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Opinions of Monday, 19 January 2004

Columnist: Atiemo, Ansah F.

Anti-Constitution Coup Fears: A Bubble Or Gathering Storm?

In November 2003, majority of the surviving members of the former AFRC presented our petition to the NRC, and some of us actually appeared before the commission to apologize to the innocent people who were victimized in the process of removing the illegal military junta from office and return the country to constitutionally elected government. At the hearing we believe we made a persuasive case against anti-constitution coups and argued for the need to resist them with counter coups or any means necessary should they occur.

For a while we thought our appearance at the Commission had helped to clear any lingering anxieties about anti-constitution coups in Ghana. But then all of a sudden pronouncements and conducts on anti-constitution coups have resurfaced.

There are two major hardening positions here. While the first group has been busy denouncing anti-constitution coups, the second group has been promoting them through their pronouncements and conducts.

Not surprisingly the first group appears to be led by Mr. J.H.Mensah, the Senior Minister in the NPP administration. He is reported to have stressed at a public function in Cape Coast on Monday, January 12 , 2004 that there is the "need for all Ghanaians to stand against, and deplore any acts that would derail the nation's democratic process" by opposing "elements who wish to take over the reins of government, other than through the ballot box."

At another public function the following day, Mr. Justice George Kingsley Acquah, the Chief Justice of Ghana, is also reported to have declared that "Ghanaians are fed up with military rule". He was optimistic that "Ghanaians would do everything in their power to resist military interventions if only democratic institutions carried across to them the right message on constitutional rule."

Even the National Security Co-ordinator, Mr.Francis Poku, could not resist the temptation to wade in. In a rare interview in an Accra daily, he spoke out on the importation and clearing of arms and ammunition that had caused so much controversy in recent weeks. He explained that the imports were for the National Security Council but that they were "limited in quantity and aimed at executing our constitutionally-valid obligations."

Within the same period and in sharp contrast a number of public pronouncements and conduct of public figures have been intended to endorse anti-constitution coups. The NDC Presidential candidate, Professor John Evans Atta Mills joined several people at Ashiaman on December 31, 2004 to mark the day when Mr. Rawlings overthrew the constitutionally elected government of Dr. Hilla Limman.

On Wednesday 14th January 2004, Nana Akomea the NPP Minister of Information rebuked Prof Mills for finding time to join in a celebration of a violent military take-over of constitutionally elected government even though its celebration has been declared unconstitutional by the Supreme Court.

But by far the most surprising anti- constitution contributions came from the developments at the National Reconciliation Commission. The Commissioners who are assumed to be leading efforts at reconciling the nation from the consequences of unconstitutional governments made no efforts to hide their bias for the executed eight senior military officers during our short reign in 1979; although the senior officers were all authors and managers of anti-constitution coups, or in the terms of reference of the Commission, of unconstitutional governments.

In spite of a number of glaring errors of fact and inconsistencies in the presentation of the Chairman of the Peoples' Court, the Chairman of the Commission was prepared to "share the opinion of Peoples Court" that flowed directly from the highly flawed evidence. The evidence presented to them by Squadron Leader Dargbe, on January 8, 2004 was that the Court was set up after the senior officers were executed.

Four days after this hearing, Mr. Augustine Feli, the nephew of the late Col Feli, one of the executed senior military officers, was hauled in front of the Commission to claim that his uncle was executed without trial. Predictably, some Commission members not only commended the witness for his courage in bringing the matter up. General Erskine, a Member of the Commission and one of the anti-constitution coup makers and managers with Col. Feli and others in 1972 observed with obvious smug satisfaction that "there is no evidence that any of them were tried …" and echoing Feli's claim that the execution of his uncle was "murder pure and simple."

In all this anti-constitution coup mania that suddenly seemed to have gripped the nation, everybody's attention seemed to be wholly focused on the trial of strength between two opposing camps on the merits of anti-constitution coups. From the two camps whose political traditions used anti-constitution coups to deliver them power for the first time in 1966 (NLC/PP) and 1981 (PNDC/NDC) perhaps the undeserved attention on anti-constitution coups as only a moral and political issue is wholly understandable. But clearly this must be unacceptable.

