Thomas M Franck wrote; ?Democracy, legitimacy and the rule of law are the three essential components of good governance, which, however, results only when all three independent variables are brought together in tandem. None of these elements, by itself, assures good governance. Free and fair elections do not necessarily protect against corruption of the legislative process. Democratic rule by the majority does not invariably protect minorities from oppression. Judicial supremacy has the potential for promoting elitist autocracy as well as for the protection of basic liberties. The three elements' potential for promoting good governance is maximized when all three are deployed concurrently. Concurrent deployment, however, creates its own problems. When a society seeks to combine the benefits of democracy, legitimacy and the rule of law, these elements may be brought together in severe tension, as voters, legislators and judges vie for supremacy. Thus, good governance requires not only that all three elements be deployed concurrently, but that they be balanced.?
Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage. In Ghana, we can safely say that we have successfully navigated the democracy challenge with a series of national elections judged by international standards as reasonably free and fair. These steps by implication conferred on the incumbent government due legitimacy and therefore the mandate to implement its manifesto commitments.
What, in my opinion remain lacking is the rule of law. Broadly speaking, of course we have rule of law. If we didn?t we will not have had the elections in the first place, so I accept the anomaly and contradiction of my own point. However, the rule of law that is lacking in my view is the lack of will, the incapacity or unwillingness to allow for the real supremacy of the law to reign. The establishment and strengthening of the particular institutions that underpins and promotes the rule of law in ordinary folks life.
Democracy without the rule of law, in my view is like a house built without doors and windows. Either it is a shell (structure) with dark emptiness and therefore no meaningful progress, rather like the farce that pertains in the middle-east or the frames are in place but without any mechanism to open and shut, allowing everything in the elements to be welcome. Of course a wholesale importation of outside policies and measures are not only impractical in most cases but also downright ludicrous in the extreme in many situations.
Our society is well noted for its tolerance. The trouble is, we haven?t quite managed to distinguish between good and bad tolerance. Consequently, we are tolerant of the bullying foreigner who disregards our laws and values in the same way as we tolerate corruption, nepotism, grand theft and larceny disguised as blessings from the almighty and earning our adulation rather than the castigation and accountability that will otherwise be richly deserved. We tolerate negligence, sloppy and sub-standard performance from public officials. We elect to condone waste and daylight robbery by people charged with enforcing the laws. And worse still, we somehow find it within ourselves to joke about it instead of being irate and demanding the rightful prosecution of the perpetrators and the administering of the appropriate punishment due them.
I will have no problem with our government and law-makers passing legislations that set them apart from the majority in terms of how much of the national resources end up in their own pockets so long as they debate the issues publicly and the public acquiesce. After all it is in our democratic and sovereign right to enact foolish and regressive laws, but at least everything will be above board. What angers me is the lopsided manner in which the society and the systems in place enable the well-connected and vantage-placed officials to literally get away with murder.
Unfortunately it is the sad reality that everywhere, even in advanced democracies the poor and least connected to the centres of power disproportionately contributes less to policy discussions. Consequently, laws eventually passed seem to disproportionately favour those with the means and access to shape them.
As a country, we appear to have come to accept that one?s position or status should be a ?legitimate? position to exploit for personal wealth on top of the wages drawn for the position. We fail to see this for what it truly is - as an obnoxious practice that should be condemned and resisted, rather than acquiescing to it. But why do we condone it? It is simple. If you can pay then you can jump the queue and you can get your way.
One thing I?ve always marvelled about in Ghana is the ease with which some members in key institutions such as the police, military, customs, inland revenue, even the judiciary, personnel charged with law enforcement of one kind or another seem to do so well, just as the public is constantly told stories of huge financial losses to the state. This personal wealth would be mainly from one or a combination of sources. Either some hands are directly in the official till, helping themselves to however much they can get away with, or they simply exploit their position by fleecing the public through kickbacks. The Auditor-General?s office not very long ago published a story of several billions of cedis? lost to the State in Ministries and Departments of State as a result of a combination of factors, which quite simply boils down to plain negligence, downright corruption, ineffectiveness and inefficiency of individual officials occupying very important positions.
Of course in other instances, a lack of effective or credible policy is usually to blame, but whose fault is it that there is this absence? Culpability for this absence can be spread far and wide as in certain circumstances through sheer ignorance and lack of knowledge.
