Further Reasons Why The Indemnity Clause Must Be Rethought

The expression "to err is human" reflects the truism that we are all liable to err at various points in our lives. While it is thus part of our practice to forgive errors, it is also settled that errors are to be corrected when found. It is the mark of a civilized people to be able to recognize their errors and correct them. Indeed, this distinguishes the prudent from the imprudent. An error which is permitted to continue in perpetuity does not only cease to be the permissible situation covered by the "to err is human" axiom, but also reflects absurdity. More specifically, allowing a known error to continue unhindered or unredressed is like leaving a blind person in a river to drown. The enshrinement of the 1992 Indemnification Clause in our law, to the extent it forecloses any bona fide review and/or correction of all actions of all our past military regimes, resonates the absurdity in the proverbial blind man’s scenario and hugely our progress. Conversely, allowing the courts to: review acts brought before them; decide, as matter of law, whether perpetrators of wrongful acts are immune under the law or indemnifiable; and order redresses that are practicable and warranted do not only trumpet the Freedom and Justice ideals upon which our Independence hinges but also jibe with the principles undergirding the notion that, as humans, we are liable to err but must be willing to take the honorable course of correcting our errors when they occur. For these, and other reasons noted below, the 1992 Indemnity Clause in the Transitional Provisions and the ensuing Constitution must be expunged or, at least, heavily modified. To appreciate the magnitude of the problems implicated by the Indemnity Clause, a brief overview is needed on indemnity clauses generally and how ours differ from them.

Typically, indemnification clauses are used in contracts, insurance, and torts documents shifting losses from their actual perpetrators ("indemnitees" or "insureds") to third parties often referred to as ("indemnitors" or "insurers"). One example is where we buy our auto or homeowners’ insurance. The indemnification clause in such situations typically provides that, should any covered liability arise, the insurer will indemnify the perpetrator (insured) by stepping in his/her shoes to make the wronged person whole. In other words, it is a risk shifting mechanism by which a person’s risks are shifted to another. Another example is where, to protect oneself financially from certain contingencies (eg., in the construction field), one procures bonds to shield him/herself in the event the contingencies occur.

In the public law area, governments and municipalities use indemnity clauses to protect their worthy employees from lawsuits, indemnifying them from personal financial losses and expenses, including reasonable legal fees and costs, subject to specified conditions, such as presentments notifying the government of the wrongs to enable it take measures to correct or forestall similar wrongs in the future. The rationale for inserting these clauses is that: (1) the government itself does not perform its functions but acts only through its employees and (2) the employees will be more productive where, knowing that their ordinary human errors would be covered by the government, they work freely without watching their shoulders to avoid exposure to personal liability. Acts and omission typically covered under these circumstances are negligence, mostly in the civil area. Intentional wrongful acts, whether civil or criminal, are uncovered as are acts done outside of the employees’ scope of duties. The 1992 Indemnification Clause, foreclosing any amendment by Parliament, baldly and unqualifiedly indemnifies all acts of all the past military regimes, blatantly overlooking the progressive limitations often associated with indemnification clauses in the public law area. It reads in part: Notwithstanding anything in Chapter 25 of this Constitution, Parliament shall have no power to amend this section or sections 34 and 35 of this Schedule.

In addition, it is retroactive, totally leaving out current government employees for whom the clause would be most useful. In other words, it leaves out people who really need to know that they would be protected for their bona fide wrongful acts. The Indemnification Clause is thus arbitrary and capricious and must be expunged.

Further compounding the problem by foreclosing any judicial inquiry into any act done by the past military regimes, the Indemnification Clause regrettably uses the "no court" language, violating the separation of powers principle and moving us back to the late 1960s when Dr. Busia used the "no court" barrier against the plaintiffs in the Sallah case. Here, it is important to realize that whether or not an indemnity is called for, even within the terms of the 1992 Indemnity provision, is a matter of law for the Judiciary [Sallah recognized as much]: the indemnitee, the victim of the indemnification, or the one being deprived of the fruits of indemnification should have the legal recourse to have the propriety of the situation determined by the courts, the entities entrusted with declaring what the law is. The foreclosure of this recourse is a blatant denial of due process, it is reprehensible, and it turns our system into an object of mockery. On top of these is the provision that parliament cannot amend the Clause. If the Clause is not amendable, and the courts cannot review any acts covered thereby let alone order errors to be corrected, Ghana will slide into a bottomless abyss of lawlessness, irrationally relegating itself to the level of the proverbial ostrich, a trend that no clear minded Ghanaian should countenance.

Nor have the courts and our professionals been totally oblivious to these problems. Indeed, to the extent practicable, they have honorably reviewed and corrected some of the errors committed by the purportedly indemnified military regimes, the ostensible ironclad provisions of the Indemnification Clause notwithstanding. Examples of these are the use of the National Reconciliation Commission to return to rightful owners or their estates properties unlawfully confiscated by or under the military regimes, or to effect exhumation and return to relatives for proper burial of the corpses of Ghanaians killed and dishonorably buried by the military regimes. The fact that the National Reconciliation Commission convened by the present Government and some judicial and quasi-judicial bodies have taken these honorable courses –reviewing actions of past military governments and correcting them-- is eminently laudable. However, where such corrective actions are done with the Indemnity Clause still enshrined in our Constitution, the indemnity Clause promotes unpredictability, leaving unfairly, unjustly, and unlawfully treated Ghanaians to the whims and caprices of entities before whom they may appear, as recently reflected in the decision of the Judicial Committee of the Ga Traditional Council where, in addition to its seriously flawed application of the standing doctrine, the Council cited the Indemnity Clause as an impenetrable bar against redressing any wrongs that the members of the last military regime visited upon Nii Odai Ayiku IV.

The act of introducing the Indemnification Clause is bad enough, but to condone and enshrine the errors and malfeasance merely by the dint of their enactment is surely unworthy. Courageous trumping of the ill-considered enactment does not reflect disrespect. Instead, it epitomizes a most becoming entrenchment of law in our society, resonating and vindicating the "Freedom and Justice" hoisted in our National Anthem, Pledge, Seal, and Coat of Arms. In addition, it gives real and practical meaning to our democracy, trumpeting us as a society of laws, and not one of lawlessness.

A consideration of the foregoing compels the conclusion that the Indemnification Clause must be expunged or construed by the judiciary in a way that hoists the integrity of our system and shirks the Clause’s absurd and regressive attributes.

Let’s all join our hands and serve as worthy stewards to our God given heritage:

God bless our homeland Ghana
And make our nation great and strong, Bold to defend forever The cause of Freedom and of Right; Fill our hearts with true humility, Make us cherish fearless honesty, And help us to resist oppressors' rule With all our will and might evermore

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