Analysis by Ebenezer Hanson
A fortnight ago the Legal Resources Centre (LRC) and the Friedrich Ebert Foundation (FES) jointly organized a seminar to deliberate the vexed issue of whether the separation of the Justice Ministry from the Office of the Attorney-General (A-G) will curb the perceived abuse of power of criminal prosecution and thus promote good governance.
The Seminar indeed lived up to expectation as the three eminent speakers who led the discussions did justice to the topic, illuminating participants on their positions and convincing some to buy into their thoughts. The speakers were Dr. Obed Yao Asamoah, Patron of the Democratic Freedom Party (DFP), Prof. E.V.O Dankwa, a former law lecturer of the University of Ghana and Mr. Vitus A. Azeem, the Executive Secretary of Ghana Integrity Initiative (GII).
The contributions that ensued were a pointer to the fact that majority of the participants share the view that the two positions should be split as advanced by Dr. Asamoah and Mr. Azeem.
Dr. Asamoah, the longest serving A-G Ghana has ever had since independence, pointed out that since colonial times political persecution under the guise of criminal prosecution has been common. He observed that the fusion of the two offices have led to instances where “many a time governments have demanded accountability of others particularly opposition party members and perceived enemies other than their own members”.
He explained into detail drawing largely on proposals of the Constituent Assemblies of 1968 and 1978 that separation would do the criminal justice a lot of good, hence promote good governance. But he stresses that mere separation would not achieve the desired results unless the Attorney-General is guaranteed security of tenure.
According to him, the security of tenure for the A-G could be ensured if some three key arrangements are instituted. First, making the process for removal of the A-G from office difficult; second, insulating the determination of his salary, allowances and pension from political interference; and the third but not least, avoiding a change in the regime of salary and allowances while in office.
He also recalled that to guarantee the A-G’s position under the 1968 proposals the A-G’s position was equated to that of a Judge of the Supreme Court and in 1978 linked the position to that of the Superior Court of Judicature other than the Chief Justice.
Mr. Azeem cited the cases of Australia, Canada, England and Wales, Hong Kong South Africa, Thailand, Brazil, Trinidad and Tobago, Israel and Jamaica where the two positions have been either split or fused and pointed from social and practical cases the merits and demerits in each case. He concluded that, the ends of justice are better served if the two positions are kept distinct.
“In fact, I dare to state that the political position of the Attorney-General affects his/her relationship with some anti-corruption agents especially if they are perceived as anti-government. Some of these institutions have had cause to complain about the refusal of the Attorney-General to prosecute cases they have investigated and recommended prosecution,” Vitus referred to the situation in Ghana.
But Prof. E. V. O Dankwa, who was privileged to a Member of the Committee of Experts who drafted the proposals for the 1992 Constitution, dissented from the thought-provoking presentations of Dr. Asamoah and Mr. Azeem. His position which was cogently and coherently articulated made some of the participants to critically re-examine their earlier stance which were predicated on Asamoah’s and Azeem’s.
He first clarified a misconception which many have associated with Article 88(1) of the 1992 Fourth Republican Constitution. He elucidated, “The Committee of Experts did not propose that the A-G should be a Minister of Justice but rather a Minister of State”.
Article 88(1) stipulates, “There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Governments”.
To him, the arguments advanced by the two speakers that the separation of the two offices fly in the face of reality and “it is not clear whether the separation will lead to good governance. I don’t think the present arrangement should be disturbed”.
He adds, “Pressure can be brought to bear on public officials just as politicians,” countering the reasoning that if the A-G is made purely a public office and not political it could lead to transparency in criminal prosecutions.
Prof. Dankwa submits that besides precluding a potential source of conflict between the A-G and Minister of Justice, the fusion also obviates overlapping of functions between the two offices.
He is, however, convinced that the wheels of justice would be better oiled and frontiers of good governance expanded if the personality appointed the A-G asserts his independence in addition to being endowed with certain personal qualities and virtues. These include impartiality, steadfastness, respect for the rule of law, respect for fundamental human rights and freedoms, and possess the culture for non-discrimination against persons irrespective of gender, religion, ethnicity among others.
“The President himself must possess these qualities in order to influence his subordinates including the Attorney-General,” he adds.
During the discussion session, some contributors contended that the Chairman of the Electoral Commission is able to assert himself because of the security of tenure he enjoys under the Constitution.
But Prof. Dankwa dismisses the assertion submitting although some judges enjoy security of tenure yet they have given judgments which have raised a lot of eye brow in this country. A participant strengthened this point when he submitted that the EC Chairman could have compromised his position if he wanted to regardless o f the fact he enjoys the afore mentioned guarantees.
It has also been said in certain quarters that some Director-Generals that the State broadcaster, Ghana Broadcasting Corporation (GBC), has had enjoyed immunity in that they were appointed by the National Media Commission(NMC), yet at one time or the other, they acted in a certain manner which all reasonable persons regarded a pandering to the government of the day.
Flowing from this premise is that it is not merely ensuring the security of tenure of the office of the A-G or similar positions, but it depends to a large extent on the ability of the individual occupying the position to assert his/her independence which is also predicated on personal beliefs in principles such as impartiality, the respect for the rule of law and fundamental human rights and civil liberties, culture of non-discrimination and the like.
It is worthy of note to recall that when the Appointments Committee of Parliament sought the views of Mrs. Justice Georgina Theodora Woode, then Appeal Court Judge and Chief Justice designate, on whether the position of the A-G should be separated from that of the Justice Minister, her answer was that it would not make any difference in as much as the appointing authority to the two positions remains the same.
It thus appears that the experts themselves are not unanimous on the issue. The National Democratic Congress (NDC) promised in their 2008 manifesto to keep the two positions distinct and so were the Convention People’s Party (CPP) and the People’s National Convention (PNC). Let us go at it and experiment it, at the end of the day the fruits it will bear will show whether we as a nation have engaged in an action whose consequences are what we set for ourselves or we have done much about a project which has yielded nothing.
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment