The Montie 3 addressing the crowd at Radio Gold
I have listened and heard others narrate their views on the recent “Montie 3” public discourse. And I must say, as a fellow countryman, I have been hit by the subject. I want to graciously present my humble views as well, and I will start my submission by quoting Her Ladyship Akoto Bamfo (Mrs.) JSC:
“I am acutely aware of the national importance of this petition and the far reaching consequences this decision could have for this country”.
Again, I will quote His Lordship Ansah, JSC, when he said; “by virtue of its peculiar nature and potential effects, many commentators have rightly described this suit as one posing a test of the structural maturity of our democratic ethos, causing all eyes worldwide to focus, even if only briefly on our polity to see if and how we can surmount this unique challenges. Without doubt, the resolution of this case portends much for the future path of our democratic development”.
The two quotations above were made in the landmark case of Nana Addo Danquah Akufo Addo and 2 Others (NPP) vrs. John Dramani Mahama and 2 Others (EC and NDC)(2013) SC, popularly known as the 2012 Election Petition case, resonate with the current atmosphere surrounding the “Montie 3” case. I have already made some humble submissions on this matter.
However, I feel a civic duty on my path to reach a much wider constituent to give my opinion on some of the constitutional matters bordering on this matter as others have done.
For starters, I must say that the above quotations have their respective reflections on the current “Montie 3”matter. Her Ladyship Akoto Bamfo’s quote is a statement very true regarding the instant case that, whichever way people see this case, now that there is a conviction and that if this “gravitational petition” is allowed, will have consequences on the democratic ethos of our nation.
And as a nation, today, we all agree that this conviction will have a great impact on the media landscape in this country and its contribution to our democratic discourse, where the culture of political impunity from all sides of the political divide will be halted and the media debate take a more prudent direction on issues of national concern that affect us all as a nation.
And for the quotation by His Lordship Ansah, JSC, again we will all agree that with this conviction and the quest by a section of our people mounting this gravitational petition on our President, the world will once again be watching Ghana, to see how this possible Judiciary and Executive clash will unfold, which His Lordship puts it that such national matters are real test cases for the structural maturity of our democratic ethos (character, spirit, tenet, etc.).
Lawyer Tony Lithur, on record is among the first persons to publicly argue in line with the above quotations and that there would be “ramifications” on the Presidency and by extension a possible spillover effect for the nation as a whole. And Tony Lithur, Esq., we all know is the President’s lawyer. However, the stance by my Learned friend and senior Tony Lithur, Esq.,has met huge disagreement from some members of the ruling government and notable among them been Ministers of State including his own wife, Nana Oye Lithur, the Gender Minister, by their public gesture of signing this gravitational petition. Other Ministers include Professor Naana Jane Opoku Agyeman, the Education Minister, the Tourism Minister and some others. And l will respectfully, state herein that this conduct by these Ministers is very misplaced and that they are been led by an uninformed group that does not really understand the constitutional dimension surrounding the matter herein but just leading them astray.
Respectfully, l 100% align myself with the position posited by my learned friend Tony Lithur, Esq., that no matter what, the ramifications thereof to the image of the Presidency, if this gravitational petition is allowed far outweighs whatever good intentions this uninformed group is mounting on the President. Yes, it’s very unfortunate that some of our comrades (“Montie 3”) have seen this sanction by the highest court of our land, the ramifications thereof, if this gravitational petition is allowed, is a reality and l am very worried why this group, Research and Advocacy Platform cannot see this and is leading people like Ministers to put our President in such a public dilemma and conundrum.
And for the Gender Minister, l respectfully, think she in not only betraying the President her boss but also her reputation as a renowned national activist and her husband publicly because it is now notorious that her husband is against this gravitational petition, as she is just following an uninformed group. And also, for our Education Minister, her decision to follow an uninformed group is a very BIG surprise to many Ghanaians.
