Wednesday, April 11, 2007
FREEDOM AND JUSTICE
· What is the degree of our commitment?
Publication of the article: PROF. KOFI KUMADO of Legon Centre for International Affairs (LECIA)
As is well known and has been repeatedly stated since the celebrations began on March 6, 1957, the battle for independence between SELF GOVERNMENT NOW and SELF GOVERNMENT WITHIN THE SHORTEST POSSIBLE TIME was declared and won by SELF GOVERNMENT NOW and Dr. Nkrumah made his famous speech declaring the Gold Coast, freshly baptized with a brand new, Ghana, free forever.
The motto for the new country was stated as FREEDON AND JUSTICE. I wonder how many people realized then, or even now, that the difference between the two groups was just in the sound-bite.
The motto for the new country was stated as
FREEDOM AND JUSTICE
It is part of the main message of my lecture that by casting the leaders of the two groups in the slogans of their political campaigns, thee myths were perpetuated on that day. First, that we lost our political freedom on March 6, 1844, through the bond of 1844. Second, that we regained our political freedom on March 6, 1957 hence that became our Independence Day which we are celebrating this year throughout the world.
Third myth was that the two groups had different conceptions about the meaning of true political freedom for Ghana.
A close re-examination of the records would reveal, perhaps as a shock to some, that these were truly myths. We did not regain that freedom on March 6, 1957, contrary to the claim of Dr. Kwame Nkrumah at the Old Polo Grounds.
The Danquah-led group and the Nkrumah group had the same understanding for what it would take to say that Ghana was political fee from Great Britain. Dr. Nkrumah only meant his Old Polo Ground statement that we had set ourselves on the road to becoming free forever, not that we were already free.
It has to be remembered that when the dust had settled and the euphoria of being independent had subsided, nothing in reality changed in Ghana as between March 5, 1957 and March 6, 1957.
The Queen remained firmly in place as Head of State, represented by he resident official renamed Governor General. The independence hang of four constitutive instruments promulgated by the British authorities, namely:
(a) Ghana (Constitution) Order in Council of Council of March 6, 1957.
(b) Ghana Independence Act, dated March 6, 1957
(c) Ghana (Office of the Governor-General) Letters Parent, 1957 and
(d) Royal Institutions (Ghana), 1957.
In retrospect, the choice of March 6, and the content of the motion requesting independence were elements in an undisclosed Road Map to true Political Freedom known to Dr. Nkrumah. Indeed, a close reading of Dr. Kwame Nkrumah’s autobiography shows that the use of March 6, was really symbolic and a psychological ploy designed to rally the masses to support the project.
The request to the British Government was tactical because he was afraid that a true and more direct approach would not succeed, given the military might of the colonial power. Hence, this appearance of rejecting the more radical approach of the Danquah – led group which was demanding that we should TAKE independence instead of asking the British to give us the independence.
The conclusion that Dr. Kwame Nkrumah had a hidden Road Map to true political freedom and that he was aware the March 6, 1957 was not true political freedom is buttressed by the steps he took to make us a republic.
If my meaning so far is unclear to some, in a way because I am putting the cart before the horse, I owe it a duty to all assembled here to provide greater clarify. What I have been saying so far, by way of introductory remarks is this:
· The ‘FREEDOM’ in out National Motto I understand to mean in part Political Freedom or Independence;
· That we did not lose that independence in March 6, 1844;
· That we did not become politically independent on March 6, 1957;
· That we became independent on July 1, 1960 when we became a Republic.
I am not suggesting thereby that celebrating March 6, 1957 is wrong. March 1957 is a significant day in our drive to manage our own affairs. Therefore, we are justified in celebrating its 50th Anniversary.
March 6, 1957 is a significant day in our Drive to manage our own affairs
If I may use the marriage analogy here, on March 6, 1957, the engagement took place. Good enough for the couple to engage in certain activities without the usual eyebrows being raised; but they still remain under the watchful eyes of the elders. March 6, 1957 is thus, like the engagement, just a dress rehearsal for the real thing, the marriage. The real marriage occurred in July 1, 1960.
