‘We are all Ghanaians; therefore, everyone must be treated equally.’ Most often, you may have heard this statement either from a disgruntled neighbour who sought service in a public entity or a social commentator, better still, a party communicator fuming with ire and reminding everyone of how equal we are as Ghanaians. But is that really the reality, or have we turned a blind eye to our reality?
I will base my submission on Chapter 2 of the rules in George Orwell’s Animal Farm. “All animals are equal, but some animals are more equal than others.” Article 17(1) of the 1992 Constitution says, “All persons shall be equal before the law”; the law here is the Constitution. But do not tickle yourself yet; you may end up laughing at the wrong side of your mouth. Clause (2) cements that with a bold declaration, “A person shall not be discriminated against on grounds of gender, race, color, ethnic group, religion, creed or socio-economic status”. Ponder on this clause whilst we go on this journey.
I dare say clause (2) is very succinct in meaning, maybe also in application, but that may not entirely be true. Remember that time you were competing for the same slot with your Member of Parliament’s son, and you lost even though you had the same qualification and perhaps you may have even been better qualified than him? He got it regardless. And you asked the question: are we all really equal?
In its literal meaning, Article 17(1) means any citizen can bring an action for determination in the Court for determination to wit, you can sue, as buttressed under Article 2(1) of the 1992 Constitution. If the same provision gives a Ghanaian an opportunity to bring an action for determination in the Court. What then is the meaning derived from Article 57 and 117?
Will it be a matter of prejudice or a suit – proof provision in 57(4) which opens with “Without prejudice to the provisions of Article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law”.
Clause (5) makes it even more interesting as it lays bare, for utmost comprehension, to wit, “The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court”.
In the locus classicus case of AMIDU V KUFUOR & Ors, the Supreme Court, speaking through Justice Sophia Akufo (JSC), affirmed the reasoning of Clauses (4) and (5) when Her Ladyship emphasized that the framers of the 1992 Constitution intended that the Attorney General be sued instead of the President for official actions.
In corroborating Her Ladyship, His Lordship, Justice Ampiah noted that Article 57(4) ‘exempts the President from personal appearance in court to prevent disruptions of governance’. You may be thinking, is it really to prevent an envisioned disruption or shield the President from being sued? Hold on with your response; there may be a compensation for that.
Article 57(6) gives a somewhat antidote to your quest to sue the President. It says, “Civil or criminal proceedings may be instituted against a person within three years after his ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity before or during his term of office notwithstanding any period of limitation except where the proceedings had been legally barred before he assumed the office of President.”
If you are still wondering if the President can be sued, the minority or dissenting views of the Learned Justices Amua Sakyi and Aikin JJSC in the case of the NEW PATRIOTIC PARTY V RAWLINGS [1993-94] GLR 193 argue that the President could be sued personally for actions under Article 2 or prerogative orders. But does that suffice for the equality question, or do you still think otherwise? Well, just maybe there is no such thing as equality before the law. The provision should instead be framed: “There is equality before the law subject to your socio-economic standing.”
Or better still. The President is very much equal to the ordinary businessman or the farmer in the village only 3 years after leaving office. Please do not tempt me with ‘why must we wait after 3 years before we can sue? I honestly do not have answers for that question.
But wait, why are you hell-bent on suing the President? For your information, Article 117 says Civil or criminal process coming from any court or place out of Parliament shall not be served on, or executed in relation to, the Speaker or a member or the clerk to Parliament while he is on his way to, attending at or returning from, any proceedings of Parliament.
118 (1) Neither the Speaker, nor a member, nor the Clerk to Parliament shall be compelled, while attending Parliament, to appear as a witness in any court or place out of Parliament. (2) The certificate of the Speaker that a member or the Clerk is attending the proceedings of Parliament is conclusive evidence of attendance at Parliament.
Apparently, it was not only immune to legal action. Pause for a minute: how do you tell that a Member of Parliament is on their way to or from Parliament when he is seen in his constituency during a rally and, more intriguingly, during parliamentary recess but upon an imminent anticipation of an arrest, says he is on his way to Parliament?
Unlike you, who is equal before the law, an arresting or law enforcement agency will have to notify the Speaker of Parliament to release the said MP for questioning, upon writing to the Speaker. In your case, there is no such thing as writing to anyone to notify them, or perhaps permission, before they pick you up. That is how equal we are before the law, Article 2(1).
As the Court puts it in NARTEY V GATI: “It certainly does not mean that every person within the Ghanaian jurisdiction has, or must have, exactly the same rights as all other persons in the jurisdiction. Such a position is simply not practicable. Soldiers, policemen, students and judges, for instance, have certain rights that other persons do not have.”
Also. Date-Bah JSC explained: “If the law were to treat all human beings rigidly equally, it would in fact result in unequal outcomes. Rigid equal treatment would often result in unfair and unequal results. Accordingly, it is widely recognized that equality before the law requires equal treatment of those similarly placed, implying different treatment in respect of those with different characteristics.”
On that note, kindly draw your conclusion because I am unable to arrive at one. But to re-echo the most used phrase whenever the subject of equality before the law comes up for discussion, “equals must be treated equally, unequals must be treated differently”
KENNEDY ZONGBIL, LEVEL 200 LAW STUDENT @ WISCONSIN INTERNATIONAL UNIVERSITY COLLEGE
