George B.N. Ayittey
Ghana was the first sub-Saharan African country U.S. President Barak Obama visited in July 2009. He selected Ghana because it was a “model of good governance, democracy and strong civil society participation.” Kenyans were miffed that he did not visit his fatherland and the Nigerians smelled a rat: That his visit to Ghana was an insipid conspiracy to destabilize Nigeria. But Nobel Laureate Wole Soyinka disagreed: A visit by Obama would have sanctified the putrid mess called Nigeria. He threatened to have Obama stoned if he stepped foot in the country. Mercifully, President Obama wasn’t stoned in Ghana.
President Obama gave a rousing speech in Parliament that was hailed across Africa to the discomfort of its aging autocrats: quack revolutionaries and crocodile liberators, who sit tight in office for 20, 30 and even 40 years. He ripped into them, condemning corruption, senseless wars, and the rule of tyranny. Some highlights of President Obama’s speech on July 11, 2009:
• Development depends upon good governance . . . That is the ingredient which has been missing in far too many places, for far too long. That is the change that can unlock Africa's potential. And that is a responsibility that can only be met by Africans.
• No country is going to create wealth if its leaders exploit the economy to enrich themselves, or police can be bought off by drug traffickers. No business wants to invest in a place where the government skims 20 percent off the top, or the head of the port authority is corrupt. No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery. That is not democracy, that is tyranny, and now is the time for it to end.
• History is on the side of these brave Africans and not with those who use coups or change Constitutions to stay in power. Africa doesn't need strongmen, it needs strong institutions.
• In the 21st century, capable, reliable, and transparent institutions are the key to success -- strong parliaments; honest police forces; independent judges -- (Applause); an independent press; a vibrant private sector; a civil society. (Applause.) Those are the things that give life to democracy, because that is what matters in people’s everyday lives.
• As we provide this support, I have directed my administration to give greater attention to corruption in our human rights report.
The full speech can be read in its entirety here: http://www.america.gov/st/texttrans-english/2009/July/20090711110050abretnuh0.1079783.html
The part that grabbed my attention was his statement that: “Africa doesn't need strongmen, it needs strong institutions.” At present, the strength of Ghana’s institutions is being tested by the current dispute over the election results. So far, we have comported ourselves admirably by remaining calm and following the Constitution, allowing the petition process to wend its way through the courts. We all deserve a huge round of applause – a lesson we can teach other African countries.
An institution is simply an established and formal ways of doing certain things for a certain particular purpose. For example, we have the institution of marriage because society says if you want to have a child and raise a family, you don’t grab just any woman from the street, rape, impregnate and then abandon her. There are proper procedures to follow, collectively called the institution of marriage. Similarly, we have institutions of money, of democracy, of the media, etc. The state also has these key state institutions: the civil service, the judiciary, parliament, the military, the police, the electoral commission and the central bank. For example, if someone has stolen your goat, one does not take the law into one’s own hands. There are certain steps and procedures one must follow to retrieve the goat or obtain justice.
Institutions are to society what systems are to a vehicle. Regardless of horsepower, shape or color, a vehicle is an amalgamation of systems: ignition system, fuel system, electrical system, cooling system, suspension system, brake system, etc. Each system is designed for a specific purpose: the brake system to CHECK the speed of the vehicle and stop a run-away vehicle; the suspension system prevents the vehicle from bouncing along the road; anti-sway bars prevent the vehicle from rolling over; the muffler (exhaust system) prevents the vehicle from making too much noise; and cooling system prevents over-heating.
Each system is independent of the others and cannot be mismatched. For example, oil, a lubricant, cannot be used as coolant in the radiator. When a system breaks down, it must be repaired promptly. Parts designed for one system cannot be used to repair another. Periodic maintenance and repair are vital for optimal operating efficiency of each system. When all systems are operational, the vehicle is said to be in good or top working condition.
Similarly, for purpose of governance, a society has seven key institutions: The civil service, the judiciary, the media, the security forces (military, the police or law-enforcement), the electoral commission, Parliament and the Central Bank. Each institution has a specific function to play and should not be cross-matched with different functions. For example, the role of the military is to defend the territorial integrity of the nation and protect its citizens while that of the judiciary is to enforce the rule of law and dispense justice fairly. Having soldiers run the government is a mismatch because they are not trained as such; only to fight and kill an enemy. The other institutions – parliament, judiciary, police, central bank, etc. – have specific roles to play.