Quite honestly, I think the least we can do is to demand more from the government we helped to put in place even if we did not actually vote for it. And we can start by not laughing about it and seeing it for what it really is, the lining of pockets of what belongs to us all and should thus be used for the improvement of services and facilities needed by all. It is patently clear to everyone that resources of the State that are appropriated by people with access to it deprive the ordinary person of his share in it.
We of course know that, human beings, when allowed the opportunity, almost by default will take more than their fair share, hence the importance of laws and regulatory mechanisms (institutions) to help stem that tendency in us. However, unless these laws are effective, robust and unprejudiced in their application, then confidence in them, if any, would be severely undermined.
It can be argued that many of our nation?s problems stems from our collective failure as a nation to uphold the laws to the point where we are unafraid to flout or even blatantly ignore them, because we know we can easily get away with it. Jump a red light, ignore pedestrian crossing, or put a seriously ?unroad-worthy? vehicle on the road. What is usually the biggest risk when apprehended? If affordable, a good few thousands of cedis, and one would easily bale out of the consequences of that blatant move. We have lost our ability to appreciate the value of a law-abiding society and instead we?re fascinated, even sometimes cowered by wealth and the display of it.
A combination of many factors have patently undermined our confidence in the laws and institutions and consequently led to the situation where whom you know, how big your wallet is and the sympathies rather than the objectivity of an official actually gets things done or not done depending on the situation. How can any serious development efforts of a nation be dependent of such fickle and transient premise? We have lost any sense of shame and made a virtue of poverty, serving it as a ready-made excuse to pardon everything from ignoring simple planning rules and erecting structures anywhere at all with official connivance (astonishingly the official whose negligence of duty would be so clear and obvious because the fruits of his/her negligence will be the structure built will still remain at post, why not sack him/her?) to allowing police to use their presence at border posts ostensibly to ensure law and order to instead become a goldmine where traders and other unsuspecting travellers could be fleeced for all its worth for the corrupt officials.
For so long, the word of anyone in position of authority is regarded as sacrosanct. Not only would challenging it almost get you nowhere but one also risks losing more than just the initial cost. It should not be the case that on the say-so of a senior public official the individual should have no other recourse but to comply. That is rule by the powerful, not rule of law, and it retards progress and development. The only beneficiaries are the well connected, not the ordinary person. The law, and particularly the enforcers of the law should be able to protect those who choose to exercise their rights and those with no knowledge of their rights (not through their fault, let?s remember that) as well as those without the means and/or even knowledge to seek redress for perceived wrong done to them.
The lowly-ranked police officer doing his duty of enforcing the law, which ultimately protects everybody should not be threatened by his superior because the object of his actions is connected to a highly-placed official or even worse knows someone who is duly connected and gets them to intervene. Such actions undermine confidence in the very laws that are meant to protect everyone. Again, such situations have a direct causal link to society?s progress and development, which we have for so long neglected to our enormous cost. Confidence in the law is as important as confidence in the enforcers of the law. How do you demand compliance of the law from a person whose only crime is to seek information that in every civilised society would be public knowledge? Let us pause to consider a simple example ? a topical issue currently doing the rounds in newsrooms and other social gatherings.
A contributor to Ghanaweb recently wrote an article attacking the presidents per diem claims, which by every indication is very astronomical, and thus worthy of public scrutiny.
The writer claimed the president earns $3000 per night for every day he spends abroad, and he described it as legalised theft. The article was later culled from Ghanaweb and published in the Chronicle. The next thing we know, two senior reporters from The Chronicle are under police investigations for the publication of the story. I thought, why should it be a crime to publish what the president draws from state coffers? I thought the people elected the president, which ipso facto, makes the president the peoples? employee. They are thus entitled to know how much he is paid and what else he draws from the treasury for any job he claims to do on the peoples? behalf. This seems a simple case of logic to me and I defy anyone to argue the contrary? Aren?t salaries of chief executives of public liability companies? public information including their share options and bonuses? Why shouldn?t the president?s entitlements drawn from State coffers and indeed any outside interests he may have be made known to the people who put him in that position? Leaders of this government know very well that in Western countries where it has to be said, many of them were educated, lived for some time, go cup in hand at the drop of a hat, and are quick to show them so-called impressive economic statistics, what public officials, from politicians to civil servants earn is public knowledge, and rightly so. The practice helps immeasurably to fight corruption in high places. Why on earth were police officers despatched to The Chronicle paper?s office in this matter? Can?t be in pursuit of a lawful inquiry? It could only be meant to intimidate them. Where is the rule of law in Ghana if the champions of transparency and good governance could find comfort in such a dubious method?
