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Opinions of Friday, 11 September 2020

Columnist: Cameroun Duodu

The difficult art of reaching consensus in a democracy

A Constitution may be written on "scraps of paper", but if it is treated as if what is written in it is equal in value to the material that reproduces and harbours it, the people who live under it may suffer consequences which they cannot readily imagine.

When the British first drew for us in the 1950s, the Constitutions under which Ghana was to become independent in 1957, some of the provisions were so "cumbersome" to the leader of our independence movement, Dr Kwame Nkrumah, that he is reported to have exclaimed with irritation that he would “drive a coach and horses” through some of them.

As “Leader of Government Business” and later Prime Minister, Dr Nkrumah did use his party's majority in Parliament to do precisely that. He was prudent enough to first import a Constitutional Adviser called Geoffrey Bing, ex-Member of the very British House of Commons that wrote our Constitutions, to advise him on how to do things that went against "the spirit of the Constitution" constitutionally (that is, without infringing the letter of the document.

Thus, Dr Nkrumah was able to plough his way through the Constitution(s) bequeathed to Ghana without a legal hitch. Either the courts interpreted the Constitution to agree with him, or, in one case, he dismissed the judges and installed new ones in their place who agreed with him.

Dr Nkrumah first threw out the Regional Assemblies (which had been incorporated into the Constitution to placate the National Liberation Movement (NLM) and its allies, who had waged a bitter and violent political campaign between 1954 and 1956, to make independent Ghana a federal state.

Some violations of the Constitution were, as earlier noted, more of the nature of flouting its spirit: for instance, the passing of an Indemnity Act under a Certificate of Urgency, in Parliament, to prevent a court of law from punishing members of the executive who had acted to preempt a court deciding whether two “Nigerian” businessmen could be deported from Ghana, although they claimed to have been born in Ghana. The fact that the courts were supposed to be independent of the executive was rendered a “moot point” in that particular case by the two men being deported before the court could pronounce judgement. And the “Indemnity Act”, in turn, pre-exempted members of the executive from contempt proceedings in respect of the plaintiffs' deportation before judgement. 9The executive members indemnified by Parliament were the Minister of the Interior, Mr Krobo Edusei and his Commissioner of Police, Mr E. R. T. Madjitey.)

Next, a Preventive Detention Act (PDA) was passed by the Ghana Parliament, making it possible for citizens of Ghana to be detained without trial, for periods of five years each – although the Constitution was supposed to contain provisions that guaranteed individual human rights, including habeas corpus and the subsequential right to open and fair trial.

A two-thirds majority in the Ghanaian Parliament could make most of the provisions relating to human rights ineffective. Dr J B Danquah and other lawyers fought in the courts against some of the new, "anti-democratic" pieces of legislation. But the lawyers, as mentioned earlier, received no support from the courts.

Finally came the formal declaration of Ghana as a "One-party state", after a referendum had approved the idea. The referendum occurred, of course, after the passing of the PDA, and so open debate on such a serious political issue was out of the question for all but the most courageous of Ghanaian citizens.

Once the one-party state was instituted, the Convention People's Party (CPP) Government, which, at one time (1951 to 1956) was a repository of popular political desires in the country, became largely insulated from genuine public opinion. It made elementary mistakes that shamed its followers; for instance, it allowed a shortage to occur in the supply of many consumer goods. And corruption occurred in the granting of import licences.

This is why, on his overthrow by the military in 1966, Dr Kwame Nkrumah was reported to have asked rhetorically: “They wanted milk, sugar and soap”? How could the leader of the “Red Cockerel” party, that was supposed to ferret things out of nooks and corners, not have known the elementary fact that Ghanaians were used to a life that was fairly comfortable, being, after all, net earners of foreign exchange, through their production of cocoa?

Even internal democracy within the CPP itself declined to such an extent that after the Party was overthrown, one of its Ministers described the Cabinet of which he was a member, as a bunch of "gaping sycophants" who allowed Dr Kwame Nkrumah to do whatever he wanted.

Eventually, “things fell apart”. After Nkrumah's overthrow, Ghana went through a series of military juntas that were often worse than the “undemocratic” regimes they had forcibly replaced. A “culture of silence” eventually descended once again upon the Ghanaian populace, especially between 1982 and 1992, and stories of torture, murder and the arbitrary seizure of property circulated widely through the land, intimidating those who were desirous of observing democratic norms in the country.

No-one who was an adult with cognitive faculties intact during that sad period would wish to go through that time again, ever. Our current constitutional arrangements may not be the best or most convenient in the world. But they were largely evolved to prevent the abuses of the recent past. That should never be forgotten by those who regard the current dispensation as too frustrating in the sense that it too often throws up situations that easily test the democratic credentials of those who hold the reins of power.

Now, it must be admitted that our current Constitution is quite a strange animal, to say the least. For example: it provides for a President who, to all intents and purposes, is an “executive president”. But in essence, our Parliament turns the president into a “Prime Minister”, while denying him a seat in Parliament.

Legislation he wants to pass must go through a parliamentary process of which he does not form an active part. He has to pass his proposed legislation through a Minister for Parliamentary Affairs. But even in a Parliament of which the Prime Minister is a member, friction can and does arise. In the UK, for example, there can be conflict between Downing Street (the Prime Minister's office) and the office of the Leader of the House. Or between the Prime Minister and the Chancellor of the Exchequer (this was the case between Tony Blair and Gordon Brown and earlier, between Margaret Thatcher and Geoffrey Howe.) Under a Tory Government, there is even a third centre of power that can complicate matters further: it's called “The 1922 Committee” and a British Conservative Prime Minister ignores it at his peril.

In Ghana, the rancorous debate we've been seeing over the “Agyapa” Royalties Company issue is a by-product of our "remembrance of things past"; how rotten things have been done in the body politic in the recent past. Costly projects that affect the finances of the country have been known to be presented to Parliament in a hasty, haphazard and unprofessional manner, with very little public preparation before reaching the House. Quite often, it appears as if proposals, capable of enriching companies (both local and foreign) at the expense of the State, are meant to escape full public scrutiny and be rammed down the throats of the public as a fait accompli.

I mean, was it not naïve that FOUR MONTHS BEFORE AN ELECTION, anyone could expect a proposal to pass smoothly that contained the words “special purpose vehicle”, “incorporated in Jersey” and "exemption from tax"? to ring alarm bells all over the place? Especially, given the paucity of days allotted in Parliament for the thorough perusal of such a complex and novel financial issue, involving as it does, (a) the unorthodox raising of money from mineral assets; (b) benefits accruing to a yet-to-be-formed company that are to be held “in perpetuity”; and (c) legislating rather hastily to approve the establishment of a company whose prospectus has not even been drawn up yet, let alone having been thoroughly perused and assented to?

Other murky questions need to be answered in a candid manner. For Instance has the Attorney-General's office agreed to the deal or not? Is it true that the department described parts of the "Agyapa" agreement as "unconscionable"?

We hear about different letters from that office concerning “Agyapa!” But despite the hullabaloo, there has been NO OFFICIAL press release clearing up the issue! Isn't such cavalier behaviour a public relations nightmare? Is this the best that a political party with the pedigree of the NPP can do?

Let me remind the NPP that it did not stomach theNDC's “Ameri” deal,although that deal was even more important for Ghana than “Agyapa”, in the sense that it was aimed at eliminating a real and actual emergency, namely, the horrendous power starvation (dums?r) that the country was experiencing at the time?

If "Ameri" could not pass because it was so badly bungled, how did anyone expect as complicated a proposal as “Agyapa” to be given a free passage -- and four months to an election, at that?

In the Ameri case, those in charge of obtaining power for us assumed that because the need was so patently urgent, they could ride the storm that would burst out over it. They were wrong. Their fellow citizens refused to be blackmailed into accepting anything that appeared to be a possible “fix” for the awful dumsor dilemma.. Politics is the art of the possible and lessons should have been learnt from the "Ameri" episode and applied to "Agyapa". Not to have done so was pretty amateurish, I am afraid.

Those presenting “Agyapa” to Ghanaians should not have introduced such an unusual business arrangement in such a cavalier manner. The white noise that has been allowed to reach such a pitch, with accusation following counter-accusation and true facts being the obvious casualty, means that even if we were not in an election year, it is doubtful whether the centre of the deal could have held.

It is in everyone's interest that, with our country bathed in foams of financial ineptitude in which financial houses are regularly shut down and company executives carted off to prison, when controversial projects are to be presented to the pubic, heated debate about them should be anticipated and plans made to short-circuit it with full disclosure.

If what the Minority in Parliament says is true – that the period given in Parliament for the consideration and enactment of the legislation accompanying the deal, were inadequate – then what did the deal's proponents expect? Do we need such “noise-triggers” in an election year, for crying out loud?

Our Governments must learn from what happens in the UK, where, quite often, proposals of an obviously controversial nature are first published in what are called “Green Papers”, before they get anywhere near Parliament. A “Green Paper” enables the public and “stake-holders” to scrutinise important Government proposals thoroughly before being taken to Parliament. Thus, by the time they get to Parliament, most of the potential verbal hand-grenades would have been thrown at the proposals and the elements in them that could not survive the grenade attacks, jettisoned.

So then: everyone should please learn that in a democracy, compromise is the name of the game. A mistake that has set so many tongues wagging, definitely deserves re-consideration at the very least. Certainly, this is not the time to circle the wagons, however great the temptation! In a true democracy, compromise is the name of the game.

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