For these seven institutions to operate well, they must be independent and free of interferences from any quarter. They must also watch each other, thereby providing institutional checks and balances. While Parliament must watch over the executive to ensure that it is not spending recklessly, the President must also watch to see that judges are not on the take. When all these institutions are working well, good governance is said to prevail – akin to saying that a vehicle is in good working condition when all of its systems are working well. Thus, good governance requires, first, independent institutions and, second, each institution to be working well. It is not achieved by establishing a “Ministry of Good Governance” as Tanzania did.
None of these concepts should be new as they can be found in our own traditional system. The four institutions in a village government are the chief (executive), Council of Elders, the Village Court and the Village Assembly (parliament). They are all independent and separate. All, however, must obey customary law. It is the cord that keeps a tribe together.
Similarly, a Constitution is the yarn that weaves a modern society together. It is the supreme law of the land and ALL must obey it. The Supreme Court is the final court of appeal that defends and protects it, ensuring that all laws enacted by parliament are in compliance with the Constitution. When ALL follow and obey the Constitution, constitutional rule or rule of law is said to prevail. Theoretically, the Supreme Court is more powerful than the Executive or the Legislature (Parliament). It can strike down a parliamentary law as “unconstitutional” and have the President “impeached” for acting “unconstitutionally.”
When an important issue – such as the current dispute over election results -- is before the Supreme Court (SC), ALL must wait patiently for the justices to take their time and render a decision. It is the final court of appeal. Its role is to ensure that ALL obey the Constitution. The Justices did not write the Constitution; only to enforce it. It is like our traffic laws. The Police did not write those traffic laws; only to enforce them. You cannot have a situation where people overload their vehicles and drive as they like on whichever side of the road at whatever speed. There would be mayhem, chaos, deaths and destruction on our roads. ALL, regardless of their station in life, must obey the same traffic laws: Drive on the right, obey the speed limit, etc.
Similarly, you cannot have a situation where some people obey the Constitution whilst others don’t. There would be chaos, lawlessness and the fabric of society would be shredded. The role of the SC is to ensure that ALL follow the Constitution – just like in traditional Africa. ALL, including the chief, must obey customary law. An African proverb drives home this point that the survival of the tribe is far more important than the individual: “Individuals don’t live to be a hundred years old but the tribe can live for centuries.” Similarly in modern parlance, “Ghana is bigger than John Maham and Nana Akufo-Addo.” Ghana does not belong to the NDC nor the NPP. John Mahama garnered only 50.7 percent, meaning nearly half the people did not vote for him. And not all those who did not vote for him are NPP. This is not a NDC versus NPP issue. It is the future of Ghana as a nation, which is at stake. Therefore, whatever we do today must be done right for the sake of our country, its reputation, our children and future generations.
Rushing with the inauguration of President John Mahama on Jan 7 is NOT the proper way of doing things when a petition is before the Supreme Court (SC). This is not about the merits of the petition; it is the SC which must decide that. We must all wait for the SC to render that decision. Installing a new president BEFORE the SC makes a ruling has troubling implications and sets a dangerous precedent:
1. It shows utter disrespect and contempt for the Supreme Court. It is the government saying the SC can go to hell and it does not care about what the SC will say. It is going ahead anyway with its plans to inaugurate the new president. This is dangerous because if the government has such contempt for an institution, why should any other body respect it? ALL, including the President, must respect the Supreme Court and the Constitution.
2. Charging ahead with the inauguration when the issue is before the SC is extremely provocative. We have told the people to be patient and allow the court process to proceed. Why inflame the situation? Why should the people continue to be patient when the government is not prepared to be patient? We have a situation where some people are following the Constitution whilst others show no inclination to do so – like some people driving on the right while others drive on the right. Catastrophe is inevitable.
3. Such an action puts the Chief Justice in an awkward situation. She cannot swear in a new president while at the same time the SC is evaluating the validity of his election. That makes no sense. What if the SC rules that Nana Akufo-Addo indeed won the elections? Are we going to have Nana Akufo-Addo inaugurated and installed as the President too and end up with two presidents – just like Ivory Coast in Nov 2010 – and add more confusion? Why can’t we wait for the SC to make a final ruling? What difference would it make to Ghana as a nation if a new president is installed in June, instead of January?
