The annual celebration of the 31st December Coup: A case of gross impunity?

1. On December 31, 1981, the government of Ghana was overthrown by the PNDC. The PNDC subsequently made December 31 a statutory public holiday and celebrated the anniversary of the coup each year with public funds.

2. On January 7, 1993, a civilian government assumed power under the 1992 constitution. But the celebration of the December 31 coup with public funds continued.

3. The NPP went to the Supreme Court arguing that the celebration of December 31 with public funds is unconstitutional because it’s against the letter and spirit of the 1992 constitution.

4. The Supreme Court agreed with the NPP (See New Patriotic Party v Attorney-General [1993-94] 2 GLR 35—192). The court held amongst others that because the 1992 constitution enjoins Ghanaians to defend and resist any attempt to overthrow the constitution, the celebration of the 31st December coup with public funds weakens the resolve of Ghanaians to defend and protect the constitution.

It is also unfair to persons adversely affected by the coup but is unable to seek redress because of the Transitional provisions. Therefore, using public funds for the celebration of the 31st December coup is unjustified and unconstitutional.

5. My friend, the venerable Prof Stephen Kwaku Asare (Kwaku Azar) argues that despite the perceived non-use of ‘public funds’ for the celebration of the December 31coup, the continuous organisation of the event by a political party makes it a ‘national’ event and therefore must be subject to the rule in the December 31 case.

He argues that it is against ‘our collective conscience and wisdom’ to allow the continuous celebration of the event because it poses a danger to our peace and democracy.

6. One may argue that the right to join a political party in the celebration of the December 31 coup is a right protected by the constitution.

I am mindful of these rights: rights/ freedoms of assembly, to participate in the activities of political parties, etc under Article 21.

But we must note that these rights are subject to ‘such qualifications and laws as are necessary for a free and democratic society’. The exercise of these rights must also be ‘consistent with [the] Constitution.’.

8. To the extent that the Supreme Court held that the celebration of the December 31 coup weakens/ will weaken the resolve of Ghanaians to defend and protect the constitution and such celebration will be unfair to persons adversely affected by the coup but are unable to seek redress because of the Transitional provisions which protect perpetrators of the coup from being ‘held liable either jointly or severally’ for their actions or omissions, I agree with Prof Kwaku Asare’s argument.

9. One may also argue that the funds of a political party (NDC) used in the celebration of the December 31 coup are not ‘public funds’ and therefore the celebration is not unconstitutional. But let us note that the funds of political parties are considered public funds. The Supreme Court in Republic v Yebi and Avalifo [2000] GLR (also [2000] SCGLR) said so.

The court, in that case, held, amongst others, that ‘the alleged theft of the money [of the NDC] is not in the interest of only the members of the NDC, but also the entire Ghanaian public who are by law entitled to inspect and take copies of the audited accounts of the NDC.’ A person who appropriates the funds of a political party is liable to punishment under our criminal laws.

10. It stands to reason, therefore, that the NDC’s continuous use of its resources to celebrate the 31st December coup is unconstitutional.

11. For now, we can only trade ideas and debate this issue until it is tested in our courts someday.