Pardon, No Pardon – Who Wins?

The call to pardon Montie Fm contemnors, charged for criminal contempt by Ghana´s Supreme Court has reached a creaking climax. The suspense is heavy! Who wins the struggle - pardon or no pardon? The very people from whom the clemency power emanates now split into “grant it” vs “don’t” to the Montie 3 and, the President is now a man in dilemma.

“Keep them in jail”, says the Progressive People´s Party (PPP), whilst Research and Advocacy Platform (RAP) petitions, “free them from jail.” These two roads “diverge into a yellow wood” and “bent undergrowth” – perhaps, the “dangerous minefield, Mr Abdul Malik Kweku Baako Editor- in-Chief of the New Crusading Guide says (Myjoyonline.com July 30, 2016). Could the President choose the “grassy” route – don’t pardon them - the one Robert Frost says “wanted wear”- the “less travelled?” or the trodden path – pardon them? Well, just hold on!

It was the eve of a martyr day, a heavy moment for the judiciary as they meditate the incomprehensible end of three high court judges and an army officer, killed and burnt alive. The programme was Pampaso which Mr Salifu Maase (2^nd Contemnor) was hosting and empanelled Alistair Nelson (3^rd Contemnor) and Godwin Ako Gunn (4^th Contemnor) with the owners of the Montie FM being the 1^st Contemnors. According to Justice Sophia, they accused the court of favouring the plaintiff in a suit number J1/14/2016 (Abu Ramadan & Anor v Electoral Commission & Anor) while exhibiting bias against the Electoral Commission. They blamed the court of being highly motivated to favouring the opposition New Patriotic Party (NPP) in the impending 2016 elections. Then they went uphill - threatened to deal with the judges if they deliver judgement that dissatisfy them in the motion mentioned above. They then climaxed their infamy reminding the judges of the June 30, 1982 murdering of the three justices whose death occasioned the Martyr Day. It means that similar fate could befall them on condition that they give satisfactory verdict as they desired.

So the verdict struck like thunder and lightning, inflicting unprecedented judicial wounds on the contemnors - four months imprisonment with 10,000 Ghana cedis each and in default spend an additional one month in the gallows. The judges stretched their whip to the owners of the station, Network Broadcasting Company and Zee Zee who were fined 30,000 Ghana Cedis each. Perhaps the court sees that the sanity or insanity of an organisation comes from the head for which they were held accountable. It also suggests they endorse what the contemnors did. The ruling was also therapeutic as the court instituted a policy surveillance that compelled owners of the station to submit acceptable policy befitting peaceful broadcast.

This is the punishment described as harsh by a section of the political elites mostly the ruling National Democratic Congress (NDC) whilst others hailed it as an appropriate punishment for the mischief of Montie fm 3 who are reported to have gained notoriety of maligning those who oppose the governing NDC. What is the right way? For the first time in Ghana, the condemnation of the Montie 3 cuts across the political divide – including the NDC and the New Patriotic Party (NPP).

The NDC and its empathisers whilst condemning the actions of the Montie contemnors recognised that they must be punished but rather shocked by the judgement as they perceived the judicial rod as too hard and harsh. In effect, they are craving for a reprieve which they found in article 72 of the 1992 Constitution.

However, to Prof Kofi Kumado, the President doesn’t have such power. The equilibrium between law and morality is an elusive business in jurisprudence and the threat or beauty, if you like, of no one person has all the answers, occasions sometimes eccentric interpretations in law that traverse even the discarded “tit for tat” morality. It makes the law a static voodoo image like one in my Hadota village that has eyes but cannot see, has ears but cannot hear and nose but cannot smell old stinks, all in its vengeful and static pursuit of justice. So when Prof. Kofi Kumado, a law tutor of heavenly repute plunged into my stomach, the jargon, “punishment for inchoate offences is the same as for the substantive offences,” (Daily Graphic Aug. 5 2016), as he was taught at the Law Faculty of the University of Ghana, Legon, my heart sunk. I congratulated lawyer Ayikwo Otoo, whose “Gbeshie” pleas saved our well-loved ‘Sir John’ (Kwadwo Owusu Afriyie), former General Secretary of NPP. Sir John would have been in his ‘grave’ by now by Prof Kumado´s ancient understanding of the law; “if you kill a person, the punishment is death; if you threaten to kill a person, the punishment on conviction for the threat is also death. The same will apply to a threat to kill a judge.” So, Montie 3 must receive death penalty. Thank God! Before my good friend Sir John faces his gunners, if the jury convicts him to death, or the Montie 3, the president has to disapprove or do otherwise. In fact, I know the president, he is my friend. I had once a historical handshake with him when he was the Vice President of the republic and I was then a parliamentary correspondent of Ghana news Agency (GNA). He is very intelligent, he will never sign the death warrant of these gentlemen who were plagued by Gbeshie and Kpo Kpo Gbli Gbli, respectively should the court tow Prof Kumado´s gospel of the law. I wonder if this could amount to interference in the affairs of the judiciary. However, I have a deep seated conviction he would rather pardon them – turn the “death punishment for threatening a judge to life” and when they fail to open their mouth too wide in prison, they could gain their freedom on a republic day.

