind Dixon and Mark Tushnet, ‘Democratic Constitutions, Poverty and Economic Inequality: Redress through the 4th Branch Institutions?’ (2023) 51(3) Federal Law Review 285.
2. For exploration of the ‘chronic debate’ about constitutional socioeconomic guarantees, and the focus of the debate in institutionalized procedure, especially courts, see Frank I Michelman, Constitutional Essentials: On the Constitutional Theory of Political Liberalism (Oxford University Press, 2022) ch 10; see also Katharine G Young, Constituting Economic and Social Rights (Oxford University Press, 2012).
3. These proposals are detailed below. See, eg, Salifa Abdul-Rahaman, ‘Ghana: National Interest Movement People's Charter … We Are Promoting Prosperity for All, Not for a Few-Dr Abu Sakara’ Ghanaian Times (Press Release, 23 September 2020) <https://allafrica.com/stories/202009240369.html>.
4. See further ‘Home Page’, Fix the Country <www.fixthecountrygh.com> (describing ‘a non-partisan and non-political civic movement by Ghanaian youths for Ghana’) (‘fixthecountry’).
5. Ghanaian 1992 Constitution (Ghana) ss 86–7 (establishing the NDPC and outlining its advisory, monitoring, evaluative and coordinating functions) (‘Ghanaian Constitution’). A short glossary within this paper may assist: alongside the National Development Planning Commission (‘NDPC’), this paper also makes mention of the Commission on Human Rights and Administrative Justice (‘CHRAJ’), as well as the United Nations Development Program (‘UNDP’) and Sustainable Development Goals (‘SDGs’).
6. Constitution Review Commission of the Republic of Ghana, Report of the Constitution Review Commission: From a Political to a Developmental Constitution (December 20 2011) 68–9 [158] <https://constitutionnet.org/sites/default/files/crc_research_report_final.pdf> (‘Constitution Review Commission’).
7. Ibid 48 at [49].
8. Ibid 40 at [36].
9. For relevant features of independence, expertise and accountability, see Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press, 2021); Tarunabh Khaitan, ‘Guarantor Institutions’ (2021) Asian Journal of Comparative Law 1–20 (mapping a variety of independent constitutional institutions and determining, contra Tushnet, their functions beyond democracy protection).
10. Ghanaian Constitution (n 5) ch 6.
11. Ibid s 34(1). See discussion below (n 27).
12. Ibid s 34(2).
13. Ibid ch 18; Commission on Human Rights and Administrative Justice Act 1993 (Ghana); see further ‘Human Rights Mandate’, Ghanaian Commission on Human Rights and Administrative Justice (Webpage) <https://chraj.gov.gh/human-rights-mandate/>.
14. Constitution Review Commission (n 6) 69, [155].
15. See discussion below (n 37).
16. See Dixon and Tushnet (n 1) as well as other contributions to this symposium. See also Charles Fombad, Separation of Powers in African Constitutionalism (Oxford University Press, 2016); David Bilchitz and David Landau (eds), The Evolution of the Separation of Powers: Between the Global North and the Global South (Edward Elgar Publishing, 2018).
17. See, eg, Berihun Adugna Gebeye, A Theory of African Constitutionalism (Oxford University Press, 2021); H Kwasi Prempeh, ‘Africa’s “constitutionalism revival”: False start or new dawn?’ (2007) 5(3) International Journal of Constitutional Law 469.
18. Dr Raymond A Atuguba served as Executive Secretary and Principal Researcher to the Commission: see Constitution Review Commission (n 6) 10 at [10]. The views of this paper do not represent the views of the Commission. Katharine Young has previously researched and participated in human rights activism in Ghana: see Jeremy Perelman, Katharine G Young & Mahama Ayariga, Freeing Mohammed Zakari: Rights as Footprints, in Lucie White and Jeremy Perelman (eds), Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty (Stanford University Press, 2011).
19. This answers the observed gap in comparative constitutional studies: see Sanele Sibanda, ‘Not Purpose-Made! Transformative Constitutionalism, Post-Independence Constitutionalism and the Struggle to Eradicate Poverty’ (2011) 22(3) Stellenbosch Law Review 482 (asking why, under paradigms of transformative constitutionalism, ‘the relationship of constitutionalism to the eradication of poverty is’ not addressed: at 483); see also Solange Rosa, ‘Transformative Constitutionalism in a Democratic Developmental State’ (2011) 22(3) Stellenbosch Law Review 542. For call for ‘balance' in the development of state capacity, and state institutions, see Daron Acemoglu and James A Robinson, The Narrow Corridor: States, Societies and the Fate of Liberty (2019).
