Monday, 16th August, 2010

Last week, an Accra High Court declared that the prosecutions of former Chief of Staff Kojo Mpiani and Ghana @50 CEO Dr Wireko-Brobby were improper and discharged them. The judge, High Court Judge, Justice Samuel Marful-Sau, agreed with attorneys for the defense that they could not be tried based on the findings of a Presidential Commission. This triumph of the rule of law and due process elicited howls of outrage and groans of disappointment from the ruling NDC and its government. Some called for the resignation or dismissal of the Attorney General. Others complained of sabotage within the Attorney General’s Department. According to Deputy NDC General Secretary Kofi Adams, “I am convinced that there were massive acts of corruption and it is the responsibility of the government and , therefore the Attorney General’s Department to prosecute the offenders.” The Deputy NDC General Secretary indicated that he had evidence that could help in prosecuting the accused. If Kofi Adams had the evidence, why did the government bother with the Presidential Commission? As Kojo Mpiani observed, this trial had more to do with politics than the law. Before Mpiani and Wireko-Brobby, there were and are, Asabe, Osei Agyei and others.

Even before the 2008 elections, former President Rawlings had urged the NPP administration to “expand Nsawam Prison” because the NDC, if elected would jail NPP functionaries and government officials. With the NDC election, former President Rawlings, who saw no merit in the trials of Peprah and Tsikata et al and was very worried about the possibility of his wife being tried, became a fan of the law on “causing financial loss to the state.” Having made the prosecution of NPP officials an election pledge and needing to divert the attention of the public from their failures, the NDC needed scapegoats. Therefore, they could not wait for the auditing process or normal Police investigations to produce evidence that would stand up in court. So they decided to empanel their own grand jury in the form of a Presidential Commission. Listening to all the wailing and complaining from the government and the NDC, one would think the Republic was under assault. It was not. What is happening is the NDC continuing and EXPANDING the unhealthy habit of governments turning the prosecutorial powers of the state into political weapons against their opponents.

If the NDC was interested in the impartial pursuit of justice, there would have been charges filed in the “CHINCHINGA AND DIAPERS” case but they were not filed.
If the NDC was interested in impartial justice, there would have been prosecutions in the “MABRY AND JOHNSON SAGA” but there were no prosecutions.
If the NDC was interested in impartial justice, there would have been charges in the “SCANCEM CEMENT SCANDAL” but there were none. Of course, I do not believe that charging any of those involved in any of those cases wrongly would make the prosecution of Mpiani and Wireko-Brobby right.
To be honest, the NDC is not the first government to turn our laws and constitution into political instruments. Whether one is looking at the inception of the current constitution or the beginning of our independence, our governments have routinely been contemptuous of our laws. While we can dismiss the military regimes off-hand because they were conceived in illegitimacy, born in illegitimacy and lived in illegitimacy, the civilian governments have been, with few exceptions, far from exemplary in upholding our laws and our constitutions. President Nkrumah had a Preventive Detention Act and had enacted later, a constitution giving him powers to dismiss judges of the High Court, “for reasons he saw fit.”
Prime Minister Busia undermined the rule of law with his “no court” declaration.
President Limann harmed the judiciary when he warned the judges against reviewing the AFRC Convictions that were clearly characterized by lack of due process.
President Rawlings and NDC 1 harmed the rule of law when they celebrated 31st December in clear violation of court orders.
President Kufuor undermined confidence in the judiciary when he packed the Supreme court before appealing matters that had already been ruled upon by a subset of the Supreme court.
And NDC 11, despite having a law Professor, Atta-Mills as President, is determined to disregard the law as much as possible. The disrespect for our laws and our constitution goes far beyond persecuting political opponents. It also involves disregarding or trying to undermine agreements reached by previous governments in good faith, dissolving bodies established in line with the constitution without substantive reasons and the use of governmental power for purposes that are clearly, not in the public interest. As part of this culture of lawlessness, members of government or those associated with government boast that they can commit crimes and nothing would happen to them. Obviously, all governments are not lawless to the same extent. There are those, like the Busia and Limann administrations that were generally very respectful of our laws and seemed to regret their errors. There are others, like the Nkrumah regime and NDC 1 and 11 that seem to enjoy their lawlessness. Sometimes, it seems that there are some in the NDC who long for a return to the days of yore when they could march their fellow citizens to jail or Teshie without any constraints.

