Senior lawyer with the National Democratic Congress (NDC) Nana Ato Dadzie has said President John Mahama simply exercised executive power by freeing the Montie 3.
He said suggestions that the president ought to have borne in mind restrictions on his powers in the constitution in taking the decision were not grounded in law.
The restrictions, found in Article 296 of the Constitution, he maintained, relate only to discretionary powers.
The Power of Prerogative of Mercy exercised by the president under Article 72 in remitting the four months’ prison sentence of the three pro-NDC communicators is an executive power, he told Joy FM's Super Morning Show host, Kojo Yankson.
President Mahama Monday August 22, 2016 ordered the release of three persons – Salifu Maase, Alistair Nelson and Godwin Ako Gunn – from prison.
They are to come out on Friday, August 26, 2016 by which time they would have served one month out of a four-month prison sentence imposed on them by the Supreme Court.
They were convicted on their plea by the Court for criminal contempt after threatening to murder and rape judges hearing a case questioning the validity of the electoral roll.
The contemnors petitioned the president to exercise his powers under 72 of the constitution and grant them pardon, immediately the sentences were handed down.
Acting on the petition in consultation with the Council of State, the president remitted the remaining three months of the sentence.
The convictions and 10,000 cedis fine imposed on each of the convicts however stand.
The President’s action has been described as constitutional lawless with some saying it flies in the face of restrictions imposed on the president’s powers by the constitution.
Article 296 of the 1992 Constitution says: “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 wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.”
Private legal practitioner, Samuel Atta Akyea, said the president’s action was clearly biased because it was founded on partisan considerations.
Nana Ato Dadzie who was lead lawyer for the contemnors, however, disagreed.
“I want us to understand that we are talking about prerogative of mercy, these are specific powers vested in the president…he has the powers to grant mercy and they are executive powers, not discretionary powers,” he asserted.
Dean of the GIMPA Law School, Mr. Ernest Kofi Abotsi, however, disagreed with him.
He contended that Ghana’s constitution does not confer unfettered powers on anyone or government.
He said the history and genesis of the power of prerogative of mercy may connote an unfettered power but the Supreme Law of Ghana does permit any such power.
“When you speak of something as a prerogative in law, you are speaking of absolute power; power that is unchecked. In the context of the Constitution, there is no prerogative and that is why the use of the word ‘prerogative’ by the Constitution itself creates…a conceptual difficulty,” he said.
That notwithstanding, Mr. Abotsi argued that “If you look at the Constitution as a unique document and a coherent document, one will come to the conclusion that ultimately, every concept is liable and subject to the overriding values in the constitution…in this case the issue of the limitation on the powers of the president. Therefore all powers of government in principle are limited.”