Cameron Duodu writes: Lawless law enforcement

The “separation of powers” in a democratic system is a concept which some people – especially members of the Executive – find difficult to understand.

For the Executive operates under the somewhat simplistic principle that “the first duty of a government is to govern.”

Yet taken literally, “governing” in this context would mean the Executive having the power to dictate to the other arms of government – the Legislature and the Judiciary.

One only has to contemplate the chaos that would ensue in a democracy if the Executive could tell the Legislature and the Judiciary what to do.

Government bills, whether good or bad; whether constitutional or not, would have to be rubber-stamped by the Legislature and become law. And the Judiciary would grant every demand made by the Government against citizens.

In the end, such a situation would incite some in the citizenry to rebel. But once rebellion breaks out, no-one can tell where it will end. After June 4 1979, a lot of people agreed with many of the measures taken, for instance, to try and end kalabule.

Yet these same people objected to the executions of senior military officers, for, in some cases, committing crimes like using their “influence” to obtain loans from banks. Others thought that ordering women at gunpoint to parade their most prized possessions in the world for the whole world to gape at, was taking law enforcement to the level of sadism.

That is why the “rule of law” must be revered by all people in a society. The law obliges the Executive to present proposals in Bills to the Legislature, for enactment. The Legislature is empowered to consider, and then amend, or even reject, the measures proposed by the Executive in its Bills.

Once a Bill becomes law, it is up to the Judiciary to interpret it. Neither the Legislature nor the Executive can tell a court how an Act’s provisions should be applied, once those two other organs have had their say. Interpretation of the law is reserved exclusively to the Judiciary.

That is why it is puzzling that the BNI chose to whisk away back to jail, the three South African ex-security officials, whom the court had granted bail. The judge asked for the sureties necessary for granting the men bail, to be ascertained by the Registrar of the court. Sureties are routinely verified by the courts almost every day, so there was no room for doubting that the sureties to be ascertained by the court’s Registrar would be so verified. So why did the BNI oppose the process? If it did not want the court to adjudicate in the case, why did it take the men before the court?

It cannot be the case that the BNI acted in ignorance of the law. For not only does the organisation have its own legal division, whose members are always on hand to advise its “strong-arm” branch. The organisation can also call on the Attorney-General’s Department for legal advice on specific issues about which the organisation is not too certain. Good legal officers would never advise the organisation to defy the courts, because a legal officer in Government’s employment is as eligible to be appointed as Judge or a Magistrate as all other lawyers. Therefore, if a lawyer advises anyone to defy a court order, he is, in reality, acting against himself. For if he become a judge one day and other lawyers advised their clients – including arms of the government agencies – to defy hist orders, he would naturally hit the roof.

Not only that – lawyers who encourage state agencies to defy court orders do so at the risk of creating political crises for the Governments that employs them. For instance, according to his unpublished memoirs, the Earl of Listowel, Governor-General of Ghana, came close to resigning his post in December 1958, when the Government of Prime Minister Kwame Nkrumah passed an Indemnity Act which absolved the Minister of the Interior, Mr Krobo Edusei, and the Acting Commissioner of Police, Mr E R T Madjitey, from the punishment arising out of their having committed contempt of court!

The contempt case was the result of their having deported to Nigeria, a man called Balogun and three others, whilst they were awaiting the decision of a court on a habeas corpus application they had filed. (Balogun v Minister of the Interior)

I was present in court covering the case for the Ghana Broadcasting System when Mr Justice Smith J, on being presented with the Indemnity Act just passed by Parliment, said: QUOTE:

By the passing of this Act, I take it that the courts’ finding that the respondents are in contempt is not challenged by Parliament, but that the intention is to neutralise any consequential order that I might make. It is plain that Parliament prefers that the respondents should not apologise, and it has passed this Act in order to nullify any order which I might make in the absence of the apology…

As to the deportations ‘[which occurred] while the applications for habeas corpus were still sub judice, I cannot over-emphasise the undesirability of interference by the Executive with the functions of the court.

“Persistent indulgence in such a practice could not have any other than the most serious ill-effect on the well-being of the country.

“Decisions of a court are as binding upon the Executive as the laws which Parliament passes are binding upon the ordinary citizen, and it is the court that enforces upon the people, obedience to these laws, thereby aiding Parliament in the ordering of the country.

The tortuous path through which the political and legal history of Ghana has passed may have been avoided if the words of Mr Justice Smith J in December 1958 had been heeded by the Government of the day and those that have followed it. That the disease is a national one is proved by Dr K A Busia’s famous “No Court!” outburst in 1969. But it is even more ironical that a Government of Ghana stands ready today unbashamedly to repeat a mistake that was made as long ago as 1958 – a whole 58 years in our nation’s life. We just won’t learn, right?