Felix Nana Kofi Ofori, REACT Humanitarian Network, Oxford, UK
Kenneth Appiah, Cumbria University, London
An executive instrument (E.I.) is a strategic tool used by presidents to direct public agencies, ministers as well as ministries to implement policy-objectives of a government.
This article explores the utility of executive instrument 144 in respect of the Achimota Forest debacle, with criticisms. It also draws on the Paris Agreement to examine the issue of climate change and states’ obligation to collaborate globally and nationally to save the environment and climate crises.
The use of Executive Instruments
The executive branch of government is one prominent and powerful organ in politics, which wields and exercises extensive power spanning the military, police, diplomacy; as well as, responsibility for critical functional areas such as education, health and general social wellbeing, in a state.1 Given that premise, President Nana Addo’s issuance of E.I. 144 to re-classify the “so-called” fringes of the Achimota Forest; and, purporting to allocate them to the Owu family, satisfies merely the political expediencies of deploying E.I. without promoting societal interest.
The conventional wisdom is that, presidents from the world over, including Nana Addo, utilise E.I. when legislation is too difficult to pass in the face of stiff parliamentary opposition.2 Thus, the E.I. 144 is a political means to evade or circumvent the constitutionally prescribed policy-making process of parliament.
However, juxtaposing the doctrine of separation of powers vis-à-vis E.I. 144, indicates a fundamental breach of Ghanaians’ right; especially residents of Accra. This can be raised to challenge the validity of the instrument. According to Ghana’s Constitution of 1992, article 58 (1), the executive authority of Ghana shall vest in the President and shall be exercised in accordance with provisions of this constitution, to protect and promote the wellbeing of all Ghanaians without seeking personal gains.3
Without examining the merits of public condemnations, the undisputed fact is that the E.I. 144 does not promote the entire wellbeing of Ghanaians.
In the case of Youngstown Sheet & Tube Co. v. Sawyer4, the US Supreme Court decided that President Harry Truman’s executive instrument to take over the National Steel Mills in order to continue production, in pursuance of the Second World War was unconstitutional. It reasoned that the President’s primary obligation was to ensure that laws in the country are respected without arrogating to himself law-making powers. Thus, E.I.s are sources of criticisms and controversies extend beyond the Achimota debacle.
One criticism levelled against the use of executive instruments is that they constitute unilateral law-making power that undermines the legislative functions of parliament, and by extension suppress private citizens’ interests.
Another opposition is that executive instruments not only create arbitrary regulations, but also seek to concentrate excessive power in the president thereby destabilising the ‘equilibrium’ established by constitutional structures, like the 1992 constitution of Ghana.5 Beyond those criticisms, efforts to protect the climate and ecological wellbeing of residents in Accra would be distorted by E.I. 144.
Climate Change and Achimota Forest
No one is oblivious to the threats posed by climate change and the contributions of forests in stemming the challenge. However, human-beings are having long-term cumulative impacts on Earth’s Ecosystem through a range of consumptive, exploitative and indirect activities such as loss of area, habitat fragmentation, soil degradation and forest re-classification.6
Firmly located in the city of Accra, the Achimota Forest serves as the ecological zone, carbon-cover and protective area, regulating the climatic and bio-diversity needs of the nearly 4 million residents in that area.7
In comity with the international society, Ghana signed and ratified the Paris Agreement on April 22, 2016 and September 21, 20168; with a view to implement Ghana’s Intended Nationally Determined Contribution (INDC), so as to reduce emission by 15 percent relative to a business- as –usual (BAU) scenario emission of 73.95mt (02c2) by 2030.9
Furthermore, in the foreword to the updated INDC document of 2021, President Addo writes “It is my cherished hope that the updated nationally determined document will serve as a blue print for transitioning into a climate-resilient low carbon economy that will accelerate our development efforts and enhance the wellbeing of our people without sacrificing the quality of the environment and its resources.”9
The above statement indicates the government’s resolve to work towards achieving emission-free country without interfering with national resources, like the Achimota forest.
In that vein, the E.I. 144 coupled with spurious arguments that only the fringes of the forest are de-classified abuse the rights of Ghanaians and the efforts to save the climate. The general public good which is at stake renders the EI illegal.
- Richard, R. ‘Soft Law never Dies’ in Elliot and David Feldman (Eds). The Cambridge Companion in Public Law (2015).
- Deering, CJ. Maltzman, F. The Politics of Executive Orders: Legislative Constraints on Presidential Power, Political Research Quarterly. (1999) Dec; 52 (4) 767-83.
- Republic of Ghana, The 1992 Constitution of Ghana, Tema: Asem Publishing Limited.
- Youngstownsheet & Tube Co. v. Sawyer, 343 US 579 (1952).
- Chu, S. and Garry, T. Executives Orders: Issuance and Modification (2014).
- Thompson, I. Mackay, B., McNutty B, and Mosseler, A. Forest Resilience, Biodiversity, and Climate Change Insecretariat of the Convention on Biological Diversity. Montreal Technical Series No.43. 1-67, (2009) vol. 43, pp. 1-67.
- Ghana Population 2022, Demographics, Maps and Graphs < https://worldpopulationreview.com>
- United Nations Treaty Collection: Paris Agreement status as at 31:05:2022, available at< https://treaties.un.org/Pages/viewDetails.aspx?src=Treaty&mtdsg_no=XXVII-7d&chapter=27&clang=_en.
- Ghana: Updated Nationally Determined Contribution under the Paris Agreement, September, 2021.
Featured Image: By Kwaku Berko, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons