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Feature Article of Friday, 4 January 2013

Columnist: Kwawukume, Andy C. Y.

The President Cannot Be Sued!

The action of the lawyers for the plaintiffs representing the NPP joining the sitting President, John Dramani Mahama (JM), in the suit against the Electoral Commissioner (EC), in contravention of the constitutional provision which grants a serving or sitting President immunity from court action in any civil and criminal action, sub judice or not, is causing a storm of conflicting viewpoints from both legal practitioners and arm-chair lawyers alike. I am no lawyer but legal issues and matters of law do not befuddle me, having grown up reading some of the huge ledgers of court records our grandfather kept during the colonial era as Registrar of the Eastern Provisional Court in Keta and law books, of which my lawyer elder sister added more; not to mention assisting our father later when in university to write some of those terse Customs and Excise directives and regulations in the late 1970s. Besides, as a political science graduate, I had taken some electives with law students in Legon. In any case, my student union leadership roles and political activism in Norway led to my serving a brief stint as "vararepresentant" with voting rights in the Contact Committee for Foreigners in Hordaland County, responsible for advising on regulations, legislation and actions on foreigners. I am therefore suitably acquainted with the legislative process, from the beginning to the end, and the interpretation of the resultant regulations and laws, which are matters of logic, of which I am better qualified in, Philosophy being my Minor at Legon. Often, I had to go into the library to read the White Paper behind legislations in order to get the import of the legislations and how the framers intended it to be viewed, often at variance at prevailing practice.

Accordingly, I like this kind of legal challenges, so let me see how I fare against the lawyers and the arm-chair lawyers who have taken the position that the President can be sued and must open his defence before the Supreme Court (SC).

One argument put forward is that since the justices of the SC have a pro-NPP bias, the NDC cannot risk losing face again arguing for immunity for the President and having that argument thrown out by the allegedly biased justices. But, I expect the justices to rise above their parochial interests and biases and rule fairly, according to law and set a good precedent, as this case demands it, in order to close an ambiguity in the Constitution. This is not to say that I do not recognise the dubiousness of the legal profession and judges, who hide behind the facade of legality to dish out decisions based on class interests, biases of all kinds, who bribed them most, who is more powerful, etc, as if they were fair decisions. In view of that, I’d like Justice Paul Baffoe-Bonnie to recuse himself from this case, as I know him to be a bosom friend of the NPP General Secretary, “Sir John,” my former roommate in Annex 2, Mensah Sarbah, Legon. I left the room so that Paul could join Sir John as roommate when he enrolled a year after me in 1978. I still recall his reprehensible decision to overrule the decision of the CHRAJ on Dr Anane, paving his re-instatement into the Cabinet by President Kufuor.

Law, which is supposed to be based on facts and logic (reason), not emotions, biases, interests and hearsay, we must recognise, is essentially part of the confidence mechanisms that keep intact the system of inequalities that prevail in all societies that favour the powerful or the connected against the weak. Having said that, barring emotions from law does not mean a good lawyer must not perfect his argumentum ad misericordiam (fallacy of appeal to pity), which is very handy in pleading for leniency for anything from a serial goat thief to the axe murderer, especially in Ghana where one risks 110 years incarceration for stealing a car! Makes you go grrrhhh!

By all means, the lawyers for JM must appear before the SC, not to defend against the suit, (which is incompetent by the way), brought against him as a serving President and President-elect in waiting since we cannot separate the post of President from the person of President-elect, except for the very brief period of political interregnum which occurs during the swearing in ceremony when the old President ceases to be President and a new one is sworn in. They must therefore appear to defend him against appearing to answer any charges at all, because he is the President, and just happen to be President-elect; a coincidence, I believe, the framers of the Constitution did not anticipate when they stipulated that the President-elect should be joined in such an action, having already granted blanket immunity to the post of the President. Presidents and Prime Ministers in office all over the world, just as diplomats, are granted immunity from court action, except for clearly specified acts which could lead to their impeachment and/or removal from office by the legislature; and in the case of diplomats, being declared persona non grata and ask to leave the country. That's why many of the court actions against former Prime Minister Berlusconi of Italy failed until he was out of office. This world wide convention must be respected and enforced in Ghana if we are serious at all about fostering a democratic system.

Just as the President cannot be sued, cases cannot be filed in the President’s name, an anomaly which occurred when Nana Akufo Addo as AG sued Tsatsu Tsikata in the name of the President instead of the State in the infamous causing financial loss case. I think the lawyers have embarked on a similar anomaly. To get relief for their suit, all that they need to do is sue the EC, which is responsible for the elections, not the President. Even if they have factual evidence of agents of the President engaging in widespread vote rigging, instead of the cases of irregularities resulting from poorly trained electoral officers and verification machines breaking down and people duly being verified by some other means and allowed to vote by all the agents present, the President cannot be sued. Period!

When a drunken diplomat coming from a private party knocked down and killed a child, he is still a diplomat immune to prosecution even though he was not on official duty. Thus, JM purportedly won that elections while still a President and thus is still immune to court action. The judges of the SC must recognise this legal fact and rule accordingly, whether they are pro-NPP or not! They cannot be expected to rule politically, and I'd prefer to set precedence legally than fearing as some do, and take a political decision of not taking chances and ask JM to open his defence. It is up to the NDC or JM's lawyers to argue the case for immunity and argue it well for the good of the country, and thus fill the loophole in the Constitution.

Mr Ndebugri, now an NPP member, has weighed in against making JM a respondent too, just as Mr Amaliba, against Chris Ackummey’s stance that JM file his defence to contest the suit.

I have also read Nana Akwah’s “The President is Sueable, Not Insulated” (Ghanaweb 2 Jan. 2013) and my conclusion is that he errs woefully in interpreting the “without prejudice” phrase in regard to the granting of immunity to the President. It was inserted to protect the sanctity of cases wrongly brought against the President, which would be dismissed, thus allowing the aggrieved party to re-sue properly, say the State, represented by the Attorney General. The same principle allowed Akufo Addo to re-sue Tsatsu Tsikata properly, replacing the “The President” with “The State”.

At this juncture, I'd like to submit that it is the failure of the unlearned judge of the High Court who ordered the seizure of the Argentinian military ship Libertad and the unlearned and ignorant lawyers of the AG’s office (my sister, happily, is no longer there, btw), and other lawyers who failed to advise government properly - with all that clap trap about the Rule of Law and separation of powers as if they have not heard of Lord Jennings critique of Dicey's fanciful postulates - to discern this subtle issue of immunity that had led to the fiasco that reputedly caused Ghana over $7m! Even if the ship was a private, pleasure yatch, so long as the military has sequestered or hired it for use, it has become a military property and immune to the kind of disgraceful and embarrassing seizure which happened in Ghana just to please a powerful vulture fund from Uncle Sam’s country, a country which has refused to sign up to the jurisdiction of international courts set up by the UN!

I rest my case.

Andy C.Y. Kwawukume
cyandyk@ymail.com
London

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