Breaking a silence

We all have our hunches, biases, selfish parochial and partisan interests.

But there is the need to criticise with measure and there are times that somebody would have to speak truth to ourselves and each other.

No one can ask us to shut up, but we must appreciate the fact that after enjoying our rights and freely acting within the purported scope, without let or hindrance, we must be ready for the concomitant consequence.

That is what Lord Dening, an eminent British jurist espoused in a dictum in the matter of Schering Chemicals Limited v Falkman Limited (1981) 2All ER 321 at 330 on Press Freedom when he said that, "The Freedom of the Press is extolled as one of the greatest bulwarks of liberty.

It is entrenched in the constitutions of the world. But it is often misunderstood.

I will first say what it does not mean.

It does not mean the Press is free to ruin a reputation or to break a confidence or to pollute the course of justice or to do anything that is unlawful.

It means there should be no censorship.

No restraint should be placed on the press as to what they should publish.

Not by a licensing system,nor by Executive direction, nor by a court injunction.

" It means the press should be free from previous or prior restraint.

The press is not restrained in advance from publishing whatever it thinks right to publish.

It can publish and be damned.

Afterwards, after publication if the press has done anything unlawful, they can be dealt with by the courts.

If they should offend by interfering in the course of justice, they can be punished in proceedings for Contempt of court.

If they should damage the reputation of innocent people by telling untruths or making unfair comments, they can be made liable in damages.

But always afterwards, never beforehand,  never by previous restraint".

Since

Since I was elected Chairman of the National Media Commission (NMC), I said to myself that I will not write newspaper articles, since I do not know the interpretations people will put on such viewpoints without making a distinction between my personal beliefs and the positions I defend as Chairman of the NMC.

But I have come to a moment that I will have to write, so that the culture of silence will not be deepened.

I have felt exercised about the creeping menace of one form of culture of silence, where nobody stops another from freely expressing a view, but where knowledgeable, well-informed Ghanaians refuse to offer their views because they could be pigeonholed into being pro or anti New Patriotic Party (NPP) or National Democratic Congress (NDC) supporters.

It is, thus, relevant for me to let those who do not know my background to know me better.

I am a nominee of President Nana Addo Dankwa Akufo-Addo on the NMC and the first such Presidential nominee to be elected Chairman of the Commission.

But long before I won the trust and confidence of Nana Akufo-Addo, in the discharge of my obligations as a journalist,  I was the room-mate of former President John Dramani Mahama, who I actively supported to become the Vice President of the Junior Common Room of the Commonwealth Hall, University of Ghana, when I ended my tenure as the President of the same JCR, a development which made many of our mates to call our room the Presidential Room.

I, thus, relate very well to both personalities.

Having stated these facts, let me like George Orwell (Eric Arthur Blair) point out that "when I sit down to write, I do not say to myself I am going to produce a work of art.

I write because there is a lie that I want to expose, some fact I want to draw attention to and my initial concern is to get a hearing".

Thus, I want to comment about two recent issues that have challenged my understanding of the rule of law and due process.

One is about the attempt by Parliament to oust or circumscribe the powers and authority provided the Electoral Commission (EC) to produce Constitutional and Legislative Instruments; the other is about the insinuation and innuendo by the Speaker of Parliament, Alban Sumana Kingsford Bagbin, that the President usurped the powers of Parliament when he said that after Parliament deals with the bill on gayism and lesbianism, it will come to him.

EC

On the matter of Parliament intruding into the power and authority of the EC, beyond the national interest, I have a personal interest as Chairman of the NMC, another constitutional body clothed with the power to make Constitutional and Legislative Instruments.

The wording of the independence and autonomy of the  EC and the NMC are not different.

These are provided for under Articles 46 and 172, respectively, that the EC or NMC " shall not be subject to the direction or control of any person or authority" in the performance of their functions.

Article 11(7) outlines how an instrument can pass into law.

It states "Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law, shall be laid before Parliament and be published in the Gazette on the day it is laid before Parliament and come into force at the expiration of twenty-one sitting days after being so laid unless Parliament before the expiration of the twenty-one days annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all members of Parliament".