The kind of discrimination and lawlessness we are witnessing and the political persecutions unfolding before us is clearly prohibited by the 1992 constitution.
Article 17 clause 2 states that “A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religious creed or social or economic status”
Furthermore, Article 17, clause 3 states “For purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, POLITICAL OPINIONS, colour, gender, occupation, religion or creed, whereby persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.” (caps mine)

It is obvious that if the NPP had been re-elected in 2008, Asabe, Kojo Mpiani, Tarzan and all the other NPP members being harassed would not be on trial today. And that, is sad. I know that some in the NDC argue, and rightly so that some prosecutions under the NPP may not have occurred if the NDC had been in power and that may be so. The question is why would the NDC repeat something they themselves condemned just in the name of revenge? How can Mr. Rawlings and others be against the prosecution of Tsikata and Abodakpi and for the prosecution of Mpiani and Wireko-Brobby? When will some wise and bold leader call a halt to the senseless cycle of revenge prosecutions?

The misuse of laws for political purposes have many harmful effects. The first obvious effect is that it can send innocent people to jail.
Second, even if it does not lead to convictions, it causes a lot of stress and anxiety in the families of those who are targeted and intimidates others who may be future targets.
Third, even when those tried are acquitted, it can take a significant financial toll on them.
Even while they may have been vindicated, some will spend years trying to pay the debts they owe to attorneys.
Fourth, it is a waste of the nation’s resources to go after people who may not have committed any offences. Talking about “CAUSING FINANCIAL LOSS TO THE STATE”, was the President right in appropriating the money for the Presidential Commission that led to the trials of Mpiani and Tarzan? Could he and/or his Attorney General be tried later for wasting national resources in establishing a Presidential Commission in pursuit of evidence to charge others with “CAUSING FINANCIAL LOSS TO THE STATE”?
Fifth, these political prosecutions and abuse of power leads to increased suspicion amongst politicians and makes it harder for people to work with those from different parties in solving the nation’s problems.
Sixth, when as a result of the lawlessness of governments, governments refuse to abide by agreements reached by their predecessors, they undermine our nation’s economic development. Since assuming power, the NDC has attempted to abrogate deals approved in Parliament with regards to oil(KOSMOS), and telecommunications(VODAPHONE), amongst others. These actions are harming our international reputation as a nation of laws and a place to do business.

I shall move on to offer solutions to the issues I have raised but let me caution those in the ruling NDC who are reveling in these prosecutions. Aside from the fact that the political tides may turn, once you make your party power drunk and vindictive, it may turn its destructive sights on you. Vice-Presidents Atiku and Zumah of Nigeria and South Africa respectively were targeted by their own parties. In the process, they were almost destroyed. Zumah survived and Atiku is still fighting for his political life.

Before moving on to offer solutions, let me commend the Judiciary for standing, firmly and admirably for the rights of individuals against a heavy-handed government. From Osei Agyei to Asabe, to Mpiani and Tarzan, they have done their profession and our constitution proud.
How can we make our nation, truly, a nation of laws, respected by governments and citizens alike?
First, we must depoliticize prosecutorial decision-making. This means that crimes or potential crimes must be investigated by Police and BNI officials who are not tied to the apron-strings of any political party. Attorney Yoni Kulendi had it right when he told Joy Fm last week that “The Attorney General goes to court to uphold the law so if the court speaks, the Attorney General has had her day. This “I must win—I must lose” attitude is wrong.” Those making prosecutorial decisions must search for justice rather than count victories and defeats.
Second, Parliament must, in an impartial manner, exercise effective oversight so that our judicial system can be respected by all of us. While they are at it, Parliament must act to ensure free access to critical information so that those who wish public officials ill cannot fill the vacuum with rumours that harm the reputations of government officials and undermine our confidence in governments. Our nation must have transparency in our governance.
Third, when people are accused of “Causing Financial Loss to the state” and acquitted, they must be compensated for the cost of their defense.
Third, there must be serious sanctions against what are in effect, reckless and or frivolous prosecutions. This can be an amendment to the law on “CAUSING FINANCIAL LOSS TO THE STATE.” Such a law will bring clarity to the law as well as accountability to those who have turned our instruments of state into party weapons to be used for political purposes.
Fourth, I urge our political leaders to bring decency and tolerance into our politics. While I am firmly for accountability, there is something wrong when people who go to church or worship a just Allah, ardently work for the incarceration and destruction of others they know to be innocent. Those exercising power in the name of our country, must lean over backwards to ensure that while pursuing justice, they do not use our common treasure to settle personal scores.
Fifth, let our Press and NGO’S be committed to the promotion of justice regardless of the political colours of who is in the dock. Inevitably, a government powerful enough to jail its innocent opponents, will be powerful enough to harass the press and the public.
Finally, let the NDC show the same zeal they show in these political trials, in pursuit of creating jobs, providing shelter and improving health and we would be on our way, to a “BETTER GHANA”.

Let us move forward, together.

Arthur Kobina Kennedy