The Indemnity Clause Is An Incongruous Democratic Contradiction

By Dr. Nii Otu Quaye

A number of articles and comments have been written on the propriety of the Indemnity Clause of the 1992 Ghanaian Constitution, some propagating its expungement with others clamoring for its retention. While my articles on the Ghanaweb, March 27 and April 5, 2008, respectively, call for the expungement or, at least, substantial modification of the Clause, I must note that the position of the contra is not entirely baseless. Specifically, I find some merits in the argument about the need to retain the Indemnity Clause to avert political instability. I find some merits as well on the point that a Constitution for a growing democracy should be left to grow naturally. However, these apparent merits are superficial, especially given the issue at stake here?whether an ultra erroneous provision virtually covertly inserted into a Constitution should be left to stand.

Make no mistake: expungement of a flawed, ill-conceived, and improperly inserted provision of the Constitution does not promote instability or stifle it. Instead, it fosters stability and progress not only by enhancing the integrity of the system but also by appropriately trimming off the rough and questionable edges that would otherwise pose serious problems along the way. Likewise, the fact that our Constitution must enduringly withstand the test of time does not mean it cannot and should not be corrected where errors are found. Remember: while the Constitution is a historical document reflecting our history, experiences, and expectations, it is also a dynamic instrument that must develop rationally and progressively with the nation. Deferring the obvious error to year 2008 is bad enough, but leaving it to linger is surely unworthy and irresponsible.

Constitutions in democratic countries generally embody provisions on separation of powers that entrust the judiciary with the final word as to the meaning of their provisions. Our Constitution?s Indemnity Clause, by barring our courts from reviewing and overturning any action by or on behalf of any past military regime forecloses this crucial attribute of constitutionality thereby compromising, if not totally vitiating, the sovereignty and independence of our judiciary. Clearly, this is an anomaly that cannot be countenanced. Again, prudent Constitutions, in recognition of the sovereignty and independence of the legislature, allow for amendments by the legislature, a co-equal branch in the tripartite governmental structure. By contrast, ours, by ironclad provisions prohibiting parliament from ever amending the Indemnity Clause, impinges on the sovereignty of our parliament by foreclosing this too. Depressingly, not only are these foreclosures blanket, schemed to apply in utter defiance of bedrock constitutional rights, but also they are designed to apply in perpetuity truncating the sovereignty of our legislature and judiciary. Ghanaians must expunge the Clause by a legislative act (amendment of the Constitution) and by the judiciary?s progressive construction when confronted with issues implicating it. Remember: freedom, to flourish, always runs with accountability and responsibility, the very progressive lynchpins of constitutionality being excised here!

In my previous articles and comments, I discussed a number of grounds for the expungement of the Clause. Among these grounds is the foreclosure of the separation of powers principle. By that, the Indemnity Clause, as noted, has totally transformed into a myth our crucial key to justice, viz., the independence and sovereignty of our judiciary as the ultimate declarant of what the law is, and of our parliament as the principal and ultimate law making authority. In addition, I cited the denial of due process to the numerous Ghanaians wronged by or under any of the military regimes. Moreover, I mentioned the uncertainties raised in our legal system by the heroic actions of the National Reconciliation Commission (NRC), noting that, with the Indemnity Clause still being in place unexpunged, the fate of these wronged people would be at the whims and caprices of entities before which they seek redress, as the Indemnity Clause would always provide plausible, albeit artificial and flimsy, excuses for any resulting dishonorable decisions. As previously noted, not only do these create uncertainties and inconsistencies that can destabilize our system and bring it to disrepute, but also they can promote unmanageable corruption. These are debilitating anomalies that our nascent democracy cannot afford to imbibe, accommodate, or overlook.

The Indemnity Clause further denies basic bedrock protections. Among these are equal protection, fundamental rights, and due process.

