Final Part of a 4-Part Series
Too Many Holidays
I am also of the view also that already Ghana has too many public holidays, and that there is virtually no space to add even one more. Instead of adding on holidays, we should be exploring the prospect of reducing the number of public holidays on our calendar.
I would commend to us all, the observations of the late Archer CJ, captured in his concluding words even in his dissenting opinion in the NPP v. A-G case as follows:
“Before this action was instituted, Ghana had ten public holidays throughout the year and second only to Northern Ireland, throughout the whole world, which has eleven public holidays… Ghana has more holidays than England and Wales and Scotland, each with nine holidays. Can a developing country like Ghana afford a string of holidays which at times can be boring? I leave the answer to Parliament and the executive. The British colonial administration introduced six public holidays in this country in 1899. We have ten and I wonder what the number would be by the year 2000.”
His Lordship the Chief Justice’s words were prophetic, and his worries were not unfounded. Currently we have 12 statutory holidays, 2 more than we had when Justice Archer penned these words. We are debating adding even more days. What we should be debating, I think, is how to reduce the number of holidays. These 12 paid working days that are observed as public holidays are in addition to the paid leave days guaranteed to all workers under article 24(2) of the Constitution and numerous provisions of the Labour Act.
Let us do some rough calculation. Year 2009 has 365 days, out of which 104 fall on weekends, leaving 261 working days. Out of the 261 working days, there are 12 public holidays (assuming there are no Additional Holidays), which increases the number of non-working days to 116 and reduces the number of working days to 249. Then if we assume that the average number of leave days is a conservative 20, that further increases the non-working days to 136 and reduces the total working days to 229. In other words, all things being equal, the average Ghanaian worker will spend roughly 40% (actually 37.26%) of his or her time on a vacation, holiday or weekend this year. If you consider that the actual work-time covers between 8 and 10 hours of the day, the percentage of non-work time increases exponentially.
It is in the light of the above that I hold the humble view that some of the dates that are currently marked as holidays should be simply commemorated without subjecting the entire workforce of the nation to punishment-based and statutorily enforced rest days. For instance, we always commemorate Armistice Day. It is not a holiday, and that has no devalued that date in any way. For example, I do not see why Africa Day should be marked by rest, when work, and not more rest, is what Africa needs right now. Likewise, it is time to debate amongst ourselves whether Easter Monday, May Day, Farmers Day, Boxing Day etc. can also be commemorated without being made public holidays. Similarly, the proposed Founder’s Day or Founders’ Day, should simply be commemorated. We respect our founders, but I am pretty certain they would want us to roll up our sleeves and get to work harder to build a better Ghana, and not simply add another lazy day to sit at home and twiddle our thumbs. Further, I would suggest that we consider returning to the days when Saturdays were half-working days. If we have 40-hour working weeks now, increasing that by even 10% (i.e. an additional 4 hours on Saturday) might be a step in the right direction.
Conclusion
I conclude by commending President Mills for making quite a definite break from the past by not declaring June 4th a public holiday when he had the power to do so. Further, his non-appearance at the public commemorative events cannot pass without comment. We however cannot ignore the suggestions that the date was still commemorated with direct and indirect state support. We might never be able to quantify the cost to the nation when a major road is blocked so wreaths are laid, when our police and other security personnel are deployed to provide security for these events, when government functionaries attend these events on our time, and in government cars fuelled by our taxes, etc. etc. But I think that we ought to be grateful for small mercies. My guess is that with time, even this state support (if true) will wane, and one day, very soon, we will finally consign June 4th to its proper place, the dustbin of history, where its historically ignominious Section 34(2) cousins, namely February 24th, January 13th and December 31st currently lie.
And, this country does not need a single more holiday; we simply cannot afford it.
Yours in the service of God and Country,
Kojo Anan
Thursday, June 11, 2009
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.
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.
Wednesday, June 10, 2009
To June 4th or Not – The Holiday Debate in Ghana (Part II)
Part II of a 4-Part Series
History of Ghana’s Holidays Politics
We cannot have a discussion of public holidays in Ghana without taking a look at the history of public holidays, and it is to this that I now turn.
1960-1966
When Ghana became a republic in 1960, its first public holidays legislation was the Public Holidays Act, 1960 (Act 23) which listed 9 public holidays as follows: (i) New Year’s Day (1st January), (ii) Ghana’s Independence Day (6th March), (iii) Good Friday, (iv) The Saturday next following Good Friday, (v) Easter Monday, (vi) Republic Day (1st July), (vii) National Founders’ Day (21st September), (viii) Christmas Day and (ix) Boxing Day.
I make two observations from this list of holidays. First, a holiday was observed on the Saturday after Good Friday because, as I am informed, in those days, Saturday was a ‘half-working day’, where workers were expected to work till 12 noon. ‘Holy Saturday’ remained a statutory public holiday until it was removed by the PNDC government in 1989 because by that time Saturday had long ceased to be a working day, and its continuous presence on the list was considered superfluous. I think that it is time to take another look at the country’s working week which currently starts on Monday and ends on Friday. It is time to ask whether or not an additional 4 hours of work per week on a Saturday will impact positively on our plans to grow this nation into a middle income status.
