Presidential pardons globally are acceptable practices especially in jurisdictions that recognises it as law. Therefore where a country enshrines these in its constitution and there is enough grounds or justification by the President to evoke this law as his or her prerogative, there is little to contest for. Indeed such President’s can evoke it anyday as spelt out per the constitution . Although one may encounter numerous references to the exercise of the prerogative of mercy in Mosaic Law, Greek Law, and Roman Law,’ this study commences with the statutory history of the power in early England. The pardoning power of England was applied in the American colonies, and subsequently was incorporated into the United States Constitution.
When England broadened its boundaries to the “New World,” the pardoning power followed. The prerogative was delegated by the Crown to the executive authority in the colony, with few limitations on the power. The Virginia Charter of 1609 granted the governor “full and absolute Power and Authority to correct, punish, pardon, govern, and rule all such the Subjects of Us, our Heires, and Successors as shall from Time to Time adventure themselves” into the colony.”‘ In 1624, Virginia became a royal colony and all executive authority was placed in the royal governor
The Constitution of the United States specifically invests the President with the power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
The examples in Africa underscores the practise of pardons by Presidents in most constitutional and democratic states. On the 16th of March 2013 President Good luck Jonathan exercised powers and granted pardon to Mr. Alamieyeseigha, a man renowned for his brazen corruption. In 2015 President Jacob Zuma had more than 300 applications for pardons awaiting his attention, from South Africans from all walks of life who have violated the laws of the land. And In May 2016 President Mugabe pardoned 2,000 prisoners.
Article 72 at a Glance (Article 72—Prerogative of Mercy)
(1) The President may, acting in consultation with the Council of State—
(a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or
(b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or
(c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or
(d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account of any offence,
So per the constitution of Ghana especially in the matter of the monti3 3, there is little or no grounds for a challenge . However there are realities we must face:
1. In my earlier article in July http://bit.ly/2bxG0Ur , central to it was the precedence it may set. And if in the future our President will succumb to another petition to grant another person or group of people pardon irrespective of their political coloration? The risk is that what happens should our President refuse? How would we view our President? And in the mist of all these, doesn’t this action usurp the powers of the legislature and question their authority?
2. But perhaps this is where the law must also be interrogated looking into the future. What kind of laws are we making for ourselves? Are the laws contradictory in nature or we are contradicting the law? Because if two laws ( one from the legislature and the other from the executive) seems to explain and pass Judgement over one situation, then where are we going? Or have we chosen to forget that the President is lawfully exercising what’s in the constitution?
3. At what point or specific circumstance must article 72 of the constitution be evoked by future Presidents ? A radical reform to address this needs to be set in motion to define specifically the parameters of prerogative of mercy . We must do this not because it has been evoked today, but to prevent it from being abused going forward. Is it not obvious that a time is coming everyone will say “ oh but this government did it?”. What will happen if party B comes to power and says let’s grant the killer of the late Hon J B Danquah ( May his soul rest in peace) Presidential pardon? We cannot continue to leave gaps in the exercise of presidential pardons. It’s too risky for our security.
Fundamentally, we should not be oblivious to recognize that the petitioners who signed for the monit3 three sentence to be curtailed, represent a fraction of the populace, thus those who are not in favour or not amused may present a hostile challenge with pent up feelings. A situation that sows seeds of divisiveness and discord.
A “theatre of mischief” could to be hovering around in the coming days. From increase in misinformation, counter messaging, misconceptions and a deliberate politicization of the substantive matter.
We have to thread cautiously as a people in the coming days. We are overstretching security agencies by the day. From Donkorkrom, to Tafo, to The North , to Tema and now these skirmishes. Our security agencies must be more awake to combat these criminal activities all around the country. The question is, how do they do that? Do they have the capacity? Let’s also not forget that we have already overburden them with Election 2016.
In conclusion our focus should not be about the existence of the discretionary powers of the President but should focus on redefining who qualifies for a Presidential pardon, how many times this pardon can be evoked and if there is the need to reform it all. It will also be important to institutionalize a monitoring mechanism for a period to monitor those being granted pardon . This is to enable security agencies monitor them slowly and help reintergrate them back into society. These are gaps we may need to fill.
Long Live Ghana Our MotherLand.
Author – Owusu-Sekyere K Jnr