20. See, eg, Martin Chanock, ‘African Constitutionalism from the Bottom Up’ in Heinz Klug and Sally Engle Merry (eds), The New Legal Realism: Volume II, Studying Law Globally (Cambridge University Press, 2016) 13, 18.
21. This setting provided diverse arrangements in what we would now describe as the exercise of executive, legislative and judicial power: see Constitution Review Commission (n 6) 82. For historical study, see, eg, RS Rattray, Ashanti Law and the Constitution (Clarendon Press, 1929); see further Acemoglu and Robinson (n 19) 18–24.
22. Phyllis Taoua, African Freedom: How Africa Responded to Independence (Cambridge University Press, 2018) 2.
23. See Robert Darko Osei and Henry Telli, ‘Sixty Years of Fiscal Policy in Ghana’ in Ernest Aryeetey and Ravi Kanbur (eds), The Economy of Ghana Sixty Years after Independence 66 (Oxford University Press, 2017).
24. Ravi Kanbur, ‘W Arthur Lewis and the Roots of Ghanaian Economic Policy’ in Aryeetey and Kanbur, (n 23); see also, in general terms, Chanock (n 20) 13, 16–17; Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press, 2018).
25. The Constitution was amended in 1996. Its textual coverage is expansive: it runs to 54,000 words, amongst the lengthiest in the world. Constitute, Countries: Ghana (Webpage) <https://www.constituteproject.org/countries/Africa/Ghana?lang=en>.
26. Ransford Edward Van Gyampo and Emmanuel Graham, ‘Constitutional Hybridity and Constitutionalism in Ghana’ (2014) 6(2) African Review 138 (noting US Presidential and Westminster features).
27. Ghanaian Constitution (n 5) ch 6. These principles may be amended by Parliament alone: ch 25. The debate on the justiciability of Directive Principles has tracked those in other systems with such guarantees, such as Ireland and India, and they enjoy limited enforcement in conjunction with express rights: New Patriotic Party v Attorney-General [1997–98] 1 GLR 378 (Supreme Court of Ghana) (‘CIBA case’); Ghana Lotto Operators v National Lottery Authority [2007–08] SCGLR 1088 (Supreme Court of Ghana); see Raymond Atuguba, ‘Constitutional Economic and Social Rights in Africa: The Case of Ghana’ (manuscript on file with author).
28. John Mukum Mbaku, ‘The Ghanaian Elections 2016’, Brookings (Online Commentary) 15 December 2016, <https://www.brookings.edu/blog/africa-in-focus/2016/12/15/the-ghanaian-elections-2016/>.
29. See, eg, Van Gyampo and Graham (n 26).
30. Michael Kpessa-Whyte and Raymond A Atuguba, ‘Getting to the Roots: Constitutional Rules and the Zero-Sum Politics of Winner-Takes-All in Ghana’ (2020) 99 Journal of Law, Policy and Globalization 75 (noting also the effects of ‘monied democracy, the militarization of political parties, political vigilantism, ethnicity, opportunity hoarding’ and other related practices at 83).
31. See fixthecountry (n 4); Mark Nartey and Yating Yu, ‘A Discourse Analytic Study of #FixTheCountry on Ghanaian Twitter’ (2023) 9(1) Social Media + Society, 1–11.
32. The Directive Principles of State Policy set out development objectives in several places, eg s 36–7 (the State is to ‘maximise the rate of economic development’, redress urban/rural imbalance, integrate women into economic development, promote agriculture and industry and ensure effective participation in development processes). For provocative treatments of the past and present and highly elastic meaning of development, which remain salutary, see Gilbert Rist, The History of Development: from Western Origins to Global Faith (Zed Books, 1997); Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton, 1995).
33. Martin Loughlin, The Foundations of Public Law (Oxford University Press, 2010) 448–9 (categorizing as distinct the roles of (i) service providers, such as the Bank of England, (ii) risk assessors, such as medicines or food safety bodies, (iii) boundary watchers, such as anti-monopoly regulators or privacy and data watchdogs, (iv) auditors, such as those that monitor the use of public funds, and (v) adjudicators, such as tribunals or ombudspersons, who offer alternatives to traditional methods of legal or political redress. 650 public bodies in the United Kingdom form the basis of Loughlin’s analysis: at 449).
