None above the law
If we are to speed the coming of the new age, we must have the moral courage to stand up and protest against injustice wherever we find it. Dr Martin Luther King.
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The three South Africans who were detained for having breached national security training private security guards for the flag bearer of the New Patriotic Party (NPP) have been deported. However, it is worrisome that despite the ruling of a court of competent jurisdiction granting them bail, they were kept in custody. That kind of impunity flies in the face of the rule of law, particularly as we have been touted as a model of constitutional democracy.
Our constitution affirms the notion of separation of powers although we operate a hybrid form of executive governance. There are adequate provisions in the Constitution that speak against such contemptuous disregard for a ruling of a court. A few provisions could help illustrate the point better.
The preamble to the 1992 Constitution of Ghana states emphatically that, “We the people of Ghana, in exercise of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; In a spirit of friendship and peace with all peoples of the world; And in solemn declaration and affirmation of our commitment to Freedom, Justice, Probity and Accountability; the Principle that all powers of government spring from the Sovereign Will of the People; the Principle of Universal Adult Suffrage; the Rule of Law; the protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability of our Nation; Do hereby, adopt, enact and give ourselves this constitution.
Article 1 reinforces the fact that we the people of Ghana matter in the scheme of things. It states 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 “and that “The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency be void.”
Again Article 33 (5) provides that, “ The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be in a democracy and intended to secure the freedom and dignity of man. “
Article 125 clauses (1) and (3) emphasise the independence and sanctity of the judiciary. The clauses provide that “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution” and that “The judicial power of Ghana shall be vested in the Judiciary, accordingly neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
These provisions were not inserted in the constitution for nothing. They are not mere words. They represent the letter and spirit of the aspirations of our people against any impunity and arbitrariness. We should not encourage the blatant abuse of office by the BNI in the discharge of their duties because there can be no exercise of rights or privileges without the corresponding duties and obligations. The BNI cannot purport to be above the law. Those in charge of the institution must realise and understand that they are expected to act in the best interest of the people of this country and within the limits of the law. They must accordingly follow, respect and obey the rule of law.
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When we did not have a written constitution, they wielded absolute power. Their authority was not circumscribed by law. They were able to detain individuals without charge or access to legal counsel. There is no public interest that the BNI cannot defend or uphold without acting against the law. Impunity under any guise cannot be in the public interest.
No position is permanent. The stick which is applied against Takyi might equally be applied against Baah, a popular Ghanaian saying goes, meaning we should do unto others what we want others to do unto us. Therefore when such acts of arbitrariness and impunity take place, we must all condemn them and not think about the one whose ox is gored. The law must be applied uniformly to give meaning to our claim that we are a country of the rule of law and due process.
The BNI was not more nationalistic than the court. The judiciary remains the only hope against arbitrariness and impunity, lawlessness and abuse of power and privilege.