Introduction

I was a panel member, on the first day, at the ICAS 11 Academic Freedom Space, a platform that sought to enhance knowledge exchange and discussion about infringements on intellectual and academic freedom. Here, I present a summary of my presentation, which was a personal narrative of an instance of the instrumentalization of 'due process of law' to stifle academic freedom. It draws on my personal experience in 2012 at the Institute of African Studies, University of Ghana when my attempt to present a seminar paper on "How Undeveloped Capitalism Encourages Predatory Activities in Emerging Economies: The Case of the Wayome Scandal"[1] was denied on the grounds that it contravened the principles of justice and rule of law. My presentation was basically to discuss the travails and dynamics of 'primitive accumulation of capital' in conditions of post-coloniality. It was to show how primitive accumulation of wealth in a neo-colony proceeds via predatory and corrupt trajectories. The Woyome Scandal refers to what was described in the Ghana media as a financial malfeasance, in which a leading financier of the then ruling National Democratic Congress, Mr. Alfred Woyome, in connivance with politicians and state bureaucrats managed to unlawfully secure the payment of judgment debt of 46 million Ghana Cedis. I sought, via the seminar presentation, to utilize this ‘scandal’ to demonstrate how the political class employs corrupt means to self actualize. The Seminars Coordinator under inordinate political pressure, a day before the presentation, cancelled the programme. The reason for the cancellation of the seminar presentation was that it was premature because the Woyome case was still sub-judice. There had been a default judgement and a consent judgement but Ghana’s Attorney General was then challenging that in court. The seminar discussion was seen to constitute a potential prejudice to the final outcome of the case. However, the cancellation of the seminar was clearly unconstitutional vis-a-vis the freedom of speech and academic freedom provisions of Ghana’s Fourth Republic Constitution and the University of Ghana Act. It was in contravention of intellectual and academic freedom, and sought to circumscribe debate and dissent in the academia.

To put the contravention of intellectual and academic freedom in post-colonial Africa in perspective, it is important to draw attention to the material basis of scholarly freedom. My presentation therefore started with the identification of such material basis to be coercive authoritarian rule, the betrayal of the nationalist aspirations, poor salaries, poorly stuffed libraries, coercive authoritarian rule, funding constraints, and poor research infrastructures.

The University of Ghana has a distinctive utilitarian role to advance social progress, by conducting research and being at the centre and front of discovery and the search for new truths and scientific methods. To do this, a comprehensive system of scholarly freedom is embedded in the university’s statutes. This guarantees that both faculty and students can engage in intellectual debates without fear of censorship or retaliation, thus establishing faculty members right to remain true to their pedagogical philosophy and intellectual commitments. That is the way to preserve the intellectual integrity of the educational system.

Thus, debate and dissent are critical and constitute the heart and engine of the academy. The important question nevertheless is: can there be freedom for the academic when the wider society in which the academic lives lacks such freedom? How do we ensure academic freedom in conditions of coercive authoritarianism?

Mahmood Mamdani and Claude[2] Ake maintains that the democratic aspirations of the nationalist movement were betrayed when most post-colonial African leaders decided to inherit the colonial system rather than transform them democratically. And, in the course of dealing with the alienation and resentment which this engendered they became authoritarian, repressive and coercive. It is in this general climate of coercive authoritarianism that we are to understand the ruptures in academic freedom in post-colonial Africa.

To return to the cancellation of my seminar presentation, which provoked passionate debates online. It polarized the academic staff at the University of Ghana and triggered an interesting conversation on due process of law and academic freedom. Below, I produce some of the views expressed by lecturers on the cancellation.[3]

1. Kojo Opoku Aidoo (Seminar Presnter) wrote:  Dear All - I have just been told on phone that I cannot present this seminar paper tomorrow due to some 'legal objections'! In this seeming contest between 'contempt of court' and 'scholarly freedom', the former regrettably appears to have won. The question still remains: Who has the professional competence and authority to make that determination in an open and free society, and especially in a University that is trying to be world class? Unfortunately, somebody other than a court of competent jurisdiction has stopped us from presenting this well researched paper. Whoever stopped it has succeeded in doing two things simultaneously – attacking academic freedom and usurping the powers of the courts. This is frightening, indeed!!! Hopefully, someday we will have the opportunity to discuss the travails and dynamics of 'primitive accumulation of capital' in conditions of post-coloniality. 
2. Raymond Atuguba (Professor of Law) wrote: I am really sorry about this. The rule that is being cited to you as law, I found out after much research, is a rule that was used by the British courts to stifle the Irish during the height of the British-Irish war. Imported without thinking, and applied quite rabidly and opportunistically by the courts and a coiterie that stepped into the shoes of the British when they left, to shore up their tenuous legitimacy, it is clearly unconstitutional vis-a-vis the freedom of speech and academic freedom provisions of the 1992 Constitution and the University of Ghana Act. It is unfortunate that we are still colonised in almost everything. See Raymond A. Atuguba, “ Ghana @ 50: Colonised and Happy”, in H. J. A. N. Mensa-Bonsu et. al. (eds) Ghana Law Since Independence: History, Development and Prospects, (Faculty of Law, University of Ghana, Legon, 2007), p. 571 for some solace.
3. Dan Antwi (Lecturer) wrote: It would be a very enlightening discussion but I only wish that it would be at the conclusion of the Woyome trial, then it would serve as case-study for academic and socio-politico-economic purposes.
4. Kwadwo Appiagyei-Atua (Professor of Law) wrote: Interesting topic. But I’m wondering if it is not premature to do this because the case is still sub judice. There is a default judgement and a consent judgement but the A-G is now challenging that in court. It could be said that the discussion at the seminar may prejudice the final outcome of the case. Academic freedom, yes but I’m not sure if it’ll pass the threshold. Just a thought.
5. Michael Kpessa-Whyte (Senior Research Fellow) wrote: Nice suggestions and concerns but it should be possible to have this seminar without prejudicing "the final outcome of the case" in court. There is more to this matter than law and legality. If my reading of the seminar abstract is correct, the presenters are trying to provide a theoretical explanation that explores the links between undeveloped capitalism and predatory political behavior in emerging economies using the Woyome case in Ghana as an illustration. We must encourage it. The clock of academic research need not stop just because the legal process is still playing itself out.  Shouldn't  both play out simultaneously without difficulty?

The lesson from all this was that 'due process' interfered in academic freedom. And, this was less visible as abuse, less discernible, and more difficult to fight than when a dictatorial state machine arrests, imprisons, drives into exile or even kills dissent. What we are confronted with currently is a subtle application of the law to stifle dissent and debate.

As the scenario described above suggests that academic freedom is not just a matter of free speech, but also depends on a set of apparatuses that allow the speech to register and freely circulate. Regretfully, there is the emerging view that academic freedom, if unchecked would counteract not only justice, but due process of law! The principle of rule of law is being employed to asphyxiate scholarly freedoms in Africa today. In the past coercive authoritarian governments employed violence to silence debate and dissent. That was easier to identify, classify and fight. The new trend seems to conceal the attack on academic freedom and free speech under the cloak of democracy and due process of law. This new development is slight and subtle, and difficult to perceive or understand. Nevertheless, it constitutes a veritable abuse of academic freedom. 

The higher education landscape in post-colonial Africa is in a state of immense flux. And, the personal narrative I have related above portrays academic freedom and rule of law to be in a “troubled matrimony” in Africa. In most of Africa the "rule of law" has become the new code word for allowing governments to supplant "scholarly freedoms capital". And, this is accomplished by resorting to colonial laws that remain in our statute books.

What is to be done? We can only take refuge in Bertrand Russel’s admonition, in praising Karl Popper’s The Open Society and its Enemies to be 'vigorous and profound (in our) defence of democracy'.

For more information on the Panel visit: https://eu.eventscloud.com/ehome/icas11/specialevents/AFS/