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Opinions of Sunday, 20 July 2008

Columnist: Acheampong, Emmanuel Opoku

Police Accountability - A test to Ultimate Responsibilty and the Rule of Law

The principle of accountability and its corollary of responsibility lie at the base of exercise of power and authority. The fundamental rule is that a person to whom responsibility is delivered, a corollary duty is imposed on such person to account for the exercise of the responsibility. Accountability therefore is a natural consequence of responsibility, of which the determination of the former may be to legally enforceable rules, or of conventional rules developed in line with the institution conferring the responsibility.

Thus if a person is entrusted with responsibility, the operation of other rules, be they rules of morality, rules of religion, rules of custom, rules of society, etc. should inculcate such person to submit to the restraints of his responsibility even if he knew legal consequences would not accrue from overstepping the boundaries allotted him. This strengthens the assertion that the law cannot unilaterally sustain responsibility unless in complement with other rules which though dispossessed of the threat of coercion, should still compel compliance to rules of responsibility. That is why an authority may be compelled by morality to abdicate his position, even though his moral violation would not violate the law for which legal consequences should lie. With this in mind, my task then is to determine the extent of police accountability, the social effects of deterioration in police accountability, as well as its consequential implications on political authorities applying the test of ultimate responsibility.

Accountability and police discretion The police officer is an authority vested with certain powers on account of the law to discharge certain defined responsibility. In discharging this responsibility, a corollary of the responsibility requires him to account for its transgressions, such that the law bestows on him, a wide measure of “free will” (otherwise known as discretion) to enable him choose between competing objectives in his bid to enforce the law. A police officer is therefore unencumbered by the “strict, legalistic constraints” of the law, but is allowed reasonable leverage in his duties to enable him effectively realise the responsibility so granted him. In exercising his power of discretion, the officer is bound to choose one of two or more available courses of action, the law not unduly stifling his initiative in given circumstances so as to straight-jacket his duties. The principle of accountability however requires the officer to justify his choice when available conditions or circumstances suggest that he disregarded, or failed to take into account an alternative choice, also available to him which should have served better the purpose for which the choice was required.

If for example, a police officer arrests an offending motorist, he has available to him different courses of action. He has the choice of recording the particulars of the offender, and if so desires, a date for a court appearance. He also has to himself the choice of letting the offender off with a mere caution, etc. In all these choices, he remains within the bounds of the law, and as such cannot not be compelled to show cause, why he opted for one course of action instead of another. If he elects to let the driver of with a caution, the law cannot hold him accountable for his choice on why he refused to book the offending driver for a court appearance. That is clearly within his discretion, and the law in cognition of this “free will”, refrains from making incursions into the domain of his discretion unless it could be shown that the preferred choice was unreasonable in the circumstance, and of which a more reasonable one, also available to him ought to have been considered. Thus, if the said officer elects to impound the offender’s vehicle or his driver’s license so as to injure his liberty, the principle of accountability should require the officer to justify his action by showing cause, why he opted for an unreasonable course of action when an alternative reasonable one was available to him. This is the principle underlying the exercise of discretion and derogations to it for which the principle of accountability should apply. Why police accountability? While not disputing indispensable police utility in society, it is imperative also to subject police powers to restraints so that they do not themselves become inimical to the social values they are intended to promote. The greatest test to liberty, as I have intimated severally, resides in the exercise of executive power, and the police as agents of the executive provide one the most challenging tests. In fact, the hallmark of a society established on the rule of law and democratic principles is the one able to restrain police power so that the progressive advancement of police authority does not constitute a recession to individual liberty.

This is because in enforcing the law, the police officer develops an orientation that impels him with a predilection to subordinate the law’s authority, thereby imbibing an irresistible tendency towards wrongdoing. The limitation imposed on him is therefore intended to ensure that he submits to the circumscriptions of his authority, so that he relinquishes his compelling predisposition to think of himself as an absolute authority, subject to no other. That is the underpinning philosophy behind police accountability, and of which a society committed to the advancement of rule of law ought to construct effective devices for delimiting this compelling police predisposition to subjugate individual liberty.

This means that the law ought to hold accountable any exercise of police power offensive to social values, and which has the effect of undermining the authority of the institution conferring the responsibility. It is also imperative on the law to sustain equilibrium in its conferment of responsibility and its ability to counteract any transgression to its boundaries so as to protect individual liberty. Therefore, if the police officer should violate the limits to his responsibility, and the law is rendered incompetent in holding him accountable to his transgressions, then the principle of accountability subsumed in the doctrine of the rule of law remains not only a meaningless proposition, but a frail and useless attempt at delimiting police power.

Accountability of the police officer in his core duties This consideration brings into focus the police officer performing his statutory duties of arrest, seizure, prosecution, crowd control, crime control, etc. The paramount issue arousing consideration is whether existing administrative procedures have achieved police conformism by holding officers accountable to their violations. The police have shot and killed or beaten to death not less than thirty-five persons under various circumstances over the past two years. Many others have been subjected to varying forms of undignified abuse. There have been reported accounts of excessive exercise of police power; yet in all these instances the principle of accountability has scarcely applied, compelling such officers to show cause, why they ought not to be held accountable for their transgressions.

