Why Ghana's legal system must be restructured (Part 2) - A rejoinder to Mr Kojo Smith
Frank Kwaw Codjoe
In the first part of this article published in the last issue Frank Kwaw Codjoe, of Hamburg argued that lack of confidence in the existing traditional courts necessitated the establishment of new legal institutions. In this final part he concludes that the restructuring of the legal system is necessary to counteract the inherent conservatism of the existing courts and avoid political suicide by the revolutionary regime.With regard to the Public Tribunals and how they are constituted, the lawyers and judges seem to lack full understanding of what a Public Tribunal really is. A tribunal, sometimes called a special court, plays mainly a political function. It is a court which has the function of defending and protecting the rights and interests of the common man against encroachment by the established, conservative and dominant classes. Tribunals are set up mainly during revolutionary periods or when the leader in power wants certain vital cases that go either against the interests of the state or against those of the public, to be tried and be disposed of with dispatch.
Ghana with Flt-Lt Rawlings in power is involved in a revolution and that calls for the changing of some of the structures already in existence which have proved to be inadequate to deal with the problems of the day or to innovate those which appear to be still sprightly and adjust them to tackle existing problems positively. No lawyer, judge or any other person in Ghana would expect that a revolu- tionary government would use the existing courts which are mainly the den of conservatism. Doing such a thing would be to commit political suicide and to betray the aims of the revolution.
This is because those on the bench who actually disagree with the revolutionary process would use legal technicalities and procedures, and even unnecessary postponements of certain cases, to let the criminals who the government want to punish as the revolution demands, go scot free. And thereby frustrate the plans of the government. If the probity and integrity of the existing courts had not been eclipsed, the setting up of the Public Tribunals would not have been necessary.
The Public Tribunals are legally instituted and there is no reason why they cannot become constituent parts of the legal system of the country. They are already part and parcel of the judicial system, an important innovation to the system.
The French set up tribunals in the course of the French Revolution. They still remain part and parcel of the French legal system. There is no reason why those set up in Ghana should be scrapped off all because, according to the lawyers, there exists already 'traditional' or 'ordinary' courts. But how traditional and ordinary are they?
As concerns the law establishing the Public Tribunals which make their decisions final, there is no provision in it which makes this situation permanent, unamendable. At the moment, it is deemed its decisions should be final. But, if with time, the situation in Ghana changes and people begin to acquit themselves of their civic responsibilities correctly; and if confidence and trust among Ghanaians improve, the law can be amended to allow appeals to be made to the higher courts.
Mr Kojo Smith analysed the constitutional character of the PNDC Law 42 and emphasised that law constitutionally creates a dictator, a tyrant, indeed, in the person of Flt-Lt Rawlings. But, again, there is nothing in Law 42 which abrogated the 1979 constitution, there are still the 1960 and 1969 constitutions which are theoretically valid since they were not formally abrogated - which prevent any future amendment.
If we consider that, the first proclamation establishing the PNDC did not give absolute powers in the form of the executive, legislative, administrative and judicial powers to the PNDC, and by that fact to Flt-Lt Rawlings, then it must be understood that the counter-productive behaviour of most people well-placed in the society, made the assumption of those powers, absolute power unavoidable later on.
Law 42 was promulgated in February 1983, more than a year after the PNDC had assumed the reins of power. Whether or not Flt-Lt Rawlings will misuse those powers will depend on the behaviour of the people who matter in Ghana.
People should take their time and contemplate what power really means in politics. Power in any form involves command and obedience. By its very nature, it is dictatorial, whether people perceive it to be so or not. The dictatorial aspect of power sleeps or it is held in check when the person or people wielding power have not been bruised or threatened. Power involves force or the use of it. If a Head of State or Government finds himself or his government threatened, he would not hesitate to use power, or force to put down the challenge because a challenge that seeks to usurp the constitution order is trying to destroy an established power. And not only that, the challenge thrown to a government by its opponents, especially in a country where social, political and economic problems are acute and sensitive, easily lead to power changing hands.
This is the more reason why governments in the developing countries become dictatorial. Any idea of the separation of powers among the Executive, Legislature and the judiciary will remain a mere theory and fiction in the Third World countries unless those involved in operating the three areas of power take their jobs very seriously and show a h sense of uprightness and an unqualified probity. This means that the needs of the majority of the people living in Third World countries must be accorded a religious attention if responsibility and order are expected to prevail.
