“But the true principle is that the law exists for the protection of society. It does not discharge its function by protecting the individual from injury, annoyance, corruption, and exploitation; the law must protect also the institutions and the community of ideas, political and moral, without which people cannot live together.”
The work of the criminal jurisprudence of a society does not cease after guarding individuals but proceeds to shield the society as a whole from mayhem. A society that seeks to leverage its criminal law machinery to protect individuals instead of the society should be constructively chastised not only by a small constituent of that society. Does the Ghanaian Criminal Jurisprudence seek to protect society or an elite? This question theoretically sounds rhetorical but when it is considered pragmatically, it needs real answers.
“The Principle that all powers of Government spring from the Sovereign Will of the People;” is the bedrock upon which the current Ghanaian constitution and all the arms of government lie. “The People” as used in the preceding extract does not refer to a small group of persons or aliens but the collectively valid citizenry of the Republic of Ghana.
This or similar statements are inherent in most constitutions around the globe. An akin statement as the aforementioned, can be found in the two hundred and thirty two year-old constitution of the United States of America. It states that “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility…, do ordain and establish this Constitution for the United States of America.” These statements should never be taken for granted.
I believe that apriorists, positivists and pedantic-minded persons may argue that since only the provisions, thus the articles and clauses, of a constitution are justiciable, one cannot base on the preamble of a constitution to claim that the “people” grant validity to the constitution and all the arms of government. I wish to give them the benefit of the doubt.
However, Article 1 of the 1992 Constitution provides that, “The Sovereignty of Ghana resides in the people of Ghana in whose name…powers of government are to be exercised…” Since this is provided expressly in an article and a clause, I hope it serves as an impetus for them to rest their case. Both our local courts and several courts outside our jurisdiction have held that the whole national populace serve as the master of the governmental boats.
There are apparently only two sides to a coin. Since there is a master, there definitely should be a servant. Who are the servants of the Ghanaian “people?” Are they the maid-servants in our various Ghanaian homes? Did you think of the head porters (Kayaye) in our various markets? Or were you probably thinking of the waiters and waitresses in the various bars and restaurants? Did the president of the Republic of Ghana pop-up in your head as a possible servant? What about the Chief Justice? Did you even think of the member representing your constituency in Parliament? They are indeed our servants. Servants and nothing else. We the “ordinary people” of Ghana are the major shareholders of this country who quadrennially vote to choose and employ the “board of directors” to manage our state of affairs on our behalf. From the first-gentleman to the unit committee members of our local assemblies, they’re in those offices to do everything but their personal bidding.
This is even made clearer by the 1992 Constitution. Chapter fourteen of the constitution is titled as “The Public Service.” Why not “Public Mastery?” Because the framers of the 1992 Constitution did not intend to make such office holders masters. Article 190 of the Constitution outlines those who are “Public servants.” It goes on to mention inter alia, the Police service, Prison service, Education service, Judicial service and Parliamentary service.
Judicial and Parliamentary services are not the same as the Judiciary and the Legislature. Pursuant to the Parliamentary Service Act, 1993 (Act 460), the only members of the Parliamentary service are the Clerk of Parliament, the deputies and assistants, the secretary to the Board, and any other persons employed by the Service. However, pursuant to Article 93(1) of the 1992 Constitution, the Legislature consists of only elected members of Parliament. Since most of the members of the Parliamentary service are not elected, it follows that both are not the same. Also the Judicial service is different from the Judiciary.
One may then assert that since Chapter fourteen contains inter alia, the Parliamentary service and Judicial service but not the Executive, Judiciary and Legislative arms of government, then the “Public Servant but not Public Mastery” phrase does not extend to the arms of government. Such an assertion is fair enough. However, the Presidential Oath enshrined in the second schedule of the 1992 constitution, is couched thus, “I dedicate myself to the service and well-being of the people.” Here again it is seen that the word “service” is very key in the oath. Similar situations apply to the Judiciary and Parliament. The sovereignty of the people takes precedence over all the arms of government, hence all the public servants and the actors of the arms of government are servants not masters of the Ghanaian people.
Why I Think Corruption Is One of The Gravest Crimes To Have Been Trivialized
Her Ladyship Justice Sophia A.B. Akuffo, Chief Justice of Ghana (2017), in her message in relation to the “ANTI-CORRUPTION ACTION PLAN FOR THE JUDICIARY AND JUDICIAL SERVICE (2017 – 2019)” remarked that,
“But none of Ghana’s institutions are totally free from corruption and we too have experienced more than our fair share. Corruption amongst Judges and staff undermines our very being, erodes public trust and confidence, and cannot and will not be tolerated. We, the Judiciary and the Judicial Service, are committed to addressing and eradicating corruption within our ranks: as the slogan on the cover of this Action Plan suggests, we will uproot corruption wherever it is found. We have already taken many steps in this regard and will continue to do so with vigour and determination.”
Her usage of hostile phrases like “uproot”, “vigour” and “eradicate” showed how serious she was about fighting corruption.
