On April 13, 2023, the Ministry of Health directed heads of its agencies to enforce provisions in the Public Service Human Resource Policy Framework which among other things, requires public servants who wish to identify with a political party or seek political office to resign from the public service.
Presumably, this is coming on the wings of what has been described as an unprecedented number of doctors and other senior staff of the health sector openly declaring their intention to contest in the parliamentary primaries of leading political parties in Ghana.
However, the directive is in sharp contrast to the ruling of the Supreme Court delivered on July 15, 2015, in a writ brought by one Kwadjoga Adra against Paa Nii Lamptey and Ernestina Yawson of the Ghana Highway Authority and Ghana Education Service respectively.
Without rehashing the details of the above case, the essence of the Supreme Court’s ruling as it relates to the above directive of the Ministry is as follows;
1. The right to participate in political activities is inalienable. Where the constitution seeks to oust this right, it explicitly and expressly so states.
2. For the avoidance of doubt, Article 94 (3) b of the 1992 Constitution categorically lists civil servants that are ineligible to participate in political activities including eligibility to be elected to Parliament. The services affected and listed in Ghana’s constitution are the “Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service or the Internal Revenue Service; or (c) Is a Chief.” These persons, categorized as civil servants and chiefs, are lawfully forbidden under the 1992 constitution from participating in political activities.
3. Article 190 (1) of the 1992 Constitution lists other members of the Public Service that are free to participate in political activities. In other words, within the Public Services of Ghana are civil servants that cannot participate in political activities, while other public servants are free to enjoy this inalienable right. By interpretation, therefore, public servants that are free to participate in political activities according to Article 190 (1) are those from the Health Service, the Education service, the Parliamentary Service, the Statistical Service and indeed, any other public servant whose rights to partake in and enjoy political activities have not expressly been ousted under Article 94 (3) above.
To the extent that rulings of the Supreme Court become the defining law of the land, any other law, regulation, policy or guideline that runs foul of a ruling of the Supreme Court is illegal to the extent that it contravenes the 1992 Constitution.
I call on the Ministry of Health to immediately withdraw this unconstitutional directive. The said senior staff of the Health Service currently participating in political activities are acting well within their rights and as public servants, are wholly protected under Ghana’s constitution. Beyond this, the Public Services Commission needs to revise its Human Resource Policy Framework and ensure alignment with the 1992 Constitution.
What is clear and ought to be emphasized is that any such political activities cannot and must not be conducted with resources drawn from the public service or workplace. Such resources will include the use of work time, work assets and work colleagues to facilitate the public servant’s political activities. Secondly, the public servant engaging in political activities ought to publicly clarify at all times that his/her political views do not represent the views of the public service that employs him or her.
Finally, the question of why the same constitution makes different provisions for different members of the Public Service is a different matter that can be litigated in other fora. As is, the senior staff of the Health Service contesting parliamentary primaries of leading political parties on their own time and with their own resources, flout no law, and governing boards and councils have no legal basis to sanction them as the Ministry of Health is purporting to do.
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The writer, Sodzi Sodzi-Tettey, can be contacted via email at [email protected]
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