There is little doubt that Kennedy Agyapong’s statement calling on ashantis to “beat ewes and gas” is incendiary, indefensible, inexcusable and deserving of condemnation by all well meaning people. Having said that, I will also add that, as abominable as the statement is, it does not give the government the power to detain Agyapong, on trumped up charges, in clear retaliation for exposing the President’s role in the Woyome saga.
Our Constitution does not just protect love-speech. Indeed, love-speech requires no protection at all. What the Constitution really protects is ugly speech, such as those uttered by the misguided Kennedy Agyapong. If speech does not lead to imminent danger, it must be protected, even if it is highly offensive.
Can some speech be considered criminal? The answer is yes. But the test there is whether the speech portends imminent danger. I say to you while holding a gun “I will kill you.” That is criminal threat and unlawful. Quiet apart from any charges that holding the gun can bring, the words “I will kill you,” in this context can constitute criminal threat! You say to a charged crowd of Hearts supporters, unhappy after poor refreeing has cost them a game, “kill that referee standing there.” This portends imminent danger to the referee and is unlawful, impermissible, criminal speech. I go to a TV station and say sexual starvation is abominable. As a result, I declare that “all sexually starved men should kill their spouses.” There is no imminent danger and the speech is protected.
Kennedy Agyapong has no standing to tell a “mmobrowa” like me what to do, let alone tell ashantis what to do. His speech, abominable and condemnable as it is, does not lead to even a clear and present danger, let alone imminent danger. Ashantis are not some robots who will pick up machetes to start beating Jake Okanka Lamptey or Lizzy Ohene just because somebody says so. Thus, as offensive as the statement sounds, it does not carry any weight, in law, anymore than a statement from me declaring a war between Spain and England.
Our beloved country cannot afford to give this President, or any President, a convenient tool to lock up MPs, merely for their words, even if they utter the ugliest words. The purpose of democracy is to create a market where all forms of ideas are tested. Given the offensive nature of Agyapong’s speech, it is very easy to lose track of the dangerous precedent that this President has set by manipulating (for that is what this is all about) the Police to lock up an opposition member, here an MP. We must resist this power-grab.
As the market of speech has clearly illustrated, with the wholesale condemnation of Kennedy Agyapong, the best antidote to hate-speech is instantaneous condemnation of the speech, not some high-handed unconstitutional seizure of persons and the abuse of the personal liberties of the speaker.
It is preposterous to hold or charge Kennedy Agyapong with treason. Treason, under our laws, involves actions to abrogate the constitution (see Chapter 1) or to declare war on the country (see chapter 5). Treason is a very serious charge, punishable by death. It cannot be thrown about willy nilly, and certainly a treason charge cannot be built on mere speech, uttered on a public platform, here the radio.
This treason charge is unsustainable in any court in Ghana. Indeed, we just learnt that the Prosecution filed a charge at a Magistrate Court, clearly evidencing that the Prosecution does not know what it is doing and is merely abusing the legal process to stop an MP from performing his work. Unfortunately, rather than throwing out the case and freeing Agyapong, the poor magistrate politely declined jurisdiction.
There is an imminent danger in charging opposition members with treason, because it is not a bailable offense. Opposition can be stifled by invoking this tool and, in my mind, this charge, on this occasion, has more to do with Kennedy’s stance on Woyome and little to do with his clearly ugly rhetoric calling on the beating of people.
But let us be very clear that once we sustain this precedent, it will become a weapon in every President’s arsenal and I guarantee you that it will be abused, as it is being abused here.
The Constitution provided for MPs who are endowed with unfettered rights to engage in robust debates. It is treasonous for the President to hold an opposition MP in detention, on nothing more than his uttering of highly offensive words, where such words are uttered in frustration and anger that the President has sent his aides to maim women and declare areas of the country no go areas (as well as saying he is no police officer to stop his men from beating others).
Wherefore, I declare war on National Security and the President and ask for the immediate and unconditional release of Kennedy Agyepong. In addition, I ask all and sundry to ponder whether it is treasonable for the Chief Law Enforcement Officer to send his aides to beat women, declare that he has no power to arrest violent people, and unlawfully restrain the movement and liberty of an MP?
By S. Kwaku Asare