34. See, eg, S M Ravi Kanbur, Akbar Noman & Joseph E Stiglitz (eds), The Quality of Growth in Africa (Columbia University Press, 2019). The omissions were deep-seated: see Charles Gore, ‘Stuctural Transformation and Economic and Social Rights' in Malcolm Langford and Katharine G Young, The Oxford Handbook of Economic and Social Rights (forthcoming) (on file with author).
35. See Amartya Sen, Development as Freedom (Anchor Books, 1999) and Inequality Reexamined (Oxford University Press, 1995) (directing the question ‘inequality of what’ beyond purely economic (resources or welfare) measures and into capabilities, which can be more attentive to disadvantages of, eg, gender). For current examples, see UN Resident Coordinator’s Office Ghana, UN Nations Sustainable Development Partnership with Ghana (UNSDP) 2018–22 (United Nations Publication) <https://ghana.un.org/sites/default/files/2019-07/UNCT-GH-UNSDP-2018.pdf> (‘UNSDP 2018–22’) (committing UN support for ‘inclusive, sustainable and equitable development for all in Ghana’, with reliance on the NPDC and Statistical Services: at i).The attempts, particularly by states in the Global South, to disaggregate development from economic growth have been long-standing, as evidenced, eg, by the Declaration on the Right to Development (adopted in 1986 by the United Nations General Assembly (Resolution 41/128)), and recognised in the African Charter on Human and Peoples’ Rights). This impetus now orients a Draft Convention on the Right to Development (A.HRC.WG.2/23/2).
36. UNDP, Human Development Report 2020 , The Next Frontier: Human Development and the Anthropocene — Briefing Note for Countries on the 2020 Human Development Report Ghana (Report, 2020) 3, <https://www.undp.org/ghana/publications/2020-undp-human-development-report>. In the three decades, Ghana’s life expectancy at birth increased by 7.3 years, mean years of schooling increased by 2.4 years and expected years of schooling increased by 3.9 years: at 3. Ghana’s GNI per capita increased by about 127.6 percent between 1990 and 2019: at 3. The Human Development Index goes on to report that, between 1990 and 2019, this value increased in Ghana from 0.465 to 0.611, an increase of 31.4 percent: at 3.
37. 2022 estimates record 14.4 million multidimensionally poor in the population (46.7 per cent) with rural areas recording a far greater rate (of 66.2 per cent), see Ghana Statistical Service, Quarterly Multidimensional Poverty Report (Report, 2022) 12 <http:statsghana.gov.gh>.
38. Andy McKay and Eric Osei-Assibey, ‘Inequality and Poverty in Ghana’, in Aryeetey and Kanbur (n 23). The Gini index records a 0 for perfect equality and a 1 for perfect inequality.
39. Ghana Statistical Service, Ghana 2022 Earnings, Inequality in the Public Sector (Report, 2023) <https://statsghana.gov.gh/gssmain/fileUpload/pressrelease/Earnings_Inequality_Report_14-02-2023.pdf>.
40. For criticisms, see, eg, Philip Alston and Mary Robinson (eds), Human Rights and Development (Oxford University Press, 2005) (pointing to gaps in human rights and development projects); Dan Banik, Poverty and Elusive Development (2010) 122–40 (examining the ‘human rights based approach to development' (HRBA)); see also Katharine G Young, ‘Inequality and Human Rights: Review of Samuel Moyn, Human Rights in an Unequal World’ (2019) 5(1) Inference (testing Moyn’s criticism of gaps in human rights and equality objectives). This includes the rule-of-law development efforts, which were focused on courts: Arpita Gupta, ‘Law and Development: A History in Three Moments’ in Ugo Mattei and John D Haskell (eds), Research Handbook on Political Economy and Law (Edgar Elgar, 2015) 327, 333, 339; see also The New Law and Economic Development: A Critical Appraisal, David M Trubek & Alvaro Santos (eds), New York (Cambridge University Press, 2006).
41. McKay and Osei-Assibey (n 38).
42. Such information-gathering activities are also essential for reducing poverty and inequality — these would fall under the knowledge institutions reported by Vicki C Jackson, ‘Knowledge Institutions in Constitutional Democracies: Preliminary Reflections’ (2021) 7(1) Canadian Journal of Comparative and Contemporary Law 156.