To consolidate the observations heretofore made and provide historical context for some of the issues I will raise later in this lecture, I need to set out some relevant elements.
The first point I am going to make was also recently alluded to by Mr. K.B. Asante in the Daily Graphic. It relates to the geographical space we now call Ghana. On March 6, 1957, the country was made up as follows:
The Settled Colony of the coastal belt divided into three provinces Western, Central and Eastern, declared a colony on a July 24, 1874.
The conquered middle belt colony of Asante was declared a colony in 1901 but not brought formally into the administration of the Gold Coast until 1946.
The Northern Protectorates, now Upper East, Upper West and Northern Regions declared in 1901 but not brought into the mainstream governance system of the Gold Coast until 1951.
The British Trust Territory of Trans Volta Togoland. (Half of the German Territory of Togo put under British management by the Treaty of Versailles after World War! and formally annexed to the Gold Coast after the plebiscite in 1956).
As the records show, the Bond of 1844 was a composite of a series of friendship treaties entered into by Lieutenant Governor Commander Hill, representing the British, and a number of Fante Chiefs who had protested the illegal extension of British treaties and the Bond were to regularize the illegal extension of their jurisdiction. For the traditional leaders, the agreements and the Bond were to demarcate the respective areas of authority between them and the British. The Bond which was signed on March 6, 1844 did not cede political power to the British. In retrospect, this reality and strictly legal position did not matter to the British. The traditional rulers thought the Bond had rolled back the illegal extension of British rule over their subjects. The British had other idea.
The Bond had been misrepresented. Yet it is a very short document. Its contents are reproduced hereunder:
1. “Whereas the power and jurisdiction have been exercised for and on behalf of Her Majesty the Queen of Great Britain and Ireland, within divers countries and places adjacent to Her Majesty’s forts and settlements on the Gold Coast; we, Chiefs of countries and places so referred to, and adjacent to the said forts and settlements, do hereby acknowledge that power and jurisdiction, and declare that the first objects of law are the protection of individuals and property.
2. Human sacrifices and other barbarous customs, such as panyarring, are abominations, and contrary to law.
3. Murders, robberies, and other crimes and offences, will be tried and inquired of before the queen’s judicial officers and the chiefs of the country to the general principles of British law”
Human sacrifices, and other barbarous customs,
… are abominations, and contrary to law
Read carefully, one is force to agree with Prof. W.C. Ekow Daniels when he writes in his book – Common Law in British West Africa – that this agreement did not cede political power to the British. The British established colonial rule haltingly and surreptitiously and not because of this agreement which dealt essentially with rights issues and the infrastructure for adjudication of disputes involving the subjects of the signatory Chiefs.
Besides, the agreement did not involve the traditional rulers in other parts of the territory over which the colony was declared in 1874 – the Ga-Adangbe, the Akyems and the Anlo Chiefs.
If it did not cover the whole of the Gold Coast Colony, we cannot even begin to contemplate Asante, the Northern Territories and British Trust Togoland, which were not part of the Colony at the time.
It must be remembered that the source of the gripe of the chiefs who entered into Bond was the gradual loss of revenue for the illegal extension into their territories of British judicial power by Capt. Maclean and the Committee of Merchants into whose hands the British had entrusted the administration of their forts and settlements in the 1830s. The losses arose out of
On the historical evidence, it would seem that the position of persons like Danquah, who wanted us to seize what was surreptitiously rather than legally acquired was the more accurate. But Dr. Kwame Nkrumah saw that realistically, because of the military might available to the British, seizure was not feasible.
- Dwindling court fees
- Loss of tax revenues after the abolition of the Slave Trade
- The refusal of the Merchants to pay ground rent for the lands on which the forts and settlements stood, claiming that they had acquired the allodial title to these lands after the defeat of Ashante in the Dodowa War in 1826.
