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Opinions of Sunday, 9 August 2009

Columnist: Isang, Sylvester

How the concept of rule of law is misunderstood by many


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I have been following with keen interest since the Year 2000 the ‘nonsense’ that many people have been making about rule of law in our media.

The worst offenders are those at the top echelon of the Ghanaian Political Divide (Leaders of all the political parties of Ghana both in government and opposition now or in the past). Surprisingly these political parties do boast of the fact that they have a lot of lawyers among their rank and file and in some cases these leaders who in my opinion have a wrong notion of the concept of rule of law are themselves lawyers.

This does not augur well for our nascent democracy. It appears the same sermon that these politicians preach about rule of law when that is applied to them they turn round and condemn the concept. What a double standard! This raises a lot of questions. In the first place, is it that these political gurus who misinform us on this key concept do it intentionally for cheap political capital or what? Or is it that they simply do not know what they talk about on the airwaves with the message transmitted to every corner of the world since we now live in a ‘global village’? In instances where you have such leaders or ‘misinformers’ being lawyers can we question their training?

I have no legal background or training. But I don’t think one must necessarily be a legal brain to understand the clear terms of the meaning of rule of law. Moreover, knowledge is a public property and no one can claim to be the citadel or repository of knowledge. I will rely on my own readings and Political Science lecture notes to try and justify my reasoning that many politicians and others for far too long have misinformed us about what rule of law simply means. Both Government and Opposition in Ghana have always claimed to be adherents to or advocates of rule of law as I said earlier. One can hear them say it loudly that ‘I or we believe in democracy, freedom and justice, rule of law’ and so on. But let a member of their party get arrested especially when in opposition the same advocate of rule of law will go on air and immediately condemn such an arrest as a violation of rule of law. I can say for a fact that when several members of the National Democratic Congress (NDC) were being prosecuted after its exit from power in 2000 the Party (NDC) saw that as witch-hunting with many party officials condemning the prosecutions and seeing such as being an affront on rule of law. If not why did the sitting Attorney General and Minister of Justice describe the very courts she now works with as ‘Kangaroo Courts’ which she could not tell the meaning when she was being asked by the Parliamentary Vetting Committee during her vetting.

The New Patriotic Party (NPP) then in power hailed the trials. In fact it proclaimed that it was a party that believes in rule of law which it still professes. Today as the two parties have exchanged positions the exact opposite is happening. That is the NDC is claiming that ministers under the NPP who are facing investigations or imminent prosecution is all to enhance rule of law and accountability with the NPP also crying foul.

It is in the light of this unfortunate situation that I write this piece to share my little understanding of the concept of rule of law. This is to indicate that the mere arrest, detention, prosecution and even conviction of a person may not necessarily constitute a violation of rule of law. This is what appears to happen in many cases but unfortunately we have these politicians who should know better polluting our minds. Let me briefly discuss what rule of law is so that from that readers will apply it to the many cases of arrest and prosecution that go on to see if any of that violates rule of law.

I am not in a position to trace the origin of the concept. Neither am I prepared to quote various definitions of rule of law as such are easily misquoted and thus misunderstood. I am going to be as simple as possible. I want to explain the concept according to my own understanding so that if I am wrong I should be proven wrong by which I will take full responsibility for also misinforming the general public.

To begin with, the concept of ‘rule of law’ does not necessarily mean ruling according to the constitution of the state or say a law merely made by the legislature. This is what many people unfortunately think rule of law is. People think that anything coming from parliament or from the constitution is in line with rule of law. I repeat in no uncertain terms that such will be a serious blunder. The constitution and rule of law are two separate things. However, it must be pointed out that the constitution can either enhance or work against rule of law in the state. It is the major determining factor to the realisation or otherwise of rule of law but that is not to conclude that ruling according to the Constitution is rule of law. There is no contradiction here at all. Let me give an instance in which a law may come from Parliament or the Constitution yet goes against rule of law to make the issue more clear.

In order to contain the perceived undemocratic acts of the opposition, Dr. Kwame Nkrumah of blessed memory had parliament pass the ‘Preventive Detention Act’ by which some known political opponents of his regime were arrested and detained without trial. J.B Danquah, the ‘Doyen’ of Ghanaian politics was a victim of this legislation. He was detained under this law without trial until he died in detention. In this case you have the legislature passing a ‘democratic’ law in line with the constitution since it is its duty to make laws yet such an Act seriously violated rule of law. Am I making some sense? And can people begin to see how some so-called political gurus can misinform us?

What then is my explanation to rule of law? My answer is very simple. Tautologically, it means that it is the law that rules but not every law’s rule constitutes rule of law. Other elements must complement the law before the concept of rule of law is said to be existing or practised. Not only is the law supreme but there is equality of all before the law. The law is supreme to everybody within the state and it does not discriminate. As I said earlier it is not the mere existence of a law in the state or the mere application of an existing law that constitutes rule of law. The manner in which a law is executed can enhance or work against rule of law. The Preventive Detention Act for example worked against it because under such law there was no trial whatsoever let alone to talk about the fairness of the trial.

If a law is supreme to all, makes all equal before it and if justice in the state is dispensed strictly according to this law for all and according to the ethics of natural justice (such as giving relevant explanation for a decision, not being a judge in your own case or cause etc) only and only then can we conclude that there is rule of law but not the mere fact that an action is coming from the constitution or has the approval of parliament or even the judiciary.

Just from this short discussion of rule of law I can point out the reasons why I think many people have always used the airwaves to misinform us of what rule of law means.

People only cry foul when an ex-minister or ex-president is merely invited by a State Investigative Body for questioning. They only demonstrate when a former minister is sentenced to a limited prison term by a court of law for causing financial loss to the state among other things. Such people have the constitutional right to demonstrate especially when the arrest, prosecution and court’s decisions are arbitrary but not just because an ex-minster is arrested, put before the law court or sentenced. Because in doing that one is rather working against rule of law than promoting it. The same people do not demonstrate when a poor man is slapped by a minister of state, gets arrested without a warrant or legal representation and sent to the police station on top of that to face more brutality from the police.

Justice should not be associated with personality or status as rule of law is no respecter of persons. To prevent the lawful prosecution of any person because of status or position is a serious affront to ensuring that our leaders become transparent and accountable. Many leaders forget that they are fiduciaries, that is put in their positions to serve rather they want to be served and that is very unfortunate. Yet when these same leaders are being questioned (whether former NDC or NPP ministers) because of our personal association or political leanings we attempt to prevent the due process of the law from working whilst ironically proclaiming that we are advocates of rule of law.

I conclude my simple and short discussion on rule of law by repeating that rule of law does not necessarily mean ruling according to the constitution or a law made by parliament. It is my fervent hope that our leaders especially those who are lawyers will not put dust into our eyes. It is good to always let the truth stand in all our dealings whether we are in government or opposition. It is only when politics or leadership in general becomes inseparable from morality that the ruled can benefit from governance otherwise the rulers amass wealth whilst the ruled starve to death.

Author: Sylvester Isang

Email: applisa2000@yahoo.com

A Ghanaian student in QUB, UK

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