43. McKay and Osei-Assibey (n 38) 284; for present surveys see, eg, UNSDP 2018–22 (n 35) at 6.
44. That said, neither the 2022 World Development Report by the World Bank or the 2021/2022 Human Development Report by the UNDP provide data on economic inequality in Ghana, although they make mention of COVID-19’s adverse impact on inequality in general, and the general position of disadvantaged groups.
45. Akosua Anyidoho, ‘Shifting Sands: Language Policies in Education in Ghana and Implementation Challenges’ (2018) 7(2) Ghana Journal of Linguistics 225.
46. Christine Dowuona-Hammond, Raymond A Atuguba & Francis Xavier Dery Tuokuu, ‘Women’s Survival in Ghana: What Has Law Got to Do With It?’ (2020) 10(3) SAGE Open 1.
47. Dzodzi Tsikata, 'Employment Agencies and the Regulation of Domestic Workers in Ghana: Institutionalizing Informality?’ (2011) 23(1) Canadian Journal of Law and Women 213; see also Dzodzi Tsikata, ‘Understanding and Addressing Inequalities in the Context of Structural Transformation in Africa: A Synthesis of Seven Country Studies’ (2015) 58 Development 206.
48. Diana Cammack, ‘Understanding Local Forms of Accountability: Initial Findings from Ghana and Malawi’ in Danwood M Chirwa and Lia Nijzink (eds), Accountable Government in Africa: Perspectives from Public Law and Political Studies (United Nations University Press, 2012).
49. Benjamin Bewa-Nyog Kunbuor, ‘Decentralisation and Land Administration in the Upper West Region of Ghana: A Spatial Exploration of Law in Development’ (PhD Thesis, University of Warwick, August 2000).
50. See, eg, Ghanaian Constitution (n 5) s 36.
51. Kofi Quashigah, ‘Decentralisation for Participatory Governance under Ghana’s 1992 Constitution: The Rhetoric and the Reality’ in Charles M Fombad and Nico Steytler (eds), Decentralisation and Constitutionalism in Africa (Oxford University Press, 2019) 291.
52. Ghanaian Constitution (n 5) s 252(2). See further Commonfund.gov.gh (temporarily unavailable).
53. Quashigah ‘Decentralisation for Participatory Governance under Ghana’s 1992 Constitution’ (n 51) 293.
54. Ibid 291 (noting parallels with the Kenyan experience, in M Damdinjav et al, ‘Institutional Failure in Kenya and a Way Forward’ (2013) Spring Issue NYU Journal of Political Inquiry 2); Dowuona-Hammond, Atuguba and Tuokuu (n 46).
55. And also, it is worth noting, with respect to courts and law enforcement agencies: Constitution Review Commission (n 6) 204–5 [38].
56. For extended analysis, see Tushnet (n 9).
57. See, eg Loughlin’s list of the ephorate (n 33). See also see Paul Tucker, Unelected Power: The Quest for Legitimacy in Central Banking and the Regulatory State (Princeton University Press, 2018) (distinguishing between electoral commissions, as fourth branch guardians of democracy, and central banks, which operate as trustees with delegated and constrained, rather than alienated, power); see also Khaitan (n 9); Tushnet (n 9).
58. Commission on Human Rights and Administrative Justice Act (n 13) Act 456.
59. Michael C Dorf and Charles F Sabel, ‘A Constitution of Democratic Experimentalism’ (1998) 98(2) Columbia Law Review 267, 439.
60. Pierre Rosanvallon, Good Government: Democracy Beyond Elections, tr Malcolm DeBevoise (Harvard University Press, 2018).
61. Loughlin (n 33) 448.
62. Bruce Ackerman, ‘The New Separation of Powers’, 113 Harvard Law Review (2000) 113(3) 633, 694; Khaitan (n 9) 10.
63. Khaitan acknowledges Hans Kelsen’s warning, that ‘no institution is less suitable to perform [the guaranteeing] task than the one upon which the constitution confers the exercise … of the power to be controlled, and which therefore has the best legal chance as well as the strongest political motive to violate the constitution’: Khaitan (n 9) at 5.
64. Joseph R A Ayee, ‘Notes on the Commission on Human Rights and Administrative Justice under the 1992 Ghanaian Constitution’ (1994) 27(2) Law and Politics in Africa, Asia, and Latin America 159.