Second, the National Founder’s Day was a public holiday to celebrate the birthday of the then President of Ghana, Kwame Nkrumah. I have heard rumblings of an imminent campaign to reinstate this date as a public holiday. The question I ask is whether this date, if it is ever made a public holiday or is merely commemorated, should be observed as a “Founder’s Day”, which would once again effectively crown Nkrumah as the sole ‘founder’ this nation (a very debatable and potentially divisive position), or as “Founders’ Day” which would recognise the work of all the founding fathers? I would opt for the latter position, and even then argue that the date should not be declared a public holiday; it should have a simple commemoration. The English Law Lord Diplock once observed in the 1978 case of Town Investments Limited v. Department of the Environment, that “My Lords, it has been said that Roger Casement was hanged by a comma.” The upcoming debate over the “Founder’s Day” or “Founders’ Day” in Ghana might be resolved by the thorny position of an apostrophe.
Almost as a footnote, I must point out that on January 5th 1966, about a month to its overthrow, Nkrumah’s CPP, by LI 496, declared January 8th a public holiday under the name ‘Positive Action Day.’ That holiday was probably celebrated only once (i.e. in 1966) and then consigned to history’s dustbin.
1966-1969
On May 6th 1966, After the Convention Peoples Party (CPP) was violently overthrown on February 24th 1966, the military government of the National Liberation Council (NLC) by LI 509, deleted ‘Republic Day,’ ‘Founder’s Day’ and ‘Positive Action Day’ as public holidays and introduced in their stead, two new holidays: February 24th, called ‘Liberation Day’ and the first Monday in August, which I understand was popularly referred to as ‘Bank Holiday.’ In my research, I have found no reason behind or explanation for this ‘bank holiday’.
1969-1972
When the Progress Party (PP) took over power from the NLC on October 1st 1969, it revised the holidays list on December 1st 1969. LI 649, which was signed by “Brigadier A. A. Afrifa, Chairman of the Presidential Commission,” did the following: (i) it introduced October 1st as a holiday called ‘Second Republic Day,’ (ii) it retained ‘Liberation Day’ as a public holiday, and (iii) it removed the August ‘Bank Holiday.’ I note that ‘Republic Day’ was not restored to the list of public holidays, which meant that Ghana celebrated a ‘Second Republic Day’ and pretended that there was no ‘First Republic Day.’
A significant footnote is that this retention of ‘Liberation Day’ as a holiday during the reign of the PP, was to play out in a most dramatic fashion, many years later in the ‘Page 28’ Supreme Court cases of New Patriotic Party v. Attorney-General and Republic v. Mensa Bonsu, ex parte Attorney-General. A full discussion of these cases is outside the scope of this writing. But I must point to the admittedly forceful arguments of critics of the PP government, that the PP should have mustered the courage to delete ‘Liberation Day’ as a public holiday. I agree. But I also think that it was the relevant constitutional arrangements at the time, which threw up the Brigadier Afrifa, the main architect of the 1966 coup, as the Chairman of the Presidential Commission (effectively the acting President of Ghana until the election of the late Edward Akufo-Addo as President), that made it politically difficult, if not impossible, to do this. And, considering that the PP was only in government for a little over 2 years, it is difficult to judge them too harshly on this.
1972-1978
After the PP was itself violently overthrown on 13th January 1972, the military government of the National Redemption Council (NRC) engaged in what is easily the most bizarre and mind-boggling politics of holidays in our history. First, on February 4th 1972, less than a month after the coup, the NRC passed NRCD 18, which removed ‘Liberation Day’ as a public holiday but introduced in its stead 13th January as ‘National Redemption Day.’ The NRC did not, at this point, deem it fit or necessary to restore either the Republic Day or Nkrumah’s Founder’s Day to the list of public holidays.
When Kwame Nkrumah died on April 27th 1972, there was reported to be some considerable disagreement amongst members of the NRC on whether he should be buried in Ghana, and if so whether he should be given a state burial. Whilst Ghana’s government dithered, the government of Guinea (where he reportedly served as co-president), went ahead and buried him. It was only on July 7th 1972 that Nkrumah’s mortal remains (exhumed from Guinea) arrived in Ghana for a state burial at Nkroful, his hometown.
I recount this story because something very strange happened on February 12th 1973, i.e. only seven months after Nkrumah’s burial: the NRC government passed NRCD 154 to restore ‘Liberation Day,’ the day that marked the violent overthrow of Nkrumah (the national hero who had just been given the honour of a state burial), as a public holiday. Some have claimed that this move was to pacify and assuage the feelings of the anti-Nkrumah elements in the NRC who lost the argument over the burial. Be that as it may, this history tells us the sad story that on February 24th 1973, not long after Nkrumah had been given a state burial in Ghana, Ghanaians were given a mandatory rest from work, to celebrate again, the 1966 overthrow of Nkrumah (or else face a jail term).
