‘A constitution is not the act of a government, but of a people constituting a government.’ Thomas Paine’s words resonate deeply within Ghana’s constitutional framework, particularly when one examines Article 290 of the 1992 Constitution.
Few provisions better illustrate the tension between democratic protection and democratic progress. As Ghana once again turns its attention to constitutional reform following the recommendations of the Constitutional Review Committee, a crucial and unavoidable question arises: Is Article 290 a vital shield protecting democracy, or has it become a barrier to necessary reform?
Article 290 regulates the amendment of entrenched provisions of the Constitution, those provisions regarded as foundational to Ghana’s democratic order. The Article imposes strict requirements, advance publication of amendment bills, approval by at least two-thirds of all Members of Parliament, and endorsement by the electorate through a national referendum with high turnout and approval thresholds. These conditions were not designed by accident.
They reflect a deliberate constitutional choice to insulate the core values of the Republic from impulsive political interference.
The Supreme Court of Ghana has repeatedly emphasised the sanctity of the Constitution and the seriousness with which its amendment procedures must be treated. In Tuffuor v Attorney-General [1980] GLR 637, although decided under an earlier constitutional regime, the Court laid the foundation for Ghana’s modern constitutional jurisprudence by affirming the supremacy of the Constitution over all other forms of authority.
This principle finds expression in Article 1(2) of the 1992 Constitution and informs the strictness of Article 290. Amendments to entrenched provisions are not ordinary legislative acts; they are exercises of the people’s sovereign power.
Supporters of Article 290 argue that its rigidity is a necessary response to Ghana’s political history. The country’s past experiences with constitutional suspension, military intervention, and executive dominance informed the framers’ determination to entrench key provisions against manipulation.
In the case of New Patriotic Party v Attorney-General (31st December Case) [1993-94] 2 GLR 35, the Supreme Court underscored the importance of constitutional continuity and rejected attempts to legitimize unconstitutional interruptions of democratic governance. Article 290 can be seen as a structural response to such historical lessons, ensuring that constitutional change is slow, deliberate, and broadly supported.
From this standpoint, Article 290 functions as a guardian of popular sovereignty. It ensures that Parliament cannot, on its own, alter the most sensitive aspects of the constitutional order. The Supreme Court echoed this sentiment in Asare v Attorney-General [2012] 1 SCGLR 460, where it reaffirmed that the Constitution belongs to the people and that constitutional interpretation and change must always respect this foundational principle. Requiring a referendum, Article 290 places final authority in the hands of citizens, reinforcing democratic legitimacy.
There is also a compelling argument that Article 290 has helped Ghana avoid the constitutional abuses seen in other jurisdictions. In Abu Ramadan and Nimako v Electoral Commission [2015-2016] 1 SCGLR 1, the Court stressed the need to protect the integrity of constitutional processes, even when doing so is politically inconvenient. Similarly, the difficulty of amending entrenched provisions has arguably shielded Ghana from attempts to weaken presidential term limits or undermine judicial independence. In this sense, Article 290 has operated as a democratic stabilizer.
Yet, despite these strengths, Article 290 has increasingly attracted criticism for being overly rigid. Critics argue that while the provision successfully protects the Constitution from abuse, it may also prevent the Constitution from responding to genuine societal needs. Constitutional law is not merely about preservation. It is also about adaptation. When reform becomes nearly impossible, the Constitution risks losing relevance and public confidence.
One of the most pointed criticisms of Article 290 concerns its referendum thresholds. Achieving a 75 percent approval rate with at least 40 percent voter turnout is an extraordinarily high bar. In practical terms, this means that even widely supported reforms may fail due to voter apathy rather than opposition. The concern here is not hypothetical.
In Prof. Stephen Kwaku Asare v Attorney-General (Dual Citizenship Case) [2017] GHASC, the Supreme Court acknowledged the importance of aligning constitutional provisions with contemporary realities while still respecting the amendment process. The case highlighted the tension between constitutional rigidity and evolving democratic norms.
Again, there is also a broader institutional concern. When lawful constitutional reform becomes too difficult, political actors may resort to informal practices or executive dominance to achieve their objectives. This undermines constitutionalism in a subtler but equally dangerous way. In the case of OccupyGhana v Attorney-General [2017] GHASC, the Supreme Court cautioned against executive practices that, although politically expedient, contravene the spirit of the Constitution. A constitutional system that discourages formal reform may inadvertently encourage such practices.
However, the work of the Constitutional Review Committee brings these issues into sharper focus. Many of its proposals, such as reducing executive appointment powers, reforming decentralization, and strengthening independent institutions, touch on entrenched provisions. Even where there is broad public dissatisfaction with aspects of governance, Article 290 remains a formidable hurdle.
This raises the question of whether the Constitution is being protected from abuse or protected from improvement.
Comparative constitutional jurisprudence suggests that most stable democracies strike a balance between rigidity and flexibility. Ghana’s amendment process, particularly under Article 290, is among the most demanding globally. While this has served the nation well in guarding against opportunistic reforms, it also risks constitutional stagnation. Constitutional legitimacy depends not only on endurance but on responsiveness.
Therefore, questioning Article 290 does not imply hostility to constitutionalism. On the contrary, it reflects a deeper commitment to democratic governance. In Martin Amidu v Attorney-General [2013] 1 SCGLR 402, the Supreme Court emphasized that constitutional interpretation must promote accountability, transparency, and good governance. A Constitution that cannot evolve through lawful means may struggle to achieve these goals in the long term.
Defenders of Article 290, however, caution against underestimating the dangers of constitutional reform driven by political ambition. In an era of strong incumbency advantage and polarized politics, the difficulty of Article 290 forces reformers to seek a broad national consensus. This requirement may be frustrating, but it also compels democratic maturity. As the Court observed in Nana Akufo-Addo v John Mahama (Presidential Election Petition) [2013] 1 SCGLR 73, democracy thrives not merely on outcomes but on respect for processes. Article 290 embodies this philosophy.
The debate over Article 290 is not about choosing between democracy and reform, but about defining their relationship. Is democracy better served by a Constitution that resists change at all costs, or by one that allows carefully regulated evolution? Ghana’s experience suggests that while rigidity has preserved stability, excessive inflexibility may one day hinder progress.
As Ghana reflects on constitutional reform, Article 290 deserves neither unquestioning praise nor outright rejection. It must be examined honestly, with due regard to history, jurisprudence, and democratic aspirations. The challenge lies in preserving its core purpose, protecting the sovereignty of the people, while ensuring that the Constitution remains a living document.
Importantly, the strength of Article 290 lies not only in its text but in the constitutional culture that sustains it. As the Supreme Court has repeatedly affirmed, the Constitution survives not because it is difficult to amend, but because citizens believe in it and defend it. If Article 290 continues to foster that belief, it remains a shield for democracy. If it begins to alienate the people it was designed to protect, then even the shield itself may one day require reform.