Feature Article of Sunday, 31 March 2002
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Politically motivated trials are bad for democracy. Several issues arise out of the Tsatsu Tsikata’s challenge on the constitutionality of the Fast Track Court that have implications for the course of justice in Ghana. My intention here is not to discuss the legality or otherwise of the reasoning behind the rulings, but to flag up the dangers in the course and direction of present administration of justice. I would also caution that if the judiciary process is seen to be politicised or used for political purposes, the whole country will be the loser and the cause of democracy will be perverted. For some reason however, I am confident that this danger will be averted.My good friend, Mr Tsikata, and his lawyer, my senior brother, evoked the constitution to challenge the legality of the FTC. I am sure that they were quite aware of what was in the constitution. They now realise how flawed the document is and are conscious, as most Ghanaians will soon be, that the process of putting together that document was flawed. The constitution we have, was delivered to us by a military government that cobbled together a mass of individuals, many of whom were chosen directly by them, under a non-democratic constituent assembly.
The document should have been stillborn, but Ghanaians were too tired of a military regime to dispute the many flawed articles. We agreed the constitution because we wanted to return to multiparty democracy within the shortest possible time. Some of the glaring flaws are the lack of democracy at the basic ward level for for choosing representatives to the assemblies. Others include the inferior status accorded to Ghanaians abroad by the lack of franchise and the stripping some native born Ghanaians in the Diaspora of their citizenship.As more and more flaws become evident we would need to seriously consider putting together a more appropriate document that promotes better democracy.
The flaws in the constitution are distracting the government from the main reason why they were elected. The government was elected to rule the country not to stray into terrain that is irrelevant to the promotion of future democracy in Ghana. Prosecuting former government officials and political opponents is at best a waste of resources, at worst it is mad.
There is poetic justice in Mr Tsikata being charged with this law. He was an integral part of the regime that passed the law. But it is a bad law that has no place in our statute books. It looks like it was passed to persecute those in public services who opposed government intervention in the affairs of state corporations. If it was used at all, it was used for a political purpose and this is why I am saddened that this government has seen it fit to use it against former members of the previous government. Now if the NDC did not bother to use this law why are the NPP invoking such a law to dredge up the incompetence and excesses of the past? This is a crying shame and all those who stand together on democracy should condemn this move of prosecuting political opponents through the courts. To continue on the path of what can be constituted as mindless revenge is sad.
The fledging democracy we have in Ghana enabled the people of Ghana to choose their president. The purpose was that the president should govern the country and ensure that the green shoots of democracy are well nurtured so that it would flourish.
The people of Ghana rejected the NDC candidate because they had more confidence in the NPP sustaining this democracy than they had in the NDC. The people, in making heir choice believed that they did not want to see the excesses of the previous administration repeated. They were fed up with allegations of corruption that were not properly investigated. They were fed up with rumours of blatant stealing that went unchecked. A majority believed that governments that do not punish miscreants during their time in office are not fit to run the country.
The perception of sleaze and corruption was enough to make up the minds of people for them. The people do not want to know the gory details of the extent to which some government officials caused us to lose money in the past. The people are more interested in what will happen in the future. By using the ballot box the people provided this government with a legitimate mandate to ensure that it does not happen on their watch.
The people of Ghana also elected people to go into parliament to make the laws of Ghana. The NPP has a narrow majority in parliament and we expect that they will use parliament to make good laws and where desirable repeal the old bad laws. The government legal policy should be devoted to such improvements. It need not waste its resources in persecuting alleged criminals of an era that is past. No lessons will be learnt and there will be cold comfort is this revenge. The people of the country did not want the previous administration and voted them out. That is enough. What we need from the government is new good laws not the use of bad laws to prosecute those who made them.
The government appoints the judiciary, but they must value their independence. Where the concept of separation of powers is necessary in matured democracy, it is even more critical in our fledging democracy. Seeking a review of the verdict of the Supreme Court will politicise a decision that was non political and dwelt on the interpretation of the constitution. Politics should not enter into the administration of justice. If it is perceived as such; the people will lose confidence in the judiciary. I suspect that there are several people in the government who recognise that it is bad to force the judiciary to review a case that can only be seen on political terms.
Mr Tsikata is not being tried for fraud, he is being tried for causing financial loss to the state. The courts are not the best place to try the incompetence of a public official or to prove his negligence. If the previous government did not recognise that he had caused financial loss to the state, the decision to try him by a government of another shade can only be seen as political. You can look at it from every angle but the motives are suspect. Political persecution using the courts or other instruments of state is abuse of power.
Politically motivated trials are bad for democracy. Abuse of power is bad. Period.
In matured democracies, rarely are people tried for financial loss to the state. They are tried for corruption. But the incidence of that is very rare. People are more likely to be tried by corruption in by their own governments than by governments who come after them.
Governments that keep corrupt officials in their party are seen to be ineffectual by the electorate and they soon tire of them and ensure that in the next election, the trust of the people is withdrawn from them.
What this government needs to do is to focus its machinery in ensuring that its own people and government appointed officials should not be seen to be engaging in dubious deals. To win that moral high ground that we so need in our country, we must focus on a more transparent system of government.
The time that will be spent on Mr Tsikata and other former officials of the previous government will be better spent investigating in a public manner hyped us scandals such as the Sahara Oil issue. A statement by the minister was not enough. A public enquiry would have been more useful to allay the fears of all. There are several people who are even now wondering whether if these prosecutions continue whether the government will find the time to deliver a better system of justice to our country.
Using the courts to prosecute politicians and officials of a previous government is mad, using a dubious law for this prosecution is bad and continuing on a part of revenge is sad. The government must focus on dealing with present and future issues. That is why it was elected