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Opinions of Monday, 1 August 2016

Columnist: Dr Charles Wereko-Brobby

Montie trio: Did the punishment fit the crime?

Watching Hillary Clinton make history in the ‘city of love’ last week amidst the raging national debate on the “Montie 3” brought back memories of why the prospect of the United States of America (USA) having its first woman President may not come to pass.

The sight of Hilary & Bill on stage at the end of her acceptance speech against a backdrop of constant reminders of high levels of trust issues for the Clintons reminded me of President Clinton’s controversial ‘last day in office’ pardon of Susan MacDougal, their business partner in Ken Starr’s Whitewater investigation.

The pardon was for a conviction on contempt of court for her refusal to testify against the Clintons. Even though Susan MacDougal served two years in prison before being released on medical grounds.

The object of the above recall is firstly to bring to the attention of Ghanaians that the misuse and abuse of presidential powers of pardon for personal gain, is not peculiar to our current circumstances with the Montie 3.

We should also take cognizance of the timing of the pardon: when Bill or Hilary ever imagined in their wildest dreams that the Clintons will seek the opportunity to become America’s first husband & wife Presidents. It is also important to note that Susan MacDougal served her sentence before the pardon was granted.

The incessant pressure being mounted by Ghana’s ruling political party on its President to pardon the ‘Montie 3’ may be grounded in the laws of Ghana. However, I would add my own caution to that of President John Dramani Mahama’s own counsel who has cautioned him to thread very cautiously and make haste slowly in responding to the absurd demands of the NDC, led by its Chairman “Polpot”.

I do not need to conjure my inherited DNA powers from Okomfo Anokye to predict that if the President were to act in the interests and name of the NDC, instead of the people of Ghana, it will sound the death knell for his second term ambition. It will also be the last gasp act of the “gaping sycophants” who have trotted out to be seen publicly to be putting pressure on their boss to act unwisely.

Yet I have this underlining feeling that all these folks who enjoy the V8 & S7 trappings of power will act so brazenly unless it is all part of a shambolic coordinate act of which JDM is fully in the know and/or orchestrating from the comfort of the Flagstaff House.

The whole sorry saga of a government in power seeking to interfere with and subvert the clear and unambiguous separation of powers that underpins Ghana’s democracy is founded in the false and wooly thinking that The Executive arm of Government is seeking to protect the freedoms of the 4th Estate, the Media.

Much of the noise has cast the custodial sentencing of the convicted broadcasters as an attack on the obligations of the media to inform Ghanaians of the conduct of the three other arms of Government, the Executive, Parliament & the Judiciary.

I would really choke from a ‘luffing gas induced’ guffawing if this was not coming from folks whose track record has been nothing short of suppressing media freedom in the face of constitutional guarantees.

I owe my nickname Tarzan to standing up to the very first government of the 4th Republic Of Ghana, which was the PNDC without the P. Despite the very provisions on the Freedom & Independence of the Media of Chapter 12 of the Constitution, the NDC government closed down ‘Radio Eye’ with a 27- vehicle convoy raid on its studios, under the pretext that we were broadcasting without a licence, in spite of the clear statement of Article 162(3) that “

There shall be no impediments to the establishment of private press or media and in particular there shall be no law requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information”

When the government lost the fight, its response was to take over the media by swamping it with NDC-friendly stations starting with Radio Gold, and several other clones including the now infamous Montie. Mind you, it was not just the NDC which sponsored political broadcasting stations, as Oman FM is a classic mouthpiece of the NPP.

I still hold the view that politically owned broadcasting media and blatantly allied journalists pose the greatest danger to our democracy, peace and stability of our 4th attempt at Republican governance and the sooner we make laws to expunge them the better. Please don’t confuse my position with the perfectly acceptable matter of an ideological stance of a particular medium.

Do the reported comments on Montie FM and the subsequent conviction of the authors constitute an attack on Press freedom? I humbly submit NO to this proposition, grounding my view on the constitution. Article 162 (1) states that “Freedom and independence of the media are hereby guaranteed”.

After the following articles expatiate on media practice, Article 164 lays down the limits to press freedom as follows: “the provisions of articles 162 & 163 of this constitution are subject to laws that are reasonably in the interest of national security, public order, public morality, and for the purpose of protecting the reputation, rights and freedoms of other persons”. Put another way, freedom of the press is not an unfettered freedom which gives a licence to say anything and everything fair or foul.

In the above context, the comments made on Montie FM do not qualify for protection under Chapter 12 of our constitution. It is therefore an affront on our democracy for any political organization that is seeking our mandate to govern in our name to be at the heart of any actions or suggestions that try to justify the various utterances as expressions of press freedom.

Yes, it is true that other platforms may have been equally guilty of similar intemperate acts in the recent past. Those acts similarly cannot be defended under the guise of press freedom. However, it will be patently wrong to frame the debate in the pathetic equalization argument that seems to fly against the moral wisdom of “two wrongs do not make a right”

Were the utterances criminal? Yes! Yes!, Yes!. Anyone who has heard the contents of the various broadcast can be in no doubt that the contents amount to a direct threat to do physical harm to the judges of the Supreme Court. No matter how charitably or compassionately you look at it, what the Montie 3 said constituted criminal intent to create a state of panic and fear amongst members of the judiciary in an attempt to pervert the cause of justice.

No matter where these comments were made, in newspapers, letters, oral public utterances, or radio stations, the effect is the same; it is criminal conduct which must be subjected to criminal prosecution under the existing laws of Ghana, period.

Should the Supreme Court have referred the matter to a lower court or waited for the Attorney-General to act” No! No! No! is my answer. In the first place, there is no doubt the timing of the utterances was clearly intended to interfere with the SC’s consideration of an ongoing case. Not just that, the specific comments sought to “sow the fear of God" into the judges on the cases and try to belittle their competence and capacity to act honourably and expertly to deliver a fair and just outcome.

Does anyone really believe that the words of the broadcasters, especially their timing do not amount to a brazen act of contempt of the court? Give over! They were contemptible; contemptuous and CONTEMPT, period. Therefore the SC was fully within its rights to act and try them.

As to the AG, the unsolicited and precipitous action of the National Security in professing a view on the capacity of criminally intended persons to carry out their threat, completely handicapped her as it would have been patently awkward for one arm of the Executive to openly contradict another.

Was the sentence harsh? I don’t think so if you look at it in its real sitting as a serious threat to harm individuals and perverse the course of justice, and not as another example of the media extending their so called freedom to act irresponsibly.

Again, you can only judge appropriateness of length of sentence against a benchmark of statutory limits allowed under the law. I don’t know what these limits are but I suspect they are far higher than the custodial four months imposed on them; which with good behavior will end up with their incarceration for only 3 months.

So what should the President do? If he still wants a second term to fix the power crisis and complete the construction of the two hundred model SHS’, I will advise him to allow the ‘Montie 3’ to serve their sentence in full and then pardon them ale Bill’s pardon on his last day in office, which ironically is threatening a return to the White House as First Gentleman.

My firm advice to my brother John is to clothe himself in the Japanese robe of the humane Mikado who declared that his object as “to let the punishment fit the crime and make each prisoner (re)pent…..”