This clearly anomalous situation was duly rectified a year later when on 20th February 1974 the NRC passed NRCD 244 to finally remove ‘Liberation Day’ from the list of public holidays. On April 3rd 1974, the NRC passed NRCD 253 to restore ‘Republic Day’ as a public holiday and declare that August 6th 1974 would be the last celebration of ‘bank holiday’. On June 13th 1974, the NRC passed NRCD 262 to clear up its confused and confusing holidays politics by consolidating all the holidays under one statute, as follows (i) New Year’s Day, National Redemption Day, (iii) Independence Day, (iv) Good Friday, (v) Holy Saturday, (vi) Republic Day, (vii) Christmas Day and (ix) Boxing Day.
1978-1989
NRCD 262 remained in force for exactly 15 years, surviving the regimes of the NRC, both SMCs, AFRC, PNP and 7 years of the PNDC. It would appear that no one really took a close look at that statute in all of those years. This is because that statute still had January 13th, ‘National Redemption Day’, as statutory public holiday, required to be mandatorily observed by rest, but no one appeared to pay any heed to that holiday after the palace coup that overthrew Acheampong’s SMC I on July 5th 1978. In effect, in all of those years that National Redemption Day was not observed as a public holiday, the Ghana’s citizens acted in collective breach of the law, and were liable to imprisonment for failing to rest on each January 13th, in celebration of our ‘redemption’ by the NRC.
When the PNP took over power, September 24th (the anniversary of the transfer of power from the AFRC to the PNP) was observed as a public holiday by virtue of executive fiats contained Executive Instruments presumably issued under NRCD 262. That date does not appear to have been formally legislated as a public holiday, and it is noteworthy that the PNP (just like the PP before it) did not deem it necessary to remove 'Redemption Day' as a holiday from our statute books, even if it was not celebrated. After the PNP was overthrown on December 31st 1981, the PNDC government also declared that date and June 4th as public holidays by the same yearly ritual of executive fiats.
In one of history’s amazing twists and turns, it was exactly on its fifteenth anniversary (on June 13th 1989) that NRCD 262 was repealed and replaced by PNDCL 220. PNDCL 220 finally removed the obsolete and otiose ‘National Redemption Day’ from the statute books as a national holiday. However, this did not reduce the number of public holidays, as PNDC 220 formally legislated the two similarly controversial holidays that had hitherto been celebrated by executive fiat: June 4th (to mark violent overthrow of SMCD II by the AFRC) and December 31st (to mark the violent overthrow of the PNP by the PNDC). PNDCL 220 spared us the indignity of being forced to refer to those dates by pompous, pretentious, and empty titles similar to those if its older cousins: Liberation and Redemption. But as pointed out, these two dates had been marked as public holidays soon after the PNDC came to power, i.e. even before they were formally legislated.
The 'Death' of June 4th & December 31st
Thankfully, these dates are no longer public holidays. December 31st was the first to be removed when on December 23rd 1994, the Supreme Court, by a majority of 5 to 4 in the case of New Patriotic Party v. Attorney-General, declared the celebration of the December 31st coup as unconstitutional, and stated as follows: “It is hereby ordered that 31 December shall no longer be declared and observed as a public holiday and celebrated as such out of public funds. The defendant is hereby ordered to obey and carry out this order.” This singularly bold decision of the Supreme Court has erased December 31st as a public holiday from our statute books forever – which means as long as this Constitution remains in force. This is because article 107(a) of the Constitution provides that parliament does not have the power to pass any law “to alter the decision or judgment of any court as between the parties subject to that decision or judgment.”
But June 4th, which was not the subject of the decision in NPP v. A-G, remained on the statute books. However, clearly, the appetite to celebrate it as a public holiday was on the decline, and its days were clearly numbered. It therefore came as no surprise when in 2001, the then new parliament dominated by the NPP passed the current Public Holidays Act which repealed and replaced PNDC 220 and removed June 4th as a public holiday from the statute books. With this, every holiday that marked the violent military overthrow of any government in Ghana was finally and rightly removed from our statute books.
History of Ghana’s Holidays Politics
We cannot have a discussion of public holidays in Ghana without taking a look at the history of public holidays, and it is to this that I now turn.
1960-1966
When Ghana became a republic in 1960, its first public holidays legislation was the Public Holidays Act, 1960 (Act 23) which listed 9 public holidays as follows: (i) New Year’s Day (1st January), (ii) Ghana’s Independence Day (6th March), (iii) Good Friday, (iv) The Saturday next following Good Friday, (v) Easter Monday, (vi) Republic Day (1st July), (vii) National Founders’ Day (21st September), (viii) Christmas Day and (ix) Boxing Day.
