We are living in very interesting times indeed, when in a matter of a few days, attorneys general of both former and present hues, make momentous, if not tempestuous, public statements. Unfortunately, many parts of the statements they made did not qualify to be described as professionally detached. Our polarised society experienced yet another partisan firestorm, an incendiary volley of words, as the immediate past attorney general and the current attorney general, exchanged angry accusations and counter-accusations; ripped into each other’s professional judgement; and, in my view, crossed the line on what should be considered exemplary communication modes for succeeding generations of citizens and professionals.
But, as I understand it, as a lay man, no law was broken. Not yet at least. Their hapless subordinates, what do they do now? A few weeks ago you advised and agreed with a boss, who is now desecrated by the boss you currently give advice to. In Ghana, do they dare to opine on who is right, as both the current boss and the former boss cannot be right, in this matter?
In their exchanges though (the attorneys general that is), even as lay persons, we non-lawyers learned a thing or two and had our eye brows raised at some point. So it was not all futile. These comments of mine are made to a restricted audience for two main reasons. First, we are in a self-imposed cautionary observation period for a new government, where this writer has decided to stay away from mass media for some months, as a new government settles – except on the subject of illegal mining. And secondly, these are matters of law, about which lay persons can at best only have general citizen’s impressions. It is the latter kind that one shares now, to a restricted audience.
An attorney general is well within her rights to file a _nolle prosequi_. It does not seem to me that anyone reasonably disputes that argument, position or conclusion. It is optional for the attorney general to provide public reasons for why they choose that route or remedy, that is what our current regime of law says. In the interest of transparency though, some of us applaud citizens being kept informed on such matters.
It is quite easy to understand when the case of treason for a Facebook post, however imprudent and impolitic the post, even one threatening a coup, is withdrawn. A Facebook post being dramatically elevated to treason is quite a stretch, even in fiction books written for the very fertile imagination of six year old children. Therefore, that _nolle prosequi_ raised no eye brows, not surprisingly. But there have been others.
When a defence lawyer in a case, yesterday; today crosses over as attorney general and discontinues cases in which the state has lost significant amounts of money to fraud, one notices – with considerable consternation. Perhaps the wrong people were charged, that is possible. But is that then the end of the search for lost state money? When will the right people be arraigned? Is the retrieval of loot no longer targeted at ALL loot? This is where the difficulty arises and must be explained further to citizens, both as a matter of accountability and transparency.
In the infernal din that emerged from the sabre-rattling, a former attorney general, Martin Amidu – senior to both Ayine and Dame at the Bar – has described these latest instances of _nolle prosequi_, as partisan withdrawal. That is, at the very least, a worrying footnote. In the end, these incidents strengthen or weaken confidence in our institutions, whether they are based on facts or fiction. When people who have been Heads of the Bar, go after the judiciary and themselves, in full view of the public, with double-fisted and vicious attacks, sometimes passing their subjective impressions on as objective facts, we set the scene for populists to raid homes and offices, possibly with violent consequences.
We have seen _nolle prosequis_ used in uncontroversial precedents, in this same republic. Such as when a case against a newspaper, under laws to be repealed soon, was discontinued. We moved on in a huff.
But there are optically disturbing features of some of these recent withdrawals. Why are political cases dragging so much in our judicial construct in Ghana? Why is it that the attorney general never seems to withdraw cases involving the downtrodden and long-suffering masses? The corn thief, the chicken thief, the goat thief, serves out their sentences in full, no matter how many years their cases drag in tortuous criminal prosecution, for they have no highly placed friends? But politically charged scandals are being politically closed, by politically placed officials? How does this come across optically?
We are setting the stage for major class cleavages to be exploited by populists, if we are not careful. The day the pitch-forks come out, and a populist stokes the frustration of the enraged mass that has nothing to lose, has been brought about by trends of this nature, in other jurisdictions.
The seniors at the Ghana Bar, the respected elders of our governance institutions, concerned citizens, well-wishers of whatever remains of our democracy, must all act now to de-escalate needless tensions in our already too polarised and fragmented society. Excessive, even deleterious partisanship is killing us, for sure.
If this continues, it may soon be too late to douse the raging flames of dysfunctional partisanship with the calming water of cool heads and good reason. We have seen before, how the antecedents of major disruption that can send whole republics six feet under, form.
Public officers must be held accountable in Ghana, even for how they raise their political campaign funds, no doubt about that. But the purposes of legality are neither served by deploying unethical overly politicised means, nor by leveraging outright illegality. This must be our guiding star in all we do.
The state cannot, for example – through the voice of the OSP say a raid is staged, and then simultaneously apologise and accept responsibility for the same incident through the majority leader, on the floor of parliament. And the matter is closed there. Who gave authority to send these goons on the mission? From where did the person who gave authority source that authority, and more? Who is to be held accountable, who is to be punished, if any? Without answering these questions, our political transitions will continue to feature such craven irresponsible episodes. Today it is Jakpa, yesterday it was The Invincible Forces, one day there will be nothing left, for one careless spark can bring down an entire forest in a ball of fire next time.
The falcon is not listening to the falconer when that happens, and the centre does not seem to hold. We pray that soon, things do not completely fall apart, with mere anarchy loosed upon the earth. It is in our hands to determine our collective fates. We return to our quiet corners to watch, the president in the meantime, must actively preside and calm the waters.
Yaw Nsarkoh,
15 February 2025
Calm The Waters
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