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19.02.2009 Feature Article

Legal or Moral Consideration- MPs vrs the People of Ghana

Members of Ghana's Parliament gave a 'thumbs up' to a report regarding their emoluments/ex–gratia and that of ex-Presidents. The thunderous outcry that greeted the report was such that some of the MP's were head over heels to disassociate themselves from the rigmarole. Some said they knew nothing about the report, others said they knew little about the content of the report, they hopped from one media outlet to the other pleading that if they had known the 'bombshell' inherent in the report, they would have wasted no time in giving it a 'poisonous blow'.

It was therefore not surprising when the Chinery Hesse fiasco saw its first major casualty in the person of an honourable and loyal servant of Ghana and the ruling National Democratic Congress (NDC) by name Mr Moses Asaga. His appointment for the position of Works and Housing Minister was revoked. The explanation is that he allegedly authorised the disbursement of funds in relation to the infamous Chinery Hesse report without consulting his colleagues on the Transitional Team and even the Presidency.

Some have called the decision to revoke his appointment 'populist' others see it as pragmatism at its best. Call it a case of giving credence to the cliché - rule of the people, by the people, for the people and you will also be making a valid point. In any case, is it not stated in Article 1 (1) of the 1992 constitution that, 'the sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this constitution?' Therefore if there is an issue that has elicited so much public outcry from across the political spectrum, and action is taken as a result of that, is it a taboo? I do not think so but of course any action taken has to be in line with the dictates of the constitution. Well the game of politics is such that any government that is seen to be miles apart from public opinion especially when the public opinion in question is not unreasonable will be scoring an own goal. The reasonable thing to do when faced with such difficult 'konongo kaya' situation is to embark on a serious risk assessment to weigh the merits and demerits of any intended action. As to whether the government conducted a reasonable and fair risk assessment before taking the action in regards to Mr Asaga, I do not know – maybe time will tell.

Going forward, the President sets up a committee to review the infamous report- prompting some people to quickly point out that the action is clear demonstrations of President Mills promise to be a listening government. Hardliners within our society even think a review is a sign of weakness and that the President should just halt the whole Chinery Hesse saga.

Some MP's mainly in the previous parliament however strongly disagree with the action of the President. They are angry with the President for daring to even contemplate such an action and the interesting aspect of it is that the MPs are from both the NDC and NPP. Who says money is not arguably the root of all evil? The MP's have made it emphatically clear that if the President insists on pursuing the course of action he seeks to, they will be matching to the Supreme Court to argue that due process has been turned upside down. Since parliament has okayed the Chinery Hesse report, any attempt by the government to try and disregard the approval is a show of disdain to Parliament and a clear violation of the constitution of Ghana, they will argue further. Their argument is derived from the policy of Parliamentary sovereignty. It is notable that article 2 (2). It states that:

'a person who alleges that- an enactment or anything contained in or done under the authority of that or any other enactment: or any act or omission of any person; is inconsistent with or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect'.

Technically therefore, the 'coalition' of MPs who have served notice to go to court if Professor Mills does not resend his decision will be seeking to exercise a constitutional right that no one has the right to stop them from exercising. Admittedly, the points raised by the said MP's are very appealing. The arguments of those who support the government's position are equally persuasive. As each group is claiming to be making the reasoned and sensible argument, which is the case with any issue that is subject to interpretation, it is only the Supreme Court that could settle this matter. For it is the body vested with the authority to settle such important constitutional disagreements.

However, a legitimate concern has been raised by some Constitutional experts to the effect that it could be paradoxical to rush to the Supreme Court on each and every constitutional disagreement. The reason is that it is more or less a license to the Supreme Court and for that matter the Judiciary to come out with an order or directive that might not necessarily be in tune with what the framers of the constitution had in their contemplation. How do we avoid such a quagmire then? Consulting as many stakeholders as possible who have a direct stake in the issue at hand should be one of the 'sure bankers'.

Unfortunately, reports say the President arrived at the decision to set up a committee to review the Chinery Hesse report without consulting those who have a direct stake in the issue- MP's. If that happens to be the case, then the procedure the President pursued is very weak indeed. I could understand why the MP's want to battle it out in court with the government to demonstrate the arbitrariness of the action. As the saying goes, 'better late than never', so I hope the government enters into some dialogue with the MP's so as to come to a pragmatic agreement.

Granted that the MP's win the legal argument at the Supreme Court - the fact still remains that the Chinery Hesse report is unpopular and that is where the moral argument comes into play. It has been estimated that Ghana could be not less than 300 million Ghana Cedis richer if the interim decision taken by the government to suspend the recommendations of the Chinery Hesse report prevails. Now considering the positive impact that amount of money, if used judiciously, could make to the lives of ordinary Ghanaians, are the MPs not worried that they could be perceived as a bunch of selfish, greedy and insensitive leaders?

Come on, life is not all about what you can get from a given situation, sometimes it pays to give priority to what you can give and there is no better occasion to demonstrate that than this ex – gratia 'wahala'. I therefore call on the MP's to see reason and come to the simple terms that in certain situations, even though a literal interpretation of a rule and for that matter the Constitution could frown upon a particular course of action, such literalist approach to interpretation is disregarded for a much more practical solution- especially when the harm that will be done if the literal approach is disregarded is far less than if a practical outlook is preferred.

No wonder Courts, the world over, have on countless occasions participated in public policy making process, exercising discretion to make decisions which have far- reaching consequences in terms of the distribution of the benefits and burdens within society, though academically, the Judiciary are supposed to only interpret legislations in its literal and simple meaning.

Before the MPs head to the Supreme Court they should bear in mind that the principles of public policy continues to provide the judiciary all over the world with the opportunity to prefer matters relevant to the public such as morals and wellbeing over a purely legalistic argument. In other words, the members of the Supreme Court who may have the opportunity to sit on the issue could ponder over a statement made by Jeremy Waldron a Professor of Law when he noted in 'The Law' (1990), 'that decisions should be made without bias, but with respect to parliamentary supremacy, precedent, fairness, certainty, and public interest'- in which case the odds could be heavily swayed towards a policy decision and the MP's could be dealt a catastrophic blow.

Are the MP's really willing to go down the route of court action considering the fact that which ever way the decision of the court goes, the MPs will be in a no win situation? If they have their way in court, will they have the morale right to look at their constituents in the face and ask to be considered for parliament? Come 2012 when some of these MPs come running to their constituents, it will be the turn of the constituents to have their say- and I guess a big no, no, no will be the sensible answer. Did I hear you say money will make the difference? Let's wait and see but to quote my Jamaican friend, 'gone are them days'.

Our eyes and ears will surely be watching and listening. May the good Lord grant us all our best desires for mother Ghana. Somebody say Amen.

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Zakaria Tanko Musah
Zakaria Tanko Musah, © 2009

This author has authored 4 publications on Modern Ghana. Author column: ZakariaTankoMusah

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