Feature Article of Wednesday, 18 April 2012
Columnist: Dakurah, Collins
I have since yesterday's 'holding' of Hon. Kennedy Agyepong by the Security Services been taken aback by the many wild legal arguments proffered by otherwise reputable lawyers and politicians. Many have sought to create the impression that since the constitution empowers only the President to declare war, it amounts to a criminal offence for a citizen or resident to declare such an action. In as much as possible, I am not interested in Agyepong's unfortunate string of words but in correcting the impression which is fast becoming pervasive.
Now, the declaration of war in the context of the constitution of Ghana and any other is meant to send an unambigious signal to a diplomatic community mainly. That is why the constitution consistently leaves you with the impression that 'war' is meant to be between two nations and or a nation, and an external aggressor.
If the Commander of the Joint Chiefs of Defence or top defence officer for instance declared war on our neighbor Togo, it would leave the Togolese Government wondering if this was real or rather a sign that there was an ongoing mutiny by the official. In order to avoid this confusion the law empowers only the Office of the President to make that declaration. It is meant to curb a scenario in which a war hungry army declares war in critical situations when all present at the security meeting vote in favor of war albeit the President wishes otherwise.
As you may have begun to realise only a person in a position of authority in the army could possibly be consceived capable of usurping the President's powers. This is because, an army does not obey instructions from high above but from ground commanders. Indeed, neither the President nor Defence Minister could directly order an army to war without routing the instructions through the chain of command.
As I said earlier, the constitution understands 'war' to involve a nation and an external aggressor. Any other similarities within the borders of the nation by citizens amounts to a breach of public order. It is in this light, I in an unrelated subject find the conclusion of the Wuaku Commission that events that led to the murder of the Ya Na of Dagbon was war as unfortunate. All such incidents must be treated as purely criminal cases.
So if Hon. Kennedy Agyepong categorically stated that he has declared war, does it amount to treason? NO. Did he conduct himself in a manner likey to incite misguided citizens to breach the public peace and order? YES. His declaration is not backed by law neither has he command over the army and as such his declaration is null and void, SIMPLE! However, the content and import of his words would make him liable for criminal prosecution for trying to breach the public peace. I doubt very much if I went on radio and declared war on Bahrain or Syria those countries would be perturbed, nor would the BNI arrest me, nor would any court entertain a criminal action over my statements.
Furthest, it is my firm beleive that Hon. Kennedy Agyepong would walk a free man if he is charged for a supposedly treasonable offence of declaring war, because the bench would certainly not fall for such shallow reasoning. Consequently, he would become a hero, emblodened in his conduct. On the other hand if the AG/Police heed my advise against that of the politicians in government and charge him under the Public Oder Act this may yet be their first major political victory in court against a man Ghananaians in one instance must be eternally grateful to for exposing Alfred Agbesi Woyome and his co-conspirators in government.