The good old Professor, was once a Vice Chancellor (VC) of a University and we all know how strict VC’s held unto discipline on campus, with the golden principle that, “for the University to be governable, there must be sanctions, even if we don’t like and agree to same”. So why has this person who has held and applied such principles, allowed herself to be lead into such a quest hat could potentially bring the Executive and the Judiciary to a point of head on collision, constitutionally? I respectfully don’t believe that, that is the kind of politics she wants in Ghana, l am disappointed that she has allowed somebody to take her down like that, honestly, she is finished in the eyes of some Ghanaians, there is nothing great about her doing this but rather a dent image.
There was once a Professor in Ghanaian politics, H.E. John Evans Fiifi Atta Mills and as a nation, we can all testify, that when the Woyome matter broke, all he said was, “let the law take its course”, what a bold decision for a sitting President against one of his own at the time, he kept his professorship intact till death. Professor N. J. O. Agyeman, to some Ghanaians has lost it, until she reverses her decision and pull out as a signatory to this infamous gravitational petition, which our Ga Chiefs saw the point of national reason and pulled out before falling into such a trap. A petition so infamous that, some equally public figures, have called the Petitioners, “nation wreckers”. So, to these persons, Prof. N. J. O. Agyeman after serving her nation as a VC, whether she likes it or not is a nation wrecker to them, regarding this petition. I really feel very sorry for her and why did she so inadvertently, get herself into this infamous national puzzle.
Now respectfully, why do l say that the Petitioners, including our Ministers, Professor N. J. O. Agyeman and Nana Oye Lithur and the others, have all been misled by an uninformed group, Research and Advocacy Platform, into signing this gravitational petition?
On the 2nd day of August, 2016, l listened to the Citi FM programme Eye Witness News and listening to one Abu Razak on the segment point blank, introduced as the convener of the said petition coming from the Research and Advocacy Platform, it was very clear the youth did not really appreciate the constitutional dimensions of the issues surrounding the conviction of our “Montie 3” comrades. And l humbly appeal to my fellow countrymen that this interview is a must listen, so as to have a clear view of the group that is putting all of us under pressure with this gravitational petition.
However, for the sake of time l would recap what l gathered from this group that is leading almost all NDC comrades into this dilemma. Abu Razak had this to say in the said interview:
“What we are doing is lawful, what the Court did is lawful and what we want the President to do is also lawful. We are all having a lawful discussion”.
And the other point made by him was that they are bringing this petition because the “sentence was harsh considering the fine in addition to the 4 months jail term and also that some other persons had put up the same conduct in the past and were not given such punishment”
So fellow countrymen, to Research and Advocacy Platform, what the Court did is lawful. This, they are right because Article 126(2) of the 1992 Constitution provides that:
“The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record…”
However, they have decided to begin this petition to take the whole nation on a collision course of two arms of government. Now, l will begin to deal with the constitutional dimensions embedded in the young man’s own confession that, what the Court did is lawful.
Article 125 (1) of the 1992 Constitution in sum provides that the Judiciary shall administer justice on behalf of the Republic and shall be independent in doing its work and subject ONLY to the Constitution.
Article 125 (3) provides that judicial power shall be vested in the Judiciary and neither the President nor Parliament nor any organ shall be vested with final judicial power. And 125 (5) provides that the Judiciary shall have jurisdiction in all matters whether civil or criminal.
So, respectfully, the judicial power of this country is vested in the Judiciary and their work can never be interfered by any organ of State. And that final judicial power is vested in the Judiciary. So my point is, if one finds a court decision to be harsh and if that is the ground of disagreement, that person needs to go back to the same court of law and ignite the laid down legal processes to have the Court have a second look at the said harsh decision by way of a review in the case of the Supreme Court and an appeal in the case of a court lower than the Supreme Court. So, to Abu Razak and his Research and Advocacy Platform, if the ground of the petition is because the sentence was harsh, where do you go? Because this is a judicial decision and final judicial power does not rest with the President of Ghana but the Judiciary, an organ of State headed by the Chief Justice of Ghana.
