President’s remission of Montie three does not hurt the Supreme Court
On July 18, 2016, the Supreme Court (SC) convicted the famous or infamous Montie three in a decision that triggered mixed reactions largely by partisanship and hardly honest considerations.
The neutrals were far and in between. To be blunt, the New Patriotic Party (NPP) was happy that the three were punished and arguments against the harshness of the sentence were intently countered by leading NPP advocates such as Mr Sam Okudzeto.
Predictably, the National Democratic Congress (NDC), in whose interest the three spoke, it seems, was peeved and unhappy. For the NDC supporters, but for occasional pretence, they were happy with the comments by the three against the SC and individual justices because the three spoke their minds against the decisions of the SC in the Abu Ramadan cases.
As I recall the ensuing arguments, not only the procedure adopted by the Supreme Court (SC) was faulted, but also the ratio for the decision and the four months custodial sentence handed the contemnors. The events ensuing were interesting as many, including my good self, did not foresee or receive the slightest inkling that intense pressure will be brought to bear on the President to invoke his powers under Article 72 of the 1992 Constitution, to cancel the remaining sentence of the three.
As I understand it, the President’s act was triggered by a petition to him by the three. Following days, I believe of intense and high-level political consultation and maneuvering. The communications minister issued a statement excerpts of which I first heard on Alhaji Abubakr Sadiq Ahmed’s Campus Radio Univers evening newspaper programme, in the form of breaking news that the President had remitted the remaining sentences of the Montie three. The three have been cooling in the prisons since the ruling. They have also paid their various fines as I understand it.
Politics
Honestly I was not surprised, especially given the extremely partisan milieu in our country. This is because although the President exercises powers for the benefit of his supporters and detractors or ardent critics (I mean all Ghanaians), he is still a politician. He is a member of a political party on whose wings he rode and rose to power. President John Dramani Mahama would probably not become president of Ghana if he were not an NDC member despite his many personal strong attributes. Independent candidates will never become presidents in Ghana. His umbilical cord is still firmly tied to the NDC which possesses formidable forces of influence on him.
In any case, the NPP was not being more honest than the NDC and vice versa when they both advanced arguments for and against the sentencing of the Montie three. In fact, I do not believe that in the hearts of Mr Ayikoi Otoo and Mr Okudzeto, who spoke vehemently in support of the contempt decision, their real intentions were to emphasise the need to uphold the independence of the Judiciary. In fact, they were being purely political in much the same way as the likes of Nana Ato Dadzie. So what is wrong with the President also exercising a constitutional power with the handwriting of politics all over it? He is a politician and he is NDC and the Montie three are NDC, Period. Unless another group or person, as it has become characteristic today in Ghana, decides to go to the SC court again and succeeds in raising an issue of interpretation regarding the conduct of the President’s power under Article 72, this matter will receive both criticism and support and eventually die down like all matters die down in Ghana.
Effects
The critical question though is: how does the exercise of the President’s constitutional power detract from the respect and power of the SC? It will appear that when pressure began mounting for the President to grant pardon, the fear was that any such act by him will create a precedent for irresponsible and inflammatory radio commentary and a state of impunity. Fears were also that any such act could engender mistrust between the co-equal arms of government and interfere with the power of the Supreme Court. I do not believe any of such fears is founded. First of all, the SC will still be our apex court and its powers will remain intact.
Second, the power exercised by the President was in a particular context and that context I argue will sparsely hardly present itself. Third, I believe the remission does not dilute the strong message sent out by that single act of the SC. A clear message has been sent. Finally, anybody who is under the SC’s jurisdiction will be punished if he acts in a manner that undermines it. In any case the SC exercised a constitutional power although arguably unconstitutionally, and the President has also exercised his constitutional power. If the framers of the Constitution believed that such powers were inimical to a democracy, they would not have provided for it. It may well be that at the time of framing the Constitution; they did not envisage that an Article 72 power will be exercised in this manner. It may well be that the framers considered it and provided no exceptions for whose favour the power should be exercised. So the President decided with the Council of State to exercise it in favour of men of his party. Would an NPP President not have done a similar thing? Let us stop the pretence.
To sum up, I wish to say that the president acted in two ways; constitutionally and politically. Also, the SC exercised its power and sent a clear message across to the general public; that it cannot be undermined and disrespected by anybody and we all got it clear. Finally, both the NPP and NDC are being political. Above all, current commentaries on the matter are devoid of any honesty. I think we should let the President and the SC be.
The writer is a Law lecturer at the UPSA and a lawyer.
Writer’s e-mail : Albymine@yahoo.co.uk