KB Asante: Voice From Afar column

Today is Founder’s Day.  It is a holiday.  To me the honour is an empty gesture if we do not on each Founder’s Day select and study in-depth, an aspect of Nkrumah’s life and works. 

Naturally, we should dwell on what his legacy has done for the nation and consider it our duty to continue his good works.

Kwame Nkrumah vigorously promoted the principle of equality. Not long ago when many of the learned espoused socialism, some of my close university friends scorned many socialist ideas. They argued that just as all the fingers of a person were not equal, so human beings could not be equal.

I considered them naïve in understanding. I was, therefore, pleased to work under Kwame Nkrumah, a leader who understood socialism and worked relentlessly to establish equality of opportunity in Ghana. We should continue to promote Nkrumah’s passion for equality.

Our Constitution prescribes that “All persons shall be equal before the law”.  Only the President “while in office” is not “personally liable to any civil or criminal proceedings in court”. This sole exception is common sense and should be easily understood. Judges, ministers and other high personalities of the realm are not given any immunity from the legal process and rightly so.

The Constitutional requirement that all persons shall be equal before the law is meaningless if “big men and women” are made more equal before the law. The discussions, comments and pronouncements following the allegations that some judges took bribes indicate that some of us do not fully understand this principle of equality not only before the law, but generally in the field of opportunity and governance.

Kwame Nkrumah tried to make equality before the law and in other fields meaningful by expanding avenues to education and social and economic advancement. We must admit that his education policy has not fully succeeded. Perhaps we the people were greatly responsible for the failures which have led to serious misunderstanding of the governance system, and of our institutions and administrative procedures. Education promotes equality before the law. It enables us to know our rights and responsibilities.  It should make the university professor and the labourer reasonably equal before the law.

The other day, a fairly educated man asked me for a loan to “complete a court case”.  He had won a case and wanted to eject illegal tenants from a house. Apparently, for such an exercise to take place smoothly, a court official with the relevant papers and the police should be present at the ejection. He wanted the loan to pay the court officials and the police. He did offer them some money but they said it was not sufficient. That was why he wanted the loan to enable him to give the officials what they demanded.

I said if payment was necessary this should be precise and specified and receipts should be given. The bargaining smelt of bribery and he should resist it. My friend was angry. He said it was the procedure. No receipts were given and if I did not want to help I should say so. The example shows how ignorance and readiness to accept warped procedures lead to inequality before the law and corruption. Some of the comments on the recent apparent scandal of the Judges show that public ignorance promotes corruption. Education should help all to insist on equality before the law.

Fortunately, the Constitution supports education which should be pursued with vigour and intelligence by government and people. We should, however, not be diverted into unfruitful areas by doubtful Constitutional requirements which appear to negate Nkrumah’s ideas.

Under the title “Defence of the Constitution” our Constitution prescribes that “Parliament shall have NO power to enact a law establishing a one-party state”. I am not for a one-party state, but I would rather give Parliament power to do all that is necessary in the national interest. I venture to suggest that the idea was put into the Constitution because it was believed that Kwame Nkrumah wanted to establish a permanent one-party state to further his dictatorial ambitions.  

Nkrumah had his faults. But such erroneous ideas do not allow us to reflect deeply upon some major problems of the past and how understandably, but perhaps, erroneously, Nkrumah tried to deal with them. How do we deal with similar problems today? How, for example, should it be made possible for the President to appoint a most competent Ghanaian of the opposition to a very high national office?  That was the problem which confronted Nkrumah.

I believe that misunderstanding of one of Nkrumah’s acts has contributed to the unfortunate handling of the Judges’ corruption saga. Nkrumah sacked a Judge and there is a strong feeling that judges should not “fear” the President.  Article 151 of the Constitution, therefore, prescribes that “A person holding a judicial office may be removed from office by the Chief Justice on grounds ONLY of stated misbehaviour, incompetence or inability to perform his functions arising from infirmity of body or mind AND upon a resolution supported by the votes of not less than two-thirds of all the members of the Judicial Council”.

I am not a lawyer, but I have administered ministries armed with the Constitution and “General Orders”.  Misbehaviour does not normally imply a criminal act. A judge who causes mayhem around his house because he beats his wife may be considered unsuitable to hold that high office and the Chief Justice may deal with this behaviour under Article 151. But criminal acts must be dealt with as equality before the law demands.

I believe that the allegations about the Judges should have been reported to the police. The argument by some that the police is corrupt is irrelevant. In such a high-profile case a report should be made to the IGP who would summon some of his most senior officers with training and experience to investigate the matter. Naturally they would do this expeditiously and without publicity. This being Ghana,stories will leak, but official mouths should be shut while the case is dealt with as quickly as possible. Should the police find that there is no case – because the photographs are fake or for whatever reason, the matter ends.

If there is a case for the accused Judges to answer the Chief Justice is informed while the Judges are charged.  The Chief Justice would then make suitable arrangements for the trial.  For example, judges from the superior courts may sit on the cases.  Also the court would determine on the first day whether there is a case to answer or not.  If there is no case to answer, the accused judges are discharged.

If there is a case to answer, the court may proceed without interruption until judgement is given. If the judges are imprisoned, the Chief Justice has no worry. If, for purposes of argument, they are admonished or warned, the Chief Justice may have to consider whether they can continue as judges.  Article 157 of the Constitution may then be invoked.
My layman’s view is that judges should be treated like anybody else when they commit or are reported to have committed a crime. We should all be equal before the law.