65. Reginald Nii Odoi, ‘The Commission on Human Rights and Administrative Justice in Retrospect’ (Report, April 13 2021) 1, 8 <https://ssrn.com/abstract=3825712>; Ghanaian Constitution (n 5) art 221, 223; Commission on Human Rights and Administrative Justice Act (n 13). Other independent bodies with this structure include the Auditor-General; the District Assemblies Common Fund Administrator; the Chair and other members of the Public Services Commission; the Lands Commission; the governing bodies of public corporations; and a National Council for Higher Education.
66. See Commission on Human Rights and Administrative Justice, CHRAJ News, <http://chraj.gov.gh> (detailing principal officers and regional directors). The present Commissioner is Mr Joseph Akanjolenur Whittal.
67. Raymond A Atuguba, ‘The Fight Against Poverty and the Right to Development: The Ghana National Chapter’ in Mads Adenas, Jeremy Perelman, and Christian Scharling (eds), The Fight Against Poverty and the Right to Development (Springer, 2021) 145; Kofi Quashigah, ‘The Monitoring Role of the Ghana Commission on Human Rights and Administrative Justice (‘CHRAJ’) in the Protection of Economic, Social and Cultural Rights’, in Eva Brems, Gauthier de Beco and Wouter Vandenhole (eds), National human rights institutions and economic, social and cultural rights (Intersentia, 2013) 107, 109 (‘The Monitoring Role’).
68. These are certified by the Global Alliance of National Human Rights Institutions (‘GANHRI’). See GANHRI (Webpage) <ganhri.org>.
69. Odoi (n 65) 43. For a useful account of the 1993 Paris Principles, and other ‘diffusion’ initiatives, see Katerina Linos and Thomas Pegram, ‘Architects of Their Own Making: National Human Rights Institutions and the United Nations’, 38 (2016) 38 Human Rights Quarterly, 1109, 1116; see also Redson Edward Kapindu, ‘Separation of Powers and the Accountability Role of NHRIs: the Malawi Human Rights Commission through the Courts’ in Bilchitz and Landau (n 16) 206 (observing role of the National institutions for the promotion and protection of human rights: resolution/adopted by the General Assembly (UN GA Res 48/134, UN Doc A/RES/48/134 (4 March 1993) (‘Paris Principles') on credibility, independence and effectiveness of such institutions).
70. Between 1998–2010, the Annual Reports included a State of Human Rights Report. Commission on Human Rights and Administrative Justice Ghana, Annual Report 1998; Commission on Human Rights and Administrative Justice Ghana, Annual Report 2006, Commission on Human Rights and Administrative Justice Ghana, Annual Report 2011. Monitoring became a key focus in 2005: Quashigah, ‘The Monitoring Role’ (n 67).
71. Commission on Human Rights and Administrative Justice Ghana, Annual Report 2000 ; Commission on Human Rights and Administrative Justice Ghana, Annual Report 2004; Commission on Human Rights and Administrative Justice Ghana, Annual Report 2006; Commission on Human Rights and Administrative Justice Ghana, Annual Report 2011; Commission on Human Rights and Administrative Justice Ghana, Annual Report 2014; Commission on Human Rights and Administrative Justice Ghana, Annual Report 2018.
72. Annual Report 2014 (n 71); Annual Report, 2018 (n 71).
73. Atuguba, ‘The Fight Against Poverty and the Right to Development' (n 67) (noting 256,049 complaints and the resolution of 252,990 of them: at 164).
74. Ibid.
75. Quashigah, ‘The Monitoring Role’ (n 67) 119–22. Others included Department for International Development (‘DFID, UK’) and Danish International Development Agency (‘DANIDA’).
76. See cases documented Atuguba, ‘The Fight Against Poverty and the Right to Development' (n 67) 164–9.
77. Report of the Commission on Human Rights and Administrative Justice to the Universal Period Review (2022) 5–6 (copy on file with authors). LEAP is a cash transfer program introduced in 2008. For more information, see Ministry of Gender, Children and Social Protection, Livelihood Empowerment Against Poverty Programme (Webpage) <https://www.mogcsp.gov.gh/projects/livelihood-empowerment-against-poverty-leap/>.
78. Quashigah, ‘The Monitoring Role’ (n 67) 110.
79. Labour Act 2013 (Ghana) Act 615.
80. See, eg, National Labour Commission, Medium Term Expenditure Framework for 2017–2019: Programme Based Budget Estimates for 2017 (Report, 2017), <https://www.mofep.gov.gh/sites/default/files/pbb-estimates/2017/2017-PBB-NLC.pdf>. It has applied to the High Court to enforce its decisions: Atubuga, ‘The Fight Against Poverty and the Right to Development' (n 67) 172–4.
