Intimidating the Judiciary: NDC’s “Rule of Law”

The NDC’s recent decision to boycott Parliament in support of Hon Dan Abodakpi, the former Minister of Trade and the MP for Keta was taken, according to them, to further the ends of justice and rule of law. The MP who was sentenced to 10 years imprisonment on seven counts of conspiracy to commit crime, defrauding by false pretences and wilfully causing financial loss to the state to the tune of $400,000 however deemed it fit to appeal to them to call off the boycott. According to NDC the reason for the boycott was that there was an error in the application of the law of wilfully causing financial loss to the state, under Section 179(a)(3) of the Criminal Code (Act 30), by the Accra Fast Track Court and hence the decision to sentence the said MP to 10 years imprisonment was a miscarriage of justice and against the rule of law.

The facts of the case are that the former Minister of Trade and Industry under the NDC administration made a false representation in August 2000 to Ecobank to pay for a feasibility study on the Science and Technology Valley/Park project which never existed or never conducted. The MP for Keta who was co-chairman with Victor Salomey (now deceased) of the Trade Investment Programme (TIP) made the correspondence through one Dr. Boadu. However investigations into the Trade Ministry’s log books did not reveal the transactions as official.

Speaking on Adom fm on Thursday 8th March, Hon Ayariga, NDC MP for Bawku Central said he was boycotting Parliament because the people of Bawku Central voted for him to represent them for the cause of justice and rule of law and wherever these principles are broken, he will fight in accordance with his mandate. Fine words from who appears to be a descent MP performing his duties. By the use of the expression justice and rule of law, the honourable MP is presupposing that the decision by the court of law is unjust and therefore against the rule of law and that his action in boycotting the Parliament is rather upholding the principles. What worries me therefore is the manner in which the NDC MP is applying his definition of the rule of law and justice.

Before I elaborate on the principle of “rule of law” and the NDC’s interpretation of it, let me emphasise that the use of boycotts and walkout have been legitimate tools of all opposition parties in all democracies. In fact it is an inalienable right in pursuance of their role as pressure groups. However it is a tool used to force parliament to perform its functions, especially when the government is using majority to be arbitrary. The NPP in opposition used the tools of boycott and walkouts to force Parliament to perform its function of vetting new ministers and government appointees. This was when in 1996 the NDC government refused to put its ministers of state who were in office before the 1996 election up for vetting arguing that there was no need to vet the ministers since it was not a new appointment. The NPP did not only boycott parliament but also went to court for an order of mandamus to force parliament to perform its statutory duty. It is however unprecedented for parliament or a minority group to boycott proceeding to force the judiciary to review its decisions. This would seem to me to be an infringement of separation of powers and rule of the jungle.

The rule of law is the principle that the authority of government is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. The law under which the MP was jailed is a regular law passed properly by the NDC albeit it was never used. This law was passed consequent on the powers of the parliament under the Constitution of Ghana. The MP was arraigned before a regular court of the land which by the principle of rule of law is required to enforce the laws governing the realm. The law “causing financial loss to the country” was passed under the four principles of good law as defined by Thomas Aquinas as: established by a proper authority; in keeping with reason; for the purpose of achieving good and properly communicated to all. This law is regular, just and supreme and the courts are therefore under the obligation of the principle of rule of law to enforce it.

What the NDC leadership decided to do [by boycotting proceedings in parliament] was rather interfering with the principle of rule of law. They were interfering with the principle of separation of powers which is a by-product of the rule of law. They were interfering with the duties of the judiciary with the aim of intimidating judges over decisions made in respect of cases involving their colleagues. They were also intimidating the government to relinquish the principle of supremacy of the law by saying that they will also jail NPP government officials with the same law. They were asking for a compromise or some kind of complicity of crime to the detriment of ordinary Ghanaians.

With no disrespect to the honourable MP, the concept of “Rule of law" is one of the much talked about but little understood concept in popular press and daily conversations in Ghana today. It does not mean the exercise of ones right to expression or freedom of the press or indeed the right to demonstrate or strike. These rights I have enumerated are rights that come with democracy and human rights. Even though the concept of “rule of law” is generally associated with the legal principles of double jeopardy and habeas corpus, the three main components of the principle are presumption of innocence, legal equality and absolute supremacy of regular law [the kind of law that passes the test of Thomas Aquinas].