Over the years and decades, the peoples of Ghana have coined a term to describe the under-hand dealings and other corrupt practices that achieves short-term results but perpetuates bad practices, which are difficult to get rid off in the long-term. It is called the ?ways and means method?. In plane terms, it is theft, isn?t it?
The police officer manning the hastily built checkpoint demanding bribe from the motorist whose only crime is being on the road after 12 midnight in a supposedly free country. The tax officer who accepts 100,000cedis to close the case on the unpaid taxes of the self-employed, thus losing the state several more desperately needed revenues; the customs officer who collects several hundreds of thousands of cedis (millions are quoted elsewhere) and allows duties on imported goods to be waived, again depriving the state of the revenues in favour of his and his pockets alone; the AMA official who takes a bribe and allows a building or buildings to spring up in places, which blatantly flouts planning regulation but worse still keeps his job even though the evidence of negligence of duty is easier to spot than a sore on the forehead; the electricity corporation official who will do everything to stall your application for a meter until the stuffed-brown envelope has crossed the desk, the contractor who builds the road to sub-standard quality because he has pocketed a big part of the money given for the work and given part away in kick-backs to officials who would later fail to conduct rigorous checks on whether the job was satisfactorily done. That official(s) will still remain in their jobs or simply transferred to another position when their negligence begins to show up when the road starts to fall apart after 6months as is the case with one notable stretch of road in Dansoman, Accra. Completed less than 6months ago it has already started showing signs of collapsing in certain parts. Why do we tolerate such astounding levels of inefficiency? Why aren?t we able to treat public money as our own, and spend it wisely?
Where are the enforcers of the laws to protect those without enough to part with illegitimately - the law enforcers charged with ensuring that there is equity in opportunities for the citizenry? And where are the institutions, the infrastructures and processes, designed to make everyone accountable irrespective of their status and thus make people confident in investing their resources, being more daring and taking greater risks, which is the stuff of entrepreneurism? While of course some people still flourish under our very flawed system, it is undeniable that as a country we pay a high price for our lax and cavalier attitude to laws and processes.
It is so bad that we have almost giving up trying to fix it. We appear too timid to attempt to fix it. The attitude has kind of shifted from trying to fix a wrong to seeing how one can make the most (usually means cheating) out of the flawed system to benefit oneself and perhaps one?s family. That house needs building at whatever cost, so a bribe here, a bribe there, a slight bending of the rules here and there and I can get on with completing the structure in time before anyone notices. To illustrate this point, I?ll give an example, which I am sure many Ghanaians abroad can identify with.
A good friend was visiting Ghana with his wife and baby for the first time after many years abroad. Well ahead of the trip, they shipped certain personal effects, using a Ghanaian shipping agent abroad. Having paid the cost of the freight, he was also told to expect to pay another 300,000cedis to the clearing agent in Ghana, not at Tema Harbour but when collecting the goods from the agent?s warehouse. When he showed up to collect the goods, he was quoted 800,000cedis as the clearing fee, a rise of more than 100%.
When he demanded to know what could have accounted for that astronomical rise, he was told firstly that the agent abroad was not in a position to give him any figure, be it estimate or real as clearing fee because he wasn?t in a position to know. Corollary to this point, the agent on the ground let it be known that the cost of clearing goods at the harbour very much depended on the official one dealt with at the time, or as alluded to earlier in this article, whom one knew within the customs service. What this boils down to is clearly a yawning absence of proper laid-down standards and procedures, which otherwise existed, would not only make accountability easier to enforce against those who seek to profit from the sweat and toil of others by virtue of their position, but will also save the country losing millions of cedis in revenue that goes into private pockets.
This is but one example of the incompetence and chaos that prevails at the country?s premier port of entry for goods. It appears to be somehow staggeringly unimportant to the government to attempt to put in place measures that will enable people using the services there have confidence in it. Fixing that will surely not be harder than rocket science, would it? Yet no one appears bothered by the problems the current status quo causes, and it?s been going on for years. Should it be construed that it is in the interest of certain people that the situation doesn?t improve? I leave that to the judgement of the reader.