The mercy prerogative is a republic day ritual. Is it to de-crowd the prisons or the criminals really need mercy? A year ago, it reprieved 900 prisoners - murderers, perhaps drug barons, terrorists, gun-runners. This year, 870 grave offenders gained their freedom. If murderers are shown mercy, why not contemnors, asked Dr. Arthur Kennedy, former presidential aspirant of the New Patriotic Party (NPP). He believes John Mahama will not hurt the law if he does so. Perhaps, it will be a cure to the “emerging judicial tyranny,” which the “Wood Court” has insatiable appetite for. “In the last 4 years, the Wood Court has engaged in more criminal contempt trials than the Abban, Wiredu and Acquah (AWA) Courts did in their combined 12 years” (Ghanaweb Monday August 8, 2016). According Stephen Kweku Asare, a United States based law Professor, the Montie 3 trial failed fairness and appellate procedure. The judges amassed all powers – prosecutorial, investigative, jury – name them, and crushed these “first time damagers,” though on their own pleas, apologies and tearful remorse.

“Count one first, then step to two,” says one Ewe proverb. Those clamouring for pardon have not yet exhausted the review gateway under Article 133 of the 1992 Constitution. They know but are a bit constrained because affliction twice strike is an insult to rationality, may be. Never! If the all-powerful Supreme Court may have to review its decisions subject to such conditions as may be prescribed by its own rules, then stretching the hands of the president to article 72 of the 1992 Ghana constitution could be a better choice. Given that the president is willing to grant the request for whatever reason, the Counsel of State cannot stand in his way.

Who says this pardon-hunt is lawless manoeuvres? Nana Oye Lithur, Gender, Children and Social Protection, Minister and her NDC mates could be flogged for procedural deficiency but not on the permissibility of the law. They cannot be “nation wreckers” as the moderator of the Presbyterian church of Ghana, Rev. Prof Emmanuel Martey, has suggested (StarFMonline.com Aug. 2, 2016). If “Kpo Kpo Gbli Gbli” spiritual attack pleas could not wean the court´s heart of the disgust as did “Gbeshie” in 2013, then resorting to constitutional technicality may do, be it fair or foul.

So, neither “funeral” threats of Mr Sam Okudzeto (Classfmonline 2016), nor the “political death” coercion of Abdul Malik Kweku Baako (kasapafmonline.com Aug.3, 2016) can ever deter the “dead goat.” Politicians love power, unbridle thirst for power, of course, but if for some strange reasons, the president hates power at least for the next four years, then he could pardon the Montie 3, after all, no dead goat ever fear even “a three edged sword,” if one ever existed. If the NDC could lose the next elections because President Mahama is crumbled by party pressure and pardon the Montie 3, then NPP must lead that crusade because they could gain from it. However, their voice is the toughest –“Montie gang should take punishment as men”- Usular Owusu Ekufful, MP, Ablekuma West. Guys, just predict this outcome - if the Montie 3 were NPP affiliated! Could the Nana Oye sign that petition? May be in the next world.

It is unprincipled to obey a law or not obey based on its consequences. The instinct for law adherence and truth whether it favours or not is a universal command all Ghanaians must accept and practice devoid of status, colour, tribe or place of origin and political affiliation.

So, can the President pardon offenders including contemnors? Yes! the constitution allows it. What does the rule say when one is not content of any ruling? Seek appeal or jump the appeal border? The best most principled option that can stand the test of time is for the Counsel of State to advise the President to ask the petitioners to seek review first and if that fails and it is still morally right and legally necessary to pardon the Montie 3, then “Mr President go ahead.” Can these procedures be applied as a universal law – YES!