Pure and simple issue here is this: All anti-constitution coups (the overthrow of constitutionally elected civilian governments) are illegal; and can therefore not be justified on any moral or political grounds. There are and have been clear line of legal authorities that make them criminal. The 1960 Criminal Code section 12; and 1969, 1979, and 1992 Constitutions all make anti-constitution coups a very serious crime of - HIGH TREASON in Ghana, punishable by death.

Such crimes are enforceable under the law although the procedure for their enforcement is not clearly spelled out and settled yet. For some of us members of the AFRC this was and is the crux of the matter facing the nation today. The enforcement of the law against all anti-constitution coup makers and managers is the real issue fit to be discussed right now; not the technicalities of the trial of the military men who, beyond any doubt, have subverted the Constitution and violently removed our elected civilian leaders from office.

They have duly been held to account even if the 1992 constitution which codifies all the previous legal authorities and therefore is full and explicitly clear on the crime of anti-constitution coups today, has no certain procedures or lines of enforcement of that crime. And that whatever the nature of trial adopted by AFRC to hold them to account, the trial process during the turbulent 112 days and while the bullets were flying, cannot be questioned with the standards of peace-time democratic society of today.

Chapter One, Article 3, Sections 3, 4, 5, 6, and 7 illustrates the above position very well. Article 3 (3) establishes the crime of anti-constitution makers and managers and their punishment when it says: "Any person who (a) by himself or in concert with others by any violent or other unlawful means suspends or overthrows or abrogates this constitution or any part of it or attempts to do any such act; or (b) aids and abets in any manner any person referred to in paragraph (a) of this clause: commits the offence of high treason and shall upon conviction, be sentenced to suffer death." Thus all anti-constitution coup makers and managers of 1966, 1972, and 1981 are caught in this clause.

The justification of Counter Coups against anti-constitution coup makers and managers is provided for under Article 3 (4) which says: "All citizens of Ghana shall have the right and duty at all times (a) to defend this constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article and (b) and to do all in their power to restore the constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.” This is where June 4 1979 Uprising derived its inspiration and authority from. It was a Counter Coup which succeeded: in fact the only one of its kind in Ghana's history. Above all it conferred on us undefined and unlimited powers on the means to achieve this whether with a trial, a semblance of trial, or lack of trial.

The innocence of any crime and immunity from any punishment for such successful Counter Coup makers and managers are also established in Article 3 (5) which says: "Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence." This clause provides an iron-cast protection for successful Counter Coup makers and managers like the June 4 1979 Uprising and all their acts and omissions. Even. Articles 3(6) and (7) provides remedies for the punishment of all failed counter coup makers and managers.

The conclusion from the foregoing is clear. What is going on in Ghana today is not just about a trial of strength between two political camps and traditions whose first taste of real power was delivered by anti-constitution coups in 1966 and 1981. It cannot be a trial of even the legal de-facto government of the AFRC; it is not about Boakye Djan, Newton Gatsiko, Mensah Poku, Peter Tasiri, etc., consistent defenders of not only of the AFRC but the constitutional order of Ghana. It is about two sets of political camps squabbling over the privilege or spoils of their anti-constitution heritage while ignoring the lessons and principles of anti-constitution coups. Anti constitution coups are illegal and in the end its handlers are bound to be held, by any means necessary, to account under the law. If we genuinely want the continuity of constitutional rule, but deter anti constitution coups in Ghana then the work of the AFRC must and should be seen as the sacrificial duty bestowed on all citizens of Ghana as clearly pronounced under Article 3(4) of the Constitution, “All citizens of Ghana shall have the right and duty at all times (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article …”

For some of us the former US President, Dwight D Eisenhower sums it all up when he declared in his inaugural address, January 20, 1953. He warned: "A people that values its privileges above its principles soon loses both." As the old Akan saying goes, “Oba nyansa fo yebu no be na yenka no asem.”

F. Ansah Atiemo
P.O. Box 12623
Portland, Oregon U.S.A. 97212 atiemof@pdc.us