Thursday, July 30, 2015
Ghana, as a democratic Republic, is faced with yet another opportunity to further strengthen her democratic credentials under the 4th Republic. The opportunity comes each time along with its own challenges. The degree of the challenges, however, differs from one individual or group to the other. For members of the security services in general and the Ghana Armed Forces in particular, the challenges are enormous.
Apart from expectations that the military should be prepared to support the police to maintain law and order during the electioneering period, the individual soldier is also faced with the duty of properly conducting himself in a manner to avoid appearing as engaging in active party politics. But what exactly, within the law, are members of the military allowed or not allowed to do when it comes to politics?
Clause 1 of Article 19.45 of the Armed Forces Regulations (AFR) Volume I prohibits commanding officers from allowing a political meeting to be held or a political speech to be delivered at their stations, units or ships. They are also not to allow a candidate of an election or a political agent or canvasser to visit their stations, units or ships for the purpose of carrying out political activities unless authorized by or under service instructions or orders.
Again, clause 2 of the said Article proscribes a soldier from issuing an address to electors, or announcing himself or allowing himself to be announced as a candidate, or prospective candidate, for election to Parliament or to a local council, or instituting or taking part in any party or political meeting at any station, unit, ship or property occupied by the Armed Forces.
Aside these specifics, clause 2 further provides for the omnibus proscription of soldiers taking active part in the affairs of any political organization or party.
Interestingly, the Regulation appears to have failed to give soldiers an idea as to what amounts to active participation or involvement in the affairs of a political organization or party. The framers of the regulations left the determination of what amounts to active involvement in politics to the tribunal of fact. The decisions of the tribunal are in turn expected to inform all who are subject to the Regulations what specific situations could be regarded as active participation in the affairs of a political organization or party.
Unfortunately, there is scarcity of military tribunals’ decisions, or what may be referred to as case law, on what may qualify as active participation in the affairs of a political organization or party. Thus neither the Armed Forces Regulations nor the decisions of military tribunals provide sufficient guidance for military personnel on the issue.
Command therefore tries to fill the vacuum by periodically reminding service personnel on the need to avoid openly showing affiliations to political parties and getting involved in active party politics. But can this suffice as a sufficient guiding definition of what is active party politics such that if the activity of the soldier openly shows his affiliation to a particular political party, then that could be regarded as active involvement in party politics?
But wait a minute; one may then ask what ‘open exhibition of political affiliation’ is? This appears to have been answered by the stipulation of some specific prohibitions that include: bearing of political party membership cards, attending political party meetings and offering personal (not official) services as body guards to bigwigs of political parties.
Notwithstanding all the guidance provided by Command, some military personnel are still clouded by an aura of doubt as to the extent to which the proscription goes. They appear to be in a dilemma when considering other instances that may or may not amount to active participation in politics.
Take for instance a soldier wishing to be apprised of the policies of a political party in order to inform his decision on voting day, and who joins a crowd at a political rally outside barracks to listen to the politicians’ ‘sermon’. Could this soldier be said to have engaged in active party politics?
Does it matter if he were dressed, at the time, in military uniform or not? Consider a second scenario where a soldier who lives in his own accommodation (outside barracks) is visited by his civilian friends draped in political party paraphernalia. The friends spend a couple of minutes with him in the house before leaving. Could the host soldier be said to be doing active party politics?
Again, consider another scenario where two or more soldiers prior to an election reflect together on which political party or candidate to vote for. Then a soldier expresses his candid opinion to his colleagues why he thinks a particular party or candidate should be voted for. Is that soldier guilty of doing active party politics?
The list of the scenarios that puts the soldier in a dilemma as to what exactly constitutes ‘active participation in politics’ could be pretty long. A friend of mine tells me that to avoid being disciplined for actively participating in party politics, one only needs to follow the principle “don’t be seen and don’t be heard.” Could this also suffice as yet another guiding principle?
Be that as it may, it is imperative that we have some more guidance on situations that could lead to soldiers being disciplined for engaging in active party politics. It is important to realize that the Armed Forces would not prevent its personnel from reasonably participating in our democratic process.
Hence, the Armed Forces would always provide the enabling environment for its personnel to reasonably exercise their political rights, such as allowing them to undertake their biometric voter registration, and also encourage them to vote. But when, for example, it comes to actively campaigning for political parties or candidates, the military would frown upon it. A diligent soldier in a dilemma and not too sure of what could be regarded as active participation in politics may first take guidance from the specifically published instances that could be regarded as active involvement in party politics.
Guidance may also be sought from the national Constitution or legislations that make similar proscriptions in their provisions. For example, Article 94 (3) (b) of the 1992 Constitution makes a member of the Armed Forces ineligible to be a Member of Parliament. This limitation is further stretched by section 26(1) of the Political Parties Act, 2000 (Act 574) which states that a chief or any other person who is not eligible to be elected to Parliament does not qualify to be a founding member, a leader or a member of the executive of a political party; or hold office in a political party.
Even without an express prohibition under the Regulations, one may deduce that since service personnel are ineligible to be elected to Parliament they cannot become founding members, executive members or office holders in any political party. If after looking at the constitutional and all other legislative provisions on the issue and one is still in a dilemma, it is suggested guidance should be sought from attempts made by writers to define the phrase. Indeed, partisan political activity could be any activity supporting or relating to candidates representing, or issues specifically identified with political parties or associated organizations.
One would have thought the above submission concludes the controversy on the possibility of soldiers facing disciplinary action for engaging in active party politics. That is, however, far from the case because many more issues require interrogation. For example, would it be constitutionally proper to convict service personnel for allegedly engaging in active party politics when no clear definition of the phrase has been provided for?
Article 19 (11) of the 1992 Constitution provides that “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”. So one may argue that in view of Article 19 (11) the omnibus proscription under Clause 2 of Article 19.45 of the AFR forbidding soldiers from engaging in active party politics is void, since the Regulation fails to define ‘taking active part in the affairs of any political organization or party’.
It is respectfully submitted however that such an argument would fly in the face of the law, for the simple reason that it is impossible to list all conducts that could constitute active engagement in party politics in one enactment. There are a number of such similar omnibus provisions under our laws.
For example, section 16(1) of the Legal Profession Act 1962 (Act 32) does not itemize what constitutes ‘grave misconduct in a professional respect’ for lawyers, but that does not make section 16(1) of Act 32 void. Similarly, section 54 of Armed Forces Act 1962 (Act 105) does not specify the particular acts that constitute conduct prejudicial to good order and discipline yet several military personnel have been convicted and punished there under.
The possibility of sustaining a conviction on these omnibus provisions was confirmed in the Court Martial Appeal Court case of WOI Foli John vrs The Republic [Criminal Appeal No.2/8 of 1998]. The inability of the law makers to define active participation in party politics can therefore not be used as a defence when it comes to trying military personnel for engaging in active party politics.
A conviction or acquittal would depend, in each case, on the nature of the conduct that the personnel engaged in. If the tribunal of fact finds that the conduct qualifies as active participation in party politics, one can be successfully convicted. It is therefore necessary for all to be circumspect in the kind of activities that we engage in, particularly in this election year to avoid falling foul of the law.
Credit: Lt Col Charles Gbekle