Nowhere is it provided that Parliament should dictate to such bodies as to how and when instruments can be brought before Parliament.

Article 93(2) states that "Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution";  whilst Article 110 (1) states that "Subject to the provisions of this Constitution, Parliament may, by standing orders regulate its own procedure.

It is imperative also to note that our Parliament is not supreme, since sovereignty does not lie with it.

Article 1(1) provides that "The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution".

It is unfortunate that our Parliament could devote considerable time misleading Ghanaians into believing that the EC is perverting the right of Ghanaians to be registered as voters, when there is no instrument before the House and incite the people against the EC, when all that the Commission did was to engage and dialogue with Parliament about an intention to introduce an instrument before the House to go through the process to become law.

It is indeed true that the Constitution per Article 42  states that, "Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for purposes of public elections and referenda", but this is subject to Article 45(a) which states that "The Electoral Commission shall have the following functions: to compile the register of voters and revise it at such periods as may be determined by law" and what the EC was about to do was in consonance with the rule of law and due process.

Oldman

There is an Oldman in Chinua Achebe's “Anthills Of The Savannah” who says "I do not understand English but when I hear catch am, I will not wait for any interpretation before I run away".

Our elders also advise that when you see your neighbour's beard on fire, get near water because you do not know when yours will catch fire. That is why as Chairman of a constitutional body with the power to make instruments I am scared about Parliament tying the hands of the EC until a precondition set by Parliament is fulfilled.

The EC cannot interfere with the pace of the citizenship card registration exercise, but Parliament can. If on the day that the Minister of Finance appeared before Parliament some releases were made, it means that if Parliament takes it up as a project we would get somewhere.

That also points to policy rejection after change over of government.

If in the period between 2009 and 2017, we had pursued the National Identification Card Registration as a functional priority national exercise  we would have completed the mass registration by now and be mopping up.

Shame

It must be a shame that in 21st century Ghana, the citizenship of a Ghanaian must be attested to by others, some of whom sometimes offer their service for economic gain.

The denial of any eligible and willing Ghanaian from being registered to exercise the inalienable franchise of voting cannot be accepted, but that cannot be reached at the expense of the rule of law and due process.

I may not want to go to court to challenge the decision of Parliament, but that does not render the decision lawful, since in the hierarchy of the laws of Ghana under Article 11(1) (a) states that "The laws of Ghana shall comprise this Constitution" meaning provisions of the 1992 Constitution are superior to any other decision even if agreed upon by all the 275 MPs.

Speaker

On the second matter about the Speaker and the needles and avoidable jab against the President, it is important for our people to know that the Speaker has a very passive role to play as against the active role provided the President under the Constitution.

Article 104(2)  provides that "The Speaker shall have neither an original nor casting vote", meaning that the Speaker cannot vote in the House.

If the President, who can influence the shape of a bill is claimed by the Speaker to have acted ultra vires in his statement that when Parliament is done with the LGBTQ bill, it will come to him, then where is the hubris of the Speaker stating that "the law will be passed" coming from?

Article 106(1) states that "The power of Parliament to make laws shall be exercised by bills passed by Parliament and assented to by the President".

Article 106(7) gives the President the power to refuse to assent to a bill whilst 106(8) directs what the President must do if he refuses to assent to a bill in which case Parliament is enjoined to review the bill in accord with the position of the President under Article 106(9) and further under 106(10).

Parliament can reject the position of the President if not less than two-thirds majority of all members of Parliament so decide.

So where did the President go wrong to deserve or warrant the tirade of the Speaker, which attracted applause from his audience. When our President goes wrong, we should be able to point that out to him in plain words without any euphemism.

But where the President has not acted with ill-will, wrongly or in wayward manners, in commenting about it, we must be sincere and civil. We must not give him a bad name upon which to hang him or to needlessly lampoon him. Simpliciter.

The writer is the Chairman of the National Media Commission (NMC)