Monday, 29 August 2016

Remission of Montie Three Sentence

Without mincing words and without a shadow of doubt, President John Dramani Mahama got it right. The question that needs to be answered is what did the President do? The facts are bare. In the first place, the President accepted the conviction of the Montie three. He also accepted that the court was right in slapping both fine and custodial sentence on the contemnors. The President however disagreed with the severity of the sentence and therefore reduced it. He did that by exercising the powers conferred on him by Article 72 clause [1D] of the constitution. Not under Article 72 clause [1A], [1B] or [1C]. What the President did is a remission, not a pardon, not a respite and not a substitution. In essence, the President disagreed with the call on him by the petitioners to pardon the Montie three.

The President however rightly accepted a reduction of the sentence. It is important to note that the citizens of this country have chosen the path of multiparty constitutional democracy in which they clearly committed themselves to the legal supremacy of the constitution. It is the people of Ghana who are sovereign and supreme. One deliberately used the term legal supremacy because we do not govern only by law. But we also resort to morality and good conscience in governing a nation. In a multi-party constitutional democracy, none of the three arms of government is supreme. None has final authority on all the powers of government and none is superior over the others. Only the constitution is supreme in all matters of law. There is however enshrined in the Constitution the doctrine of checks and balances. Surely because the nation is governed by fallible mortals and not angels.

In that respect, any of the arms of government can err. Check on one arm of government by another cannot by any stretch of imagination or argument be said to be an interference with the function of the arm. The Judiciary can and has on a number of occasions declared the acts or conduct of the Executive unconstitutional, or ultra vires and therefore void and of no effect or voidable. The Judiciary has struck down such acts or conduct on many occasions. Could that be said to be interference in the function of the Executive? The Judiciary has dealt similarly with the Legislature. An example is a section of the Chieftaincy Act recently passed by Parliament. It is noteworthy that in exercising the powers conferred on him by Article 72 (1), the President is not called upon to resort to the provisions of the Prison Service Act. It is only under Article 72 (2) that the President is called upon to, apart from the advice of the Council of State, be informed by the other matters stated in Article 72 clause (2). The President swore an oath to at all times preserve, protect and defend the constitution of the Republic of Ghana. The President swore to dedicate himself to the service and well-being of the people of the Republic of Ghana and to do right to all manner of persons. The President has just abided by this oath. Congratulations Mr President. Having said that, it is also instructional to comment on the strange animal call contempt.

The current state of the law in Ghana supports the exercise of the power of the Judiciary to punish for contempt in facie curia (in the face of the court) and ex facie curia (out of the face of the court). Except that in the case of ex facie curia there is doubt as to whether the court could act as the complainant, the prosecutor and the judge at the same time in its own cause. One is of the view that in the case of contempt ex facie curia the court ought not be clothed with such powers.
This view is supported by some judges as shown in a number of decided cases including the one on Liberty press. In such cases, the Attorney General has a role to play since cases of contempt are quasi criminal in nature. Applying civil procedure rules and process to try such quasi criminal matters run contrary to all known principles of a fair criminal trial. In such cases the court is not clothed with the evidence. This has to be adduced before the court. The evidence has to go through the acid test of examination by both the prosecution and the defence and even the court. In contempt trials the critical examination of the Prosecution and defence is regrettably absent. It is therefore worth counseling that the exercise of the power to convict and punish for contempt be exercised with utmost restraint by both the Judiciary and Parliament.


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