Ghanaians seem to be obsessed with concepts like dictatorship, democracy and freedom. This obsession appears to derive from the fact that these concepts seem to be working in the developed countries relatively. But fewer Ghanaians or even Africans have taken the trouble to examine the historical development of the developed countries. There has been unprecedented and horrible oppression, economic, social and political of the European peoples up to, the 1940s. Human Rights and equality before the law were concepts that were thrown overboard by the French revolution.
The European peoples' longstanding heroic fight to achieve freedom from oppression, human dignity and welfare, made their governments institute those social horrors in the colonies. Thus, while the socio-economic and political conditions of the European peoples were improving, those in the former colonies were made worse through oppression and intensive exploitation.
When independence was finally achieved, there were no indigenous people with enough private capital to invest and turn industrialists. The civil service, that is the government, became the biggest provider of employment. But people who assumed senior positions in the administration and the judiciary and the politicians, now monopolising state resources, became even the worse exploiters. The European and American factories churning out the sophisticated and coveted consumer goods which the new African bosses wanted made them forget about their countries' development and future welfare.
Serious embezzlement of state resources and a complicated network of bribery, as well as complicated system of contact, developed. This resulted in terrible socio-economic problems for the common people, especially the farmers and the ordinary workers, who found it really difficult to make ends meet. Yet, in the developing countries, the farmers are the main sources of government revenue. Their welfare should have been the paramount thing for the new men wielding power in all spheres of life. But that was no reason to loot and a greater part of the resources so looted were sent to Europe and America, into their various accounts.
The industrialised nations then used those monies from the Third World to create credits for their industries. And used part of that as aid to those same countries, involving them in debt. This debt increases as the rate of debt-servicing increases, leaving Third Countries in a vicious circle. So that these countries have become poorer and their problems have increased. This is the background which helps to understand the situation in Ghana.
In this situation, the interpretation of the concepts of democracy and freedom as well as the condemnation of dictatorship are different from the interpretation done in the developed countries. In Ghana, for instance, following the various arguments connected with freedom, one gets the impression that, for those wielding power at all levels of the society, freedom means freedom to embezzle funds, evade taxation and to cheat.
Any power invoked by a leader in order to stop these happenings is interpreted to be dictatorial. For the common people, freedom means freedom to go hungry, to suffer and to die. Democracy as related to freedom, is for the powerful people to enable them to remain secure in their positions and to continue with their activities as before with no let or hindrance from any power.
In the developed countries, on the other hand, freedom is not categorised as it used to be in times past. The meaning given to it is that people should be free from hunger, suffering and diseases. It means freedom to have access to work. Democracy means the ability of governments to provide general welfare and social security for a greater section of the population. Thus, both democracy and freedom create propitious conditions for individual welfare and contentment. It means a society of plenty.
To change this unacceptable situation of squalor in Ghana for the common people, Flt-Lt Rawlings has initiated a revolution. And as Mao Zedung correctly wrote, a revolution is a process where one class takes over from another. It cannot be a tea party. It involves power struggle, the use of absolute power to force it through to its expected end. The PNDC has retrospectively taken those absolute powers.
Perhaps, when the socio-economic conditions change in the future for the betterment of the common people, new arrangements would be made, where constitutionally, there will prevail the sharing of powers by the main organs of the state and the government. And there will be true democracy and freedom ensuring welfare and maximum security for all in Ghana. These are the nagging aims of the PNDC.
On the whole, I appreciate Mr Kojo Smith's article. He made criticisms but he did not leave them at that. He also made vital suggestions for the government to consider. I fully support the four points he made in his suggestion and I must urge the government to implement them immediately. I also want to add that the government should consider establishing a Labour Court and also examine the possibil- ities of creating a social court in the future. The problems Ghana has been facing are all pangs of development. The society is changing and new institutions should be established to cope with the problems generated by the change. And existing ones should be remodelled to match new situations. For, as a commentator said in 'The World Today' of the BBC devoted to the Nigerian coup d'etat: "If any two countries are going to work in Africa, they are certainly Ghana and Nigeria".
