Guantanamo Two: In a democracy, you vote for judgment, by Prof Eugene Mensah
The Guantanamo Two Saga and Your Vote – In a Democracy, You Vote for Judgment
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Some weeks ago, there was a bombshell! Two suspected persons, who had hitherto been detained at the infamous US Guantanamo Bay Detention Center in Cuba, had been granted asylum in Ghana!
There was fear and trembling! People could not fathom why the government would allow such persons into Ghana!
The political class reacted in predictable ways. For supporters of the government, the detainees were not really terrorists because they had not been convicted of any offence and the government’s actions could be justified on humanitarian grounds. The government’s critics condemned the decision and wondered why the authorities would put the country on the frontline of the war against terrorism.
In their bewilderment, people asked important questions: “Is Ghana, not a democracy?” “Could the government take such key decisions, without consulting the people? “Should the decision not be challenged in court?”
This essay answers some of these questions. Yes, Ghana is a democracy and our democracy is based on the doctrine of the separation of powers. This means that the three branches of government play significant but specific roles in governance: Parliament passes laws, the Government administers the country within those laws and the Judiciary ensures that both Parliament and the Government operate within the law.
It also means that generally, Parliament and the Judiciary, play minimal roles in the everyday administration of the country. This is especially the case in foreign policy and national security. Foreign policy deals with our relations with foreign governments and institutions. National security is about protecting the country from its enemies, mainly foreign ones. It is all hush-hush and usually the government must act quickly and clandestinely to protect it. Consequently, invariably, the government is given almost exclusively jurisdiction, with wide discretionary powers to protect national security and promote foreign policy.
The Guantanamo Two came to Ghana as a result of an agreement between the US and Ghana. So, this is a foreign policy matter. Since there is a disputed claim that they were engaged in terrorism, this is also a national security matter. Obviously, it would have been difficult and inappropriate for the government to consult us on this issue. If had done so, it would in all likelihood have jeopardized our relationship with the US – who knows what we got in exchange for our decision?
What about Parliament? The answer is that government does not have to consult Parliament on the issue and again this is because of the nature of the subject; it is in the nature of foreign policy and national security that secrecy is strength. And so the government could refuse Parliament oversight in these areas. In American jurisprudence, this is called executive privilege.
Could a citizen not challenge the decision in court? Yes, a citizen could and in fact, Madam Margaret Banful and Nana Kwasi Boakye, are doing just that. But they are unlikely to be successful. This is because, again, as we have indicated, the executive has near exclusive jurisdiction in national security and foreign policy matters. Whilst, theoretically, any government action could be challenged through judicial review, the Judiciary recognizes that foreign policy and national security matters are not easily amenable to judicial resolution. So they defer to the executive in these areas.
And so, we must answer an even more fundamental question; if, indeed, there is no way we can alter the decision of the executive on such an important issue as the Guantanamo Two Saga, what is the role of citizens in a modern democracy?
The answer is that our role as citizens in a modern democracy, generally, is limited to choosing the executive to take decisions for us for four years. We can influence the government through discussions of public issues and publicly demonstrate for or against a policy, if we feel very strong about it.
But we cannot, on our own, alter government policy. If we like the government’s decisions over its four-year term, they can renew its mandate by re-electing it. If we do not like its decisions, we can replace them. Generally, democracy is not about voting for a government and then interfering with its decisions when we do not like those decisions. When we vote for a government, we are stuck with it for four years and it can take bad decisions - in fact, very bad decisions - and there is nothing we can do!
So, in a democracy, because we essentially choose people to take decisions for us, we must choose leaders with good judgement. Interestingly, this also requires that we use good judgment to choose our leaders. Luckily, after 22 years of democracy, we have sufficient information to do this; we can assess their public statements and behaviors to determine whether we can leave our security to their judgement.
There are, however, certain factors, like ethnicity, religion, or gender which we should avoid when appraising our leaders. Unfortunately, in order to hoodwink us, politicians throw these irrelevant factors to us as the criteria upon which we should choose our leaders. Sadly, this is what some voters seem ready to swallow – hook, line and sinker.