RE: The Indemnity Clause Must Stay

A REJOINDER TO MR JACOB du-LIMIT SHAMATEY’S ARTICLE PUBLISHED BY GHANAWEB ON 9TH AUGUST 2012

By: Otchere Darko.

As part of public discussions going on concerning the on-going constitutional review, a number Ghanaians, including the above writer, have written and expressed views on the Indemnity Clauses set out under Section 34 of the Transitional Provisions. These writers, together with several readers who commented on those articles, are all doing a great job in helping to galvanise public opinion as it concerns those Clauses and, therefore, deserve everybody’s commendation, whether or not we share the views they express. This particular writer is no exception.

Mr Shamatey, in his article of above title, makes some arguments that, in my opinion, are unconvincing and need challenging.

For example, he writes: “The indemnity clause prohibits court actions against all persons involved in the overthrow of the various regimes in 1966, 1972, 1979 and 1981.”

Certainly, it is written in the Constitution that the Indemnity Clauses purport to protect “all persons involved in the overthrow of various regimes in 1966, 1972, 1979 and 1981”. Therefore, in theory, the assertion above is correct. However, in practice, even an Elementary School pupil knows that “IT IS AN ABSOLUTE LIE”. Persons who were involved in the overthrow of Their Excellencies Dr Nkrumah and Dr Busia in 1966 and 1972, respectively, had all been either killed or otherwise punished by those who made the 1979 and 1981 coups. In effect, the Indemnity Clauses could never have been put in the Constitution to protect those involved with coups before 1979. Instead, they were inserted to protect ONLY those persons who were involved in the coups that removed General Akuffo and His Excellency Dr Limann in 1979 and 1981 respectively. It is, therefore, intellectually preposterous and deceptive, as well as politically hypocritical and insulting for any person or persons to argue that the Indemnity Clauses also seek to protect those who were involved in the 1966 and 1972 coups. It is this attempt to throw dust into the eyes of Ghanaians by the “brains behind the inclusion in the Constitution of Section 34 of the Transitional Provisions” that makes the insertion suspicious and reprehensible, quite apart from its inconsistency with the principles of justice, equality and the rule of law that the same Constitution seeks to protect through its Preamble and Spirit.

Mr Shamatey, again, writes:

“Now, this very constitution we are using was never imposed on us. It went through a referendum and was endorsed by over 75% of all registered voters who voted.”

This argument by Mr Shamatey is not only very weak but is, in addition, very selective and inwardly biased. EVERY PART of the same “this very constitution we are using” was in a referendum held in 1992 collectively “endorsed by over 75% of all registered voter who voted”, [as rightly mentioned by the writer]. After making the statement above, if the writer had followed from there to argue that the entire constitutional review was unnecessary because of the fact Ghanaians had already overwhelmingly endorsed the document in 1992 then, I would have given some qualified credit to his objection. But for him to select only Section 34 and argue that Ghanaians endorsed the whole Constitution and, therefore, that Section should not be amended, even though the remaining parts can be amended, is a very weird way of arguing and casts doubt on the objectivity and neutrality of his whole argument.

Then, again, Mr Shamatey writes:

“I have monitored some debates concerning the amendment of the indemnity clause and it was purely made partisan. If we continue this way and care is not taken, the whole amendment process might become partisan and this will greatly undermine the whole process. At the end, we may not even get the required number of votes should we go into a referendum because no political party has a core support base of up to 50% of our total population or of registered voters. This will not eager well for us as a developing nation.”

An important role of the party system in modern democracy is that it enables all parts of an issue, that is, all the “pros” and “cons”, to be brought out, examined and fully debated from all angles. Parties in Parliament, especially, those on opposite sides of the political divide need not agree on issues. In fact, it is better that they oppose each other in debates and help to bring out the pros and cons in all debates. That is NOT bad for democracy. When, after a Parliamentary debate, a motion followed by a vote is carried out and won by one side, that side wins the debate. That is called democracy. In a referendum, the picture is the same, except that in the case of the latter, it is voters who finally vote to decide which side of two arguments must be carried. Also, where it is a referendum, as it is the case with the amendment of the Indemnity Clauses, a higher percentage, usually 75%, of voters who voted have to vote in favour of the proposition put before them to make a voting verdict binding. So, if Ghanaians, through an overwhelming representation made to the Constitutional Review Commission, show their preference for a review of the Indemnity Clauses, then “due process” may be put in place, following recommendations made by the CRC for such cause of action. The final part of that “due process” would be the referendum that would only be won if 75% of voters who voted vote in favour of whatever proposition was put before them. The fact that, during the debate stages, parties followed specific party lines would be normal. That would not necessarily mean that if it came to the referendum, voting was going to be ruined because it would follow strict party lines. Even if the party members followed party lines in debates, there would be others who would vote differently. We should also not forget that referenda and other national elections are decided by “floating voters” or, [put otherwise], by those who are not party members or supporters of specific parties. On the other hand, if the referendum was to results in a 50% outcome, then it would mean that the proposition for the amendment or removal of these Indemnity Clauses has been rejected. If this were to be the outcome of a referendum on the Indemnity Clauses, so be it. And why should that be a problem? Why would “this not augur well for us as a developing nation”?

Mr Shamatey continues:

“One may say that the indemnity clause gives some people immunity to justice and that it should be amended for those people to face the full rigors of the law for their actions. These are sensible but let’s look at it from a different angle. Some of the military regimes that we have experienced in this country were justifiable according to my own judgment while others were unnecessary...... ...... ......

