By: Nick Opoku and Kwadwo Yeboah Gyan
Photo Credit: Getty Images
1. On 31st December 1981, the
government of Ghana was overthrown by the PNDC. The PNDC subsequently made 31st
December a statutory public holiday and celebrated the anniversary of the coup
each year with public funds.
2. On 7th January 1993, a
civilian government assumed power under the 1992 constitution. But the celebration
of the 31st December coup with public funds continued.
3. The NPP went to the Supreme
Court arguing that the celebration of 31st December with public funds is
unconstitutional because it's against the letter and Spirit of the 1992
constitution.
4. The Supreme Court agreed with
the NPP (See New Patriotic Party v Attorney General [1993-94] 2 GLR 35—192). The
court held amongst others that because the 1992 constitution enjoins Ghanaians
to defend and resist any attempt to overthrow the constitution, the celebration
of the 31st December coup with public funds weakens the resolve of Ghanaians to
defend and protect the constitution. It is also unfair to persons adversely
affected by the coup but are unable to seek redress because of the Transitional
provisions. Therefore using public funds for the celebration of the 31st
December coup is unjustified and unconstitutional.
5. My friend, the venerable Prof Stephen Kwaku
Asare (Kwaku Azar) argues that despite the perceived non-use
of 'public funds' for the celebration of the 31st December coup, the continuous
organization of the event by a political party makes it a 'national' event and
therefore must be subject to the rule in the 31st December case. He argues that
it is against 'our collective conscience and wisdom' to allow the continuous
celebration of the event because it poses a danger to our peace and democracy.
6. One may argue that the right
to join a political party in the celebration of the 31st December coup is a
right protected by the constitution. I am mindful of these rights: rights/
freedoms of assembly, to participate in the activities of political parties,
etc under Article 21. But we must note that these rights are subject to 'such
qualifications and laws as are necessary in a free and democratic Society'. The
exercise of these rights must also be 'consistent with [the] Constitution.'.
8. To the extent that the Supreme
Court held that the celebration of the 31st December coup weakens/ will weaken
the resolve of Ghanaians to defend and protect the constitution and such
celebration will be unfair to persons adversely affected by the coup but are
unable to seek redress because of the Transitional provisions which protect
perpetrators of the coup from being 'held liable either jointly or severally'
for their actions or omissions, I agree with Prof Kwaku Asare’s argument.
9. One may also argue that the
funds of a political party (NDC) used in the celebration of the 31st December
coup are not ‘public funds’ and therefore the celebration is not unconstitutional.
But let us note that the funds of political parties are considered public funds.
The Supreme Court in Republic v Yebi and Avalifo [2000] GLR (also [2000] SCGLR)
said so. The court in that case held, amongst others, that ‘the alleged theft of the money [of the NDC]
is not in the interest of only the members of the NDC, but also the entire
Ghanaian public who are by law entitled to inspect and take copies of the
audited accounts of the NDC.’ A person who appropriates
the funds of a political party is liable to punishment under our criminal laws.
10. It stands to reason, therefore, that the NDC's continuous use of its resources to celebrate the 31st December coup is an unconstitutionality.
11. For now, we can only trade ideas and debate this issue until it is tested in our courts someday.
10. It stands to reason, therefore, that the NDC's continuous use of its resources to celebrate the 31st December coup is an unconstitutionality.
11. For now, we can only trade ideas and debate this issue until it is tested in our courts someday.
