The refusal of erstwhile President David Granger to obey the pellucid command of the Constitution to proclaim an elections date by Sept 18, three months after the NCM had been ruled as validly passed on June 18 by the CCJ, has triggered a constitutional crisis in our country. The US introduced the norm of a written constitution in 1897 and since that time they have faced several constitutional crises, including one brewing in the present. As such, their perspective might be useful to our much younger republic to handle our present crisis.
In May of this year, the media group Vox solicited the opinion of several constitutional experts on the nature of constitutional crises and we offer them as background for discussion here.
Peter Shane, law professor, Ohio State University explained: “The purpose of a constitution is to structure legitimate government, so that the exercise of power over an entire citizenry by a relatively small handful of elected and appointed officials is morally justified. In a democracy, that moral justification depends on several things: the protection of human rights; adherence to the rule of law; structures and practices that help assure, in public policymaking, genuine consideration for the interests of everyone who is subject to the government’s authority; and opportunities for all citizens to participate as meaningful political actors in the processes of collective self-determination.
“I define a constitutional crisis as a situation in which existing constitutional arrangements no longer realistically promise to serve the foundational values of democratic constitutionalism.” Under this test, Granger has definitely precipitated a constitutional crisis. In parting he noted the foundational value that Granger lacks: “A 19th-century British prime minister once said, “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.” Granger has shown he lacks this restraint with the power he was conferred.
A second pertinent and analytical perspective was offered by Keith Whittington, politics professor, Princeton University: “I think a constitutional crisis is best understood to be moments when the constitutional system itself seems to be breaking down. This can happen in two ways: a crisis of operation and a crisis of fidelity.
“A crisis of operation occurs when important political disputes cannot be resolved within the existing constitutional framework. An effective constitution is one that provides a structure for contesting and resolving political disputes. When a constitution can no longer do that and our disputes spill outside the constitutional framework, then the constitution itself is in crisis.
A crisis of fidelity occurs when important political actors are simply unwilling to adhere to the constitutional commitments as they understand them. If consequential political actors determined that a constitutional rule or a prescribed constitutional outcome should be ignored because some other political priority than following the constitution is more important, then the Constitution’s ability to guide and constrain political behavior has, to that degree, been cast into doubt.”
Granger is ignoring the dictates of Art 106 (6) and (7) because he prioritises the fortunes of the PNC over that of the country.
Finally, Jessica Silbey, law professor, Northeastern University pointed out: “All members of government swear an oath to uphold the US Constitution, which provides rules for governing as well as for debating changes to those rules. Refusing to follow these rules is one feature of a constitutional crisis.” Here Granger swore an oath to protect our constitution but now traduces it by seeking to influence the elections process.
Sibley warns of the consequences of this move: “But if the enforcers are cheating, and the rules for electing new government are constrained by the existing ruling party — constraints such as … limiting access to the ballot — the people cannot solve the crisis within our democratic and constitutional norms. This kind of constitutional crisis can lead to revolution because of the profound inequality, the constraints on liberty the consolidation of power creates, and the feeling of hopelessness both produce.”