“If we amend the indemnity clause, then there is a likelihood that legal actions may be brought against some of those involved in those various coups we have experienced in this country. Some of those people are still alive, very influential in society and have huge support bases. If we do such a thing, we might be heading towards a civil war in this country. Some of those people owe allegiance to some tribes in this country. Hence, we might even be heading towards tribal wars and intense tribal sentiments.”

The writer is jumping to unnecessary conclusions. Firstly, when coups succeed, they become lawful during the time they operate as Governments and act on behalf of the State. This means, some of the “past injustices” that the writer fears might force people to seek redress may not necessarily be against individual persons who were involved in the coups of 1979 and 1981 and who, therefore, would necessarily “face the full rigors of the law for their actions”. Political leaders and those who represent them act for, and on behalf of, the State. So every action of successful coup makers is an action of the State which, accordingly, becomes liable for the wrongs of coup makers. People should not forgot Ghanaians whose assets were wrongly confiscated to the State but cannot, under present circumstances, make any legal case to get them back because of the Indemnity Clauses. Though, the seizures were ordered by persons involved in such courts, yet it was the State that benefitted from such confiscations. Should it not be morally wrong for the State, itself, to hide behind the Indemnity Clauses to continue to hold onto assets that were unlawfully seized from people during the heat of both the 1979 and 1981 coups? Some may argue that the last Government carried out an exercise that was intended to redress some of the injustices of these coups. One thing, though, was clear from that so-called reconciliation exercise; and this was that the exercise failed to reconcile Ghanaians because there can be no reconciliation as long as Section 34(2) states that “it is unlawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government” [of Ghana], among other things, in respect of all the listed coups. People may not bring actions against persons involved in the coups but they should have THEIR RIGHT to bring action against Ghana Government, on whose behalf all public officials act or decide in ways that are wrong before the law, such as any wrongful confiscation of people’s personal assets which only a court of law can determine.

And what has the idea of removing the Indemnity Clauses from the Constitution to give “wrongfully-treated” Ghanaians their right to seek redress got to do with “tribal wars” and “tribal sentiments”? Is the writer alluding that there were or was particular ethnic groups or group whose members wrongly treated Ghanaians of other ethnic groups or group so badly that the removal of the protective clauses will naturally lead to retaliatory reactions against such members of the ethnic groups or group concerned? Some of us are yet to be convinced that any of the past coups in Ghana was staged by members of any particular ethnic group or groups and, that, victims of any particular coup were from only a particular ethnic groups or group in Ghana. I strongly feel that it is wrong for Mr Shamatey and other people like him to play the “tribal card” by bringing into this important National discussion the issue of “we might even be heading towards tribal wars and intense tribal sentiments.” Coups in Ghana have always been staged by soldiers from mixed ethnic backgrounds, and no ethnic groups or group should be singled out to be responsible for any coups. Neither should any ethnic groups or group be seen to have been selectively targeted and victimised by any coups.

Finally, Mr Shamatey says:

“In the pursuit of justice it is important that people who commit atrocities be made to account for their stewardship and face legal actions. The indemnity clause totally, undermines this very principles underlined in the 1992 constitution itself. No doubt about that but does this call for amendment? Sometimes, it is good to let sleeping dogs lie.”

This last part of Mr Shamatey’s makes his whole argument self-contradictory and emphatically weak. By conceding that “the indemnity clause totally, undermines these very principles underlined in the 1992 constitution itself”. And by “principles” here, he means the principles of “accountability, justice and the rule of law”. If they undermine “these very principles underlined in the 1992 constitution itself”, then why should they not be removed?

*WHY MUST THIS SAME WRITER ALSO SAY “IT IS GOOD TO LET SLEEPING DOG LIE”? *DO THE WRITER AND THOSE WHO THINK LIKE HIM REALISE THAT SLEEPING DOGS “SLEEP” BUT “THEY DON’T DIE”?

*WHILE IT IS TRUE THAT JUSTICE CAN BE DELAYED AND DENIED, DO THE WRITER AND THOSE WHO THINK LIKE HIM REALISE THAT THE PAIN FROM THE WRONGS FOR WHICH JUSTICE IS DELAYED OR DENIED, LIKE THE SCARS OF BAD WOUNDS, NEVER GOES BUT STAYS WITH THE AFFLICTED INDEFINITELY?

In my opinion, therefore, the Indemnity Clauses must be removed, because the individuals that they seek to protect are, in the eyes of the Constitution, equal to those whose assets and persons MAY, [just “may”], have been unlawfully infringed upon and, therefore, deserving to be accorded their rights to seek justice. Should the “protected” persons have anything to fear, if THEY the protected persons and WE who support them believe that they did NOT unlawfully infringe on the assets or persons of other Ghanaians? Do the “protected” persons not have confidence in Ghana’s rule of law and its associated justice system? Should the Nation create, nurture and carry fear that may only exist in peoples’ minds?

NO, GHANAIANS MUST RISE ABOVE FEAR, BY REMOVING THE INDEMNITY CLAUSES THAT HANG AROUND OUR NECKS LIKE THE SWORD OF DAMOCLES AND KEEP CONSTSNATLY REMINDING US ABOUT A PAST THAT HAS TO BE PUT BEHIND US, BUT WHICH CAN NEVER BE, AS LONG AS IT IS “IMMOTALISED” AND “SANCTIFIED” BY SECTION 34 AND OTHERS OF THE TRANSITIONAL PROVISIONS OF OUR CONSTITUTION.

SOURCE: OTCHERE DARKO. [This Writer has written a few other articles concerning the on-going constitutional review. This writer also, apart from common “surname”, is not related in any other way to Mr. Gabby Asare Otchere-Darko ...... not politically, or ideologically, or by blood.]