7th January has been marked as Constitution Day following the amendment of the Public Holiday Act 2001 (Act 601). Despite the negligible opposition the amendment faced given that fact the majority rule regardless. The constitution of Ghana is a supreme document of laws that guide conduct of activities in Ghana, it came into force on 7th January, 1993 after its approval in a referendum on 28th April, 1992. The constitution exists, however, the realization of Rule of Law to a large extend has been mar in Ghana. Our democracy survives by marrying institutions mandated to check arbitrary will of rulers. The subject of Rule of Law is universally accepted by different countries and uphold within different economic systems.
The understanding of Rule of Law varies from the view point of classical proponents such as A.V Dicey, Jean-Jacques Rousseau, John Locke, Baron de Montesquieu to mention but few, to what is seen in most parts of the modern world, precisely Africa.
Those in power are not supposed to be ‘above the law’, however, our mistake is leaving them free to make any law by any means. This is the universal understanding of Rule of Law by modern government in Africa. This myopic meaning of Rule of Law, lacks philosophical content, and reduce Rule of Law to a mere formality.
In Ghana, the understanding of Rule of Law is similar, if not close to that of Mugabe’s Rule of Law, which is abiding by the law, thus following what the law mandates. In the case of Mugabe, the law is invariably ‘his Law’. What is seen in clear day light in Ghana is “Majority’s Law” or “Executive’s Law”. On 22nd August 2017, President John Mahama abided by the Law and granted pardon to ‘Montie three’. The president in this instance evoked the prerogative of mercy under Article 72 of the 1992 Constitution for three individuals (Mugabe, Alistar Nelson and Godwin Ali Gun) who were sentenced to serve four months in jail for threatening the lives of some Justices of the Supreme Court. Also, on 19th October, 2017, thirteen (13) members of pro-NPP vigilante group abided by a ruling to pay a fine of Ghs1800 each after pleading guilty to a conspiracy to commit crimes and rioting, at the Asoka District Court. After all, a fine is part of the reasonable punishment meted out culprits.
The subject of Rule of Law as Hayek puts it in his best-selling Road to Seldom, ‘the Rule of Law implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation directly aimed at a particular people’. The philosopher A.V Dicey identities three very specific Rule of Law principles;
1. Supremacy of established law as opposed to arbitrary discretion,
2. Equality before the law, and
3. Enforcement and the interpretation of the law by impartial courts.
It is important to note that, a society that do not uphold the principles of Rule of Law suffers from the incidence of more corruption, in all aspect. The consequence is to drain from all citizens with the hope of fighting corruption. The 2019 budget allocated an Ghs180 million to the office of Special Prosecutor, this is very much part of the cost we pay as a nation for not applying the principles of Rule of Law. The Frenchman, Bastiast, on The Law, regarded the state as the great fictitious entity by which everyone seeks to live at the expense of everyone else. We are doing ourselves more harm than good in observing Constitution Day without the realization of Rule of Law in Ghana.
Crimes with political colors are judged in the media, whereas infractions are prosecuted with the full whims of the Law. Political faithful’s have committed murders just because after election victory, change must also be effected at Market places, Toll boosts and Public Toilet facilities. Report after 2008 and 2016 election victory saw plethora barbarism and avoidable deaths. Modern Ghana on 27th August, 2009 reported ‘4 killed in NPP/NDC Clash’, this was after ‘Taliban’ striked at the Agbogbloshie Market. In this report, the police denied slow response level, whereas in separate interviews, the leadership of NPP and NDC claimed to have noticed the police of the simmering tension in the area. All these deaths, just for a Market take over, because one’s party is in Government.
To make matters worse, people have to flee the market area for the Talibans to do as the place since no suspects are usually arrested in such mayhem. On 4th January, 2017, after another election victory, it took the timely intervention of Rapid Response Unit of the Ghana Police Service to avert an NPP and NDC bloody clash at Old Fadama, according to Graphic Online.
For the Law to ‘rule’ there must be law (Louw. L, 2007). Here, we have the Law, but it becomes a mere technicality in the face of political crime. As a nation, we have ignored Dicey doctrine that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land’. What I can recognize is Rule of Man, George Orwell puts it well, that in the animal farm all animals are equal, but some animals are more equal than others. I think you will agree with me if I choose not to elaborate further.
The observation of Constitution Day will bring us no benefit if we do not take away the bottle necks jeopardizing the realization of Rule of Law in Ghana. The jamboree will be over and the dust will settle. If the principles of Rule of Law are ignored, then can only hope the Constitution day does not increase government’s expenditure which will eventually be borne on the tax payer.
Researcher and Development Manager at the Institute for Liberty and Policy Innovation (ILAPI)
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