I make two observations from this list of holidays. First, a holiday was observed on the Saturday after Good Friday because, as I am informed, in those days, Saturday was a ‘half-working day’, where workers were expected to work till 12 noon. ‘Holy Saturday’ remained a statutory public holiday until it was removed by the PNDC government in 1989 because by that time Saturday had long ceased to be a working day, and its continuous presence on the list was considered superfluous. I think that it is time to take another look at the country’s working week which currently starts on Monday and ends on Friday. It is time to ask whether or not an additional 4 hours of work per week on a Saturday will impact positively on our plans to grow this nation into a middle income status.
Second, the National Founder’s Day was a public holiday to celebrate the birthday of the then President of Ghana, Kwame Nkrumah. I have heard rumblings of an imminent campaign to reinstate this date as a public holiday. The question I ask is whether this date, if it is ever made a public holiday or is merely commemorated, should be observed as a “Founder’s Day”, which would once again effectively crown Nkrumah as the sole ‘founder’ this nation (a very debatable and potentially divisive position), or as “Founders’ Day” which would recognise the work of all the founding fathers? I would opt for the latter position, and even then argue that the date should not be declared a public holiday; it should have a simple commemoration. The English Law Lord Diplock once observed in the 1978 case of Town Investments Limited v. Department of the Environment, that “My Lords, it has been said that Roger Casement was hanged by a comma.” The upcoming debate over the “Founder’s Day” or “Founders’ Day” in Ghana might be resolved by the thorny position of an apostrophe.
Almost as a footnote, I must point out that on January 5th 1966, about a month to its overthrow, Nkrumah’s CPP, by LI 496, declared January 8th a public holiday under the name ‘Positive Action Day.’ That holiday was probably celebrated only once (i.e. in 1966) and then consigned to history’s dustbin.
1966-1969
On May 6th 1966, After the Convention Peoples Party (CPP) was violently overthrown on February 24th 1966, the military government of the National Liberation Council (NLC) by LI 509, deleted ‘Republic Day,’ ‘Founder’s Day’ and ‘Positive Action Day’ as public holidays and introduced in their stead, two new holidays: February 24th, called ‘Liberation Day’ and the first Monday in August, which I understand was popularly referred to as ‘Bank Holiday.’ In my research, I have found no reason behind or explanation for this ‘bank holiday’.
1969-1972
When the Progress Party (PP) took over power from the NLC on October 1st 1969, it revised the holidays list on December 1st 1969. LI 649, which was signed by “Brigadier A. A. Afrifa, Chairman of the Presidential Commission,” did the following: (i) it introduced October 1st as a holiday called ‘Second Republic Day,’ (ii) it retained ‘Liberation Day’ as a public holiday, and (iii) it removed the August ‘Bank Holiday.’ I note that ‘Republic Day’ was not restored to the list of public holidays, which meant that Ghana celebrated a ‘Second Republic Day’ and pretended that there was no ‘First Republic Day.’
A significant footnote is that this retention of ‘Liberation Day’ as a holiday during the reign of the PP, was to play out in a most dramatic fashion, many years later in the ‘Page 28’ Supreme Court cases of New Patriotic Party v. Attorney-General and Republic v. Mensa Bonsu, ex parte Attorney-General. A full discussion of these cases is outside the scope of this writing. But I must point to the admittedly forceful arguments of critics of the PP government, that the PP should have mustered the courage to delete ‘Liberation Day’ as a public holiday. I agree. But I also think that it was the relevant constitutional arrangements at the time, which threw up the Brigadier Afrifa, the main architect of the 1966 coup, as the Chairman of the Presidential Commission (effectively the acting President of Ghana until the election of the late Edward Akufo-Addo as President), that made it politically difficult, if not impossible, to do this. And, considering that the PP was only in government for a little over 2 years, it is difficult to judge them too harshly on this.
1972-1978
After the PP was itself violently overthrown on 13th January 1972, the military government of the National Redemption Council (NRC) engaged in what is easily the most bizarre and mind-boggling politics of holidays in our history. First, on February 4th 1972, less than a month after the coup, the NRC passed NRCD 18, which removed ‘Liberation Day’ as a public holiday but introduced in its stead 13th January as ‘National Redemption Day.’ The NRC did not, at this point, deem it fit or necessary to restore either the Republic Day or Nkrumah’s Founder’s Day to the list of public holidays.
When Kwame Nkrumah died on April 27th 1972, there was reported to be some considerable disagreement amongst members of the NRC on whether he should be buried in Ghana, and if so whether he should be given a state burial. Whilst Ghana’s government dithered, the government of Guinea (where he reportedly served as co-president), went ahead and buried him. It was only on July 7th 1972 that Nkrumah’s mortal remains (exhumed from Guinea) arrived in Ghana for a state burial at Nkroful, his hometown.