Personally, I doubt if the SC would declare Nana Akufo-Addo the winner since that would mean the SC is usurping the functions of another institution -- the Electoral Commission (EC). The SC won’t inject itself into vote recount, reviewing rejected ballots, etc. That’s not its function. Its function is to ensure that laws and procedures are followed. Most likely, the Supreme Court would send the case back to the EC and say, for example:
“We found credible evidence of mis-calculation. So RETABULATE the results together with reps of the opposition parties, using ONLY numbers on the Blue/Pink collation sheets everyone signed. We are appointing a 3-judge panel to oversee this re-tabulation to ensure that it is done fairly and transparently. Then tell us and the nation the new results. Come back to us if you any further difficulty.”
In effect, the Supreme Court would merely be reiterating what the Electoral Commission should have done in the first place – resolving the discrepancies BEFORE announcing the results. This is what the U.S. Supreme Court did in the Florida dispute in 2000. It sent the case back for a recount; it did not do the recounting itself. And while the recount was going on, everything – including the inauguration of President Bush – was placed on hold.
In my view, the Supreme Court should go further: If there are clear cases of “over-voting,” Dr. Kwadwo Afari-Gyan should be arrested and prosecuted for breaking the law. If you have difficulty with this proposition, then ask why a tro-tro driver should be arrested for “over-loading.” Further, Returning Officers who did not sign the collation sheets, as well as those polling agents who allowed people to vote without biometric verification, should also be arrested and prosecuted.
This is how STRONG institutions are built. If those who run these institutions do not themselves obey the law, then how can the institutions enforce the law? And of what use are the institutions and how can they ensure good governance? More importantly, a STRONG judiciary is needed to ensure that all institutions and everybody obey the Constitution. It is that which shields us from tyranny. Such a judiciary should be able to make its decisions independently – without fear or intimidation and interference from any quarter. Unfortunately, that has been part of the ugly legacy bequeathed to us by the Rawlings revolution. It has shredded the moral fabric of Ghanaian society.
Newspapers critical of the policies of the Rawlings regime were shit-bombed in the 1990s. The Ghanaian Chronicle, Free Press and Crusading Guide suffered such indignities. Supreme Court Justices who made a ruling that displeased the regime were not only intimidated but also abducted and brutally killed. Such was the case on June 30, 1982 when three judges -- Mr. Justice Fred Poku Sarkodee, Mrs. Justice Cecilia Koranteng-Addow and Mr. Justice Kwadwo Adjei Agyepong -- together with a retired Army Officer, Major Sam K. Acquah, were abducted during curfew hours from their homes, murdered at the Bundase Military Range in the Accra Plains and their bodies doused with petrol and set ablaze.
More recently in 2010, when former Attorney-General and Minister of Justice, Betty Mould-Iddrisu lost a number of high-profile cases against former New Patriotic Party (NPP) officials.
The National Democratic Congress (NDC) Chairman, Dr Kwabena Adjei threatened the judiciary, saying “We will clean it (judiciary) if they don’t take steps to clean it. We will clean it and let everybody everywhere blame us for interfering in the judiciary and we will take them on … at the right time, you will see how we clean it. There are many ways to kill a cat.’’ The NDC had accused the Chief Justice, Mrs. Georgina Theodora Wood, and members of the bench of a “grand conspiracy” to ensure NDC lose cases in the courts.
That statement drew widespread condemnation, with some even calling for the arrest and prosecution of Dr. Adjei. A retired Supreme Court Justice, Professor Justice A. Paaku Kludze, warned that the threat should not be taken lightly as judges in the country may soon become targets of physical harm and killings, just as it happened in the revolutionary regime of Rawlings. “When a PNDC or an NDC man talks about cleaning the judiciary, you remember in 1982 that some of them were eliminated, physical elimination is one way of cleaning the judiciary,” he told Citi FM. Justice Kludze said “when you use that word, it can spread terror in the minds of some judges…I am afraid it is very frightening. It looks like we are going back to the days of Nkrumah or the PNDC.”
Our fate or prospects as a country depends upon allowing our institutions to work independently and doing what they are supposed to do. That’s what good governance is all about and “Development depends on good governance” said President Obama on July 11, 2009. We are doomed as a country if we allow the executive to interfere with our institutions and prevent them from doing what they are supposed to do. Political and democratic maturity dictates that we should allow the SC to make a ruling before rushing ahead to install a new president. It is not Jphn Mahama or Nana Akufo-Addo who will save Ghana but our collective responsibility to follow the Constitution. It is a duty we owe to our children and also a powerful message to send to the rest of Africa.
The inauguration ceremony is premature and should be postponed until the Supreme Court makes a ruling – for or against the petition.
The writer is a native of Ghana and president of the Free Africa Foundation based in Washington. He is the author of Indigenous African Institutions, Brill (2006).