Don't sacrifice Constitution for 'Montie 3' - Mahama cautioned

Samuel Abu Jinapor

Angry members of the National Democratic Congress yesterday besieged the headquarters of the party, to protest for the immediate release of three of the party's sympathisers, Maase Salifu, Alistair Nelson and Godwin Ako-Gunn, who were jailed on Wednesday by the Supreme Court for contempt.

The NDC members called on President John Dramani Mahama to wield his power under Article 72 of the Constitution by granting the three incarcerated persons presidential pardon.

However, a member of the New Patriotic Party and a legal practitioner, Samuel Abu Jinapor, has cautioned President Mahama not to succumb to pressure from members of his party to sacrifice the Constitution on the altar of saving the convicted trio.

According to him, such a move will "constitute the erosion of the final judicial power vested in the Judiciary by the Constitution."

"Significantly, Article 72 does not vest in the President the power to review the decision of a Court. Article 72 does not vest in him appellate jurisdiction. Neither does the said article vest in the President the power to make a determination on the propriety or otherwise of a Court's orders. Therefore, in the instant case of the 'Montie three', if the President was to capitulate to the pressure of his political party henchmen, same would render the effect of the Supreme Court's decision nugatory. It will constitute a review or a setting aside of the Court's orders," Mr Jinapor said yesterday in a statement.

While admitting that the 1992 Constitution grants the President of Ghana the power to pardon convicted persons, he noted that the power must be exercised in a discretionary way.

Abu Jinapor added: "the exercise of the discretionary power shall not be arbitrary, capricious or biassed whether by resentment, prejudice or personal dislike and shall be in accordance with due process of law......."

Throwing more light on Article 72 of the Constitution, and how the President can exercise his power, Mr Jinapor explained that exercising that power must be done in good faith, devoid of any intention of making useless the decision of a competent court of jurisdiction. He stressed: "It certainly must not be exercised for collateral purposes. And finally, the decision to pardon must be in accordance with sound reasoning."

"To my mind, it is for these reasons that the framers of the 1992 Constitution placed fetters on the President's powers under Article 72 by requiring an advice from the Council of State. Further, it is for this reason that a convention has been established where the Prisons Service makes recommendations as to who deserves a pardon," he elucidated.

According to the legal practitioner, the three convicted persons do not qualify to be pardoned by the President, adding that even in the unforeseen circumstances that they are to be pardoned, "there must be cogent grounds for a pardon; for instance, on humanitarian grounds arising out of a convict's health status. Or out of some exceptionally good behaviour while in incarceration."

He, therefore, cautioned the President, who has been vested with powers in the Constitution to pardon convicted persons to use it appropriately and not for any political expediency.

"Mr. President, with utmost respect, it is evident you have two choices. Either to buckle down to the pressure from the henchmen in your party or to stand up to defend the independence of the Judiciary," he concluded.