Concepts of Freedom and Justice
Mr. Chairman, let me now return to the heart of the topic I have been asked to deal with. Essentially, I understand my task as involving a kind of stock-taking of our commitment as a people to the motto in our Coat of Arms. The question that arises here may be simply formulated as follows: What did we as a people mean by the words “Freedom and Justice”?
We know how our nation came to be called Ghana.
But I have not been able to find out who gave us the motto.
At this point, Mr. Chairman, I have a confession to make. I got my invitation to deliver this lecture some time back. Since then I have searched and read widely. I have interviewed and caused others to interview those who would know, who gave us the motto. We know who designed our Coat of Arms; we know who moved our Motion of Destiny; who know who gave us our National Flag and what each of the colours and the Black Star stand for.
We know who composed our National Anthem and National Pledge, even if the words have been changing. We know how our Nation came to the called Ghana. But I have not been able to find out who gave us the motto and what it was originally intended to mean.
I am humble enough to accept that the problem may have been with the inadequacies of my research and gladly accept the information from anyone who has it after this lecture.
My research had not been entirely fruitless. I found that Kwame Nkrumah talked and wrote a lot about “Freedom” and occasionally about “Justice”. Dr. Danqauh (and sometimes Busia) also wrote a lot about and actively pursued “Justice” but not without the occasional reference to “Freedom”.
My conclusion (tentative though it is) is that, with the name Ghana, we owe the motto “Freedom and Justice” to collaboration between Dr. Kwame Nkrumah and Dr. J.B. Danquah. In their usage, both Dr. Kwame Nkrumah and Dr. Danquah conceived of the two words as essentially linked and indivisible. So, merged, Freedom and Justice” meaning political and economic independence and a belief in fairness, constitutional democracy, human rights and respect for the Rule of Law as platforms that would allow the Ghanaian in particular, and other Africans and oppressed peoples world-wide to take their proper places in the comity of nations.
As Princess Schahovskoy is reported to have said many years ago, “Freedom is the first condition of each step of advancement, and Justice the first duty of those who wish to avail themselves of that advancement. And so Freedom and Justice become the conditions of our improvement”.
Freedom and Justice are this inseparable and are understood to be so world-wide and in all cultures. There is no freedom without justice and there can be no justice without freedom. Even US President Bush in his Inaugural Address to Congress on January 21, 2005 acknowledged as much. In selecting this as our national motto in 1957, we demonstrated trail-blazing.
So my assessment will revolve around the key works and phrases of
(a) Political Independence
(b) Economic Independence
(c) Constitutional Democracy
(e) Human Rights and the Rule of Law. For the sake of contemporary usage, I will subsume constitutional democracy, Human Rights and Fairness under the general heading of the Rule of Law. I will confine the commitment issue to the geographical space and the people of Ghana. The treatment of commitment will be at the individual, collective and leadership levels.
From the writings of Nkrumah and Danquah and from my own understanding as well as what is revealed by the literature, political independence has two dimensions – External and Internal. There are so institutional and individual aspects. At the external level, the reference is to being free from colonial domination. We may recall here Kwame Nkrumah’s assertion that independence with danger is to be preferred to servitude in tranquility.
As indicated in the earlier part of this lecture, full political independence did not come to Ghana in 1957. Instead, the legislature established under the Colonial Independence Constitution passed the law which enabled it to convert itself from time to time into a Constituent Assembly and to formulate the Articles for a Republican Constitution.
We may recall her Kwame Nkrumah’s assertion that independence
With danger is to be preferred to servitude in tranquility.
The draft produced was put before the people of Ghana in a referendum in early 1960. The theory behind this move was that it was necessary to change the Constitution in the manner not contemplated by it to complete and put our political independence beyond the shadow of doubt. The referendum confirmed the people of Ghana as the sovereign power and not the British Monarchy.
The republic severed the umbilical cord which connected us to the British Constitution. On July 1, 1960, Ghana attained full and true independence. Even so there were some serious blots on the people’s sovereignty.
