To June 4th or Not – The Holiday Debate in Ghana (Part III)

Part III of a 4-Part Series

Current Holiday Legislation

From the above account of our history where governments played politics with national holidays, I now turn to discuss the relevant provisions of the 2001 Public Holidays Act, which is the statute that is currently in force. Under the Act, there are three kinds of statutory holidays, namely, (i) Public Holidays (properly so-called), (ii) Additional Holidays and (iii) Substituted Holidays.

Public Holidays: There are currently as many as 12 Public Holidays, and these are specifically listed in the Act, as amended, as follows: New Year's Day (1st January), Independence Day (6th March), Good Friday, Easter Monday, Eid-al Adha Festival (Hajj), Eid-al Fitr (Ramadan), Worker's Day (1st May), Africa Day (25th May), Republic Day (1st July), Farmers Day (1st Friday in December), Christmas Day (25th December), Boxing Day (26th December).

These Public Holidays have been laid down by statute and will be celebrated every year, with or without announcements from the Interior Minister. Such announcements, when made, only remind the citizenry of what already exists in the law. It is not the announcement that creates the public holiday. That holiday is statutorily provided for, and therefore cannot be changed or added to without amending the Act; and only Parliament can do this. For instance, when it was decided to make Africa Day (25th May) a Public Holiday, the 2001 Act was amended by the passage of the 2002 Public Holidays (Amendment) Act.

Obviously, June 4th is not one of the Public Holidays specifically provided in the Act. To be marked as a Public Holiday in future, and thereby somewhat elevated to the status of the existing 12 (as is the daydream of a certain Moses Mabengba), Parliament will have to specifically amend the 2001 Act. That, in my humble view, would be a rather tough sell to Ghanaians. Note that even the current NDC government did not have the appetite to do this and therefore did not introduce an amendment bill to parliament (as currently constituted), seeking to elevate 4th June to the status of the 12 Public Holidays. I do not see this happening under President Mills.

Additional Holidays: Additional Holidays are holidays other than the 12 specifically mentioned in the Act, but which are declared “in addition to the public holidays” by the President, if he considers it to be “in the public interest” so to do. The President must do so by Executive Instrument, if he so decides.

Thus the only other way, apart from going through parliament, that June 4th could have been restored as a holiday, would have been by the President simply invoking his powers and exercising his discretion under the Act to declare it as an Additional Holiday. We cannot fail to recognise President Mills’ choice or decision NOT to exercise this discretion with regard to June 4th 2009. If the President subsequently changes his mind (which he is entitled to do, but I not believe he will) and decides that we should all mark a day of rest to celebrate June 4th on the pain of punishment, he can ignore parliament and pass the required Executive Instrument, and repeat that action every year that he is in power. But President Mills did not do that in 2009, and looking into the future, we might be safe in assuming that the current government under President Mills, has no interest in formally reinstating June 4th as a public holiday.

Substituted Holidays: As the name suggests, Substituted Holidays are alternative or replacement holidays. These will come about where “the President is satisfied that it would be inexpedient” (i.e. not convenient) for any reason, for a Public Holiday to be so observed. Under those circumstances the President is given the statutory discretion to declare by Executive Instrument that any other day would be observed “as a public holiday instead of that day.” It is under a somewhat stretched or expanded application of this provision that sometimes, when the Public Holiday falls on a weekend, the President would declare the following working day, usually a Monday, as a Public Holiday.

Marking June 4th

As noted above, absent a formal legislative amendment of the 2001 Act, the only way that June 4th 2009 could have been marked as a statutory holiday was if the President had exercised his powers under the Act to declare that date as an Additional Holiday. But should he do that in future or introduce a bill to parliament for make that date a Public Holiday again? I do not think that we need to go too far or engage in any political grandstanding or abstract polemics to obtain an answer to that question. It is my considered opinion that the answer to that question exists in Section 34(2) of the Transitional Provisions to the Constitution.

This section of the transitional provision mentions the four very significant but violent, notorious and bloody dates in Ghana’s history, namely February 24th 1966, January 13th 1972, June 4th 1979 and December 31st 1981 (“Section 34(2) Dates”). As we have seen in the above discussion, each of these dates was, at some point in our history, a Public Holiday. Thankfully they are not now. Hopefully they will never be again.

Section 34(2) then informs Ghanaians (just in case we ever forget) that these notorious dates respectively relate to the violent overthrow of (i) the Convention Peoples Party (CPP) by the National Liberation Council (NLC), (ii) the Progress Party (PP) by the National Redemption Council (NRC) and the replacement of the latter by the Supreme Military Council (SMC I), (ii) the second Supreme Military Council (SMC II) by the Armed Forces Revolutionary Council (AFRC), and Peoples National Party (PNP) by the Provisional National Defence Council PNDC). Section 34(2) also reminds Ghanaians of the suspension or abrogation of the First Republican Constitution (1960), Second Republican Constitution (1969) and the Third Republican Constitution (1979) that occurred on some of these dates.

