The Indemnity Clause Should Be Expunged

…But With No Retrospective Powers…To Revisit The Past.

A lot has been said about it, and many well-meaning Ghanaians have shared their candid opinions about the revision of and amendments to the 1992 Constitution. The Constitution Review Commission, I believe, has critically taken every important suggestion from the public into consideration. Whatever the Commission finally comes up with will still be subjected to the final approval or otherwise from the public in a referendum. It will be, therefore, premature for the public and political party members to act in ways that will preempt unbiased and objective discussions when the final draft is presented to the general public.

I think it is in the interest of all Ghanaians that we have a constitution that will safeguard and direct our young democracy to ensure our security, peace, social progress and economic prosperity for all. To achieve such objectives, the Constitution must ensure certain checks and balances in the social and economic activities of both corporate and individual Ghanaians. It must cater for our present and future social, economic and political activities, as it takes clues from our past mistakes and achievements. The constitution must, therefore, have a reconciliatory tone on our past political failures and achievements, unless the repercussions of such past activities hinder the present and future developments and progress of the beloved people of Ghana.

Let me admit here that, in writing this piece, I claim no specialty qualities on constitutional matters and neither have I studied the entire 1992 constitution of the Republic of Ghana. Rather, I am only a “common sense practitioner” whose main interest lies in moving the country forward in peace and in respect of our rights and dignity.

Section 34 of the transitional provisions, in the 1992 Ghana Constitution, indemnifies all coup makers and their functionaries against any liability for acts and omissions committed during their administration. Before the Constitutional Review Commission began its work, the members embarked on ‘town hall style’ meetings with members of the public to collate submissions from the people regarding what should and should not be touched in the review of the 1992 Constitution. According to Dr. Raymond Atuguba, the Executive Secretary to the Commission, what majority of the public expressed concern about was the indemnity clause in the constitution. Yes, the “Indemnity Clause” must go; but on what terms? Are we calling for it to be expunged so that we get the opportunities to bring the coup makers to trials and seek revenge for our losses and pains during the revolutions? Or we want the clause to be expunged so that we can hold future public office holders responsible for misconducts in office? I believe all readers who know the history of the political life of Ghana will join me in choosing the second option as we call for the expunction of the indemnity clause from the 1992 constitution.
In hindsight, we can say, without any reservation whatsoever, that the June 4, 1979 and the December 31, 1981 military coups are the bedrocks of the democracy, freedom of speech, freedom of movements, associations etc, we are all enjoying today in Ghana. Nobody can convince me that the otherwise of such military actions could have been better for Ghana. To all who may share parallel opinions, please take a minute to review the political situations in the Congo, Sudan, Liberia, Sierra Leon, even our closest neighbor, the Ivory Coast, and many other African countries that were under dictatorship regimes from 1979 and compare the political, social and economic lives of such countries to those of Ghana’s current state, and judge for yourselves.

I do not mean to rake up old wounds or insult the intelligence of any of my fellow Ghanaians. I think, however, that even the devil deserves his due. I was one of the silent critics, if not the worst, of the 1979 and 1981 military coups under President Rawlings. But given what I have seen in other countries and what I know today, I will never deny President Rawlings his due place in the annals of Ghana’s political history. In my mind, President Rawlings and his wife, Nana Konadu Agyemang Rawlings, as well as all the gallant men and women who put their lives on the line to bring Ghana to where it is today, will forever stand tall over and above all others who preceded and succeeded them. There were excesses during these state uprisings which affected many of us in different ways. Some innocent people accidentally – I say ‘accidentally’ because those incidents were a deviation from the original aims of the revolutions - lost their livelihoods, homes, families and even lives. Yes, most of us were traumatized!

The indemnity clause was meant to protect the coup makers from such revolutionary excesses which, though were not intended, happened in the cause of their attempt and sacrifice to chart a political path for Ghana, the fruits of which we all are now savoring. And by this I do not mean everyone is sleeping on ivory beds and covered in silk linen. Rather, we now have the opportunity to decide our destiny, as a nation, the way we want by having voices and votes in matters that affect our lives. This big picture is what I wished all of us, Ghanaians, could have as we tackle the indemnity clause in the 1992 constitution. We must not ask for its expunction so that we can exact vengeance, in retrospect, on our past national leaders. It must, rather, be expunged now because under this new democratic dispensation, those who are given public offices are guided by rules and regulations set out in various local ordinances and laws, which they are expected to operate within. If by their action and omissions, while in office, they breach any law, we have independent judicial systems to investigate and appropriate the necessary measures to address such infringements so that no one takes our democracy for granted. It is the present and the future we must protect in relation to what we have learned in the past. There wasn’t any democracy in 1979, and the democratically elected government of 1981, under President Hilla Liman, never sought to entrench the democratic values we sought for, hence the need for the 1981 coup to “re-launch our democratic bid,” as a nation, in an another “civilian-cum-military adventure” in order to bring Ghana to where we are today. It is a shame in Ghana, today, that political fanaticism is not making a lot of us to critically look at and discuss such issues so dear to the growth and progress of our nation.

We need checks and balances in the constitution to enforce discipline in public office holders. We need a constitution that will ensure that Ghana’s fragile democracy is carefully nurtured in honesty and truth to grow and develop. We need a constitution that will disabuse the minds of all Ghanaians from tribal politics and nepotism. A constitution that will give more freedoms to the press and the judiciary and not simply allow the president to arrogate powers unto him self and thus become ‘an authorized’ dictator, is what Ghana needs. Therefore, nobody should be indemnified by the constitution for any reason, but a removal of the existing indemnity clause should done in such a way that there are no retrospective powers for anyone to enable them revisit the past. I love Ghana and I am proud of being a Ghanaian!

From: Thomas O. Acheampong