The president may, acting in consultation with the Council of State - Grant pardon to persons convicted of an offence (Article 72, 1992 Constitution).

Why is there a need for presidential pardon to start with? Why is there a need to pardon some, while others serve their full term? Is it not relative injustice to free some, because of advocacy of others, but insist that others serve their full term or even die, if that is what their sentence call for?

Let’s be clear, remorse or sickness has never gotten every prisoner reprieve. What really is the rationale behind the concept of pardon? Are some more equal than the others? Do the less connected in society get the pardon they deserve?

Presidential or executive pardon tracks its history through medieval England, later to be adopted by the colonies in America. Henry I, used royal prerogative of mercy, as a tool in return for compensation whilst Edward I, used it as a tool for conscription (quid pro quo).

Pardons are more suited toward absolute monarchies than they are democracies governed by the rule of law. If the law is supreme, and equality is a cherished ideal, why must some be pardoned while others languish? In death and in sickness, the rule of law and the principle of equality can and must not be sacrificed.

Yet, the need for the prerogative of pardon can be argued to be a necessary way of addressing blatant defects in the criminal justice system. Where laws, such as “three strikes and you are out”, in America, sweeps many into a swirl, if not cauldron, of intemperate criminal justice repercussions, the deployment of presidential pardon could ensure or dispense a dose of commonsensical justice.

Imagine in 1249, a four year old Katherine Passacavant, “imprisoned in the abbot of St Alban’s gaol, because, in opening a door, she accidentally pushed a younger child into a vessel of hot water, killing the child” (Duker., Willian, 1977, The president’s power to pardon).

How and why must a 4year old go to prison? Subjects like Katherine could not be acquitted by the courts and therefore relied on the King’s mercy and grace. These are the kind of extenuating circumstances that justify royal or presidential pardon. Remorse after the fact, in my book, should not necessarily attract pardon.

The concept of presidential pardon denote executive benevolence that is unchecked by any powers. Indeed, the only check may well be a revolt or vociferous agitation by the body politic. It is absolute in nature and counts on judicious use by the incumbent. In some constitutions, its scope is clearly defined, in others, it is all encompassing. Should pardon be used willy-nilly?

Should pardon be granted solely by the president? Why not a parliamentary committee? May be approval by a parliamentary body? Why not an executive body instead of the president? Why not a body like CHRAJ? Shouldn’t the process of invoking presidential pardon be just as tedious as breaking stone in a quarry?

Is presidential pardon suited to a toddler democracy such as ours? Do we have the political maturity to use this delicate tool ever so carefully? Why not give every prisoner the opportunity to be pardoned every year?

In case you don’t know or have not heard, the Montie FM-3 were jailed by the Supreme Court of Ghana for scandalizing and bringing the name of the Supreme Court into disrepute. The latter was after the 3 directly or indirectly vilified, threatened and verbally assaulted our holier than thou Supreme Court judges.

Since then, a significant swath of public officials and citizens, including cabinet ministers and NDC activists, have called on the President of Ghana to invoke Article 72 (Presidential Pardon powers), to free the 3 rascals. Should the president invoke or abstain? Well the argument is not whether the president can or cannot. Of course he can! The question is should he or not? What will happen to the country if this partisan precedent is set?

Conflict of interest:

It is self-evident and an understatement, to say that, Montie FM is a radio station affiliated with the ruling NDC political party. The radio station’s searing and scalding harangues against the opposition party, is not a secret. Besides the latter, the politically colored BNI, literally dismissed any idea that the perpetrators would be charged and prosecuted.

In addition, the infamous AG department, showed no appetite for these juicy frogs. The police, often follows where the AG leads. This left us with very little hope of any form of swift justice. Cumulatively, we can safely say, that, the executive had no interest in taking these three foot soldiers to task.

It is therefore ironic, that, members of the executive and the ruling party, are asking the president to pardon the Montie-3. All these holier than thou NDC blowhards, abnegated their sacred duty to rein in these agent provocateurs.

Why then, must the irresponsibility of NDC activists, become the responsibility of President Mahama? Of course, the president himself could have tried harder to stem the tide of malice and distill into the national political fabric, a tonic of partisan love and patriotism.

To be fair, the president, recently called on media houses to stop the arrant politicization and invectives. It looks like the president’s timid call did not amount to a hill of beans.

It impact on other institutions: I think it will be a grave undermining of the judiciary if the president should directly confront the institution in such a bellicose partisan manner, by reversing the judgment of the highest court of the land. The judiciary is critical to our nascent democracy. Its role cannot be diminish or marginalize by recklessly invoking a presidential pardon on partisan basis.

The president, I will surmise, must pick and choose his battles carefully. It is interesting to note, that, it was the reckless statement by the Supreme Court that started this eruption. The Supreme Court should never has said that they won’t sit and watch the EC throw the country into chaos.

Even if the Supreme Court felt the EC was acting irresponsibly, it had no business puking its reaction in public. Berating a state agency, under unrelenting enormous pressure, can only provide fodder or serve red meat to the opposition. After all, other agencies did not accuse, denigrate, or berate the judiciary for attempting to throw the country into chaos, when the bribery scandal rocked the judiciary earlier this year.

The president will tarnish the presidency, if he is pricked by partisan sentiments, to invoke this sacred article of our already maligned constitution. We must not trivialize the presidency with such knee jerk infantile considerations. Now is not a time for pardon!

Its impact on society: Should the president overturn the judgment of the Supreme Court, it will only go to firm up an already radioactive and overly tense situation in the country. I don’t see how a pardon in this case benefits Ghana as a country.

The court could have sentenced the culprits to a maximum of 2-3yrs depending on who you believe. A four month sentence is quite modest given the range. Using relative logic may make the sentence look a bit harsh. However, this sentence is designed to serve as a deterrent.

Apparently, the previous lighter sentences did not send a shot, strong enough across the bow. Hopefully, this sentence would, this time around.

Benefits:

The collateral benefit of this sentence is that the decibel level will hopefully drop to an appreciable one. While the opposition finds glee in these purportedly stiff sentence, it must recognize that its foot soldiers and indeed, high ranking officers, have also engaged in irresponsible behaviors on the airwaves.

Kennedy Agyapong comes to mind. It is my hope, that, all will learn a stern lesson from this acrimony. Why this sentence was not based on speech, but instead on scandalizing the court, the judges were quick to assert that they believe that there was an element of criminality in the threats that were freely dispensed. A stern warning has been served!

At least, there is some semblance of rule of law is in action. The judicial bribery scandal earlier this year, imposed on law abiding citizens, a loss of faith in the judiciary. Hopefully, the court will be consistent going forward and a measure of confidence will fog our teething democracy.

I want to enjoin our NDC brothers and sisters to exercise restraint in going after the president to invoke his prerogative of mercy powers. Yes, the NDC gaggle have every right to stir up conversation around a possible pardon.

Ours is a democracy! However, we invite accusation of political immaturity when we impose upon the president, the ignoble duty of freeing 3 partisan apparatchiks who have confessed wrong doing and offended our sensibilities with such revulsive and vile threats to our Supreme Court Judges. These individuals have barely started serving their sentence.

Judges have the prerogative of determining the severity of a sentence. I am dearly glad that the court did nothing in this instance to stymie free speech. Let us respect our institutions by allowing the Montie3 to serve their time without making them martyrs. Enough!!

Nii Lantey Okunka Bannerman aka the Black Swan, is the host of People Parliament (PAE MU KA), a political talk show on Highlife Radio