OccupyGhana® has noted with considerable interest, news reports of petitions presented to the President by counsel for Salifu “Mugabe” Maase, Ako Gunn and Alistair Nelson seeking their pardon. This is after they were convicted (on their own guilty pleas) for contempt of court, and sentenced to 4 months’ imprisonment each, by the Supreme Court. We have also noted with concern, a petition signed by persons that regrettably include certain ministers and deputy ministers of state and members of the President’s staff, also urging the President to pardon these individuals.
We recognise the power of the President, in the exercise of the Prerogative of Mercy under article 72 of the Constitution, to commute death sentences, change mode of execution, pardon offenders or reduce punishments. This is a grave and weighty power vested in the President, as the repository of the executive authority of the state under article 58 of the Constitution. This power is not to be exercised upon a whim or a fancy or upon contrived circumstances, but only exceptionally, where the situation really and truly deserves it. Critically, this power should not be exercised in a way that represents a fundamental undermining of the independence of the judiciary and an interference with their functions, as well as an attack on the constitutional concept of separation of powers.
We therefore find it incongruous and bizarre, that members of the President’s own executive take part in a petition to the President, urging him to exercise this grave authority in favour of these Convicts. For them to do so suggests they are outsiders looking in, when they are actually part of the executive. It is deeply misleading to the public and certainly looks contrived. We respectfully urge the President to disregard this façade, and rebuke any minister or member of his executive who has signed or signs that petition.
Further, and as the preamble of the Constitution provides, “all powers of Government [including executive power] spring from the Sovereign Will of the People.” Thus in the exercise of the Prerogative of Mercy, the President must act, not just in the interest of a section of society, but in the broader interest of Ghana as a whole.
We also note that the Prerogative of Mercy is a discretionary power vested in the President. That power is not absolute, and is subject to judicial review under article 296, if the President exercises the power unfairly, in a manner that is biased, not candid, or not in accordance with due process of law. If the President grants these petitions, such an exercise of his discretion may be challenged as unconstitutional before the Supreme Court, and this could lead to a major and needless constitutional crisis.
The acts of contempt that the Convicts committed (and confessed to before the court) were extremely grave. What they did also amounted to threats of harm or of death and statutory contempt of court, which are crimes under our Criminal Offences Act. These rank among the most serious examples of contempt involving a media organisation that we have seen, according to our research. It does not appear to us that the Ghana Police Service was interested in investigating this at all. The Bureau of National Investigations, which claimed to have invited and interviewed the Convicts, rather issued an unsatisfactory press statement claiming that “checks by the BNI have however established that the suspects were incapable of carrying out pronouncements but did so in a show of needless bravado.” What is worse, the Attorney-General, who has the sole power to initiate the prosecution of crimes, chose not to do so.
This grave inertia appears to us, to have left the judiciary with no option than to invoke their powers to punish contempt by summoning the Convicts and requiring of them to show cause why they should not be convicted for contempt. The Convicts had every opportunity to defend themselves in court but chose to plead that they were “liable.” We believe that the Supreme Court took all of these into consideration in arriving at a unanimous decision on the sentences to be imposed.
It would therefore be a slap in the face of the judiciary, if upon imposing the sentence, the Office of the President is receiving, entertaining and considering contrived petitions to either pardon the Convicts or reduce their punishment.
The key lesson that we all should learn, flowing from the contempt proceedings during the hearing of the Election Petition and from the instant case, that freedom of expression and the repeal of criminal libel laws do not constitute not an excuse to engage in improper and other criminal conduct. The same Constitution that guarantees fundamental human rights, requires us to respect public order, and not engage in acts that exhibit or encourage disrespect to the nation or incite hatred against members of the community – this includes our courts and the judges. A separate and critical aspect of the Constitution is that it requires respect for administration of justice.
It is on these bases that we respectfully urge the President to reject the petitions, and rebuke all ministers and members of the executive who have taken part in the preparing and signing any of the petitions. Justice has been served and the decision of the Supreme Court should not be interfered with
Yours in the service of occupying hearts and minds for God and Country
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