Ghana could be heading towards constitutional crisis if the President frees the jailed Montie trio who were sentenced for criminal contempt after they threatened Supreme Court (SC) judges.
A legal practitioner, Nana Asante Bediako explained that it would not be a wise decision for President Mahama to grant the petitioners of the “Montie 3” their wish.
Some politician has signed the petition to grant freedom to the three convicts.
Joining the politicians, the acting President of the Ga Traditional Council, Nii Dodoo Sakei has backed the petition saying that is in the spirit of reconciliation ahead of Homowo Festival.
The President can intervene based on Article 72 of the 1992 Constitution, which demands prerogative mercy for the convicted. It says;
(1) The President may, acting in consultation with the Council of State-
(a) grant to a person convicted of an offense 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 offense; or
(c) substitute a less severe form of punishment for a punishment imposed on a person for an offense; 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 on any offense.
However, Nana Asante said, there are constitutional limitations, hence the President cannot act regardless of the Constitution.
He said “he must do in accordance with Article 296”, which focuses on exercising a discretionary power.
That part of the Constitution states
Where in this Constitution or in any other law discretionary power is vested in any person or authority –
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”
Nana Asante Bediako noted that the legality of the President’s decision could be challenged at the Supreme Court.
The legal practitioner emphasized that the Constitution as a whole is well looked at than part of it being used when it favors some few like only the Article 72 is used by the petitioners in addressing issues.
He advised that Mahama should not listen to the petitioners else a Constitutional crisis as the Executive and Judiciary will contradict each other.