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Opinions of Tuesday, 11 February 2020

Columnist: Kwaku Badu

But for the irrational indemnity clause, the Airbus cabal would have faced the law

As a matter of fact, in any equitable jurisdiction, the alleged racketeers of the shameful Airbus bribery scandal would have faced the full rigours of the law without fear or favour.

Nevertheless, in Ghana, the ludicrous and somewhat incongruous indemnity clauses, regrettably, allow the impenitent political offenders, such as former presidents, to skip the full force of the law. How unfortunate?

Apparently, in the wisdom of the framers of Ghana’s 1992 Constitution, the insertion of the controversial and ridiculous indemnity clause was to “let the sleeping dogs lie” and move on with our lives.

Notwithstanding the utter public outcry over the indemnity clauses, Professor Albert K. Fiadjoe, the Chairman of the Constitution Review Commission (CRC) insisted that the removal of the controversial clauses from the 1992 Constitution would lead to anarchy in the country.

“The removal of the indemnities could adversely affect the democratic dispensation because it would give the negative impression that the country is reneging on a settlement that it has previously accepted.

“This could seriously undermine stability in the country (Source: graphic.com.gh, 2012).”

In as much as the Constitution Review Commission’s reasons for the retention of the indemnity clause may be valid, there is no justification for corrupt public officials to keep all the alleged stolen monies, for instance.

In contrast to the Constitution Review Commission’s position on the controversial indemnity clause, it will, however, remain unfair, unconscionable and incommodious not to amend the unpopular indemnity clause to allow us to prosecute and retrieve any possible stolen funds from the greedy public officials.

To me, Ghana’s constitution has to be reviewed further and the irrational clauses such as the indemnity clause are either amended or expunged accordingly.

How on earth can individuals commit unpardonable crimes (gargantuan sleazes and corruption) against the state and get away with their misdeeds?

And more so the traditional exemption of heads of state from prosecution despite the evidence of a case to answer is wrong.

How serious are we as a nation when we can only descend heavily on the goat, cassava and plantain thieves and let go unrepentant criminals who persistently dip their hands into the national coffers as if tomorrow will never come?

Elsewhere, though, both past and incumbent heads of state may face the laws equitably without any recourse to their status.

In fact, the indemnity or parliamentary privilege can be traced back to the English Civil War when Parliament was fighting for the right to self-governance and independence from the monarchy.

However, it was not until 1689 when the Bill of Rights established the rights of parliament after the so-called Glorious Revolution that it became enshrined in law.

Take, for instance, Article 9 of the Bill of Rights states that "the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament".

Back then, the law was subject to the whims and caprices of the King. Suffice it to state that it was the interferences from the sovereign that Parliament sought to rid itself.

Parliament held MPs to account by its own strict laws which ran side by side with the criminal and civil courts. Suffice it to stress that back then, the rule of parliament was absolute.

Are the rules of indemnity or parliamentary privilege changed?

Apparently, the twilight of the monarchy allowed Parliament to surrender some of its jurisdiction to the courts.

Consequently, MPs accused of criminal offences are no longer dealt with by the authorities of the House of Commons and instead face the full force of the law.

Since 1979, not less than 10 MPs have been sent to prison, usually for not paying fines incurred when they were conducting political protests in Northern Ireland.

However, parliamentary privilege still grants MPs immunity from being arrested on civil matters within the grounds of the Palace of Westminster.

In recent times, MP Damian Green, was arrested by the Metropolitan Police at his constituency home on suspicion of "aiding and abetting misconduct in public office" and "conspiring to commit misconduct in a public office".

However, after the MP Damian’s arrest in December 2008, the Speaker of Parliament back then, Michael Martin, explained his actions to the Commons, telling MPs that parliamentary privilege has never prevented the operation of the criminal law.

He alluded to the Joint Committee on Parliamentary Privilege which in its report in 1999 said that the precincts of the House are not and should not be "a haven from the law (Source: independent.co.uk).”

In most jurisdictions, the laws are administered equitably. Indeed, everyone could face the laws without any recourse to their status in society.

Take, for example, a few years ago, the Pakistani Prime Minister, Nawaz Sharif, was forced to resign following his disqualification from office by the country’s top court.

The Supreme Court of Pakistan dismissed Mr Sharif after a damning corruption probe into his family wealth.

The investigative panel claimed his family was unable to account for its vast wealth, leading to the court to order a criminal investigation (guardian.co.uk, 28/07/2017).

Moreover, a couple of years ago, former Brazilian president, Luiz Inacio Lula Da Silva, who had been cited as the most famous president in Brazil’s contemporary history, was sentenced to nine years and six months in jail after being found guilty on corruption and money-laundering charges (Source: guardian.co.uk, 12/07/2017).

And in recent times, the controversial South Korean president, Park Geun-hye, found herself in a wide-ranging corruption and cronyism scandal, which culminated in her removal from office in March 2017.

President Park Geun-hye and her long- time confidante, Choi Soon-sil, were accused of conspiring to pressure companies, including Samsung, to donate large sums of money to two non-profit foundations set up by Choi.

Choi was accused of using the money for personal gain, which she denied. However, President Park admitted behaving “naively”, but denied coercing companies.

President Park was also accused of giving Choi unlawful access to state affairs and allowing her to influence policy, including Seoul’s stance on North Korea’s nuclear weapons programme (The Guardian 2017).

Surely, we could take a cue from those jurisdictions. We could do better. So let us do so. Let us amend or expunge the irrational laws and replace them with innovative and expedient laws so as to prosecute suspects like the remorseless racketeers in the unpardonable Airbus bribery scandal.

K. Badu, UK.

k.badu2011@gmail.com