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22.08.2005 Feature Article

Whose right is it to investigate the President?

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WHEN Kenneth Starr and the Republicans took the scent of the cigar and the presidential skid marks in Monica Lewinsky's dress and went for Bill Clinton's blood, Hillary Clinton described it as a “vast, right-wing conspiracy.”

Minority Whip David Bonior, Democrat, said this at the time: “This is a charade of justice. The American people through this truncated debate are being railroaded. Today's proceedings are a hit-and-run. The Republican leadership's long-term strategy is very, very clear. Drag this thing out, week after week, month after month, and yes, year after year. Not for the good of the country, but for their own partisan advantage.'' -

Doesn't it sound all too presently familiar? You would be forgiven to think there is a vast leftish conspiracy to bring President Kufuor down by foul means. Qanawu was on Radio Gold's Alhaji & Alhaji programme Saturday when the host read a damning text purported to have been sent from the Chief Investigator of the 'Hotel Kufuor' case. Can you imagine what this could have meant to the Friends of the Truth, the NDC, on the one hand, and CHRAJ and President Kufuor, on the other?

But, the facts unfolding point to either a wicked but not-so-clever scheme by Alhaji Bature and perhaps others to unfairly damage CHRAJ and the President or an innocuous and not unusual error of saving a person's name against the wrong number. However, which host goes to the bother to save the name of his callers? Something just don't add up… Qanawu can imagine Kramo and Ayamdoo against Bature jumping from station to station exposing the real culprit as the story unfolds this week.

What this confirms, in Qanawu's view is the danger of exposing the presidency to investigations based on any mere allegation. An article in The Statesman last Friday by Atta Akyea, a legal practitioner, has thrown up a more fundamental issue which is worth looking into. He questioned the constitutional mandate of CHRAJ to investigate the President.

The timing, however, may not be politically right, as the opposition is looking for any excuse to scupper the CHRAJ investigations, which are in an advanced stage. But, the need to do the right thing per our treatment of the Presidency is paramount. Indeed, the opposition are not bothered about the issue of CHRAJ's jurisdictional competence. Their concern about the perceived political bias of CHRAJ, sadly, is extremely irresponsible and dangerous to national efforts to strengthen the stilts of institutions of state. Our politicians must learn to aim their shots at specific targets, without bringing in the Executive, and hurting public confidence in our institutions. But, they have their reasons. When President Rawlings took allegations against his cabinet members to CHRAJ the findings were not favourable to him so he issued a whitepaper to wash it.

In Qanawu's view, the nation should pause and see what is unfolding over the 'Hotel Kufuor' matter as an opportunity to develop a fair and responsible process that would protect not only the dignity of the office of the presidency, but to create a precedent worth following. Otherwise, we risk squandering that, by allowing this to set in motion a process that is too much about partisanship and not enough about statesmanship.

The Statesman had argued that the acquisition of the hotel property did not call for a public inquiry and this remains valid today as it was then. CHRAJ may argue it has jurisdiction because the investigation is not specific to the President – they are looking at NIB (a state-owned enterprise.) They are even looking at the allegation that Mr Saoud was coerced to sell the property to Chief Kufuor and others. Unfortunately, MR Saoud himself has denied this. He says he wasn't forced!

The fact that the President is willing to cooperate with CHRAJ does not give CHRAJ jurisdiction. Article 57(5) offers the President immunity from civil or criminal proceedings whilst in office. Article 57(5) stipulates: “The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.” Time does not run against the Limitation Act during a person's presidency. Clause 6 of the same article allows proceedings to be instituted “against a person within three years after his ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity before or during his term of office notwithstanding any period of limitation except where the proceedings had been legally barred before he assumed the office of President.”

It does not mean that the President is beyond inquiry. What it simply means is that the usual courts, including administrative courts, have been constitutionally barred to institute, ab ovo, proceedings against the Head of State.

That authority is given exclusively to the Legislature to initiate. Article 69 is absolutely clear on this: “The President shall be removed from office if he is found, in accordance with the provisions of this article-

(a) to have acted in willful violation of the oath of allegiance and the presidential oath set out in the Second Schedule to, or in willful violation of any other provision of, this Constitution; or

(b) to have conducted himself in a manner-

(i) which brings or is likely to bring the high office of President into disrepute, ridicule or contempt; or

(ii) prejudicial or inimical to the economy or the security of the State; or (iii) to be incapable of performing the functions of his office by reason of infirmity of body or mind.”

What the above means is that any proven allegation against the President which is deemed to fall under any of the limbs above can lead to his removal and because of the special position of the office only the lawmakers have the competency to initiate the process. But, the process of achieving this, including how any inquiry touching on the President should be dealt with is also provided in the clause below. The Article follows:

(2) “For the purposes of the removal from office of the President, a notice in writing-

(a) signed by not less than one-third of all the members of Parliament, and

(b) stating that the conduct or the physical or mental capacity of the President be investigated [Qanawu's emphasis] on any of the grounds specified in clause (1) of this article, shall be given to the Speaker who shall immediately inform the Chief Justice and deliver the notice to him copied to the President.”

The ordinary meaning of Article 69 Clause 2(b) is that CHRAJ cannot suo moto institute an investigation on the conduct of the President. Indeed, apart from Parliament, no other institution, body of state or individual, for that matter, can set in motion an investigation into the conduct of the President. You can allege but only Parliament can cause an investigation to be done. While there is no local precedent, it should be recalled that it was the US Congress that got the Kenneth Starr investigation into the affairs of President Clinton to begin. This does not mean that, the President cannot be implicated in another inquiry, not specific to him and the findings be used as primary evidence to set in motion the impeachment procedure.

Clause (4) of Article 69 reads, “the Chief Justice shall, by constitutional instrument, immediately convene a tribunal consisting of the Chief Justice as Chairman and the four most senior Justices of the Supreme Court and the tribunal shall inquire, in camera, whether there is a prima facie case for the removal of the President.”

The President can neither sue or be sued therefore the Constitution protects him from frivolous and vexatious charges yet sets clear procedures on how he or she can be investigated. Arguably there is a lacuna since there is no specific provision for preliminary inquiries before the matter goes before the five Supreme Court judges. But you don't plug a constitutional hole by bypassing the expressed provisions of the Constitution. Among the functions of the Commission for Human Rights and Administrative Justice as stated in Article 218 are:

(a) “to investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties… (c) to investigate complaints concerning practices and actions by persons, private enterprises and other institutions where those complaints allege violations of fundamental rights and, freedoms under this Constitution;… (e) to investigate all instances of alleged or suspected corruption and the misappropriate of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations;

The Commission has the power to issue subpoenas requiring the attendance of any person before it and “to cause any person contemptuous of any such subpoena to be prosecuted before a competent Court.” Juxtapose this with the presidential immunity under Article 57 and you see the potential conflict and absurdity. The framers of the Constitution deliberately left the power to institute inquiry into the conduct of the President in the bosom of Parliament.

Parliament can even stretch that freedom to mean that it can pass a resolution to provide for a fair and deliberate inquiry into specific allegations about the President where it deems it fit. The charge Bagbin took to CHRAJ over the renovation exercise exposed the danger of ignoring the expressed provisions of the Constitution and seeking to embarass the holder of the office with trivialities. It is in the public interest that an appropriate boundary on the scope of any inquiry on the President be well defined. It should not become an invitation for a free-ranging fishing expedition. We should not trivialize the Constitution and by extension the Presidency.

The Statesman
The Statesman, © 2005

The author has 33 publications published on Modern Ghana. Column Page: TheStatesman

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