Of Rawlings, Kufuor and the Toxic Article 57(6) -Revisited

On the heels of my recent article - "OF ELITIST DEMOCRACY, 'RAWLINGSIC' UPHEAVAL AND NATIONAL INSTABILITY"- which generated a lot emotions and fury by way of the numerous e-mails I received, I think that it is our civic and patriotic duty to correct certain dangerous misconceptions currently running amok in our beloved country. It is no gainsaying the incontrovertible fact that the mere mention of our ex-president's name brings the best and worst in our emotional behavior or makeup What is rather striking is that the divisive concept of "if-you-are-not-for-us-you-are-against-us" has gained quite a following in the country. Some of our folks think that once you say something good in defense of Mr. J.J.Rawlings you are either for him or against the gov't of His Excellency J.A. Kuffour. This is plainly wrong and have no basis in either logic or common sense! Some of us have to start getting use to the glaring fact that our ex-president is not a second class citizen!

Now let's try to spotlight and address one of these misconceptions out there stemming from such statements like;

"whether you (referring to me) like it or not we are going to try Rawlings, your idol, like Serlomey and Peprah and send him to prison or execute him for his crimes against the people of Ghana.! Rawlings cannot escape the wrath of the people! Only in your dreams! etc; etc

When we did confront them with Article 57(6), they just could not handle the import of it. Do I personally blame them? Your guess is as good as mine.

THE FUNDAMENTALLY FLAWED ARTICLE 57(6)

For starters let's take a good look at the said Article 57(6) of the constitution. In its majesty, the said article explicitly states that

"Civil or criminal proceedings may be instituted against a person within 3 years after ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity BEFORE OR DURING his term of office notwithstanding any period of limitation except where the proceedings had been legally barred before he assumed the office of President" (EMPHASIS MINE).

It is clear from the unambiguous language of this clause that an ex-president is immunized from criminal prosecution or a civil suit for any act done BEFORE or DURING his tenure of office if such prosecution or suit is not mounted within 3 years after leaving office. In its truest and purest sense then this imperial clause bold-facedly segregates an ex-president from the rest of us when it comes to administering criminal and civil justice in our country. What is even more remarkable and striking is that the ''visionaries'' behind our constitution had the audacity to immunize an ex-president for criminal offences and civil infractions committed against the state and/or any citizen even before he became president in so far as that criminal prosecution or civil suit is not mounted within 3 years after leaving office!

Can anybody reasonably come up with a good reason why this fundamentally flawed and unfair article is still sitting in our constitution? If the thinking of the framers of our constitution was that foes of an ex-president will "do-him-in" on manufactured evidence, the simple and ready answer is that ordinary Ghanaians with no hook to the citadel of political power live in constant danger of such criminal machination of the judicial system and many more. The good question then is; why should a well-heeled and well-connected ex-president be treated differently?

In any event, it is understandable that in growing up as a nation, we are inclined to make some bitter trade-offs in order to sustain or give unto ourselves a workable and functional constitution all in the name of political stability and social cohesion. Such trade-offs, cast in the form of privileges and immunities and either established by statute, common law or constitutional law, must be anchored on very weighty public policy reason or reasons. And, though, such privileges and immunities are protective of individual office holders, they are invariably designed to benefit the public, too.

In our present constitutional mechanism, any understanding of any of the constitutionally ordained privileges and immunities (eg ARTICLE 57(6)) must be measured against our constitution's absolute commitment to the mandates of rule of law, justice, probity, accountability and transparency. Therefore ,any privilege or immunity that sins against any of these democratic values must be viewed with a great deal of disdain and contempt.

The provocative question we have to ask ourselves then is; why should the "brains" behind our still breathing constitution supinely confer such astounding immunity on an ex-president? Our little mind cannot fathom any public interest policy behind this clause. Does it ordain any redeeming democratic value? The president as our first citizen swears to uphold the laws of the land and faithfully and honestly execute and enforce same against any person or group of persons. It is thus easier to discern that, he, as the chief law enforcer, should be the first to respect and obey the criminal and civil laws of the land. Isn't it therefore hopelessly contradictory, subversive and inexcusable to exempt him from the clutches of the law if he happens to run afoul of any of the laws he has sworn to respect and protect? For example, how do we explain to our democratic partners and children that Mr. Rawlings cannot be criminally prosecuted if in 2005 somebody comes out of the wood and imp! licate him for orchestrating the murders of the 3 High Court judges and the retired major? Or, what about if in 2005, it comes to light based upon staggering and overwhelming information that Rawlings conspired with some cabinet ministers and in fact partook in bilking the country of millions of dollars which he stashed in a Swiss bank? Arguedo, what happens if damning evidence surfaces in 2012 (granted that he wins in December) that President Kuffuour took a kick-back in the Sahara deal or that he partook in the fraudulent disposal of some national assets?

Let's make no mistake here. This is not about Rawlings or President Kuffuor. It is about the sanctity of our constitution and the integrity of the office of the presidency. To some of us this article poses a substantial threat to the stability of the country should it happen that the gov't is disabled to prosecute an ex-president who committed a capital offence before he came to power or while in power simply because 3 years had elapsed since he left office! We should always remember that no citizen is granted such special legal dispensation. In our country, I am yet to come across a statute of limitation for murder, stealing or corruption etc, etc. for the ordinary Ghanaian. Again, what makes an ex-president a special kind of Ghanaian when it comes to giving effect to and enforcing our laws against him? What this scandalous article has succeeded in doing is to make short work of our intelligence and our sense of justice and fairness.

AMENDING ARTICLE 57(6)

What precedent would we be perpetuating for our future and sitting presidents by maintaining this toxic article? That they can commit crimes and civil infractions with impunity and get away with same so far as they are not prosecuted and/or sued within three after leaving office?

Any way out? Of course. As could easily be gleaned from the above, Article 57(6) represents a classic case of constitutional malpractice and therefore must be cured before the integrity of the office of the presidency is further sullied. Though, it is in the sanguine interest of the president to maintain the status quo, he and his party should pull themselves out of the sand and lead the charge to amend this portion of the constitution. It will be a monumental lapse of political and moral judgment should this administration collude in perpetuating this article in its present form. He and his party have the numbers, resources and above all the goodwill of the people to effect the amendment. If they are able to pull this one off, it will stand them out as men and women of honor and integrity who put the country's interest above their own notwithstanding the fact that the said article now forecloses any future prosecution of our ex-president for any civil or criminal infraction! before or during his presidency. Also, though the opposition NDC did a dishonorable job in not amending this article, they still have the opportunity to redeem themselves by adding their input in such a national debate! It is never too late to rectify a wrong!

We have the capacity to do the right thing and we must not disappoint! The time is now and not after the elections! Let's start the ball rolling!

We shall return.

PS: I have expressed some of the views embedded in the above piece so many times elsewhere. I take full responsibility for all changes made.