This is to be found in provisions which were either inserted into or removed from the draft constitution after the referendum. One of the most significant insertions was Article 55 which gave the first President the power to give directions by legislative instrument. This provision significantly undermined Article 20 which was in the draft put to and approved by the people at the referendum. Article 20 gave legislative authority to the Parliament.
After putting our political independence beyond the pale of doubt, we allowed ourselves to be re-colonised, this time by internal forces from 1964, with intermittent glimpses at independence – 1969-72; 1979-81 – through one party rule and military dictatorships till January 7, 1993.
Indeed, the re-colonisation in 1964 was approved by us at a referendum! An attempt to make this decolonization permanent was defeated when our people resoundingly rejected the Union Government Proposals of the Acheampong regime.
Apart from these lapses, our commitment to internal political freedom has grown from strength to strength since the 1990s. First is the finding by the D.F. Annan, National Commission on Democracy. In its report, based on consultations held with Ghanaians throughout the country, entitled “EVOLVING A TRUE DEMOCRACY”, the Commission found that a majority of Ghanaians wanted a political system based on constitutional democratic principles. It is to the credit of the Commission that it reported correctly the overriding wishes of the overwhelming number of Ghanaians who appeared before it.
Second is the referendum in April, 1992 about the Draft 1992 Constitution. The commitment of our people to internal political freedom could not have been more clearly manifested. In testimony to their abhorrence of the dictatorial regime then in place, more than two million Ghanaians, most of whom had neither seen nor read the draft, voted for it as the framework for their future governance.
The third element is the way we handled ourselves after the disputed Presidential elections in 1992. Those of you, in this hall, who were present in Ghana at the time will admit that I do not exaggerate when I say that those times were the nearest we came to civil strife as a nation. The tension in the country was more than anything we experienced between 1956 and 1957. The behaviour of my own students at the time told me that we were in real trouble.
The tension in the country was more that anything
We experienced between 1956 and 1957
Before the elections, these students had been teasing me that they knew that, as an Ewe, I was going to vote for the NDC Presidential Candidate and that the NPP candidate was going to trounce him. After the lections, I could not get any of them to discuss the results. And many had tears in their eyes for weeks. They walked about the Law Faculty obviously stunned.
Very few people remember today, or, realize even then, how our nation was brought back from the brinks of civil strife at that time. Two developments saved us:
The actions of our religious leaders and the decision of the NPP demonstrated exceptional commitment to internal political freedom.
- The timely intervention of our religious leaders, for whom I was fortunate enough to be one of three technical advisers at the time.
- The decision of the main group, the NPP, to write a book instead of taking to the bush, a project which was led by a lawyer who is now a distinguished Minister of State, just as the Mensah Sarbahs, the Danquahs, the Obetsebi Lampteys and the Ako Adjeis had done before 1957.
The fourth most significant act demonstrating our unquestionable commitment to internal political freedom is the smooth and peaceful handing over of poser by the HDC and our President, J.J. Rawlings, to the NPP and His Excellency John Agyekum Kufuor on January 1, 2001. The handling over went so well that the significance and importance of what we achieved thereby politically, as a nation, are lost on many of us. Indeed, January 7, 2001 is so important a milestone in our quest for political freedom that, it, ranks in my reckoning, alongside March 6, 1957 and July1, 1960.
We should, during these 5oth Anniversary celebrations, build a permanent monument to this day to mark it out for future generations. I will go a step further and urge that we should name one of the two new stadiums we are building for CAN 2008 after this day.
I am sure many of you in this hall have also experienced the awe in which many outsiders, both within Africa and without, hold us because of this day and the persistence with which they try to find out how we did it. A remarkable achievement indeed. Of course, we must remember that 2008 will itself present us with another major challenge, especially in the test of wills among the political parties.
But assessment of internal political freedom suggests that there is more to be done in one area. As noted earlier, the geographical space of Ghana consists of four large chunks glued together by the bond of colonial power.
