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Opinions of Thursday, 4 August 2016

Columnist: Prof. Edward Akuffo

The Montie trio, Law, Media and National Security

The Supreme Court’s conviction and imposition of a four-month custodial sentence and a fine of GH¢ 10,000 each on the Montie trio, and another GH¢ 30,000 fine on the directors of Montie FM has generated heated debate in Ghana over the past few days.

The debate, although touches on many aspects of this landmark case, is narrowly focused on whether President Mahama should pardon the convicts—Messrs Salifu Maase, Alistair Nelson, and Godwin Ako Gunn after the Supreme Court imposed its sentence on them on July 27, 2016.

In spite of strong opposition from sections of society, the call for presidential pardon is growing. Many, especially, the ruling National Democratic Congress (NDC)—the president’s party—and civil society groups have described the Supreme Court’s sentence as “very harsh”.

The call for presidential pardon is partly borne out of the fact that some, including legal scholars and practitioners, have questioned whether due process and the principles of fair trial were followed by the Supreme Court. Moreover, the call for pardon appears to be rooted in the genuine feeling of the protagonist that the Supreme Court should have tempered justice with mercy as the convicts are first offenders.

The call for presidential pardon, indeed, makes a lot of sense from a legal view point but not necessarily from security view point.

The purpose of this article, although touches on the issue of due process and fair trial, is not to indulge in the legal debates of same and the inherent moral arguments thereof but to elucidate a serious dereliction of national security duty of President Mahama’s appointees which if not checked in the future could be disastrous for the country. How did we get to witness the ensuing tension that greeted the incarceration of the Montie trio?

Without looking further, the buck stops at the NDC, and government appointees –Attorney General (AG), Inspector General of Police (IGP), and the director of Bureau of National Investigations (BNI)—who reneged on their statutory duties as far as the Montie case is concerned.

The NDC as a party, and by default the executive arm of government, had earlier distanced itself from the dangerous contemptuous comments and by implication, the national and human security threats that were made by the Montie trio. Yet, the party has been at the forefront of the protest by issuing the strongest condemnation against the Supreme Court verdict.

Some NDC top guns including the lawyers of the convicts, government ministers, and pro-NDC civil society groups have joined the bandwagon that calls on the president to invoke his executive powers of mercy under Article 72 of the 1992 Ghanaian Constitution to pardon the convicts.

Indeed, the leadership that the NDC has assumed in this case should be expected from a ruling party that seeks to retain power in the forthcoming general elections. However, the pressure from the party on President Mahama to pardon the convicts is irresponsible and it is essentially the reason why he should, at all cost, resist the temptation of pardoning the convicts.

To be sure, presidential pardon for convicts is merciful, gracious, and moral act. Yet moral virtues lose their appeal when national and human security is at stake. I will explain further and make my own proposal to the president to strongly rebuke the Attorney General, the Inspector General of Police and the Director of the Bureau of National Investigations.

The case of the Montie trio is a peculiar example of how extremists’ negative campaigning and ‘verbal terrorism’ against free citizens and state institutions could backfire and put a president and his political party in a very difficult situation.

Indeed, such media extremism is a recipe for national and human insecurity! The NDC has all this while denied that the Montie trio were party proxies, and if you will, “the political attack dogs” against political opponents. They were on their own; we were made to understand, even though Mr. Maase told Ghanaians that he acted the way he did to ensure that the NDC retains power in the forthcoming elections. In short, the NDC’s narrative was that it did not ‘officially’ sanction whatever the Montie trio were doing on radio.

While admitting to the uncomfortable truth that the utterances of the Montie trio are ‘the new normal’ that has replaced ‘the politics as usual’ on some media houses in Ghana, it is not necessarily legal and certainly has serious national security implications. The Montie trio and those who spurred them on overlooked the existence of the law that sets the boundaries of free speech in a democratic and civilized society like Ghana.

The NDC’s tacit support for the trio and their subsequent call for presidential pardon fly in the face of ethics and morality. It is bereft of the responsible leadership that is expected of political parties in a democratic environment. But there is a more serious issue to which I now turn my attention.

The NDC’s self-denial of what happened on Montie FM has turned into betrayal of some sort. The betrayal in the party’s narrative has become very clear in two distinct but interrelated ways. First, the party has exposed itself by betraying their proxies—the Montie trio—and consequently exposed them to legal harm for not respecting the limits of democratic politics and free speech.

The very conviction and sentencing of the trio demonstrates that the NDC or no political party can cover the backs of its operatives because political parties are only good at doing politics and have no power or responsibility as the final interpreters and enforcers of the laws that govern society. It is therefore a useful lesson for the Montie trio and all political party operatives across board to learn that politics ends where the law begins in constitutional democracies.

Legal luminaries in political parties cannot get anyone off the hook when he or she ‘sins’ against the law and brought before fair and impartial justices of the court. The court is the last bastion of constitutional democracy and the Justices have sworn an oath to defend the constitution and the law and not political parties and their operatives.

In that sense, the judiciary through its delivery of justice assists the executive and legislature to perform the collective function of maintaining national security and human rights protection.

Second, the NDC and government appointees betrayed the president and Ghanaians as a whole. This argument is situated in the failure of the AG, as the top lawyer of the state, to carry out her statutory responsibility to prosecute the Montie trio for criminal contempt of court. The AG’s action or inaction appears to be rooted in the behavior of the police and BNI.

While commending the police and BNI for the work they do to keep Ghana secured, these institutions, as far as the Montie trio case is concerned, acted in a way that is quite dangerous for the country especially in an election year when emotions are running sky high. The police and the IGP abandoned their investigative role in the case, and the BNI issued a rushed and warped statement to the effect that the Montie trio lacked the capability to carry out the threats against the Supreme Court Judges.

To be sure, a holistic intelligence report should have noted that the ability to carry out a threat that was made on radio, with wide coverage, does not only reside in the hands of those who issued the threat but anyone who shares the sentiments of the threat issuers. It should be inferred by a security-mined person that the Montie trio inevitably, and for the sake of argument, were giving a voice to the ‘silent majority’.

In reality, this is evidenced by the protests including vigils that were held in support of the convicts. Therefore, by personalizing the issue to the Montie trio alone, the BNI appears to have lost focus on the wider human and national security implications of the behavior of the trio. That constitutes intelligence failure and should not be condoned by the president.

In the area of criminality, the BNI and the AG knew very well that the capability had already been exercised in the utterance of the threats as defined in the Criminal Code. This, surely, is not a prudent way of maintaining national and human security, especially in an election year.

The BNI’s action fell below best practices in the intelligence community around the world. By their nature and scope of activities, Intelligence Institutions should at all times appear apolitical, neutral, and impartial in the gathering and dissemination of actionable intelligence.

That was not the impression the BNI created in the minds of Ghanaians when it issued that rushed and warped statement on the Montie trio. The BNI, with the tacit complicity of the AG, clearly threw away the Criminal Code and resorted to its own interpretation of the behavior of the Montie trio. This is tantamount to dereliction of national duty.

It has set a bad precedent for the conduct of intelligence in Ghana’s burgeoning democracy. The BNI’s behavior appears to have tied the hands of the AG who did not show up in court to prosecute the offenders. And the police were ‘missing in the action’. This is not only an affront to human rights protection, but also may undermine the maintenance of national security if such institutional behavior is not nipped in the bud.