I recount this story because something very strange happened on February 12th 1973, i.e. only seven months after Nkrumah’s burial: the NRC government passed NRCD 154 to restore ‘Liberation Day,’ the day that marked the violent overthrow of Nkrumah (the national hero who had just been given the honour of a state burial), as a public holiday. Some have claimed that this move was to pacify and assuage the feelings of the anti-Nkrumah elements in the NRC who lost the argument over the burial. Be that as it may, this history tells us the sad story that on February 24th 1973, not long after Nkrumah had been given a state burial in Ghana, Ghanaians were given a mandatory rest from work, to celebrate again, the 1966 overthrow of Nkrumah (or else face a jail term).
This clearly anomalous situation was duly rectified a year later when on 20th February 1974 the NRC passed NRCD 244 to finally remove ‘Liberation Day’ from the list of public holidays. On April 3rd 1974, the NRC passed NRCD 253 to restore ‘Republic Day’ as a public holiday and declare that August 6th 1974 would be the last celebration of ‘bank holiday’. On June 13th 1974, the NRC passed NRCD 262 to clear up its confused and confusing holidays politics by consolidating all the holidays under one statute, as follows (i) New Year’s Day, National Redemption Day, (iii) Independence Day, (iv) Good Friday, (v) Holy Saturday, (vi) Republic Day, (vii) Christmas Day and (ix) Boxing Day.
1978-1989
NRCD 262 remained in force for exactly 15 years, surviving the regimes of the NRC, both SMCs, AFRC, PNP and 7 years of the PNDC. It would appear that no one really took a close look at that statute in all of those years. This is because that statute still had January 13th, ‘National Redemption Day’, as statutory public holiday, required to be mandatorily observed by rest, but no one appeared to pay any heed to that holiday after the palace coup that overthrew Acheampong’s SMC I on July 5th 1978. In effect, in all of those years that National Redemption Day was not observed as a public holiday, the Ghana’s citizens acted in collective breach of the law, and were liable to imprisonment for failing to rest on each January 13th, in celebration of our ‘redemption’ by the NRC.
When the PNP took over power, September 24th (the anniversary of the transfer of power from the AFRC to the PNP) was observed as a public holiday by virtue of executive fiats contained Executive Instruments presumably issued under NRCD 262. That date does not appear to have been formally legislated as a public holiday, and it is noteworthy that the PNP (just like the PP before it) did not deem it necessary to remove 'Redemption Day' as a holiday from our statute books, even if it was not celebrated. After the PNP was overthrown on December 31st 1981, the PNDC government also declared that date and June 4th as public holidays by the same yearly ritual of executive fiats.
In one of history’s amazing twists and turns, it was exactly on its fifteenth anniversary (on June 13th 1989) that NRCD 262 was repealed and replaced by PNDCL 220. PNDCL 220 finally removed the obsolete and otiose ‘National Redemption Day’ from the statute books as a national holiday. However, this did not reduce the number of public holidays, as PNDC 220 formally legislated the two similarly controversial holidays that had hitherto been celebrated by executive fiat: June 4th (to mark violent overthrow of SMCD II by the AFRC) and December 31st (to mark the violent overthrow of the PNP by the PNDC). PNDCL 220 spared us the indignity of being forced to refer to those dates by pompous, pretentious, and empty titles similar to those if its older cousins: Liberation and Redemption. But as pointed out, these two dates had been marked as public holidays soon after the PNDC came to power, i.e. even before they were formally legislated.
The 'Death' of June 4th & December 31st
Thankfully, these dates are no longer public holidays. December 31st was the first to be removed when on December 23rd 1994, the Supreme Court, by a majority of 5 to 4 in the case of New Patriotic Party v. Attorney-General, declared the celebration of the December 31st coup as unconstitutional, and stated as follows: “It is hereby ordered that 31 December shall no longer be declared and observed as a public holiday and celebrated as such out of public funds. The defendant is hereby ordered to obey and carry out this order.” This singularly bold decision of the Supreme Court has erased December 31st as a public holiday from our statute books forever – which means as long as this Constitution remains in force. This is because article 107(a) of the Constitution provides that parliament does not have the power to pass any law “to alter the decision or judgment of any court as between the parties subject to that decision or judgment.”
But June 4th, which was not the subject of the decision in NPP v. A-G, remained on the statute books. However, clearly, the appetite to celebrate it as a public holiday was on the decline, and its days were clearly numbered. It therefore came as no surprise when in 2001, the then new parliament dominated by the NPP passed the current Public Holidays Act which repealed and replaced PNDC 220 and removed June 4th as a public holiday from the statute books. With this, every holiday that marked the violent military overthrow of any government in Ghana was finally and rightly removed from our statute books.
Tuesday, June 9, 2009
To June 4th or Not – The Holiday Debate in Ghana (Part I)
Part I of a 4-Part Series
Introduction
In the weeks leading to June 4th 2009, I noticed that many lawyers who appeared in court were avoiding that date in taking case adjournments. The reason was that they (and probably most Ghanaians) did not know whether or not that day would be declared a public holiday, and as such did not want to take the chance of fixing a matter on that date. I was also privy to discussions and debates on whether or not that date should be declared a public holiday. Two questions arising from those discussions stuck with me and inspired me to write this piece. The first was whether or June 4th ‘deserved’ to be celebrated as a public holiday? The second was whether Ghana had already too many holidays, and could not afford to add another?