After Section 34(2) has taken us through a short and sour journey through Ghana’s violent political history where these ill-fated dates are concerned, it provides an indemnity to the government and it operatives by forbidding any judicial inquiry into any of the government’s actions with respect to the Section 34(2) Dates. In other words, Ghana’s courts have no power to entertain any legal action related to those dates. By necessary extension the courts of this land cannot take any decision or make any order or grant any remedy and relief against the government, if the legal action or proceeding arises from the activities and incidents associated with the infamous Section 34(2) Dates. Section 34(2) specifically provides as follows:

“It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after the coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in Government which took place on the twenty-fourth day of February 1966, on the thirteenth day of January 1972, on the fourth day of June 1979 and on the thirty-first day of December 1981 in respect of any act or omission relating to, or consequent upon—
(a) the overthrow of the government in power before the formation of the National Liberation Council, the National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and the Provisional National Defence Council; or
(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or
(c) the establishment of the National Liberation Council, the National Redemption Council, the Supreme Military Council which took office on the ninth day of October 1975, the Supreme Military Council established on the fifth day of July 1978, the Armed Forces Revolutionary Council, or the Provisional National Defence Council…”

Clearly, the government (and by this I refer to that continuous, constant and unbroken entity called “government”, howsoever constituted) has something to hide with respect to these dates. There are things that were done on the basis of the Section 34(2) Dates that the government is not proud of and is not keen to discuss or open to judicial scrutiny. Those dates are so similar in character, nature and status to each other, that Section 34(2) paints them with the same brush: indemnity. You do not seek an indemnity if you are not liable for something. The reputation of the Section 34(2) Dates is certainly contrary to and the opposite of the reputation of the 12 Public Holidays mentioned in the Public Holidays Act. Why would the government take the full benefit of the indemnities and protections provided by Section 34(2) if the government has nothing to hide with respect to those dates? Why then would Ghanaians, whose constitutional right to seek redress with respect to any matter in our courts has been clawed-back, muzzled or otherwise restrained by Section 34(2)’s constitutionally-imposed indemnities, be compelled and obliged to celebrate any of those dates by taking a mandatory rest, on the pain of possible imprisonment?

Section 34(2) was added to the draft Constitution, just before it was submitted to the PNDC on March 31st 1992. That section was contained in said draft Constitution when it was submitted to a national referendum held throughout Ghana on April 28th 1992. When the people of Ghana approved the said Constitution for the administration of Ghana to come into force on January 7th 1993, we agreed that the government and the perpetrators of those awful wrongs were forgiven. But we also voted, by virtue of the same Constitution, never to forget those days, not as dates for celebration, but as dates of indemnified ignominy. The indemnified deeds and misdeeds of the government, its military adventurists and civilian collaborators, which commenced on the Section 34(2) Dates, are a painful reminder thus: we should never allow this country to slip back to the rule of such persons.

If the government does not want us to inquire into what happened with respect to the Section 34(2) Dates, that same government cannot and should not attempt to compel us to accord those dates any reverence, respect or value whatsoever by taking a mandatory rest from work. Let the government keep and enjoy its Section 34(2) indemnities. But the government should not add insult to injury by compelling us to celebrate any of those dates, and thereby exposing us to jail terms for not resting on those anniversaries. Let the Section 34(2) Dates retain their constitutionally-defined infamy, but leave the rest of us in peace. That is the price we elected to pay and the compromise we elected to make, so as to purchase the current constitutional disposition; and the matter should rest there.

It is my respectful view that June 4th should continue to be known by the company it keeps under Section 34(2), and never accorded the status of a holiday, whether Public, Additional or Substituted. It is indeed sad that governments may choose to mark any of the Section 34(2) Dates in whatever manner they deem fit. And who are we to complain, since it is the government which holds the strings to our national purse and, as we have seen, it can jolly well swing that purse in whichever way it deems fit? So governments may marshal our security forces at our expense, block streets at our inconvenience and allow government officials to make speeches to our annoyance and on our work time, on any anniversary of any of the Section 34(2) Dates. Any of these that occurred on June 4th 2009 was truly unfortunate. But I have faith in President Mills’ publicly declared personal abhorrence of and repugnance to violent military takeovers, strongly signified by his absence from the public commemorative events and the very loud silence from him. That clearly repudiates the fantasies of Mr. Mabengba and all who think like him. June 4th and its Section 34(2) cousins were violent military takeovers and its actors enjoy immunity from our courts. They are not the hyped up, over-eulogised dates that their proponents and believers (to the extent that any proponents and believers still exist with respect to the three other dates) would have the rest of us believe. No citizen of Ghana ought to be compelled to take a day of rest at the pain of punishment, on account of those dates.

If, 16 years ago, the Supreme Court judged the celebration of and use of state resources to mark December 31st as unconstitutional, there appears to me to be no reason on earth why June 4th should be treated differently. I rely on and completely endorse the wise words of the current Honourable Minister for Foreign Affairs, Mohammed Mumuni in the Consultative Assembly Debates, January 15th 1992, col. 1417, which found its way into the judgment of Adade JSC in the NPP v. A-G case as follows:

“I believe that we are dealing with a principle, and when we are dealing with a principle you either wholly keep it or wholly reject it. You cannot compromise over a principle. We are saying that at this stage of our political development, we must come out positively and assuredly against any form of political adventurism.”

I agree. This could not have been expressed better. But I must add that one sure way to come out “positively and assuredly against any form of political adventurism” is to refuse to spend public funds or employ public resources to mark any of the Section 34(2) Dates, including June 4th.