So for Article 72 of the Constitution, which is on the “Prerogative of Mercy” to be exercised by the President, that the Petitioners are coming under to be exercised for the “Montie 3” to ground, l believe the Petitioners should not have given any reason (harsh sentence) for their disagreement with the court because the moment they did so, then they needed to go back to the final judicial power to address their disagreement. But if their petition had been for mercy without a disagreement with the Court, then Article 72 became stronger and because the power to grant mercy for convicted persons is vested in ONLY the President, their petition would not have been seen by some jurists as being on a possible collision course with the Judiciary. So, when a party disagrees with a judicial pronouncement, that party goes back to the final holder of judicial power and that is the Judiciary and not the President of Ghana.
Article 127 (2) provides that neither the President nor Parliament nor any other person shall interfere in the exercise of judicial power. And that the State shall rather do all it can to assist the Judiciary to exercise judicial power to protect the independence, dignity and the effectiveness of the Judiciary.
Thus, to my understanding, the Executive that the Petitioners are petitioning to, should rather assist the Judiciary, especially when its pronouncement borders on public policy (public safety, public interest, public trust, etc.) and this l expected our Ministers to have done than following a youth group, that seems to be uninformed on these constitutional dimensions to our democracy. And that, if the Petitioners in view of Article 127 (2) will only see Article 72, to bring this gravitational petition to mount pressure on our President, damming the ramifications as posited by others like Tony Lithur, Esq., then this is unfortunate.
Again, another area of criminal jurisprudence that the Petitioners seem to be lost is the area of criminal culpability. When the host of the show, Richard Skyy asked if the Petitioners accepted that the convicted brethren were liable for the offence and thus, if the conviction was proper, Abu Razak simply made reference to the presentation of the BNI on the matter, that the contemnors at the time, “did not have the capacity to do whatever they proffered to do’’. Yes, the BNI as a State institution can give a report on a matter of national security (public safety) but is the interpretation of a purely legal subject vested with the BNI or the court. And the big questions is, is the BNI’s findings the legal requirement of a criminal culpability? I honestly, do not think so in a democratic State.
Section 1 on interpretation, of our Criminal and Other Offences Act, 1960 (Act 29) provides that criminal offence, has the meaning assigned to it by Article 19 of the Constitution. And Article 19 (11) provides that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. Now, it is trite learning that contempt is a common law offence and more importantly, a “quasi criminal offence”. And Article 11 of the Constitution, on the laws of Ghana, provides in 11 (1) (e) that the laws of Ghana includes “the common law”.
So, contempt which is a common law offence is part of the laws of Ghana, and here it does not matter whether is it defined and the penalty prescribed in our statute books. This position is supported by Article 19 (12) which provides that Article 19 (11) shall NOT prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act constituting the contempt is NOT defined and the penalty prescribed in a written law.
Now, more importantly is Section 11 of Act 29/60 referred above, which is on “intent”, provides that, where a person does an act for the purpose of causing or contributing to an event, that person intends to cause that event, within the meaning of this act and that, although in fact or in the belief of that person, the act is unlikely to cause or contribute to cause the event. The case of Odupong v. Republic (1992-93) GBR 1038 CA, resonates this position of the law, where in a murder case on appeal the court held that the accused had the intent to kill his wife because loading a gun and aiming and firing at another person was a clear indication that death was the plausible intention.
Also, in R v. Quaye (Jack Toller) & ORS (1954) 14 WACA 488, where the accused person with the aim of stealing, administered chloroform to the victim that later caused the death of the victim on appeal had the court holding that, the degree of criminal responsibility depends upon the existence or otherwise of a bona fide ignorance of the connection existing between a mere mechanical act and its consequences. And that the knowledge and consciousness on the accused person’s part that death was a likely result of his act, whether or not he willfully incurred the risk of causing death is therefore an essential element.