I know many people who waited to hear the ‘traditional’ announcement of a holiday by the Minister of Interior. No announcement was made. On June 3rd, many government ministers appeared at and spoke at a seminar to mark the 30th anniversary of June 4th; the most notable absentee was President Mills. When the 6 o’clock radio news bulletins on June 3rd did not carry the Minister of Interior’s announcement, it became obvious that President Mills was not going to declare a public holiday. Come June 4th there was the wreath laying ceremony at the ‘Revolution Square’ which required the blocking of the major road from 37 Military Hospital to the traffic lights at Afrikiko by the police. This caused heavy traffic to the annoyance and inconvenience of many. President Mills did not show up at the event. There was also the mammoth June 4th rally at Kasoa to mark the day. President Mills was not there. Vice President Mahama was also not present at any of those events, although we were later informed that he had travelled.
However, in the 8th-9th June edition of The Enquirer Newspaper, a junior member of the government, the Deputy Minister for the Northern Region, one Moses Mabengba, is reported to have told the “64 Bench and Daughters and Sons of Atta Mills wings, supporters and sympathizers of the National Democratic Congress” in Tamale that the government will reinstate June 4th as a statutory public holiday “after necessary considerations have been made.” The newspaper report did not clarify what Mr. Mabengba meant by “necessary considerations.”
I think that the President’s decision not to declare the day as a public holiday and his absence from the major commemorative activities surrounding that date is a significant confirmation that the days when June 4th was automatically considered and declared a public holiday are over. President Mills has answered the first question thus: as far as he is concerned, June 4th does not deserve to be observed as a public holiday. Some newspapers have speculated that the state must have spent a lot of money to commemorate this June 4th. If that is true, then it would indeed be very unfortunate and regrettable. But we cannot miss the clear message that President Mills has sent to Ghanaians, first, by not declaring that date a public holiday, and second, by not showing up at any of the public commemorative events. These, to me, are very good signs that cannot and should not be ignored. We should ignore romantics like Mr. Mabengba.
But the second question, i.e. whether Ghana has too many holidays and cannot afford another, remains unanswered. I think that this is a matter that Ghanaians have to debate, and I will try to tackle that as well in this writing. Yes, I think that we have too many public holidays.
The word “holiday” is a contraction of two words, “holy” and “day”. The word originally referred only to special religious days. However, in modern usage, it generally refers to any special day of rest. A public holiday is a day of such magnitude and significance to a country that it is observed with rest across that country. The observance of public holidays is of such importance that under Ghana’s 2001 Public Holidays Act (and it many of its predecessor statutes), it is an offence to engage in work on such a day. The Act expressly forbids the opening of a shop for the purposes of selling or trading or engaging in any business on a public holiday. People who do not observe this bar on work are liable to be arrested and summarily tried, and if convicted, sentenced to a fine, a term of imprisonment not exceeding three months, or to both. My definition of a “public holiday” in Ghana, flowing from the above, is that it is a legally mandatory, compulsory or obligatory day of rest, enforced on the pain of punishment.
Thus observing statutory holidays is not a simple matter or a whimsical fancy. The government, which has the power to impose statutory holidays, must appreciate that the exercise of this power means subjecting the citizenry to the mandatory rest day, and that the citizen who fails, refuses or neglects to observe that day is liable to possible imprisonment. Thus a date on the calendar should only be elevated to the status of a statutory holiday if that date of definite, unquestionable and wide national significance and importance. It is indeed a breach of any government’s obligations to govern fairly, if it announces, declares or imposes a date as a statutory holiday, where that date and its observance only serves the narrow interests of a section of the nation.
Further, and as I have stated above, I believe that it is time to take another look at the issue of the number of national holidays that we observe in Ghana. I firmly believe that we should rationalise and reduce the number of days that we have as national holidays, and consider re-introducing Saturdays as working days.
Introduction
In the weeks leading to June 4th 2009, I noticed that many lawyers who appeared in court were avoiding that date in taking case adjournments. The reason was that they (and probably most Ghanaians) did not know whether or not that day would be declared a public holiday, and as such did not want to take the chance of fixing a matter on that date. I was also privy to discussions and debates on whether or not that date should be declared a public holiday. Two questions arising from those discussions stuck with me and inspired me to write this piece. The first was whether or June 4th ‘deserved’ to be celebrated as a public holiday? The second was whether Ghana had already too many holidays, and could not afford to add another?
