By Rodney Nkrumah-Boateng- rodboat@yahoo.com
In my mind’s eye, I can envisage many readers already foaming at the mouth and hyper-ventilating upon reading the title of my piece. I can hear-literally- the sharpening of long, menacing knives as some readers salivate at the opportunity to gouge my eyes out and disembowel me simultaneously for suggesting the unmentionable. Furious, stubby fingers will surely be jabbing at keyboards in no time and I am sure unsavoury, expletive-laden accusations of all sorts of will fly through cyberspace and clunk into my email account. Amanfo, please hold your fire and hear me out. I was disgusted and most sickened by the nature of ex gratia payments and facilities regarding former president Kufuor. I do not think anyone can justify these outrageous awards. I need not go into the details- it makes my blood pressure shoot through the roof. I am mad with rage that ministers can buy state cars at huge discounts before leaving office, forcing the state to acquire new cars with a new administration coming in. And I am equally annoyed that our incompetent MPs literally walk away with wads of cash at the end of each term of parliament as End of Service Benefit, with those who get re-elected coming in line for another ESB at the end of the subsequent term. Imagine how much a 4-term MP has raked in at taxpayer’s expense, not to mention all the other perks that come with their office.
Yet in spite of my anger, which many Ghanaians clearly share, I believe we need to pause for thought and look not just at the sums and facilities being bandied about, but at the source of authority for the arrangements that have resulted in this nonsense. And this is where the constitution comes in, in particular, Article 71, and to a further extent, Article 68(9).
By a very curious provision under Art 71, the president appoints a committee which then looks into what it believes to be appropriate benefits, emoluments and privileges for certain office-holders, including the president, vice-president, ministers of state, speaker and deputies and our MPs. Even more curiously, the report is to be then submitted to parliament for consideration. In effect therefore, parliament deliberates on its own salaries, emoluments and privileges. When parliament has approved it, it is sent back to the presidency for endorsement, and at that point it becomes payable. The constitution says further, in Art 68.9, that these awards cannot be varied to the disadvantage of an ex-president during his lifetime. What this means is that the current government has no right or authority to withhold or adversely his award as a matter of law.
It is clear, therefore, that unless clear evidence is shown that the process described in Article 71 of the constitution has been compromised by lack of due process or fraud, or in fact any other adverse issue which taints the process, then that process is constitutional. Therefore the outcome of that process, i.e. the ex gratia awards, becomes lawfully due to be paid. Any other conclusion in these circumstances is simply unsustainable as a matter of law. As stated earlier, the public anger is clearly understandable and entirely justifiable. Some argue that parliament has been woefully inadequate in failing to scrutinize the Chinery-Hesse report. That is true. But therein lies the weakness of Article 71, which enables parliament and the executive to scratch each other’s back. It is clear that the MPs’ pathetic mouths began to water when they saw THEIR awards and they then decided to pass the whole package. It is truly repugnant and lamentable that parliament is able to do this.
Part of the painful but worthwhile exercise of democracy and the rule of law is to respect the operation of the law. Ghanaians approved the constitution back in 1991. You cannot then choose and pick which parts of the constitution to respect. If the law is an ass, then you take steps to reform it to prevent future abuse. The court of public opinion, useful as it is, is not the forum for taking important decisions involving public money governed by law, in particular the constitution. Once you do that, you descend into the bear pit of mob rule, not the rule of law. Governments are supposed to lead, not to flounder about on the sometimes fickle strength of public opinion. Making decisions simply to find favour with public opinion may bring smug satisfaction and high poll ratings in the short term, but it sets dangerous precedents and allows future governments to tear up the rules on the grounds that the public mood reflects otherwise. What would stop a future government from reducing, or even eliminating, whatever reasonable ex-gratia awards are approved during the tenure of his predecessor simply out of political spite, with the convenient excuse that he was simply seeking to reflect the public mood? Will the public mood always be as clear and as unwavering as it is now? And in that case how would you measure that? Indeed, why stop at presidential ex-gratia? Why can’t a future president declare that the people of Ghana overwhelmingly wanted him to continue beyond two terms, regardless of what the constitution says. We would rightly protest, even if that president had worked miracles on our economy. It is a slippery slope we are better off not getting to.
Of course, given the widespread chagrin of Ghanaians at the presidential package, it would, in my view, be sensible for ex-president Kufuor to voluntarily scale down what he is entitled to by law, out of respect for Ghanaians’ feelings. A failure to do so on his part may diminish him in many people’s eyes, especially where ex-president Rawlings has scaled it down even though he is entitled to what ex-president Kufuor is due. But we cannot rely on the ‘generousity’ of a future ex-president to give up his parts of his retirement package. What we should be doing it making it impossible for that excessive package to be acquired in the first place through amendments to the constitution so that a future ex-president does not have the luxury of choosing not to take his full entitlement.
The government cannot, and should not, force the ex-president give up his package. Unless the government can come up with a reason in law to withhold or review the payments due to the office holders under Article 71 then I think it would be acting unconstitutionally by doing or seeking to do so, and one would expect that the courts would so declare.
Of course, the government would carry the headlines and win strong popular support if it reviewed the ex gratia awards adversely contrary to Article 68(9) of the constitution. However, in my view, that would be a populist ‘patapaa’ move and portray the government as no respecter of the due process of law or the constitution. In theory, that would not prevent them from disregarding other parts of the constitution in the future, at which point we would be hypocrites to protest. A little historical reminder here will do. When Ghana’s revolutionary process began in 1981-82, our university students and workers cried ‘Let the Blood Flow!’, demanding instant kangaroo justice in respect of kalabule businessmen, corrupt ex-ministers and other ‘enemies of the revolution’. After all, these ‘ordinary people’ were, they believed, the ‘princes’ of the revolution and therefore of precious blue blood. A few years later we went to the IMF/World Bank and were forced to withdraw public subsidies as part of the ERP. The princes of the revolution were hit hard. They stormed the streets went on protest marches and howled in indignant anger when the same revolutionary truncheons and AK47s descended on them and caused THEIR blood to flow. Let us be careful what we ask for in the heat of the moment in order to score points- we may just get it.
Our constitution clearly needs reform in many ways. The process laid down in Article 71 for determining and approving ex gratia payments for MPs and the president does stink, and that symbiotic, ugly relationship of inter-dependency needs to be destroyed. I believe the government will do well to convene a constitutional conference to look at this and other difficulties of our 17-year old constitution. .
Sometimes, in politics, you have to do certain things on principle because it is the law, even if you have to hold your nose to do them. So however it hates to do so, the government simply has to pay up because the law of the land says so, and then it can plug the loopholes to prevent future abuse. That would be a more lasting legacy to the nation than to try to focus on one person for now like a laser beam, and leave the system intact only for the same problem to emerge 20 or so years, with a president sporting a massive ego to crawl into bed with hapless MPs to fleece the nation through perfectly constitutional means.
Now bring on your cyber missiles. My reflexes may not be as good as George W. Bush’s in ducking them, but I’ll give it a shot.