With the advent of independence and the departure of the colonial power, we have kept them more or less intact. They become the fault lines to our international political freedom.
My suggestion is that we should add to the 10 administrative regions we now have. We should break up the Colony, Asante, the Protectorates of the Northern Regions and Trans Volta Togoland further by creating more regions.
The fact that the four blocs were brought together piecemeal to form the state means that there has been a tendency for each bloc to think of itself first and the nation second. Internal struggles within each bloc become automatically a national headache. Closely examined, these blocs suffer from internal colonialism. Some of the difficulties which erupt in them are clearly attempts by elements therein to free themselves from these internal colonialisms. Our political independence would have been complete because it would then encompass freeing ourselves from both external and internal forces.
For example, the Central and Western Provinces of the Colony have remained the Central and Western Regions since 6 March 1957. Two Regions have been carved out of the Eastern Province, namely: Greater Accra and Eastern Region. The remaining part of the Eastern province was added to the Trans Volta Togoland to form the Volta Region. Parts of Trans Volta Togoland were added to parts of the Northern Protectorates to form the present Northern Region. My point is that we need to do more regional engineering.
In making this proposal, I am aware of the requirements of Chapter 2 of our Constitution on the creation of new regions. I know this includes the holding of a referendum. I know the referendum conditions are stringent. But I do not think we have much choice. The future of Freedom and Justice in our nation is at stake. Only the creation of more regions will help us overcome the problems of internal colonialism. To cut costs we can hold the required referenda alongside our next Presidential and Parliamentary elections.
No doubt, as with new districts, there will be problems of infrastructure and wherein locate new regional capitals. There is no real issue here for even now those involved in the inner workings of our governments know how difficult it is to appoint Regional Ministers.
There will also be the costs of providing one-time logistics. Administrative costs should not be a problem because they are already covered in existing budgets. The panacea for tribalism for those for whom it is a problem lies in these new regions. There is room, in my considered opinion, for as many as 10 new regions. These new regions would also help in our desire to develop the whole country more equitably. On reflection, the unwieldy sizes of the existing regions may be part of the bane of our development efforts.
Our search for economic independence has been chequered. There was naivety in the assumption of some elements in our early leadership. We note here that oft-quoted statement of Dr. Kwame Nkrumah: “Seek ye first the kingdom and all others shall be added unto it”. In practice, things have not worked our so smoothly.
A combination of harsh external forces and a hostile environment, bad policy choices, inclement weather, lack of discipline and of a culture of hard work at home plus a habit of politicizing everything has resulted in our desire to be economically independent remaining largely a dream. Add to these bad governance, military dictatorships, s small market size, a trade rather than production driven economy sprinkled with a dose of misfortunes and the picture is near complete.
Attention should also be drawn to a growing lack of honesty among us. I do not insult the nation when I say that the tendency nowadays is for each one of us to want to cheat. Nobody wants to play it by the rules.
Indeed, those who attempt to are considered by the rest as fools. Just watch us in a queue. Given a choice between the correct route and a short cut but wrong way, almost to a person, we will choose the short cut. The younger population are in a hurry to acquire in one day what it took their parents a whole lifetime to acquire. It is called connection. So we train them expensively with state resources here in our universities and polytechnics and they go abroad with our connivance to do menial jobs for a pittance.
Of course, in some cases, they can say with justification that the education system and the nation have failed them. In other words, we have not been just to them.
We had, at independence, an educational system, which had exit points. These exit points gave you qualification which enabled you to secure a job. The jobs were publicly advertised and there were genuine recruitment processes. We have recently replaced these with a supposedly improved educational system which also has exit points through which, given the growing population, larger numbers of boys and girls are exiting. However, unlike the old system, nobody seems to want the qualifications they are exiting with. So they are unemployed and are not equipped to employ themselves in anything productive. Worse still, people are being employed daily without any advertisement. In the University of Ghana, teaching positions apart, we see this non-transparent and closed recruitment process going on all the time.
