Following a call by some members of the National Democratic Congress including some cabinet ministers and in accordance with the advice of the Council of State, the President, in exercise of his executive powers under the Constitution, granted remission of sentence to Salifu Maase, Alistair Nelson and Godwin Ako Gunn (Montie 3).
There is the view that, in this particular instance, the President’s use of his power will undermine the judiciary and pose serious institutional conflict between the two arms of government.
In fact, this would not have been the first time such institutional conflict would have arisen between the Executive and Judiciary. In 1963 pursuant to Article 45(3) of the Constitution, Nkrumah dismissed Chief Justice Korsah and other justices of the Supreme Court when the court acquitted three members of the Convention Peoples Party who were charged with conspiracy to commit treason in State v Otchere. A retrial was held in which they were found guilty. Also, in response to the decision in Sallah v Attorney General, Prime Minister Busia said no court could tell his administration who to employ. The court had held that the dismissal of Mr. Sallah and 567 others by the government was unlawful.
At common law, the monarch reserved the powers to exempt offenders from various punishments. This was codified into the codes of William the Conqueror after the Norman Conquest. According to Duker (1977), the inflexibility of the common law system in its infant years made pardon the sole instrument of justice for those who should not be punished. After several abuses from the monarch, Parliament enacted various laws to check the exercise of such powers. For instance, Section 2 of the Habeas Corpus Act of 1679 prohibited clemency in cases where a person caused the King’s subjects to be imprisoned beyond the realm.
It is important therefore to see the exercise of prerogative of mercy powers within the lenses of constitutionalism and separation of powers. Although the judiciary exercises final judicial authority in constitutional democracies, the constitution may allow the executive to exercise such powers that may be akin to judicial power.
Constitutionalism requires limitations on governmental power and authority and a structure for their exercise. One of the ways of limiting governmental power is by splitting it so that one arm does not hold unlimited power. For instance, our Constitution splits the power to spend state resources between the Executive and Legislature. Estimates of the executive’s expenditure can only be disbursed with the prior approval of Parliament. Separation of powers ensures that the various arms of government integrate into a workable government.
Therefore, in order to avoid the arbitrary exercise of such power, the constitution may place a limitation on the exercise of such powers “substantively†or “procedurallyâ€. Substantive limitations exist where an arm of government is prohibited from exercising power in relation to certain matters or prohibited from enjoying absolute power. Procedural limitations on the other hand, lay out the conditions that must be met for the valid exercise of power.
A careful look at Article 72 shows that there is a procedural limitation on the President’s power by the Council of State. The exercise of discretion is not personal but a collective one between the President and Council of State, which should affect the quality of decisions the President, makes. The rational exercise of such powers deepens the independence and trust in the judiciary. Public opinion is key in legitimizing the authority of the judiciary. Confidence in the judiciary will be bleak if citizens perceive the exercise of prerogative of mercy as a tool for undermining judicial authority. The true value of procedural limitation will be achieved if the institution to which power must be exercised in consultation with is seen as independent of the institution which the substantive power is conferred on. For purposes of good governance, it will be helpful if the public has a full insight into what advice the Council of State gave the President on this issue and the factors it took into account in arriving at such decision.Â
Only inquire into where there is procedural impropriety or where prima facie its exercise is arbitrary or unconscionable. Political questions are issues a court will decline jurisdiction over because it involves the exercise of discretionary powers explicitly conferred on a specific branch of government. The Supreme Court has in a number of cases held that it is precluded from questioning issues such as the procedure Parliament adopts in arriving at a decision; and determining “high moral character and proven integrity†of a judicial appointee of the President because they are political questions.
In GBA v A-G, the Supreme Court laid the test for deciding whether an issue is a political question. It held that the criterion was whether there is specific commitment of the matter to another arm of government; and there is lack of satisfactory criteria for a judicial determination of the issue. For instance, it will be arduous for a court in Ghana to invalidate the appointment of a minister on the basis that the nominee cannot read and write English. If the nominee meets the criteria in Article 94 of the Constitution, the issue is a closed one.
The exercise of judicial review under our Constitution is exercised in three ways via Article 2 in determining the constitutional validity of laws and actions; or the test for unreasonableness and arbitrariness as found in Articles 23 and 296; and the supervisory role of superior courts over lower courts, administrative bodies and quasi-judicial bodies.
I respectfully submit that, the power of prerogative of mercy can only be reviewed pursuant to Article 2, if the President does not follow the procedure in Article 72 or where prima facie its exercise is arbitrary or unconscionable. Where he does, it will be difficult to question it on the basis that the President acted arbitrarily by granting pardon to a group of people over others.
Although, the President acted pursuant to law in remitting the sentence of the Montie 3, not all lawful things are helpful.
This article is to simulate and sustain discussion on the issue for a yet to be published article on the subject. The issue is currently before the Supreme Court. See: http://www.graphic.com.gh/news/general-news/reverse-remission-for-montie-trio-lawyer-asks-supreme-court.html
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