So then, if the police officer who determines a violation is himself not subject to any rules, or even if he was, views these rules with disdain and violates them with effrontery, knowing well that the rules intended to restrain him are ineffectual, and less likely to be enforced against him, would such officer not be emboldened in his conduct knowing he would not be accountable for his violations? If the law, by its threat of coercion, cannot compel an officer to account for infractions to his responsibility, what would compel the said officer to submit to the limits of such responsibility? The rule of law dictates that human desires and capacities be subordinate to the law; therefore if the law is docile to human tendencies, could any one really assert a progressive advancement of the rule law? How can there be rule of law if the law itself cannot compel accountability, such that it is rendered atrophied in asserting its authority and dominance over people possessed of executive power? Could we say there is rule of law when personal desires and capacities subordinate objective criteria, such that the individual cannot challenge transgressions to his liberty? Accountability of the police officer in acts offensive to social values This raises profound questions and issues bordering on socio-political considerations. The principle is that should a police officer in pursuit of certain interests engage in conduct inimical to social values or to principles underlying his responsibility, the law ought to coerce him to show cause, why he ought not be held accountable for engaging in such conduct.

In addressing this issue, I shall consider it from the perspective of the patent and obtuse corruption riddling the police and its consequential implications on social values and ideals. The first incident that comes to mind is the MV Benjamin cocaine scandal. The conditions surrounding the incident and the manner by which 77 parcels of cocaine disappeared under questionable circumstances provided a strong and compelling test to police accountability. However in characteristic police fashion, human capacities prevailed over established values, and as has become synonymous with police hierarchy, ultimate responsibility was declined, the IGP remained at post, whiles a few subordinate officers were indicted for complicity. In any case, if the complement of other security agencies (NACOB, BNI, etc) in the MV Benjamin scandal could exculpate the IGP from assuming ultimate responsibility in the matter, the disappearance of cocaine parcels in police custody at the Police Headquarters would not exonerate him on any account. Because never in police history has the nation awakened to an incident so socially repugnant and offensive to morality and conscience than that which occurred at the supposed securest police exhibit room. As the police chief therefore, an imperative duty is imposed on the IGP to demand, institute or initiate unqualified investigations into the loss, and in case of failure or inability to achieve the object of such investigation, ought to be compelled by moral convention to abdicate his position in compliance with the principles of ultimate responsibility. However, should he still be fervent in his characteristic obduracy to consolidate his post in the face of such glaring ineptitude so as to make personal capacities predominate moral convention, then a compelling force greater than himself, and who in sustaining the principle of accountability, ought to coerce him to abdicate his position to accord affirmative meaning to the values and ideals on which society is constructed. And which compelling force is such a duty imposed than the authority who appointed the IGP – the President of the Republic of Ghana? As the leader of the nation, the President has a moral responsibility to ensure that the principle of accountability manifests itself in all areas of public responsibility, such that any conduct considered offensive to social values ought to compel him to act in such manner so as to restate the moral boundaries of society. Now, did President Kuffour, pursuant to his incessant trumpeting of rule of law uphold the principle of accountability by coercing the IGP into abdication so as restate the boundaries of his responsibility? No, he did not. Rather, in contravention of established values and ideals, he not only developed passive acquiescence to such overt incompetence by the IGP, nor did he only resist legitimate calls to coerce him into abdication, but in treating such calls with contempt, the President insulted the social sensibilities of Ghanaians by conferring a national award on the same authority [the IGP], who not for his flagrant contempt for moral convention, ought to have abdicated his position on grounds of ultimate responsibility. What then would make the principle of accountability prevail in the police institution if tenets of responsibility and accountability are sacrificed to the dictates of political cronyism? If the President reneges on such an opportunity to affirm his commitment to the rule of law by throwing accountability to the doldrums, such that social values become subservient to political affinity, should that not constitute reasonable grounds to treat the government’s incessant trumpeting of the rule of law with the contempt that it deserves? When we entrust executive authority to a person, do we not do so in the belief that such authority would accord meaning to the predominant values of society by constantly asserting the principles that underlie their sustenance? So therefore, if we remained docile to such a gross and flagrant dereliction of executive responsibility by the President, and reneged in our duty of holding him accountable for his actions, and goaded him on the basis of political affinity, would we ourselves not be guilty of overt complicity in destroying the social values on which the foundation of society is constructed? If we accepted this as a legitimate basis, would the discerning voter not owe to himself and for posterity a forceful responsibility of holding the President and his party accountable for such a refulgent and shameless violation to the principles of accountability and social values when he [the President] parades himself consistently as an exponent of the rule of law?

Conclusion

The principle of police accountability would forever remain a mirage if firm, institutional devices for sustaining police conformism is sacrificed to political expediency. Certainly, the rule of law means more than the meaningless and hollow trumpeting of its precepts by the President and his political appendages camouflaged in different forms and guises. It means in essence, the ability of the law to subordinate all authorities subservient to it, so that police law does not prevail over the law itself.

The writer is a student of Law @ KNUST eoacheampong@yahoo.co.uk