I know many people who waited to hear the ‘traditional’ announcement of a holiday by the Minister of Interior. No announcement was made. On June 3rd, many government ministers appeared at and spoke at a seminar to mark the 30th anniversary of June 4th; the most notable absentee was President Mills. When the 6 o’clock radio news bulletins on June 3rd did not carry the Minister of Interior’s announcement, it became obvious that President Mills was not going to declare a public holiday. Come June 4th there was the wreath laying ceremony at the ‘Revolution Square’ which required the blocking of the major road from 37 Military Hospital to the traffic lights at Afrikiko by the police. This caused heavy traffic to the annoyance and inconvenience of many. President Mills did not show up at the event. There was also the mammoth June 4th rally at Kasoa to mark the day. President Mills was not there. Vice President Mahama was also not present at any of those events, although we were later informed that he had travelled.
However, in the 8th-9th June edition of The Enquirer Newspaper, a junior member of the government, the Deputy Minister for the Northern Region, one Moses Mabengba, is reported to have told the “64 Bench and Daughters and Sons of Atta Mills wings, supporters and sympathizers of the National Democratic Congress” in Tamale that the government will reinstate June 4th as a statutory public holiday “after necessary considerations have been made.” The newspaper report did not clarify what Mr. Mabengba meant by “necessary considerations.”
I think that the President’s decision not to declare the day as a public holiday and his absence from the major commemorative activities surrounding that date is a significant confirmation that the days when June 4th was automatically considered and declared a public holiday are over. President Mills has answered the first question thus: as far as he is concerned, June 4th does not deserve to be observed as a public holiday. Some newspapers have speculated that the state must have spent a lot of money to commemorate this June 4th. If that is true, then it would indeed be very unfortunate and regrettable. But we cannot miss the clear message that President Mills has sent to Ghanaians, first, by not declaring that date a public holiday, and second, by not showing up at any of the public commemorative events. These, to me, are very good signs that cannot and should not be ignored. We should ignore romantics like Mr. Mabengba.
But the second question, i.e. whether Ghana has too many holidays and cannot afford another, remains unanswered. I think that this is a matter that Ghanaians have to debate, and I will try to tackle that as well in this writing. Yes, I think that we have too many public holidays.
The word “holiday” is a contraction of two words, “holy” and “day”. The word originally referred only to special religious days. However, in modern usage, it generally refers to any special day of rest. A public holiday is a day of such magnitude and significance to a country that it is observed with rest across that country. The observance of public holidays is of such importance that under Ghana’s 2001 Public Holidays Act (and it many of its predecessor statutes), it is an offence to engage in work on such a day. The Act expressly forbids the opening of a shop for the purposes of selling or trading or engaging in any business on a public holiday. People who do not observe this bar on work are liable to be arrested and summarily tried, and if convicted, sentenced to a fine, a term of imprisonment not exceeding three months, or to both. My definition of a “public holiday” in Ghana, flowing from the above, is that it is a legally mandatory, compulsory or obligatory day of rest, enforced on the pain of punishment.
Thus observing statutory holidays is not a simple matter or a whimsical fancy. The government, which has the power to impose statutory holidays, must appreciate that the exercise of this power means subjecting the citizenry to the mandatory rest day, and that the citizen who fails, refuses or neglects to observe that day is liable to possible imprisonment. Thus a date on the calendar should only be elevated to the status of a statutory holiday if that date of definite, unquestionable and wide national significance and importance. It is indeed a breach of any government’s obligations to govern fairly, if it announces, declares or imposes a date as a statutory holiday, where that date and its observance only serves the narrow interests of a section of the nation.
Further, and as I have stated above, I believe that it is time to take another look at the issue of the number of national holidays that we observe in Ghana. I firmly believe that we should rationalise and reduce the number of days that we have as national holidays, and consider re-introducing Saturdays as working days.
Monday, June 8, 2009
DE-FANGING A MONSTER – WHEN RULES OF CIVIL PROCEDURE BECOME UNRULY
A monster is only as good as its fangs... Chinese proverb.
In its complementary character, civil procedure functions as a vehicle for the actualization of substantive law and this role has been likened to that of ‘a handmaid rather than a mistress’ which must not be applied in such a hard and fast manner as to cause injustice in any particular case… In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all. Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take into account the function of that particular rule, and the objective it is intended to serve... Sophia Akuffo JSC, Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21 at 47.
Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case... Collins MR, In Re Coles and Ravenshear [1907] 1 KB 1 at 4.
In 1977, Order 63 of the erstwhile High Court (Civil Procedure) Rules, 1954 (LN 140A), was amended by the introduction of Rule 2A by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107). The then newly-introduced Order 63 Rule 2A(1) provided that when a case closes, the High Court “shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” Rule 2A(2) imposed a duty on the court to deliver judgment as soon as possible after the close of the case (i.e. when the evidence and final speeches or addresses have been concluded) and, and in any event not later than six weeks thereafter. Rule 2A(5) stated that if for some reason the court was unable to deliver its judgment within the specified time, the judge was to immediately write to the Chief Justice, informing him/her about the delay, stating the reasons for it, and giving a proposed date for delivering the judgment. Under Rule 2A(6), any party to the action could also notify the Chief Justice of any delay and request that a date be fixed to deliver the delayed judgment. Rule 2A(7) then empowered the Chief Justice, upon receiving any of the above written notifications, to fix the date and notify the court, which would then be bound to ensure that the judgment is delivered on that date.