Notably, in forcibly catapulting themselves into office, the unelected regimes purportedly covered by the Indemnity Clause professed to hoist liberty, promote the general welfare, and protect all Ghanaians. Specifically, they made these promises in their Establishment Proclamations and also trumpeted them in the names they adopted, to wit, the National Liberation Council, the National Redemption Council, and the Provisional National Defense Council (PNDC). Significantly, and rather interestingly, the latter was the regime under whose tutelage the Indemnity Clause was conceived and carved into the Constitution. It is important to recall that the PNDC, following the purported enshrinement of the Clause in the Constitution, metamorphosized itself into the National Democratic Congress (NDC), its alter ego and the first civilian regime to run the Constitution and ensure the insulation of the predecessor military governments from any scrutiny. Naturally, being an inextricable part of the indemnified governments, it is unfathomable that the NDC Government would or could have raised any issues with the Indemnity Clause. In short, what the PNDC purported to do by the Indemnity Clause is to literally have Ghanaians turn themselves into blind men and women (thinking they are part of the decision) and allow the PNDC and its predecessor military governments to benefit from their acts, whether right or wrong. This is impermissible as a matter of law. It should be troubling and objectionable to law-abiding Ghanaians that these regimes that assumed power uninvited, professing to protect the people and their liberties, could turn around against the very people they vowed to protect and, ironically shield themselves by saying that none of their actions--criminal or otherwise, right or wrong-- should ever be reviewable or correctable. Retention of the Clause is indefensible; it is incongruous with and antithetical to the ideals and spirit of the Constitution in which it is enshrined.

Freedom and accountability always run together. The Indemnity Clause?s purported foreclosure of accountability contradicts a famous maxim: ?One should not be allowed to benefit from his/her own wrongdoing.? Clearly, the Indemnity Clause is wrong and invalid; it tarnishes the integrity of our Constitution; it reflects disrespect and an affront to our intelligence and conscience; and it breeds a sure recipe for instability.

Nor are these the only reasons why all Ghanaians must condemn the Indemnification Clause and call on the legislature and judiciary to work it out of our lives. In an article featured in the Statesman, dated November 24, 2006, titled "Deputy Speaker Wants Indemnity Clause Out," the Honorable Freddie Blay is noted to have called unequivocally for excising of the Clause. It reads in part: "The First Deputy Speaker of Parliament, Freddie Blay, has joined calls for a review of the 1992 Constitution, particularly the part that deals with indemnity clauses . . . . He sees it as an incongruous democratic contradiction in the Fourth Republican Constitution" (emphasis added).

The article reads on:

adding his voice to an earlier call by the Minister of Justice, Joe Ghartey, for a public debate on the fate of the clauses seen by many as out of place in the Constitution, Mr. Blay is also actively advocating an overturn of the indemnity clauses.

Mr. Blay reportedly added: "It is important to ensure that for a constitution to last and for the people to have confidence in it, those incongruous things that make it a problem are tackled. . . . and I think the indemnity clause must be removed." He stressed that the Clause ?sets a bad precedent and reinforces the perception of some people . . . that they could perpetuate atrocities and get away with it.?

In another article featured in the Statesman, titled "Indemnity Clauses Spark Debate," dated April 12, 2006, Mr. Blay, allegedly opposed by former Deputy Defense Minister, Mr. Tony Aidoo, described as "archetypal Rawlings apologist," reiterated his call for removal of the "blanket indemnity" stressing that it "goes against the spirit and letter of the Constitution."

In yet other Statesman articles, "Indemnity Clause Likely to Stay," dated December, 22, 2006, and "NDC Apparatchiks are in deadly state of denial," dated November 13, 2007, two other Ghanaians have highlighted some of the reprehensible attributes of the Indemnity Clause, although their positions regarding its expungement are less forthright. It is, however, significant that all these dignitaries reportedly drew some inspiration from the NRC?s deliberations and recommendations. Specifically, the parts allegedly inspiring Mr. Blay?s articles read:

The National Reconciliation Commission, in its recommendation, also took exception to the presence of indemnity clauses in the Constitution. ?The existence of indemnity clauses under the Transitional Provision to the 1992 Constitution has remained sore point with many whose rights were abused by the PNDC government and its appointees. . . These clauses were not permitted to be debated by the Constituent Assembly in 1992 before insertion into the draft Constitution. Although the Draft Constitution was later subjected to a referendum, the mode of its handling made it impossible for those who wished for a return to constitutional government but who disapproved of the clauses, from expressing that preference.? A stable constitutional order cannot be founded on injustice and impunity on the part of wrongdoers, matched by a deep sense of grievance by many citizens. . . . The Government, through the Attorney General has also expressed its acceptance of the NRC recommendation. [Emphasis added].

The big problem here is that the Clause seems to have been sneaked in: "The clauses were not permitted to be debated . . . before insertion into the Draft Constitution." Id. Thus, the Clause is spurious, devoid of the quintessential attributes by which Constitutional provisions enduringly withstand the tests of time.

Even if the Clause was not sneaked in but was fully debated, there still are problems that render its expungement unexceptionable. The Constitution is an embodiment of the totality of the powers of the Government derived from the Governed. In other words, all its provisions should emanate from the Will of the People. Thus, for the Clause to digress from this axiomatic norm, shirking all accountability and adding insult to injury by obliterating equal protection, due process, and fundamental rights-- further compromising, if not wholly vitiating the independence and sovereignty of the judiciary and parliament--, it is crucial that the People be not merely informed of that specific provision, but as well educated fully about it. Let?s remember: those that the governed trusted and elected to represent them in Parliament and make the law are expected not only to be independent but also to reflect our sovereignty by making laws and amendments without fear or favor, and not just sit and be controlled remotely by unaccountable individuals merely because those individuals once forcibly imposed themselves on us. We did not agree with that perversion under colonial rule, and we certainly should not condone it now.

It has been stated in some circles that the adoption of the Constitution was preceded by a referendum. But the pivotal question is: was the referendum cast with sufficient information, clarity, and education for the People to know exactly what they were approving? Or, was it presented in a boilerplate fashion for the uninformed or unfocused public to rubberstamp it without knowing the nitty gritties of the Clause, its implications, and what they were actually voting for? Because the Indemnity Clause, as noted by Mr. Blay et al., was inserted into the Constitution without deliberation of the Consultative Assembly, and because it was sneaked in without adequately informing the public let alone educating them on its meaning and implications, the Clause lacks the pivotal imprimatur to wield any validity. It is spurious.

In Ghana?s recent past history when matters of far reaching consequences were sought to be introduced into our law, the governments, to earn legitimacy for their efforts and resulting enactments, massively campaigned and educated the public at large about the proposed new changes. Two cases in point were the right hand drive system ("enifa enifa?) and the UniGov idea. Concededly, these did not rise to constitutional proportions. Nevertheless, the Governments, even for these relatively less significant novelties, took the rational, honorable, responsible, and normal steps to clothe their efforts with legitimacy. The enifa enifa system succeeded, and no hue and cry has arisen therefrom because it was legitimately achieved. While the UniGov idea failed, it was neither sneaked in nor forced down our throats. Here, by contrast, the Indemnity Clause was coined and inserted into our Fundamental Law?the Constitution--without even allowing it to be debated by the Consultative Committee and approved by an adequately informed public. Are we now washing our faces upwards? The Clause is illegitimate, unconscionable, and uncondonable. Accordingly, it must be repudiated!

Let?s be clear by further reminding ourselves of some vital facts about constitutions: A Constitution generally is a historic document embodying the sovereignty and fundamental law of a country. Reflecting the experiences and aspirations of the country as a whole, the Constitution establishes the character and conception of the governed; lays basic principles to which the country?s internal life must conform; formulates the government, regulating, distributing, and limiting the functions of its different components; and prescribes the manner in which the country?s sovereignty must be exercised. In effect, it is a document presenting the government as an entity deriving its whole authority from the consent of the governed. Once made, a constitution cannot be tampered with lightly. It can be changed only in rare situations by, among other means, an amendment by parliament-those trusted and popularly elected to sovereignly make laws on the People?s behalf. Of course, short of its amendment or overthrow, the judiciary, the branch of government sovereignly entrusted with independence to interpret and declare what the law is, can as well construe it progressively in ways that shirk any manifested absurd attributes. These aspects? amendment and progressive construction? help nourish the Constitution and the life of the country to withstand the test of time because the Constitution is a dynamic, evolutionary document with room for correction where errors are found. As one celebrated legal luminary cautioned tersely about Constitutions: "let the end be legitimate" and let it, its text and spirit, and as applied, be in consonance with respect for fundamental human rights and natural dignity of man. Ours defy these core laudable traits.

Typically, constitutions guarantee certain basic protections. These include equality under the law, due process, and fundamental rights, to wit, right to life, liberty, and general welfare. The 1992 Constitution is no exception to this. Indeed, it contains all these venerable guarantees. However, what it purports nobly, succinctly, and honorably to afford by one hand, it regrettably, through the Indemnity Clause, snatches by the other hand. By the Indemnity Clause, the Constitution has thus hung on our necks in perpetuity an ostensible lawlessness that is designed to be unamendable and unreviewable. In effect, the Indemnity Clause nullifies and transforms all the basic protections into a mere window dressing. It should be excised unequivocally to speak loudly and clearly to the present generation and posterity that our constitutional rights are inviolable. We should be emphatic that NO ONE IS OR CAN BE ABOVE THE LAW. Needless to say, such a firm stance will hugely deter future efforts to take Ghanaians for granted and for this kind of a ride. Now the practical question is: how do we effect the expungement?

Normally, where serious problems arise with Constitutional provisions, they are abrogated or amended by the legislature. The amendment option is the most practical and cost-efficient way to rid the Clause off our lives. Accordingly, our Parliament should take the noble, courageous, and expeditious practical steps to do so, even if it means voting to call for a referendum. Alternatively, where there are conflicts within constitutional provisions, the courts, if possible, construe them harmoniously in ways that yield logical and efficacious results. Where such inconsistencies cannot be construed harmoniously together, the courts construe them in ways that avoid absurd results by, among other things, decrying the offensive provision. In the judicial contest, the latter is the better solution for our present predicament. Thus, the courts should follow it by decrying the Indemnity Clause whenever they are confronted with a case implicating it. As between the legislative and judicial routes, the legislative option, without doubt, is better, cleaner, and more efficient, especially in view of the fact that judges normally do not make law. However, because it may take a longer time to effect an amendment or abrogation of the Clause, it is best for the Judiciary to provide an interim solution, pending the clearer solution by the amendment option. Allowing the endemic flaws of the Clause to linger to year 2008 is bad enough; leaving them on in perpetuity is surely unworthy.

In a nutshell, all Ghanaians should humbly but boldly urge parliament to repudiate the Indemnity Clause by amending the Constitution. Correspondingly, we should respectfully but courageously call upon the judiciary to assert its independence and progressively apply the law, decrying the Indemnity Clause whenever the Clause is implicated before any judge. It is only by these forthright actions that our sovereignty and "Freedom and Justice" motto can be meaningful and practical. I must add that calling for expungement is not meant to propagate punishment. Instead, it is to make us a lawful society by, inter alia, hoisting our independence and demonstrating willingness to: correct our errors; render apology and monetary reparation, where necessary; reprimand reprehensive acts; and entrench the hallmarks of law, including but not limited to, due process; fundamental rights, and equality under the law. The public definitely has the right to expect the highest degree of leadership and accountability from our governments: governance that does not place itself above the law, totally defying all notions of equality. We surely have and are entitled to the right to hold our leaders accountable for their stewardship. These rights are primordial and inviolable, and they cannot and should not be contracted out, waived, or ignored no matter who is in power at any given time!