If Supreme Court can try crime, Mahama can pardon it – Law professor


US-based Ghanaian Professor has urged President John Mahama to pardon three pro-government communicators sentenced to four months’ imprisonment for criminal contempt.

Prof. Stephen Kwaku Asare who is an advocate against contempt trials says the President will not be interfering with the judiciary if he does so.

This, he argues, is because the power of pardon conferred on the president by the constitution is meant to be exercised in the exact scenario created by the incarceration of Alistair Nelson, Godwin Ako Gunn and Salifu Maase.

The three were jailed on 27 July 2016 after they attacked Supreme Court judges and threatened rape.

There are calls within the National Democratic Congress (NDC) to have the president activate his power to pardon them in accordance with Article 172 of the 1992 constitution.

In a 10-page article, Prof. Kwaku Azar condemned the comments by the pro-government communicators as “unconscionable”.

He nonetheless described the conviction as signs of an “emerging judicial tyranny”. He pointed out aspects of the judgment which he said are hard to accept.

A second count on which the three were convicted read that “they defied, insulted and lowered the authority of the Court when they stated that they will not accept the decision of the court on the voters’ register and they incited listeners in the general public to reject it.”

Kwaku Azar who is based in the US argued that the three did not defy the court in any way.

“To put it mildly, I find this count hard to fathom and the facts to sustain even more perplexing. To defy means to fail to follow the order of the Court. I cannot see the nexus between what the defendants said and defying the Court. What specific order are they defying?”

“Punishing someone who says he will not accept the decision of the Court is akin to the father who whips his excited son merely because the latter says he will ride the horse that the former is planning to buy”.

He pointed out that under Chief Justice Georgina Wood, there has been more trials for criminal contempt than under the combined tenure of three other Chief Justices.

“In the last 4 years, the Wood Court has engaged in more criminal contempt trials than the Abban, Wiredu and Acquah (AWA) Courts did in their combined 12 years”.

“This is not because the AWA Courts were faced with less contemptuous Ghanaians but rather reflects the sound judgment of those Courts to give the public space to operate. It is time for the Wood Court to exit the criminal contempt enterprise.”

He explained that just as the Supreme Court can review decisions of the lower courts, the president also has the authority to review a decision taken by Supreme Court judges.

Arguing further, he said the Supreme Court mostly does not try criminal cases. This is usually done at the High courts and other lower courts.

If the Supreme Court now conducts criminal trials, then the president should be understood if he also exercises his power to pardon convicts, he pointed out.

“To the extent that the Supreme Court has decided to engage in trials, the nation should then brace itself to Supreme Court convicts pardoned by the President”

He does not see how this amounts to usurping the powers of the judiciary because the judges still retain huge powers, roles and responsibilities that are not subject to the president’s authority.

“About 99% of the work done by the Supreme Court are not subject to the pardon power. The Court has the last word on constitutional interpretation.

“The pardon power is not the exercise of judicial power and its exercise does not mean the President has usurped same from the judiciary.

“The final judicial power still resides in the judiciary. The President does not hear from witnesses, he does not take evidence, he has no standard of proof, etc. when he exercises the pardon power,” he maintained.

Prof. Kwaku Azar noted that the power to show mercy is not “an evil constitutional device” because it is used to check a situation where a judge acts as a prosecutor such as is the case in the trial of the Montie three.
He has consistently condemned the practice of judges summoning and prosecuting persons they believe have attacked their person.

Justice Sophia Akuffo who presided over the panel of five that sentenced the three pointed out that the court had no choice but to carry out the contempt trials because the Attorney-General failed to protect the judges by holding the three to account.


Source: myjoyonline