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The Paradox of Reforming Ghana's Indemnity Clauses

Calls to repeal the constitutional pardons reveal a difficult trade-off between democratic principles and stability.
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A Lieutenant Colonel of the Ghana Armed Forces being questioned in Accra.

The question of indemnity for perpetrators of previous military coups threatens to divide an already polarised political environment in Ghana. According to leaked excerpts from the Constitutional Review Committee report, expected to be presented to President Atta Mills this month, entrenched constitutional provisions which preclude legal action against previous military regimes may be expunged from the country’s statute books.

While many have argued that the indemnity provisions are the price for Ghana’s democratic stability and development, others have pointed out they fundamentally conflict with the tenets of probity and accountability which informed the country’s democratic transition in 1992. The polarising political discourse on constitutional indemnities presents a difficult puzzle that could undermine the on-going constitutional review process.

Ghana’s experience with indemnity clauses

Since Ghana became a Republic in 1960, the country has adopted several constitutions following military rule that contained various indemnity clauses. In 1969, the National Liberation Council (NLC) handed over to the civilian Progress Party (PP) government after securing indemnity from prosecution for the unconstitutional overthrow of Nkrumah's Convention People’s Party government in 1966. The then Constitutional Commission insisted that an amnesty was required to secure the military junta’s support for the democratic transition. It assured the military junta, who still wielded significant control in the army and police, that they would not be at the receiving end of state retribution if they were to hand over political power to a civilian regime.

However, later military interventions proved the “amnesty-prevents-further-coups” theory wrong. In 1972, the National Redemption Council (NRC) led by Col I. K. Acheampong overthrew the PP government. And Ghana experienced a series of coups and counter-coups between 1979 and 1981. When, in 1979, the Armed Forces Revolutionary Council oversaw another democratic transition into the Third Republic, the indemnity provisions of the Second Republic were transferred into the Constitution. While some Ghanaians expressed disquiet about the tendency of amnesties to incentivise further coups, many were optimistic that the presence of indemnities would allow the military junta to relinquish power and support democratic transition.

A concession too far?

Indemnity provisions under the Fourth Republic have attracted incisive debate as a result of their far-reaching concessions to previous coup-makers, especially members of the defunct Provisional National Defence Council (PNDC), who presided over the 1992 democratic transition. Under previous constitutions, perpetrators of coups were pardoned from the act of the unconstitutional coup itself. However, while the 1992 constitution grants this pardon, it goes further in securing a blanket amnesty for members of the PNDC regime from any form of criminal prosecution. Specifically, under Section 34 of the Transitional Provisions the 1992 Constitution reads:

“No member of the PNDC, a PNDC secretary or other appointees of the PNDC shall be held liable, jointly or severally, for any act of omission or commission during the administration of the PNDC”.

Because these provisions have been entrenched in the constitution, any individual or group that wants to expunge them requires a minimum of 65% support of Ghanaians voting in a referendum. According to critics, the entrenched provisions have helped the PNDC to evade accountability for the multiple human rights abuses that were committed between 1981 and 1992. And according to the National Reconciliation Commission report, the PNDC have been responsible for the most grievous human rights violations in Ghana’s history. These abuses have included several cases of extrajudicial killings and disappearances, especially by paramilitary and revolutionary organisations as well as the murder of three high court judges and a retired army officer.

The circumstances under which the indemnity clauses were “smuggled” into the constitution have also attracted criticism. The Consultative Assembly, and the subsequent Constituent Assembly, that were tasked to draft the constitution for Ghana’s Fourth Republic did not raise the question of indemnity. However, when the PNDC presented the constitution for a referendum, they inserted the indemnity clauses without debate. The dilemma that was presented to voters calling for a return to democratic rule at the time was obvious: A vote for the constitution meant a return to democracy but with the amnesty “baggage”. A vote against the constitution implied a rejection of the indemnity clauses but the postponement of democratic transition.

In the end, the constitution received an overwhelming 92% support of voters. Yet, this support never settled the debate on the indemnity clauses. Many individuals and groups, including the National Reconciliation Commission, have called for a separate referendum on the question of indemnity to promote justice and true reconciliation in Ghana.

Or a necessary evil?

Debate over a referendum on the indemnity clauses has been animated by the decision of the Atta Mills government to undertake a constitutional review. The Constitutional Review Commission received several memos, petitions and presentations that called for the amendment (or repeal) of the indemnity clauses to allow victims of human right violations to seek legitimate redress. But the reported acceptance of the Constitutional Review Committee to remove the indemnity clauses, if endorsed by the executive, could undermine the constitutional review process.

Despite years of electoral democracy, many Ghanaians believe that the dilemma of the democracy-amnesty trade-off is still relevant given the fact that the country’s democratic institutions are still nascent. The relevance of the indemnity clauses in maintaining the peace and stability needed for effective democratic growth cannot be overestimated. This fact is even more pronounced given the fact that members of the erstwhile PNDC, notably Jerry John Rawlings, still wield considerable political power in the country.

Many discussions about Ghana’s indemnity clauses posit that, as a leader of the PNDC, Jerry John Rawlings is the greatest, if not the sole, beneficiary of the indemnity clauses. Nonetheless, such prognosis could be simplistic. Over the years, some members of the PNDC who fell out of the party have been active political players in leading political parties in Ghana’s Fourth Republic. The complex redrawing of political alliances following the end of the PNDC rule, and contending views over the indemnity clauses make it increasingly difficult to build any meaningful political alliance against them under the Fourth Republic. Besides, there has been much anxiety expressed about the potentially detrimental effects of opening up the scars of previous human rights violations and reviving old animosities.

Distractions

Despite their indubitable importance, media reports and debates about the constitutional review processes have become overly focused on the indemnity clauses. As a result, other pertinent issues and possible defects of Ghana’s institutional makeup as crafted by the constitution have not received adequate attention. For instance, many policymakers, activists and academics have long bemoaned the weakness of Ghana’s legislature vis-a-vis the executive president. Additionally, the country’s decentralisation programme has come under intense scrutiny for failing to give meaning to local ownership and initiative in community development.

The success of the constitutional review process depends on how it effectively manages both the paradox of the indemnity clauses and other extremely pertinent issues in need of reform if Ghana is to succeed in its democratic and developmental efforts.

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