The late Dr. Robert Gardiner spoke about these matters in his Danquah Memorial Lectures in 1970, entitled “The Role of Educated Persons in Ghana Society”. He said then that if education was to make its proper contribution to our search for economic freedom, then our educational system must be designed to be responsive to the pattern of employment opportunities. He suggested two approaches which must be pursued at the same time.
- Continuous determination of the numbers and types of jobs likely to open up and
- Continuous determination of the persons and their numbers likely to be looking for jobs.
These ideas I suggest remain valid today. The National Youth Employment Programme (NYEP) recently introduced is a step in the right direction. But this is a short to medium-term programme. Gardiner was talking about a more permanent system.
This lecture is not the place to address in detail the factors which have accounted for our halting movement towards economic freedom. The J.H. Mensahs, the Abbeys, Aryeeteys, Asagas and host of other experts address them almost daily.
Suffice it to say that our international partners have also not been helpful to us. By their failure to co-ordinate their efforts, each one of them imposes a different development paradigm on us.
So we have HIPC, AGOA, Millennium Development Account, GPRS I and II, etc., each with its cluster of regime requirements. This in turn has developed a dependency syndrome in us. In our state of dependency, each plays us like football. The Chinese and the Indians have just joined and are playing with vigour, which substitutes bring to the game of soccer. So our leaders now go to London and Washington for honorary degrees and to Beijing for dollars and euros!
All is not gloom, though. Since the mid-1980s, we have returned to the path that will make it likely that, this time, with patience, economic freedom will become a reality. We have the PNDC, the NDC, and the NPP to thank for this turn-around, painful though it remains. Especially under His Excellency President Kufour, we seem to be getting the fundamentals, both soft and hard, right. We are consolidating our democracy.
His gentle management style, in spite of his height and size is
winning respectability for the country within and from abroad.
His gentle management style, in spite of his height and size, is winning respectability for the country within and from abroad. We are rediscovering ourselves as a proud people. The stability and peace which all the efforts have engendered contributed to immensely by the Minority political parties, have once more made Ghana the Mecca of Africa for the investor-adventurer and the curious visitor.
We are pointed in the right direction. Apart from the NYEP, we can mention the NHIS, the School Feeding Programme, the Capitation Grant, the ICI Politics, the battle against inflation, the emphasis on the private sector, the media pluralism and the steadfastness and discipline with which our economic management team is tackling the economy. In this respect, one should be encouraged by the contents of the addresses, which our Presidents have presented to Parliament as required by the Constitution since 7 January 1993. I only have two reservations.
First, too many lowly placed visitors with US$10,000 in their pocket have access to our President when, we his compatriots can hardly catch a glimpse of him, let alone to enjoy a 5-second chat with him on those soft-looking Castle chairs that we see on TV.
Second, his trips abroad are no doubt beneficial to the country. We also suspect that outside leaders want to press his flesh and smell the success story of Ghana at close quarters.
But complex and global though the world has become, the work for which we elected him is to be carried out here in Ghana. In the end, his legacy would be defined more by what he did in Ghana than by the number of air miles he clocks while in office. For now, the only thing the cynics want him to be remembered for is the HIPC Junction. I am sure he is doing more and deserves more recognition than that. We want to see him traveling the length and breath of the country more often, especially now that he has less than two years to go into a well-deserved retirement.
On the whole, on economic freedom, I would say the deficit is large. But it is not a question of commitment. Rather, the problem stems from the policies we have chosen and their implementation. Here we can say that we are pointed now in the right direction. It is significant, in this respect, that we are not alone in the experiences we have had in our search for economic freedom.
The rule of Law
The International Commission of Jurists with headquarters in Geneva, Switzerland, is the foremost global organization with the promotion and protection of the Rule of Law worldwide as its mandate. The Commission defines the Rule of Law as referring to those conditions, structures, institutions, processes and procedures which enable human beings to live their lives in dignity, security and prosperity. So conceived, the Rule of Law encompasses issues of fairness, equity, justice, democracy and human rights. As indicated earlier in this lecture, the JUSTICE in our National Motto is aimed at delivering the Rule of Law for us, making Ghana a country based on the Rule of Law.
