Let the rule of law reign - Jinapor tells Mahama

Montie 3 contemnors, presenter Salifu Maase, aka, ‘Mugabe’ and two radio panelists - Alistair Nelson and Godwin Ako Gunn, have all been jailed by the Supreme Court for four months for contempt.

Their sentence has compelled some bigwigs in the party to call on President John Mahama to exercise his prerogative of mercy on them.

A statement issued by Nana Ato Dadzie and George Loh, lawyers for the three, said the sentence was “harsh and excessive”, adding: “We also do not believe that citizens of Ghana ought to be committed to prison for infractions on free expression especially in light of the repeal of the criminal libel law. Our clients have directed us in the circumstances to petition His Excellency the President of the Republic to exercise his powers of prerogative of mercy under Article 72 of the Constitution of Ghana”.

Already, supporters of the governing National Democratic Congress (NDC) have amassed at the party’s headquarters in Accra in protest against the four months’ jail term.

But New Patriotic Party [NPP] communication team member, Lawyer Samuel Abu Jinapor has kicked against attempts to pressurize the president to grant the three jailbirds a presidential pardon.

In a statement copied to Peacefmonline.com, the NPP man noted that – “A pardon by the President will constitute the erosion of the final judicial power vested in the Judiciary by the Constitution.”

According to him – “if the President was to capitulate to the pressure of his political party henchmen, same would render the effect of the Supreme Court's decision nugatory”.

Read below his full statement

Article 72 of the 1992 Constitution grants the President of the Republic the power to pardon convicted persons in appropriate circumstances. A careful reading of Article 72 readily reveals that, the power granted the President by the framers of the Constitution is a discretionary one.

Now, the architects of our constitutional order did not leave us at sea, as to how public officials are enjoined to exercise discretionary power. In this regard, Article 296, inter alia, states as follows:

"Where in this Constitution or in any other law discretionary power is vested in any person or authority-

a) that discretionary power shall be deemed to imply a duty to be fair and candid;

b) the exercise of the discretionary power shall not be arbitrary, capricious or biased whether by resentment, prejudice or personal dislike and shall be in accordance with due process of law......."

For the instant purposes, the relevant part of article 296 relates to

"Arbitrariness and capriciousness".

When can a President be said to have exercised his discretionary powers pursuant to article 72 in a manner which is consistent with article 296?

Respectfully, it must have been exercised out of good faith. It must have been exercised not with the intent of rendering the effect of a decision of a competent court of jurisdiction nugatory. It certainly must not be exercised for collateral purposes. And finally, the decision to pardon must be in accordance with sound reasoning.

To my mind, it is for these reasons that the framers of the 1992 Constitution placed fetters on the President's powers under article 72 by requiring an advice from the Council of State. Further, it is for this reason that, a convention has been established where the Prisons Service makes recommendations as to who deserves a pardon. In effect, the powers vested in the President to pardon under article 72 is a discretionary one and must be exercised in accordance with reason and law.

It is imperative to state that, the "Montie three" do not by any stretch of imagination qualify to be pardoned by the President. There must be cogent grounds for a pardon. For instance on humanitarian grounds arising out of a convict's health status. Or out of some exceptionally good behaviour whilst in incarceration.

Given the totality of the circumstances respecting the "Montie three ", it is my contention that, a pardon by the President will constitute the erosion of the final judicial power vested in the Judiciary by the Constitution.

Article 125 (3) states as follows; "The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organisation or agency of the President or Parliament shall have or be given final judicial power".

Significantly, Article 72 does not vest in the President the power to review the decision of a Court. Article 72 does not vest in him appellate jurisdiction. Neither does the said article vest in the President the power to make a determination on the propriety or otherwise of a Court's orders.

Therefore, in the instant case of the "Montie three", if the President was to capitulate to the pressure of his political party henchmen, same would render the effect of the Supreme Court's decision nugatory. It will constitute a review or a setting aside of the Court's orders. It will, therefore, constitute a case of the President exercising final Judicial powers; a clear violation of article 125 of the Constitution.

With the greatest respect, I strongly submit that the framers of the Constitution did not intend to vest in the President a Judicial power to review the orders under the cloak of exercising powers pursuant to article 72. Certainly, that could not and indeed is not the remit of article 72.

It is obvious, Article 72 envisages situations where the society on whose behalf the President exercises such powers deem it appropriate to show clemency to convicts in very special circumstances and not to whittle down or render the decision of a Court nugatory. This will surely be unlawful and unconstitutional.

Mr. President, with utmost respect, it is evident you have two choices. Either to buckle down to the pressure from the henchmen in your party or to stand up to defend the independence of the Judiciary.

Ghana awaits your choice!!!

Let the rule of law reign and not the rule of mortals!!!

Abu Jinapor.