Now respectfully my fellow countrymen, most of us have heard the audio of the conduct that has brought about this national discussion and we all agree as a nation that the conduct was wrongful and more so our brethren admitted liability in court with their legal representations. Now, let’s situate it in the context of the above Section 11 of Act 29/60 and the two cases that, when our convicted brethren called on all NDC comrades to wake up, “waka” and if people had woken up “waka” onto the streets of our motherland Ghana, could there have been any possible consequences therefrom?
What inference looking at these judicial authorities, can one make? It’s clear that their conduct was cut up in the web of judicial prohibition and so sanctions were not out of place, as we all agree. Even though the application of judicial sanctions was going to be met with some political resistance, as we are witnessing, I must say that as comrades, we will naturally feel bad about sanctions to affect our brethren but in all matters we need to pause and reflect, especially when the sanctions have been meted out already. And l ask the question, is this gravitational petition on the Presidency at this time, as posited by my learned friend and senior, Tony Lithur, Esq., the way forward?
Thus, if Abu Razak and the Petitioners can only refer to the BNI’s position that the contemnors at the time could not carry out their pronouncement then, l am sorry that is not the position of the law of criminal culpability in our criminal jurisprudence. And also when asked by the host of any other authority on the matter, Abu Razak just said in other jurisdictions but could not mention any jurisdiction, it became very clear, if you were listening to the interview, that the young man and his group are clueless and don’t really understand the terrain they have started a national discourse in, except Article 72, that only speaks to the prerogative of mercy by the President of Ghana. Honestly, with the said interview the Petitioners don’t really understand the matters and are only hinging on Article 72 to test our democratic ethos in a funny and uninformed way. And in this regard, I will respectfully, quote His Lordship Baffoe Bonnie, JSC, also from the 2012 Election Petition, when addressing the issue of over-voting said;
“…that is why Dr. Afari Gyan suggested that the pink sheet should be read as a document in full and not question by question as the Petitioners seemed to be doing. But Dr. Bawumia preferred, ‘on the face of the pink sheet”.
This gravitational petition is been brought only under Article 72, what about the other Constitutional provisions, especially Article 127 (2) that enjoins the other organs of State to rather assist the Judiciary to administer justice as presented above. The Constitution is said must always be read as a whole, as well as all documents and not in piece meal. And seeking to select some provisions, leaving related provisions to end up in a collision of organs of State will not fly in a true democracy.
Again, I will quote Her Ladyship Sophia Adinyira (Mrs.), JSC, also from the 2012 Election Petition, when speaking on the irregularity of absence of presiding officer’s signature said that;
“… Public policy favours salvaging the election and giving effect to the voter’s intention, if possible”.
We all agree as a nation that this conviction was based on public policy (public safety, public interest, public trust, etc.). Thus, are our Ministers not being misled in such a sensitive national matter? I respectfully think they are being misled by an uninformed group. As all what the court did via this conviction, even though very unfortunate, was to weigh the safety of the public as a result of the varied public interest as against the conduct by our brethren and to restore public trust in the Judiciary.
At this point, l respectfully appeal to our Council of State that as per Article 89 (1) of the Constitution, that in such national matters when our President will come to them for counseling, that they listen to this Citi FM interview referred above, so they are better placed to counsel the President when this “GRAVITATIONAL PETITION” comes up for consideration.
And respectfully, I also appeal to the Office of the Chief of Staff for same to be done to understand where this petition is coming from, as the ramification posited by Tony Lithur, Esq., cannot be overruled.
I end my humble views on this constitutional matter, by quoting former President Rawlings, when he made the following statement at the just ended 2016 NDC Campaign launch in Cape Coast that;
“We should not create unnecessary provocation, to create undue tension”.
Long Live my fellow countrymen!!!
Long Live Ghana!!!
George Tetteh Wayoe, Esq.
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