From my research for this lecture, the developments which have put our commitment to Justice/Rule of Law in question may be listed as follows:
· Deportation (Othrnan Lardan and Ahmadu Baba) Act, 1957, a classic case of abuse of legislative power to pass ad hominem legislation targeted at punishing perceived political opponents.
· Deportation (Indemnity Act), No. 47 of 1958, another abuse of legislative power designed to protect a Minister and a Commissioner of Police after the two had been found in contempt of court rather than apologise to the Court.
· The Preventive Detention Act. 1958
· Declaration of One-Party state through a Referendum
· The Military interventions of 1966, 1972, 1979 and 1981 and our failure as a people to defend the constitutional order.
· The unexplained killing of 3 judges and the retired Army Officer in 1983.
· Subsequent to the killing of the judges, the assembling of sitting judges in front of the Supreme Court by a mob led by the late Mawuse Dake (then a Minister in the PNDC administration) and their subjection to mock execution by firing squad with impunity.
· The establishment of the Public Tribunal System in competition with the regular courts through PNDC 78.
· The establishment of the Citizens Vetting Committee (later changed to Office of Revenue Commissioners) and the National Investigation Committee.
· The atrocities chronicled by the National Reconciliation Commission.
· The dismissals of the judges who first adjudicated on the trials following the bomb attempts on the life of President Nkrumah at Kulungugu.
· The RE-AKOTO judgment and the hint it gave of judicial tolerance of violations of human rights
· The “No Court” Speech of the late Prime Minister Busia following the 3-2 majority decision in the case of SALLAH v. ATTORNEY-GENERAL, the case which arose out of the famous Apollo 568 dismissals.
· The skirmishes leading to the case of TUFOUR v. ATTORNEY-GENERAL, the case which had to decide whether Justice F.K. Apoloo continue as Chief Justice after the coming into force of the 1979 Constitution.
· The apparent breakdown of discipline among lawyers, resulting in some lawyers seeking to argue their cases or appeals through the media and openly touting for business.
· The unbridled attacks on judges after they have made their decisions by lawyers and politicians.
· The apparent unwillingness of the prosecution authorities to prosecute those who breach the law, making the Rule of Law look as if it means rule by non-enforcement of law.
I wish to single out a couple of the matters noted above for further discussion. The first is the PDA or the Preventive Detention Act, 1958. The PDA authorized the President to order the detention of a person without trial. It has always been our law that a person is innocent until his/her guilt is established by a court of competent jurisdiction on admissible evidence which establishes the guilt beyond reasonable doubt. Thus, the PDA was a major assault on the rights of Ghanaians.
Recently, it was reported that an influential Ghanaian professional had tried to justify the PDA. When I first read the account, Mr. Chairman, my reaction was that the gentleman should be immediately arrested and sent to Nsawam for a couple of weeks to test his conviction. The truth is that the PDA and its subsequent permutation, protective custody decrees, are inexcusable. We do not need to pretend it is otherwise to demonstrate our Nkrumahist credentials.
Second, the administration of justice requires judges, judicial infrastructure and logistics. It requires an independent and impartial judiciary, deciding matters only according to their appreciation of the law, their judicial oath and conscience. This gives practical meaning to the idea that every person accused in the law is entitled to his/her day in court.
Therefore, we cannot have Justice without access to Justice for the people. In this respect, the situation on the ground begs our commitment to justice and the Rule of Law.