The NDC for eight years flirted with the rule of law and never really understood it. Instead it chose the watered down version akin to dictatorship, which is “rule by law”. Under the “rule by law”, the use of laws became an instrument of the NDC government, and the government itself was above the law. I have never in my life as a Ghanaian seen a government that hastily passed laws to justify their acts or catch victims like the PNDC and NDC. The expression “notwithstanding anything to the contrary” almost began all these motivated laws. These laws were not meant to apply to them. Hence the law which caught Hon Abodakpi was not meant to use on them- the untouchables. In contrast, under the rule of law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion.

Rule of law applies strongly in Ghana, especially under the NPP government through no will of the government itself but simply by the will of the Constitution. The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation such as we had under the PNDC or one without respect for human rights which we experienced to some extent under NDC could exist with or without a "rule of law". The NDC used the rule of law selectively and largely ruled by chunks of law to create fear in society. Apart from the law in question, the NDC passed the Criminal Libel Act to short change us on press freedom. Much as no one should accept government arbitrariness and therefore work hard to main the rule of law we should in the same vain condemn the abuse of power by the opposition. If we are to limit indiscipline of people in authority, then rule of law requires them to respect the supremacy of law as opposed to the supremacy of the government or any political party.

What the NDC needs to remember and quickly so is that by reacting so badly to rule of law in practice, they are only confirming our concerns that they are still not matured in democracy. They do not yet understand that rule of law is based on the Diceyan principles of “(1) the absolute supremacy or predominance of regular law [such as they passed] as opposed to the influence of arbitrary power [boycotts]; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts." There are two common misconceptions in Ghana today, especially from the NDC caucus. First, when they describe "rule of law," they mean only "rule of the few persons." They also think that, as long as we have democracy ("rule of the many"), we have justice. Sometimes they forget that the popular will can rule with or without constitutional and legal limits such as took place under the previous military regimes. Without constitutional and legal limits, however, popular will can be as destructive as, or even more destructive than, the unfettered discretion of "the few." Examples include the injustices under the NLC, terrors of the PNDC and the crimes against humanity committed during the AFRC. Second, they think that, as long as laws are passed through democratic procedures, they represent the general will and therefore are just laws. The law, causing financial loss to the state, was passed by the NDC through a democratic process, but its application in not representing their will. The NDC need to understand that “rule of law” is a totally different concept from “rule by law”. The NDC also seem to forget the second meaning of rule of law which according to Dicey is equality before law. Dicey states that not “ only that . . . no man is above the law, but that . . . every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. . . . though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not escape thereby from the duties of an ordinary citizen" (Dicey, 1982, p. 114-115). Dan Abodakpi is an ordinary mortal before the law. He may be an MP a former minister of state but the law is no respecter of no mortal. The NDC also forget that there is a third meaning to the principle of “rule of law” which is formal or procedural justice which is the method of achieving justice by consistently applying rules and procedures through a properly constituted legal system such as we have in Ghana and not the tribunal systems such as operated under the AFRC, PNDC and the NDC. The judiciary is the third arm of government, besides the legislature and the executive. For the legislature to attack the judiciary for its decision suggests to me that that kind of legislature does not respect the judiciary and in legal parlance, does not respect separation of powers and hence the “rule of law”. It is becoming increasingly clear that the independence of the judiciary requires increased statutory protection in Ghana. We are seeing the face of a future NDC government which will not have any respect for the judiciary unless we build in a firm statutory protection of that institution. Rawlings’ vituperative attack of the judiciary in his recent tirade against the government and the state of Ghana at South Bank University in London was a typical example of deliberate actions to erode from the statutory protection. He is using his members of parliament as a smoke shield to intimidate the judiciary to protect his wife who is possibly going to suffer the same fate as Dan Abodakpi. Any worthwhile society requires an efficient and effective, independent, bold and fearless legal system and no amount of intimidation must stop the judiciary to plat its role of enforcing the law to protect our hard won democracy and rule of law.

Long live our democracy

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