RE: The On-Going Constitutional Review..... (Part 1)

THE INDEMNITY CLAUSE: (ARTICLE 299, SECTION 34 OF THE 1992 CONSTITUTION OF GHANA)

Since His Excellency, President Mills, set up the Constitutional Review Commission to determine whether there are areas of our current constitution that need reviewing and if so to make recommendation for such a review, there have been several calls by many Ghanaians asking for the removal of the Indemnity Clause which forms part of what is generally referred to as the “Transitional Provisions” that fall under the First Schedule of the general body of the document referred to as the 1992 Constitution.

As it is widely acknowledged, the Indemnity Clause seeks to protect all people who were involved with the decisions, actions and omissions that took place within the two military periods during which former President Rawlings was in-charge of the running of this country. What is not widely acknowledged is the fact that part of the provisions under the Indemnity Clause also seeks to protect the decisions, actions and omissions made by people who worked as part of, or under, earlier coups, namely: the 24th February 1966 Coup of Generals Kotoka and Afrifa, (both dead); the 13th January 1972 Coup of General Acheampong, (also dead); the 4th June 1979 Coup of Flight Lieutenant Rawlings, (still alive); and the 31st December 1981 Coup also of Flight Lieutenant Rawlings, (still alive, as said above). From this, it is clear in theory that the inclusion of the Indemnity Clause was not to protect only Rawlings and his associates of both the June 4th and 31st December Coups but, also, all other coup leaders and their associates from Generals Kotoka and Afrifa downwards. This point notwithstanding, the fact that most of those soldiers who were associated with earlier coups and who could benefit from the Indemnity Clause were not alive as at 1992....[all having been tried under “kangaroo courts” and killed by the perpetrators of the June 4th Coup, except General Kotoka who died separately in an earlier unsuccessful insurrection]....it stands to reason and argue that the Indemnity Clause could never have been inserted by Rawlings partly to seek to protect any culpable earlier coup leaders and their associates who had already been persecuted, prosecuted and either killed or otherwise punished by the same Rawlings and his associates in the AFRC junta of “June 4th “ notoriety or fame, [depending on where you stand].

One may want to ask: why was it considered necessary to insert the “anti-democratic” Indemnity Clause in a democratically drawn Constitution? To attempt to answer this question, one has to try to be in the minds of three groups of people, namely: (1) the drafters of the constitution, (2) the PNDC led by Rawlings, and (3) the Ghanaian people who accepted for adoption in 1992 the said Constitution in its entirety.

Looking at the issue from the point of view of the drafters of the Constitutional Draft, one may see a collective effort of a group trying to satisfy both pressure and ‘quick-fix’ logic. Looking at it from the point of view of PNDC and Rawlings, one may see the interplay of fear of, and determination to avoid, future prosecutions. And from the point of view of the entire Ghanaian population that accepted the new Constitution in its entirety, one may see the role played by eagerness to get rid of PNDC and Rawlings....an eagerness that seemed to have made any legal sacrifice a better option, or which may have been born out of an inapplicable saying that it is better to give up your wife for power and after getting it, use that power to get your wife back.

One may also want to ask: would the PNDC and Rawlings have refused to leave, if the drafters of the Constitution had not caved in under pressure to insert the Indemnity Clause or if Ghanaians had refused to accept the proposed new Constitution with the Indemnity Clause being part of it? This is a kind of question that one cannot answer with any certainty unless and until the actual conditions upon which the question is premised were put to the test. To attempt to answer this kind of abstract question, therefore, one may only try to look at the circumstances that led to the decision of the PNDC and Rawlings to move to the stage of preparing the grounds for the establishment of a democratic government in Ghana.

There were two forces, one from inside Ghana and the other and certainly the more important one coming from outside...... [and mainly from Western countries]. The pressure from inside had mainly been sustained by pseudo-political groups that were operating covertly as pressure groups in the country from the mid and late nineteen-eighties. Without the pressure from Western nations that were refusing to cooperate with all non-democratic regimes in Africa, it is clear that domestic pressure alone would not have forced Mr Rawlings and his PNDC to think of democratising. The question then may be asked, could Rawlings dare to refuse to accept constitutional government without the Indemnity Clause inserted to protect him and his associates? Perhaps yes, he would have dared to refuse to transfer political power to a civilian administration. Would pressure from the West have subsided, if Rawlings had decided that he would not accept democratisation without the Indemnity Clause to offer legal protection to him and members of his regime after their exit? Perhaps the answer to this is no, pressure would not have subsided if the Indemnity Clause had not been inserted and Rawlings and his PNDC had refused to democratise. But could persistent pressure from the West in any form including sanctions through the United Nations and operating in conjunction with domestic pressure from within the Ghanaian borders have together forced an intransigent PNDC and Rawlings to hand over to a civilian administration under a new Constitution without an Indemnity Clause, even if he, Rawlings, could still have vied for the civilian Presidency? Perhaps yes, pressure could possibly force Rawlings and his PNDC out, especially, if the hierarchy of the military regime was divided over the issue. So, in a nutshell, one can only speculate what would have happened if the Indemnity Clause had been excluded.

Can the Indemnity Clause be removed now? Perhaps, constitutional experts may be able to answer this question differently and definitively. But in my non-expert opinion, though, this does not appear to be the case. Section 37 of Article 299 which forms part of the First Schedule of the 1992 Constitution, [which First Schedule is also called the Transitional Provisions], states unequivocally: “Notwithstanding anything in Chapter 25 of this Constitution, Parliament shall have no power to amend this section or sections 34 and 35 of this Schedule.”

*[Chapter 25 is the part that deals with “Amendments of the Constitution”; and by “this Schedule” here above, section 37 is referring to the First Schedule” which embodies the “Transitional Provisions”.]

The two aims of my article: The main purpose of this article is to draw the attention of those of us calling for the removal of the Indemnity Clause to the “exceptional nature” of these three sections of the First Schedule of the 1992 Constitution. Though they have been “fused” with that part of Chapter 25 that deals with the amendment of the “Entrenched Provisions”, as set out under Article 290, [which relevant bit is 290(1)(s)], these three exceptional sections, that is, Sections 34, 35, and 37 of Article 299 which form part of the “Transitional Provisions” are more than just “entrenched provisions” and differ from all those other “entrenched provisions” specified under Article 290 that can be amended, though through tougher amendment regimes than the non-entrenched provisions.

THE THREE SECTIONS 34, 35, AND 37 OF ARTICLE 299 REFERRED TO UNDER ARTICLE 290(1)(s), UNLIKE THE OTHERS THEREFORE, ARE NOT AMENDABLE BY PARLIAMENT IN ANY WAY.

*[Section 34 relates to the “Indemnity Clause” while Section 35 relates to the “Preservation of Confiscation and Penalties Imposed by AFRC and PNDC”. Section 37 is the law making Sections 34 and 35 non-amendable. *And this law, that is Section 37, has itself been made non-amendable so as to safeguard the “non-amendabidabily” of Sections 34 and 35 just mentioned here. {*Permit me for seemingly ‘inventing’ the conjoined word put in inverted commas}].

The second and a subordinate purpose of this article is to draw into the discussion constitutional lawyers and experts who can throw more light on Section 37 of Article 299 that expressly prohibits the amendment by parliament of that section itself and the two other sections listed under it. Unless the constitutional experts argue differently, it does appear that even the full weight of a signed collective memorandum submitted by the entire Ghanaian population to the Constitutional Review Commission calling for the removal of the Indemnity Clause will not allow its lawful removal from the set of basic laws which all of us in Ghana endorsed in 1992 to become the Constitution of our Fourth Republic.

If this is the position of the law in Ghana, as specified under Section 37 of Article 299 which has been discussed above and which is being referred to the public through this article for the authoritative opinion of the experts on constitutional law, then it does appear that, [subject, of course, to expert opinion arguing otherwise and subject also to a contrary declaration made by the Supreme of Ghana], the Indemnity Clause is one area of the constitution where Ghanaians cannot get amendment and, therefore, should “let the sleeping dog lie”, despite the strong arguments widely held by many of us seeking the removal of the Indemnity Clause, which argument is that its inclusion undermines the “solemn declaration and affirmation of our commitment to: Freedom, Justice, Probity, and Accountability”; and also our commitment to:”The Rule of Law”; all of which are set out in the Preamble to the Constitution currently under consideration for review.

OTCHERE DARKO Dated: 20th Day of February, 2010.