I am far away in Mauritius. I rarely share my views on this platform. I am compelled to do so this time as a result of the effect this case has to the health of the democracy in Ghana and an appeal by one of the members of the platform to share our legal opinions on the exercise of the power of mercy by H.E. John Dramani Mahama in favour of the trio of Muntie FM. My views on this matter is based on information from publications I have read on social media. I must admit that this is not the best source of information. My options are however limited.
I read that acting in consultation with the Council of State the President exercised the power of prerogative of mercy under Article 72 of the 1992 Constitution and remitted the sentence of 4 months and a fine of 10 000 Ghana cedis each to 1 month and a fine of 10.000 Ghana cedis each.
Without mincing words and without a shadow of doubt, H. E John Dramani Mahama got it right. What did the President do?
The President accepted the conviction of the Muntie 3. The President accepted that the court was also right in slapping both fine and custodial sentence. The President however disagreed with the severity of the sentence and reduced it. He did this my exercising the powers conferred on him by Article 72 (1) (d) of the constitution. Not under Article 72 (1)(a) or (1)(b) or 1(c). What the President did is a remission, not a pardon, not a respite and not a substitution.
In essence the President also disagreed with the call on him by the Petition to pardon the Muntie 3. The President rightly accepted a reduction of the sentence.
It is important for me to note that Ghana decided to be governed by a multiparty constitutional democracy in which we clearly committed ourselves to the legal supremacy of the constitution. It is the people of Ghana that is sovereign and supreme. I deliberately used the term legal supremacy because we do not government only by law. But we also resort to morality and good conscience in governing a nation.
In the multiparty constitutional democracy we opted for, 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 our Constitution the doctrine of checks and balances. Surely because we are governed by fallible mortals and not angels any of the arms of government could 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 could and has on a number of cases declared the acts or conduct of the Executive to be 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 an interference in the function of the Executive? The Judiciary has dealt similarly with the Legislature. A recent example is a section of the Chieftaincy Act recently passed by Parliament.
Let me also say 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. My humble opinion is that 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 (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. I think the President has just abided by this oath. Congratulations Mr President.
Let me say a few words about the strange animal call contempt.
The current state of the law in Ghana support 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. I am of the humble view that in the case of contempt ex facie curia the court ought not be clothed with such powers. My humble 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.