81. Ghanaian Constitution (n 5) s 218(d); see further Atuguba, ‘The Fight Against Poverty and the Right to Development’ (n 67) 163. Its mandate does not extend to matters pending before a court, or intergovernmental disputes.
82. This complaint by the Legal Resources Center (in which one of us, Raymond Atuguba, was a Director) was later withdrawn, but also listed a public hospital, Ministry of Health and Ministry of Finance, in the habeas corpus claims against hospital detention: see Perelman, Young and Ayariga, (n 18). Other fourth-branch institutions in Africa have also been a site for contentious action: see, eg, Ruth Buchanan, Helen Kijo-Bisimba and Kerry Rittich, ‘The Evictions at Nyamuma, Tanzania: Structural Constraints and Alternative Pathways in the Struggles over Land’ in Perelman and White, (n 18) 91, 95–6 (noting the decision to bring a case before the Tanzanian Commission on Human Rights and Good Governance rather than a civil, criminal or constitutional complaint).
83. Statistical Services Board, and its Government Statistician, Ghanaian Constitution (n 5) s 186.
84. Ghanaian Constitution (n 5) art 233.
85. Atuguba, ‘The Fight Against Poverty and the Right to Development' (n 67) 176.
86. For helpful distinctions of these roles, see Tucker (n 57).
87. Economic and Organised Crime Act 2010 (Ghana) Act 804.
88. Internal Audit Agency Act 2003 (Ghana) Act 658.
89. Public Procurement Act 2003 (Ghana) Act 663.
90. Michael W Kpessa and Raymond A Atuguba, ‘Grounding with the People: Participatory Policy Making in the Context of Constitutional Review in Ghana’ 6(1) (2103) Journal of Politics and Law 99, 106 (highlighting both innovations as well as the challenges in equalizing participatory processes, particularly regional (urban/rural), gender and language inequalities and bias). See also Rist (n 32).
91. Constitution Review Commission (n 6) ‘[a] constitutional provision for a national development plan provides the contentment and assurance urgently required and desired for institutional certainty on an issue around which the entire nation’s sense of direction and survival revolves’ at 41–2, [37]–[38].
92. Ibid 41 at [37].
93. Ibid 42 at [37].
94. Recent studies on constitutionalism in Africa have emphasised that public participation, especially youth movements, tend to emphasise ‘material and livelihood’ rather than ‘constitutional’ concerns, without noting their complex entanglement, as a theoretical and practical matter: See, eg, H Kwasi Prempeh, ‘Does Participation Help to Foster Constitutionalism in Africa?’ in Tonia Abbiate, Markus Böckernförde and Veronica Federico (eds), Public Participation in African Constitutionalism (Routledge, 2018) 296, 300–1.
95. Abdul-Rahaman (n 3); fixthecountry (n 4).
96. Rosa (n 19) 543 (seeking to draw out democratic aspects).
97. Roberto Gargarella, Latin American Constitutionalism 1810–2010: The Engine Room of the Constitution (Oxford University Press, 2013) 200–4.
98. John M Ackerman, ‘Understanding Independent Accountability Agencies’ in Susan Rose-Ackerman and Peter L Lindseth (eds), Comparative Administrative Law (Edward Elgar Publishing, 2010) 265, 266 (noting that ‘[o]lder democracies would do well to learn from their younger cousins’ at 266); see also Matthew C Stephenson, ‘Corruption and Democratic Institutions: A Review and Synthesis’ in Susan Rose-Ackerman and Paul Lagunes (eds), Greed, Corruption and the Modern State: Essays in Political Economy (Edward Elgar Publishing, 2015).
99. Ghanaian Constitution (n 5) art 86–7.
100. Constitution Review Commission (n 6) 52, 57, at [68], [99].
101. Ibid 43 at [44]–[45].
102. Ibid 60 at [118].
103. Ibid 51 at [65].
104. Ibid 55 at [82].
105. Ibid 48 at [49].
106. Ghanaian Constitution (n 5) art 73.
107. Ibid art 86(2); see also National Development Planning Commission Act 1994 (Ghana) Act 479.
108. Constitution Review Commission (n 6) 68 at [154].
109. Ibid 67 at [147].
110. Ibid 75 at [188]. Prior to this, every President under the 1992 Constitution had appointed a new Commission. Ibid [184].
111. Constitution Review Commission (n 6) [206]. A guaranteed budget, along high salaries and restrictions on post-service employment, are all central to independence of such bodies: Tushnet (n 9) 2.
112. Constitution Review Commission (n 6) 41 at [36]. Nonetheless, some proposals were more specific: Proponents of the National Interest Movement has made specific calls to cap interest rates for commercial lending and create a special window for agriculture lending at a maximum of 8 per cent per annum, within an entrenched plan, thus invoking the ambitions of a ‘fiscal constitution’ (that sees proponents from right of centre and left of centre movements, invoking issues such as debt ceilings and other proposals in the US and elsewhere.). See Abdul-Rahaman, ‘Ghana: National Interest Movement People's Charter’ (n 3).
113. See, eg, Jeremy Perelman, ‘Human Rights, Investment, and the Rights-ification of Development’, in Katharine G Young (ed), The Future of Economic and Social Rights (Cambridge University Press, 2019); David Schneiderman, ‘Global Constitutionalism and International Economic Law: The Case of International Investment Law’ (2016) 2016 European Yearbook of International Economic Law 23–43.
114. See, eg, Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press, 2019) (opening up a field of study of how the rights (and legal codes) of capital override the protections of self-governance).
115. The plan was seen as primary and the Constitution was seen as a secondary matter: Prempeh, ‘Does Participation Help to Foster Constitutionalism in Africa?’ (n 94) 296 (noting the impetus for the development plan in Nkrumah’s Ghana and Nyerere’s Tanzania).
116. Constitution Review Commission (n 6) 42, citing Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana (Report, July 31 1991) app M.
117. Ghanaian Constitution (n 5) ch 6; see also ch 25 (amendment by Parliament). See discussions above (n 12, 27).
118. Constitution Review Commission (n 6), at [57]; Local Government Act 1993 (Ghana) Act 462, s 47; National Development Planning (Systems) Act 1994 (Ghana) Act 480.
119. Commonwealth Governance, National Development Plan of Ghana (Webpage) <https://www.commonwealthgovernance.org/countries/africa/ghana/national-development-plan/>. With goals that: ‘• Extreme forms of deprivation, such as hunger, homelessness and poverty, are eliminated • Economic growth is environmentally sensitive and public policy will ensure that it is equitable across sectors, administrative regions and socio-economic groups • The economy is driven by industrial production with full participation of Ghanaians in a stable macroeconomic environment • Health care is available and affordable, and education prepares people for purposeful life • Science, technology and innovation underpin development • All citizens participate in and share equitably the benefits of development’.
120. Nelson Oppong, ‘Between elite reflexes and deliberative impulses: oil and the landscape of contentious politics in Ghana’ (2020) 48(4) Oxford Development Studies 329–44.
121. Nelson Oppong, ‘Ghana’s Public Interest and Accountability Committee: An Elusive Quest for Home-Grown Transformation in the Oil Industry’ (2016) 34(3) Journal of Energy and National Resources Law 313.
122. Ibid 319 (citing 83 per cent of respondents).
123. Ibid 338.
124. Ibid.
125. Constitution Review Commission (n 6) ch 3. The process was quick to point out that the Soviet Union’s experience of rigid, state-centred, centralized planning was ‘just one way of developing and deploying a national development plan’: at 8 [3], 33.
126. Ibid 42 [40].
127. Ibid 77 [198] (Chinese National Development and Reform Commission).
128. Tucker (n 57) 276 (exploring comparative models of integrity and examinations branches).
129. National Planning Authority Act 2002 (Uganda) s 7.
130. National Development Plan of Ireland (2007–2013) — Transforming Ireland: A Better Quality of Life for All (Report, 2007) 99 <https://planipolis.iiep.unesco.org/sites/default/files/ressources/ireland_national_development_plan_2007_2013.pdf>.
131. Constitution Review Commission (n 6) 51, [66].
132. Constitution Review Commission (n 6) 49, [52] citing the National Alliance of Women, Engendering — The Eleventh 5 Year Development Plan of India (2007–2012) the Botswana National Vision Council, Vision 2016 and the (now repealed) Development Facilitation Act 67 1996 (South Africa) (repealed 2013).
