Article 72 of Ghana’s 1992 Constitution: A Machiavellian New Principality in A Choir Robe

Perhaps, Williams Shakespeare was right when he said that hell is empty and all the devils are here. History and antiquity bear ample testimonies to the paradoxical and enigmatic nature of some individuals.

For example, Queen Victoria (1819-1901) who hitherto loathed individuals who used cannabis dressed marijuana up in a new garment and renamed it as medical marijuana when Sir Russel Reynolds prescribed the drug for her in 1890 to relieve her of menstrual cramps. This means that human beings have a penchant to change things to suit their own parochial whims and caprices.

I cannot really fathom why Ghana’s 1992 constitution that was supposed to compel the PNDC regime to adopt a more conciliatory form of government ended up legitimizing dictatorship of the executive against the other two branches of government, legislature and the judiciary. The aim of this article is to identify the association between article 72 of Ghana’s 1992 constitution and the Machiavellian concept of new principality from criminal’s perspective.

The Italian renaissance historian and philosopher, Niccolo di Bernardo dei Machiavelli (1469-1527) and best remembered for his famous dictum: “the first method for estimating the intelligence of a ruler is to look at the men he has around him,” asserted that there are four main ways of becoming a prince.

These are hereditary principalities: which are inherited by the ruler, mixed principalities, territories that annexed to the ruler’s existing territories, New principalities which may be acquired by several methods such as one’s own power, by the power of others, by criminal acts or extreme cruelty or by the will of the people (civic principalities) and last but not least, ecclesiastical principalities referring to the papal states belonging to the catholic church.

The article 72 of the foregoing constitution states among other things that:

(1) The President may, acting in consultation with the Council of State-

(a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or

(b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or

(c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or

(d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account on any offence.

(2) Where a person is sentenced to death for an offence, a written report of the case from the trial judge or judges, together with such other information derived from the record of the case or elsewhere as may be necessary, shall be submitted to the President.

This means that the executive president regulates the judiciary: an affront to the tool of judicial review which gives power to the court to declare the unconstitutional acts of executive and legislature as null and void.

Is it not quixotic for the president to wield powers to revoke the decision of the court through article 72?

I must concede that constitutions all over the world somewhat bestow to the executive president the prerogative of mercy even so the excessive powers given to the president by the aforesaid constitution is inimical to the well-being of citizens of Ghana.

The doctrine of separation of powers which states that the three arms of government must differ in terms of function and personnel was propounded by the French philosophe Baron de Montesquieu (1689-1755). Montesquieu erroneously studied the British system of government.

During his visit to Britain, he observed that the three organs of government (Legislature, executive and judiciary) differed in terms of functions and personnel.

It was revealed to Montesquieu that contrary to his convictions, the British attorney general and minister for Justices was an elected member of House of Commons, and as an attorney general he belonged to the executive arm of government and as a minister of justice he was the head of judiciary.

Montesquieu reportedly propounded a new political concept known as checks and balances to amend his flaws. Checks and balances empower each arm of government to check and limit the activities of others.

Looking at the 1992 constitution from the lens of Montesquieu’s drawbacks regarding the doctrine of separation of powers, the president of Ghana is vested with powers to appoint about 50% of his ministers from legislature.

For example, in 2006, Mr. Joe Ghartey, was a member of parliament for Essikado/Ketan constituency in the western region of Ghana, he was also appointed the attorney general and minister for Justices. As the minister of justice he was the head of the judiciary, as a minister he belonged to the executive arm of government and as elected Member of Parliament he was a member of legislature.

How could he check and limit his own powers per the dictates of checks and balances? How can the court take decision against their own head of judiciary? Why can’t we as a country be mindful of Lord Acton’s assertion that “power tend to corrupt and absolute power corrupts absolutely?”

The Montie 3 petition is a necessary evil in the sense that it accentuates to us some major takeaways: the tyrant of the executive over other arms of government. The fact that the BNI initially white-washed the montie 3 reveals that the executive cannot be trusted with excessive powers it is inundated with.

The president will not violate any law if he pardons the Montie 3 which, depicts the extent of inequality in our constitution. J.J Rousseau best remembered for his famous saying “men are born free, yet everywhere are in chains” in his theory of natural inequalities intimated that the only natural inequalities are difference in physical strength, because these are inequalities that arise in the natural state.

In contemporary society, man is corrupted, and the inequalities that result from laws and property are not natural and should not be tolerated. By this article, I am humbly calling for a national debate if not a referendum (if applicable) to reduce some of the powers wielded by the executive president. Such an amendment will assure the safety of all and sundry. God bless our homeland Ghana and help us resist oppressors’ rule.

“I know that I am intelligent because I know that I know nothing.” (Socrates)

Writer's e-mail: padigogoma77@yahoo.co.uk