Critical Perspectives No. 14 [The Subsidiary Legislation Process in Ghana: Review and Recommendation
01 May, 2003
Critical Perspectives No. 14 [The Subsidiary Legislation Process in Ghana: Review and Recommendations for Reform]
The Subsidiary Legislation Process in Ghana: Review and Recommendations for Reform.
By Kim Stanton
Subsidiary legislation refers generally to law that is made by public bodies other than Parliament (acting, of course, under express statutory or constitutional authority). In Ghana, as in practically every other democracy, the bulk of the laws that govern our daily lives can be found, not in Acts of Parliament, but in a vast assortment of subsidiary legislation–regulations, rules, and orders contained primarily in legislative instruments made by Ministers, public agencies, commissions, and other statutory or constitutional bodies. The fact that the laws that are most germane to our everyday lives–many of which regulate our daily conduct in important ways and impose various sanctions and penalties for noncompliance–are typically buried away in obscure, inaccessible and little-known regulations and rules should be a matter of concern for all who are dedicated to building in Ghana an administrative regime based on the rule of law. If law must rule, then law must, first and foremost, be known in advance. Equally important, the process by which law is made–all law–must afford appropriate opportunity for democratic input and deliberation. Yet, matters concerning subsidiary legislation–who makes it, how it is made, where it can be found, etc.–are, in Ghana, matters about which there is, regrettably, far more public ignorance than knowledge and understanding. Furthermore, the process by which subsidiary legislation has historically been made in Ghana has not afforded meaningful opportunity for prior public or stakeholder awareness, comment, or input. This problem is not relieved by the fact that Parliament has a standing committee on subsidiary legislation; the committee’s role in the making or review of subsidiary legislation being primarily procedural, reactive, and time-constrained. As many of the public bodies and officials authorized to make subsidiary legislation are not themselves directly accountable to the people, the absence of transparency and inclusiveness in the current process of making subsidiary legislation in Ghana represents a major democratic and governance deficit that calls for urgent reform. It is in this light that Ms. Stanton’s paper is most timely and important. In this paper, Ms. Stanton takes a look at the current process for making subsidiary legislation in Ghana and the various constitutional and statutory sources of authority for the making of such laws. Using a recent example involving certain proposed legislative instruments issued by the National Media Commission, Ms. Stanton highlights, from a good governance perspective, the shortcomings associated with the current process. She also provides important comparative information about how subsidiary legislation is made and regulated in other common law democracies, including India, South Africa, Australia (and some of its constituent states), Canada, and the United States.