133. Constitution Review Commission (n 6) 59–60, [112]–[116] (citing Botswana, Timor Leste and Ireland) 77 [198] (citing Nepal, amongst others).
134. Rosa (n 19) 562 (noting expertise drawn from finance, industry, telecommunications, biotechnology, energy, education, food security and climate change). Its first draft plan was released in 2011.
135. See, eg, Network of Institutions for Future Generations (Webpage) <https://futureroundtable.org/en/web/network-of-institutions-for-future-generations/roundtable> listing commissions, advisory councils and committees which seek to protect future generations (in Finland, Germany, Canada, Wales, New Zealand, Israel, Norway, Hungary and Australia).
136. Dorf and Sabel (n 59).
137. Tushnet, The New Fourth Branch (n 9); Khaitan (n 9).
138. For the wisdom of doing both (and avoiding the pitfall of erasure of constitutional norm by weakening its enforcer), see Khaitan (n 9) 14.
139. We acknowledge the gloss that can result from ‘internal’ perspectives, seeking academic or participants justifications, see Tushnet (n 9) 167.
140. For summary, Rist (n 32). See current application to the call for ‘sustainable development' planning and action, see Frank Biermann et al (eds), The Political Impact of the Sustainabile Development Goals (2022).
141. Khaitan (n 9).
142. Gargarella (n 97) ch 10.
143. See, eg, Davis et al (eds), Governance by Indicators: Global Power through Quantification and Rankings (Oxford Academic, 2012). Courts which enforce economic and social rights face similar predicaments when deferring to expertise: see Young, Constituting Economic and Social Rights (n 2).
144. For descriptions of these visions, see David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press, 2018).
145. Sénit and Okereke et al, ‘Inclusiveness', in Biermann (n 140), 116; Constitution Review Commission (n 6) 40 at [36].
146. See examples of such development measures and expertise, above (nn 34).
147. See, eg, Constitution Review Commission (n 6) 39 at [31] (describing an overemphasis on physical infrastructure, for example, to the detriment of social services and human development).
148. For statement of the predicament, see Jon Elster, ‘Arguments of constitutional choice: reflections on the transition to socialism’, in Jon Elster and Rune Slagstad, Constitutionalism and Democracy (Cambridge University Press, 1988) 303, 307–16; for broader analysis of these dynamics, see Acemoglu and Robinson (n 19).
149. These recall the expansive treatment of democracy in distinctive forms: See, eg, Rosanvallon (n 60); Dorf and Sabel (n 59).
150. See, eg, David Landau, ‘Abusive Constitutionalism’ (2013) 47(1) University of California, Davis Law Review 189.
151. Prempeh, ‘Does Participation Help to Foster Constitutionalism in Africa?’ (n 94) 301.
152. For succinct summary, see Odette Lienau, ‘The Multiple Selves of Economic Self-Determination’ (2020) 129(1) Yale Law Journal Forum 674, 682.
153. The current moment rests on uncertain geopolitics and post-2008 trends: Dan Banik and Emma Mawdsley, ‘South–South Cooperation and global development in a multipolar world: China and India in Africa' 35(4) (2023) Journal of International Development, 539–48. For rapid shifts in tax policy, which are illustrative for other trends, see Shu-Yi Oei, ‘World Tax Policy in the World Tax Polity? An Event History Analysis of OECD/G20 BEPS Inclusive Framework Membership' 47 (2022) Yale Journal of International Law 199.
154. The hasty passage of the Petroleum (Exploration and Production) Act 2016 (Ghana) Act 919, reflected a return to vague promises. For lengthy analysis of the ‘resource curse', see Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World (2015).
155. Perelman (n 113).
156. For description of this path, see Lienau (n 152) 688.
157. Charles Fombad, ‘The Evolution of the Modern African Constitutions: A Retrospective’ in Fombad, Separation of Powers in African Constitutionalism (n 16).
158. Michaela Hailbronner, ‘Constitutional Legitimacy and the Separation of Powers: Looking Forward’ in Fombad, Separation of Powers in African Constitutionalism (n 16); see also Gebeye (n 17) 157, 170; Vicki Jackson and Yasmin Dawood (eds), Constitutionalism and a Right to Effective Government (Cambridge University Press, 2021).
159. Heinz Klug, ‘Transformative Constitutionalism as a Model for Africa?’ in Philipp Dann, Michael Riegner and Maxim Bönnemann (eds), The Global South and Comparative Constitutional Law (Oxford University Press, 2020).