Who Is Afraid Of Due Process In Ghana

By-Mawuli Dake*

With our long history of arbitrariness, pervasive culture of selective justice and decades of undue executive tampering with justice delivery, many old-school politicians find it difficult to recognize, adjust to and respect Ghana’s new paradigm of due process and the rule of law. Gone are the days when citizens stood no chance of legal justice against government through the court, and when the President openly interferes in court processes just to see his perceived “enemies” behind bars. Even though not perfect in any shape or form, Ghana’s justice system is better and stronger today, than at any point under previous Rawlings and Kufour administrations. But there is a creeping danger from those who would want to maintain the status quo.

From day one of the current Attorney General and Minster of Justice- Mrs. Betty Mould-iddirsu’s term in office, many have sought to either use her to pursue their vindictive agendas or undermine her authority and credibility to perform her duties. These machinations unfortunately, emanate from both within and without her government/party. Leading members of her ruling party have publicly and covertly sought the arrest and prosecution of certain individuals, while some opposition members arrogantly portray themselves as untouchables who should be above the law- with vicious resistance to any attempt to investigate or prosecute their misconducts.

These dirty machinations have reached epic proportions in recent weeks- with some disturbingly irresponsible and ferocious tactics from both sides of the political divide. Some have even gone as far as to attack, not only the qualification, competence and person of the AG. Others continue to undermine the justice system as a whole and even call for the AG’s removal, because she is standing in the way of their schemes.

The best thing both for NDC members who want to see corrupt ex-officials penalized and for opposition members, who want to prevent any unjust persecutions and prosecutions, is to respect and allow due process of our laws and institutions. But when so called leaders of our society, who claim to know or are supposed to know better, openly seek to undermine due process and the rule of law, the result is the creeping lawlessness and indiscipline that we have seen from their young followers in recent times.

Our justice system as it is today is capable of ensuring justice and rights of all citizens. Contrary to what the charlatans would have you believe, our institutions devoid of the constant undue interference and with the necessary support, can effectively protect and defend the rights Ghanaians. Contrary to their chauvinistic conspiracy, the current AG brings far more scholarship and experience than her past four male predecessors. She served in different capacities at the ministry she now heads, for over two decades - rising to the rank of Chief State Attorney, combined with other important experiences including as a law lecturer and the top legal officer for the 54 states intergovernmental organization - the Commonwealth. Above all, she is someone whose commitment to justice did not start with her appointment as a Minister, but with a track record of activism and leadership on causes of justice. It’s really baffling to see such desperate attempt to question her qualification. The Attorney General’s constitutional mandate is to entrench at the core of the body politic, an abiding respect for the rule of law, human rights and due process; to ensure equal access to justice of all citizens; ensuring a fair, efficient and transparent legal system in the country. In this capacity, she serves as the defender of Ghana’s constitutional order, the guarantor of the rights and liberties of the citizens, the protector of Ghana’s legal interest, the chief enforcer of criminal laws and the rule of law in Ghana. Accordingly, her actions can only be dictated by our constitution, the President or other laws of our land - not by the whims and caprices of any individual or interests groups.

The curtailment or deprivation of any citizen’s basic rights and freedoms, including the criminal prosecution of any citizen, is a serious matter that should be warranted by law and guided by due process. Ghanaians should be concerned and frankly outraged by anyone’s attempt to highjack or circumvent our justice system with their obsessive vindictiveness, corrupt motives, or desire to be above the law. As a people, we may all have our views on who should or should not go to jail- but it’s up to our courts to make those decisions. It’s not the business of spin doctors and self appointed adjudicators to decide who is convicted or not. The fact is, many past officials - both NPP and NDC, abused their offices and embezzled state funds, and we need to insist that such people face the law. Yes, we must insist that those responsible for protecting the interest of our nation against such unscrupulous officials do so swiftly and decisively, but also deliberately and with due process.

The unnecessary agitation by NDC men and others for hasty and indiscriminate prosecution must cease. So must the baseless and preemptive insinuations of “witch hunting” from the opposition, at every attempt to hold them accountable. I am sure Ghanaians are discerning enough to see political persecutions when there’s one. No one should try to hide behind false “witch-hunt” alarms to avoid accountability for their crimes. Let the law take its due course. Enough of the spin, ignorance and hypocrisy!

Frankly, some of us are fed up with the never-ending NPP- NDC obsession with jailing opponents. Yes, too many politicians violate our laws and loot our resources and should be prosecuted, but many others have also serve their country with dignity and should not be harassed.

I am the first to insist that our law enforcement institutions and officials act swiftly to protect the interest of our nation against those who seek to loot and misuse our resources. Like other advocates, I would be seriously concerned about inaction or inefficiency from such institutions or officials. But no one can seriously argue that, this has been the case with the administration of justice in Ghana over the past year. Anyone who has a clue about prosecution knows that it requires diligent investigation, evidence and cause.The exercise of prosecutorial discretion should always remain with the appropriate institutions, constitutionally empowered to perform such functions. It would not only be unwise, but dangerous for any group of people to seek to putrid such functions with any other agenda. It is indeed unfortunate, to have citizens so determined to instigate or inhibit the prosecution of particular persons.

It should be expected for the many ex-officials who abused their office and know so themselves, to employ all tactics of survival and self-preservation, to avoid accountability for their actions. However, it is not up to them to decide whether, how or when they are held accountable. The justice system will determine that through due process.

Ghanaians should not give in to the cynicism, vindictiveness or fear mongering of powerful interests.

Our institutions must be allowed to function. Concerned citizens must stand up to the defense of our justice system against both those who seek to misuse it and those who seek to undermine it. If we don’t, we too could become easy victims of a weakened system one day. In an article during the controversial Tsikata trial, I cautioned the men of power at the time, against condoning the manipulation and interference with due process, for they too could become victims of that culture one day. They were of course too powerful at the time to care, just as those before them. How intriguing to see these once powerful, now concerned about fairness and vice-versa- with their NDC counterparts.

As long as there are rules and rights, there are going to be perceived abuses and violations - both against and by the State or citizens. Many of the aggrieved citizens or the State itself will seek justice and retribution.The question is whether as a society, we will build and sustain a reliable justice system that enables aggrieved parties to seek redress or create conditions that would encourage them to take the laws into their own hands.

It’s a good thing to have a President and an AG who have expressly demonstrated their commitment to uphold justice for all. Despite constant agitation for jailing ex-officials, the AG has consistently maintained that she is committed to the constitution and the President’s agenda of no political prosecutions, but with the assurance to aggressively prosecute those found through investigations and due process to have violated the laws of the land. Diligence is not the same as inaction.

As part of efforts to perfect our justice system, there is an absolute necessity for prosecutorial independence- through a constitutional amendment that removes the powers of prosecution from a political appointee. This is one the reasons why the establishment of the constitutional review commission is a step in the right direction. It is another clear demonstration of the AG and the President’s commitment to eliminate the abuse of government power and to end once and for all the execution prosecutorial decisions that promote partisan agendas.

I have faith in Ghana’s justice system to ensure justice for all - faith which is not based on the goodwill of a President or any individual. My faith in the system is based our growing public institutions and my confidence in the people to uphold and support these institutions to function without fear or favor. In this regard, we will continue to appreciate and support our leaders who uphold our laws and institutions. For this reason I stand with our AG in her commitment to the rule of law and due process.

*Mawuli Dake is a leading African human rights advocate and strategist. He is the CEO of Africa Group Consult and currently serves on the Board of Moremi Initiative for Women’s Leadership in Africa. Mdake@africagroupconsult.com