Also, Dotse, JSC opined in the case of Occupy Ghana v Attorney-General that “At this moment, we think judicial notice can be taken of the fact that corruption, abuse of position and embezzlement of public funds among others has become the bane of our governance structures…notice must be taken of the rampant carelessness that is often times employed by those in charge of public funds in most entities.”
According to the report of the Caucus for Democratic Governance (C.D.G), Ghana lost GHS120 billion which has the dollar equivalence of $20.6 billion from Jan 2017 to Nov 2020 (within 4 years) to corruption alone.
Per Ghana Broadcasting Corporation’s report, the Distribution of Agencies where these corruptions occurred are as follows;
- Ministry of Finance – 33%
- Transport Sector – 14%
- Mining Sector – 11.6%
- Oil & Gas sector – 10%S
- Others – 31.4%
All of these disclosures were made at the ongoing Ghana Forum on Corruption in Accra.
Hon. Amoako Atta, the road minister-designate, stated during his parliamentary vetting that 1km of asphalt road in Ghana, as it stands now, is GHS1.5M, which has the dollar equivalence of $257,953. Let’s give him the benefit of the doubt. This same Ghana is slapped with a $137M judgment debt for the early termination of the power generation contract between itself and Ghana Power Generation Company Ltd, which is a Ghanaian dominated entity. Apparently, this judgment debt was awarded to Ghana as a result of the recklessness and malfeasance of a State administrator or institution.
The $137M when divided by $257,953 (cost of 1km Asphalt Road) will give you 531. This means that the judgment debt could have been used to construct a 531km asphalt road which is twice the distance from Accra to Kumasi. Thousands of carnage occur on our roads which according to the survey of the National Road Safety Authority (NRSA) is significantly caused by poor road networks all over the country. Most of these roads were either given to bad contractors or were not included in any national or local government budget. Those given to contractors were poorly done because of all kinds of rotten activities. All those who passed away as result of these corruption-related poor road system can be deemed to have been murdered by those corrupt officials who supervised the construction of the bad roads.
HOW DO THE SERVANTS TRAMPLE UPON THE MASTERS?
Last year, 2020, a random caller on JoyNews’ NewsFile sought to invoke the aid of the host and his panelists. Her case was that a Koforidua District Magistrate Court “A” had sentenced Aklotey to two months imprisonment after he pleaded guilty to the charge of stealing. What the boy stole was a cluster of plantain. He said he wanted to sell the said plantain to cater for his partner who had recently given birth. He was initially sentenced to a fine of GH¢600 in default of which he would serve two months in prison with hard labour. The caller then pleaded on the host and his guests to help pay the fine to prevent the 19-year old Aklotey from going to jail.
Again, a Ghanaian mother along with her two daughters and a grandchild were reportedly imprisoned for three months for stealing some quantity of corn. Though they still had the stolen corn in their possession, they were not asked to return the corn in order to be vindicated but were reportedly sent to jail. This was revealed by Prof. Stephen Kwaku Asare, a U.K based Ghanaian law expert. Thousands of the above-mentioned cases have ensued in Ghana.
What instigated this article is section 71 of the Office of the Special Prosecutor Act, 2017 (Act 959) which is titled as “Plea Bargaining.” It collectively provides that a person under investigation or charged with corruption or corruption related offences may voluntarily admit the offence and make an offer for restitution or aid in the arrest of persons who he knows are about to or have committed corruption related offences.
Where the court finds the offer satisfactory, the court shall accept the plea of guilty from the accused person and convict him of that plea, and instead of passing sentence on the accused person, order him to make restitution and get released. Hypothetically speaking, if Q steals $20 million from the State, thus if he engages in corruption, and he is arrested and prosecuted, he can simply surrender the stolen money and he may be freed.
Is the ordinary Ghanaian, “The Master,” offered such an opportunity to plead guilty and surrender what he stole in order to be given a second chance not to be thrown into prison? In the case of Dablah v Republic, the four appellants, who were unrepresented by counsel, were arraigned before the circuit court, Wa, charged jointly with the offenses of conspiracy to steal and stealing, inter alia, 18 boxes of cigarettes. The appellants were all young persons. They pleaded guilty and two of them assisted the police to retrieve the stolen articles. They made no attempt whatsoever to waste the time of the court and their conduct showed remorse. Their prison sentences ranged from ten (10) to fourteen (14) years despite their plea of guilty and the restitution of the stolen items. On appeal against their conviction, all the appellate court could do was to reduce their sentences. Couldn’t they have been acquitted as some of our corrupt public officials will be acquitted under section 71 of Act 959 for returning stolen money through corruption?
Again in the case of Kwashie v Republic, in collaboration with other police officers, the first appellant used his office as a policeman to seize large quantities of contraband goods that had been smuggled into the country. Instead of sending these goods to the police station, they sent them to a private house for the purpose of selling them. The court in convicting and severely sentencing the appellants held that when sentencing a convicted person, his position in society has to be taken into consideration. The police and some public officials are the custodians of the law, hence much diligence is expected of them. By its provision, is section 71 of Act 959 expecting more or less from our public officials?
Is our criminal law indirectly used to protect the elite or is it simply used to hound the ordinary citizen rather than protect the whole society?