The Right of Resistance and the Defence of Ghana's Fourth Republican Constitution

Abstract

Article 3(2) & (3) of the Fourth Republican Constitution of Ghana makes it a treasonable offence, punishable by death, for any person or group of persons to employ violence to suspend, overthrow, or abrogate the Constitution. Article 3(4) grants the citizens of Ghana the right and duty to employ any means to resist any person or group of persons who seek to suspend, overthrow, or abrogate the Constitution. Further they are required to do all they can to restore the Constitution after it has been suspended, overthrown or abrogated. By implication, Article 3 provides for the right of resistance in Ghana’s constitutional order against regime change not contemplated under the Constitution such as coups d’etat. But resistance is permitted only in defence of the Constitution and for that matter the government of the Constitution. The paper argues that the ground for resistance permitted by the Constitution is narrow in that it can only be employed to protect the government created under the Constitution. Such resistance does not extend to other situations where, for instance, a government becomes abusive and it becomes imperative to secure a new form of government. This raises a critical question as to when Ghanaians could overthrow their unjust government(s) when faced with intractable challenges in their constitutional order since the Constitution does not make provision for such situations in that any resistance not used to defend the government could pass for treason punishable by death. The implication is that the people of Ghana have been denied the fundamental right of resistance and to overthrow unjust governments. Even though judicial review and the ballot box could address government impropriety and remove government respectively, they do not serve the same purpose as the higher law – accountability mechanism outside government through resistance. The absence of such restraint on the powers of government even in the remotest sense could possibly breed democratic tyranny. This has implications for the people of Ghana in their quest for government that would inure to them and posterity “the blessings of liberty, equality, equality of opportunity and prosperity.