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xxxxxxxxxxx of Saturday, 9 March 2019

Source: Samson Lardy Anyenini

Samson’s Take: Criminal party militias - enforce the damn law

I was privileged to deliver the keynote presentation at a symposium at the British Council on Monday on the state of freedom and justice in Ghana but focusing on the dangers party militias pose to this beautiful country.

The inaugural lecture by the Citizens’ Movement against Corruption (CMaC) is partnered by the Commission for Human Rights and Administrative Justice (CHRAJ), the CDD-Ghana, the Ghana Integrity Initiative among other critical bodies at the forefront of the corruption fight and good governance, and will be an annual event to herald the 6th March Independence Day observation.

I shared some of my known suggestions for dealing with the criminal enterprise we toy with and call political vigilantism. I emphasized that we need to start enforcing the law now.

Here is why.

Articles 200(2) and 210(2) direct that “no person or authority shall raise any police service except by or under the authority of an Act of Parliament”, and that “no person shall raise an armed force except by or under the authority of an Act of Parliament”.

Then by the Police Service Act, 1970 (Act 350) there is authority to make the Police Service (Private Security Organisations) Regulations, 1992 (LI 1571) to regulate the private security industry. Regulation 1 forbids anyone or entity from establishing an organisation for purposes of undertaking private investigations as to facts or the character of any person, performing services of watching, guarding, patrolling or carriage for the purpose of providing protection against crime. So that doing these without first acquiring the requisite licence from the Interior Ministry or simply joining such an organisation exposes you to up to one year in prison or a fine or both.

How these laws are difficult to understand by citizens or difficult to enforce by the State is itself difficult to understand. Can we simply obey the law, and can the State simply enforce the law and stop wasting everybody’s time? A party Chairman is, rightly, being prosecuted for making comments about plans to promote NDC party militia. The government wants us to take it serious when it claims an NPP party militia exposed as training and operating an office in the Osu Castle has only been evicted despite the fact of the clear commission of the crimes of unlawful military training and operating as a private security entity without licence.

SOLUTIONS – DISCIPLINE, BLACKLIST, AMEND CONSTITUTION TO CUT EXCESSIVE POLITICAL CONTROL, REMOVE AG’S CONSENT FOR PROSECUTION

One of my proposals as part of my contribution for getting rid of these hooligans, and I dare party and government officials to adopt this approach if they are sincere about their claims of abhorrence for the clear present and future danger they promote against law-abiding citizens in the long run.

I am a lawyer. I lose my license to practice for a year, two or three or my name is erased completely from the roll of lawyers when I misconduct myself or get convicted of a crime bordering on dishonesty. The NDC and NPP have suspended or sacked members including very prominent members for acts they claim brought the name of the party into disrepute.

In most of the cases, these members only spoke out or condemned some ill or revealed a dirty secret; they did not engage in the shameful criminal acts of hooliganism and vandalism. Discipline these lawless members by yourselves and see if you will not embolden police and other relevant state actors to strictly enforce the law when they misbehave.

A person with a record of any association with any of these militias must be disqualified from public office. Members of these militias must be disqualified from employment not only into State security agencies but any form of employment.

Dear Law-Abiding Patriotic Citizen, the politicians have demonstrated over the years that they cannot be trusted to nib this dangerously ugly sub-culture in the bud unless we insist by various means including outright united condemnations, petitions, lawful demonstrations and by making this issue one to determine how we vote.

CSO’s like the CDD-Ghana which has produced a research paper on the threat, must join forces to sustain a campaign to force disbandment of these militias, and to push for needed constitutional and legal changes. The IGP must not be appointed by the President but by a body to be agreed. If the President must appoint the IGP, the process must be along the lines of the procedure, terms and conditions of a Justice of the Supreme Court. They must have a fixed non-renewable term of office, and to be removed only on stated grounds as is applicable to justices of the superior courts and heads of independent constitutional bodies.

To further assure the IGP’s independence, the Police Council must not have more than two appointees of the President. These two must not be eligible to chair the Council and it must be constituted along the lines of the Board of the Office of the Special Prosecutor. Kenya is an example worth emulating. Its 2010 Constitution provides in article 245 non-renewable four-year tenure and functional independence of the IGP. Cabinet can only give direction in a matter of policy and such direction must be in writing. It is categorical that:

“… no person may give a direction to the Inspector-General with respect to--

(a) the investigation of any particular offence or offences;

(b) the enforcement of the law against any particular person or persons; or

(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.”

Section 42 of the Representation of the People Law, 1992 (P.N.D.C.L. 284) which makes criminal offences committed during elections, election offences and require the express written consent of the Attorney–General for prosecutions must also be repealed completely or amended to take this power away from the party-sponsored President’s appointed AG. The Regional Security Council (REGSECs) and District Security Council (DISECs) must not be headed by regional ministers and local political heads (MDCEs), not even when they become elected officials as

Government is working to achieve in the next couple of years. Let the security heads keep that job naturally as the security architecture and their training allows.

Why empower the police and other law enforcement agencies to investigate and arrest offenders only to deny them the power to proceed to make a decision to prosecute those they have arrested/investigated.

We must stop politicians from turning National Security into what the Constitution and Security and Intelligence Agencies Act does not allow and forbid. No law permits the current situation where the National Security has an armed force, and performing police duties and supplanting the army, BNI, EOCO, the Research Department (RD).

I repeat for emphasis that it is unconstitutional, illegal and unlawful for National Security to maintain a force that stops citizens, conduct searches, effect arrests, detain people and use arms to control the public. I have been approached to consider leading a suit over this development. There is no need for a suit. And if you decided to go to the Supreme Court, they may throw you out as seeking to waste their time because there is nothing to interpret or enforce, and I concede that attitude may also pose more danger. The Constitution dictates that “no person or authority shall raise any police service except by or under the authority of an Act of Parliament” and that “no person shall raise an armed force except by or under the authority of an Act of Parliament”. How is this clear stipulation and prohibition difficult to understand?

The National Security Council (NSC) as established under article 83 of the Constitution and the Security and Intelligence Agencies Act, 1996 (Act 526) should also be amended to redefine the role of the President as Chairman and power to appoint the three non-ex-officio members to join the about seventeen other members. This entity’s constitutional function is coordination (or plus intelligence) of national security - pure and simple!