For example, the distribution of the High Courts, Circuit Courts and District Courts in the regions is woefully inadequate, viewed from the angle of access to justice. No doubt the volume of business and the cost of provisioning them may be factors determining the present situation. Availability of suitable lawyers to appoint to the courts may be another factor. This last-mentioned factor in itself may depend on the attractiveness of the remuneration package for judges compared to other employment or job opportunities available to a lawyer in our system. If you add to this situation the fact that at the moment, the Court of Appeal and the Supreme Court only sit in Accra, the picture becomes a major drag on our commitment to justice. Above all, a glance at the Civil Proceedings (Fees and Allowances) (Amendment) Rules, 2004 (C.I. 45) which prescribes the scale fees for various court processes will convince the most optimistic person that our courts are not intended to be accessed by ordinary people. This is clearly a slap in the face of our national motto.
Justice also requires an efficient police service with adequate personnel trained to be sensitive to the rights of the citizenry. It is dependent on the security agencies being subordinated to civilian control. The Security Agencies Act, Act 526 and developing practice point in the right direction. But we still have some way to go especially in the treatment of erring personnel.
Of the factors listed earlier as undermining our commitment to justice, three stand out for me.
· The PDA and its associated “protective custody” legislation.
· The killing of the 3 High Court Judges and the retired Military Officer, and
· The atrocities chronicled by the National Reconciliation Commission.
If we can, as a people, in the course of our celebrations this year, resolve to prevent a recurrence of these blots, our commitment to Justice will grow.
On the positive side, we may note the following, which underline our commitment to justice:
· Return to constitutional democracy
· Creation of a media friendly political environment
· Respect for the Rule of Law and Human Rights
· Efforts to correct the gender deficit and the corresponding policies being put in place to protect children and the vulnerable in our society
· Efforts at ensuring equity and equitable development of the whole country
· The creation of a favourable space for freedom of expression
· The peaceful hand-over of power in 2001. Additions may be found scattered elsewhere in this lecture for, as I have stated at the outset, my understanding is that the words Freedom and Justice in our motto mean essentially one and the same thing.
So how do I assess our commitment to our national motto since independence? For me, the picture is mixed. But there are encouraging signs.
First, the project for political freedom is near complete. I have suggested that completion requires the creation of new regions. Second, the prospects for economic freedom are good. But we need to maintain the course and manage our economy so well that sooner than later, we will shed the dependency syndrome.
Third, we need more investment in our educational system, the police and other law enforcement agencies and the justice system. Fourth, we must return to ideological or issue-oriented policies. It must be remembered that the pre-independence and early post-independence political battle lines were drawn around issues, the biggest of them being SELF-GOVERNMENT NOW versus SELF GOVERNMENT IN THE SHORTEST POSSIBLE TIME. Fifth, we must remain on the course we set on 7 January, 1993.
Sixth, we must find a way of curbing the emerging destructive influence of political party discipline and especially its growing debilitating effect on our politicians, particularly members of Parliament.
At all cost we must ensure that our constitutional democracy does not degenerate into simply majoritarian rule without regard for minority interests. In this regard, the minority must also accept the right of the elected majority to implement its policies without seeking to co-govern.
There is nothing wrong with majority as long as it is non-permanent and shifting. Seventh, everything should be done to ensure that the buffer institutions – NMC, CHRAJ, NCCE, CS, ED, PSC and the Auditor-General are able to carry out their mandates effectively.
Eight, while ensuring that our media remain vigorous and robust and keep us all on our toes, public and private persons alike, we must make sure that media power does not lead to media dictatorship.
Finally, in spite of everything said, my assessment must end on a positive note. And that is that we, as a nation, since independence, have been committed to our national motto of Freedom and Justice to an appreciable degree. That is the only explanation I can give to the fact that our nation did not disintegrate into its four parts or some other combination in the face of all the challenges, we as a people, have experienced in the last 50 years.
God Bless Our Nation Ghana, protect and guide her leaders. God Bless Us All, the people of Ghana.
I thank you for your attention and wish everybody a blessed 50th Independence Anniversary enjoyment. I would also like to thank all those who assisted me in the preparation of this lecture, especially my wife Esther, as well as those who have had a hand in my formal education.
The Daily Graphic - Wednesday, April 11, 2007 Pages 15 - 33