If a trader has to bribe his way through clearing goods and is unsure of overhead costs from one shipment to another, then how on earth is he going to be able to price his goods in a uniform manner? Uncertainty is the number one bane in every businessman?s calculations. Cost of goods and services fluctuate badly in our markets, often not due to vagaries of the international system but largely due to our own built-in uncertainties in costs and overheads. Of course if the customs officer and/or the police officer twists your arms and collects ?payment? for possessing goods bound for the market, then simple economics teaches us that to break even, you will have to pass that extra cost on to the customer by bumping up the price.
One way I judge the usefulness of institutions is to try to figure out what might be if the said institution didn?t exist. So if we didn?t have the police service, law and order might have broken down and the worst in us will be what prevails. If we didn?t have any immigration service, God knows who could be let in and out of the land. If the military didn?t exist, we may perhaps be part of one of our neighbouring countries because if one of them chose to roll over us, we?ll have no defences. And if we didn?t have the customs service, then of course there?ll be no duties paid on imported goods and the country will be seriously deprived of a very useful source of funds.
Institutions are thus very important to address crucial needs in every society. While there are universal institutions prevalent in most societies or countries, other institutions are peculiar to certain countries in so far as they regulate behaviours and actions of people. Establishing an institution should therefore meet certain tests, the most important of which should be the regulating of certain behaviours and activities without which there will be serious consequences to the harmonious existence of society. On the flip side to this point, it can also be argued that institutions should have the capacity to improve on situations in society. The value of it is thus two fold ? preventative and developmental.
However it is not enough to simply have an institution for the sake of it. It is not enough to pay lip service to it. Their regulatory value should be as robust, dynamic and effective as they (the personnel) should be themselves accountable to the very people they exist to protect and defend. It is not enough to have a police service that is starved of resources and is thus ineffective in not only fighting small-time crime but is also unable to actually mount operations that could prevent crime from happening in the first place. Having said that, the police force should themselves be accountable to the public. Their performance in meeting the needs of the public should require of them to operate in a manner that engenders confidence in the public they seek to protect.
Bribe-taking, bullying, low success rate in tackling criminals and thwarting their efforts, looking the other way whilst a clearly over-loaded vehicle trundles down the road endangering other road users, allowing rickety and unsafe cars to be on the road, misplaced priority in assigning officers to direct traffic where installing traffic signals will do the job well thus freeing up valuable manpower to go after criminals are some of the ways the police can win the confidence of the public. Of course crime fighting isn?t the sole business of the police. The public has as much role to play in so far as they readily provide useful information to the police, refuse to shelter criminals, and of course carry out simple steps to protect themselves and their property to thwart the efforts of the criminal.
A police force that is dynamic and responsive to changes and trends in society is indispensable in the development and promotion of a safer and progressive society. Our police service has come some way since the re-start of our democratic march in 1992. Like everyone and every institution and organisation, the personnel are themselves on a learning curve, not only of their individual rights as police officers, but also of their rights as private citizens when they take off the uniform. Of course under such circumstances, they are entitled to mistakes and over-sights like everyone else. It also behoves their bosses to ensure proper and effective training in policing. But more than that the bosses have a duty to not only display exemplary behaviour in eschewing age-old but deplorable behaviour such as taking bribes, they should also be willing to wield the big stick against officers who are minded to stick two fingers up against the law. How can there be law enforcement officers who are themselves prime candidates for law breaking?
Ridding the police service of corruption, making them useful tools in the fight against crime, bolstering confidence in them in the eyes of the public will require a serious step-change in the mind-set of the forces themselves who for so long have been conditioned to accept bribes and illegal hand-outs as part of their remuneration package in service. I am sure the early police service weren?t riddled with such depths of corruption and inefficiency but the drip-drip effect over the years, which have gone unchecked is to blame primarily for what we have now in Ghana. And I am sure we are also acutely aware that this state of affairs cannot go on any longer if we seriously want to stem the tide of under-development. Along with a number of factors required for serious national development, making the rule of law and the eradication of corrupt practices a national priority are quite frankly, indispensable.
