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Opinions of Friday, 14 July 2017

Columnist: Kwaku Badu

The Indemnity Clause: A worst injustice against Ghanaians?

Of course, to persistently write and shout about injustices in the country, which some observers bizarrely perceive as a convivial issue, is to be regarded as a political extremist, or a radical conservative, who is seeking to cause disaffection, but we must be true to the faith, uphold and defend the good name of our beloved Ghana.

In the wisdom of the framers of Ghana’s 1992 Constitution, the insertion of the controversial indemnity clause was to “let the sleeping dogs lie” and move on with our lives.

But then again, it would appear that the framers of our Constitution were not guided by the tenets of the fundamental human rights when settling on the contentious indemnity clause.

Given that excesses, disregard and contempt for human rights in the past military regimes culminated in inexcusable barbarous acts, in my opinion, the befitting retributive justice should have been prescribed instead of the irrational indemnity clause.

I trust the transposition of proportionate punishment could have deterred potential coup makers.

Bizarrely, albeit unfairly, the indemnity clause insulates individuals and persons affiliated to the military regimes from prosecutions.

Take, for example, section 34 of the transitional provisions of the 1992 Constitution indemnifies all coup makers and their functionaries against any liability for acts and omissions committed during their illegitimate administration.

Clause One of Section 34 of the 1992 Constitution states that: “No member of the Provisional National Defence Council, Provisional National Defence Council Secretary, or other appointees of the Provisional National Defence Council shall be held liable either jointly or severally, for any act or omission during the administration of the Provisional National Defence Council”.

Clause Two of Section 34 states: “It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana whether before or after the coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in Government which took place on the twenty-fourth day of February, 1966, on the thirteenth day of January 1972, on the fourth day of June, 1979 and on the thirty-first day of December, 1981 in respect of any act or omission relating to, or consequent upon (a) the overthrow of the government in power before the formation of the National Liberation Council, the National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and the Provisional National Defence Council; or (b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or (c) the establishment of the National Liberation Council, the National Redemption Council, the Supreme Military Council which took office on the ninth day of October, 1975, the Supreme Military Council established on the fifth day of July 1978, the Armed Forces Revolutionary Council, or the Provisional National Defence Council; or (d) the establishment of this Constitution.”

The 34(3) states: “For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council or the Armed Forces Revolutionary Council or a member of the Provisional National Defence Council or the Armed Forces Revolutionary Council or by any person appointed by the Provisional National Defence Council or the Armed Forces Revolutionary Council in the name of either the Provisional National Defence Council or the Armed Forces Revolutionary Council shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.”

The 34(4): “The provision of subsection (3) of this section shall have effect notwithstanding that any such action as is referred to in that subsection was not taken in accordance with any procedure by law.”

Section 34 (5) states: “It is not lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act, on the instructions or authority of the Provisional National Defence Council or the Armed Forces Revolutionary Council or a member of the Provisional National Defence Council or the Armed Forces Revolutionary Council and alleged to be in contravention of any law, whether substantive or procedural, in existence before or during the administration of the Provisional National Defence Council or the Armed Forces Revolutionary Council.”

Despite the utter public outcry over the indemnity clause, Professor Albert K. Fiadjoe, the Chairman of the Constitution Review Commission (CRC) insisted that the removal of the controversial clause from the 1992 Constitution would lead to anarchy in the country.

“It means that all governments since 1966 are illegal, that we must immediately hand over the reigns of government to the Convention Peoples Party, we will criminalize all those who have participated in governments since the overthrow of the first republic and would also bring unnecessary interruptions in national affairs.

“The removal of the indemnities could adversely affect the democratic dispensation because it would give the negative impression that the country is reneging on a settlement that it has previously accepted.

“This could seriously undermine stability in the country (Source: graphic.com.gh, 2012).”

In as much as the CRC’s reasons for the retention of the indemnity clause may be valid, there is no justification for the rabble rousers to keep all the alleged stolen monies.

in contrast toCRC’s disposition, it will, however, remain unfair, unconscionable and incommodious not to amend the unpopular indemnity clause to allow us to retrieve any possible stolen funds.

The all-important question then is: will the day come when “political criminals” find they have nowhere to hide?

To me, Ghana’s constitution has to be reviewed further and the irrational clauses such as the indemnity clause are either amended or expunged accordingly.

How on earth can individuals commit unpardonable crimes (gargantuan corruptions) against the state and get away with their misdeeds?

And more so the traditional exemption of heads of state from prosecution despite the evidence of a case to answer is wrong.

For if the bribery and corruption; dubious judgment debt payments; stashing of national funds by some greedy opportunists and misappropriation of resources and crude embezzlement by some politicians do not warrant criminal charges, then where are we heading as a nation?

How serious are we as a nation when we can only descend heavily on goat, cassava and plantain thieves and let go hard criminals who persistently dip their hands into the national coffers?

Elsewhere, though, both past and incumbent heads of state may face the laws without any recourse to their status.

Take, for example, in recent times, the controversial South Korean president, Park Geun-hye, found herself in a wide-ranging corruption and cronyism scandal, which culminated in her removal from office in March 2017.

President Park Geun-hye and her long- time confidante, Choi Soon-sil, were accused of conspiring to pressure companies, including Samsung, to donate large sums of money to two non-profit foundations set up by Choi.

Choi was accused of using the money for personal gain, which she denied. However, President Park admitted behaving “naively”, but denied coercing companies.

President Park was also accused of giving Choi and unlawful access to state affairs and allowing her to influence policy, including Seoul’s stance on North Korea’s nuclear weapons programme (The Guardian 2017).

More recently, the former Brazilian president, Luiz Inacio Lula Da Silva, who has been cited as the most famous president in Brazil’s contemporary history, has been sentenced to nine years and six months in jail after being found guilty on corruption and money-laundering charges (Source: guardian.co.uk, 12/07/2017).

Surely, we could do better. So let us do so. Let us amend or expunge the irrational laws and replace them with innovative and expedient laws.