There is no doubt that the policy consideration behind this rule was laudable because it was aimed at compelling judges to deliver judgments quickly, thereby facilitating the speedy dispensation of justice. However, the application of the Rule was problematic. What was a status of a judgment delivered after the six-week period, without complying with the rules that demanded the written notification and request to the Chief Justice, to fix a date for judgment? Were the rules on the matter simply administrative or were they mandatory?
There appears to have been no reported cases on this issue until the Supreme Court ‘stepped to the plate’ in Republic v. Judicial Committee of the Central Regional House of Chiefs; ex parte Aaba [2001-2002] SCGLR 545. In a unanimous decision delivered on 25th July 2001, the court granted an application for certiorari to quash a judgment that had been delivered outside the six-week period, and cited and specifically criticized the earlier (1999), unreported decision in the case of PS International v. Godka Group of Companies, where the Court of Appeal had declined to set aside a judgment that was delivered outside the six-week period on the ground that Rule 2A was “purely administrative.” Kpegah JSC, relying on the maxim “justice delayed is justice denied,” was clear in his mind that the framers of the rules intended them to be binding on the courts because of the “obvious reason” that the courts ought not to inflict on parties, interminable delays in the delivery of judgments. He cited with approval, the Nigerian case of Ifezue v. Mbadugha [1984] NSCC 314, and stated emphatically that any judgment delivered outside the mandatory six-week period without extension of time by the Chief Justice was a nullity. Although the learned judge admitted that in Nigeria “the sting in the ratio of Ifezue v. Mbadugha” had been removed by amendments, and that “the courts in Nigeria might have experienced some unpleasant effects of the decision in the Ifezue case, hence the amendments,” he was unwilling to recommend such an amendment in Ghana for two reasons. The first reason was that the Ghanaian situation was different primarily because Rule 2A allowed for extension of time by the application of either the judge or the parties. The second reason was that “after over two decades on the statute books, this [was] the first time that the rule [was] being applied,” and it was therefore necessary that the rule be allowed to work for a while before any useful evaluation could be made as to whether or not it was achieving the intended objectives or resulting in miscarriage of justice. Further, if there were the need for any change at all, his Lordship surmised, that would be the function of the legislature and not the courts.
However, the decision in ex parte Aaba begged a number of questions, such as: how is the pain allegedly inflicted on parties by delays in the delivery of judgments removed, by quashing the delayed judgment and subjecting the parties to a re-trial? Is it not the case that such an approach would simply put the parties to more expense in time and money? Would not a truly liable party simply benefit from the tardiness of a trial judge?
These questions are not answered by the decision in ex parte Aaba. Even more worrying was that the court chose to explain away the fact that in Nigeria, legislative amendments had removed the “sting” and “unpleasant effects” of the Ifezue case. If, as Kpegah JSC stated, Rule 2A was enacted so that litigants would have the benefit of speedy judgments from the courts, it would be ironical that the rule would now turn around and sting the litigants for whose benefit it was enacted in the first place, particularly when litigants have absolutely no control over how and when a judge writes his/her judgment. In effect, if a judge simply reads his judgment one day after the six-week period, the fact that neither the judge nor the litigant notified the Chief Justice and obtained extension of time would completely invalidate or nullify the judgment. The ex parte Aaba interpretation of Rule 2A meant that litigants would pay a heavy price for the failure of a judge to do his/her duty, which duty was imposed, in the first place, for the benefit of the litigants. It is my considered view that the ex parte Aaba decision was not going to simply have a “sting” or “unpleasant effects,” but was going to create a monster that needed to be de-fanged, and de-fanged quickly.
Almost a year to the date of the ex parte Aaba decision (on 24th July 2002), the Supreme Court had another opportunity to consider Rule 2A in the case of Republic v. High Court, Accra; ex parte Expandable Polystyrene Products Ltd [2001-2002] SCGLR 749. This time, the court considered the provisions of Article 157(3) of the Constitution to the effect that a person sitting over a case in a superior court, and who has heard the arguments of the parties, could not become functus officio in respect of that case “until judgment is delivered.” The court accordingly departed from the ex parte Aaba decision, describing it has having been given per incuriam because the court in that case had not considered Article 157(3). Afreh JSC said that both Rule 2A and Article 157(3) had the same goal: a judge who concluded the hearing of a case could not withdraw from it and was required to give judgment as soon as possible after the close of the case. What Rule 2A did, according to the learned judge, was to prescribe a time within which that judgment must be delivered. The parts of the Rule that contained consequential measures upon a failure to deliver the judgment within the six-week period, according to the learned judge, simply showed what should be done under such circumstances. The learned judges of the court were at pains to state that they were not declaring Rule 2A unconstitutional, to the extent that the requirements in the Rule were considered as directory only. Any interpretation that sought to impose a mandatory requirement that would render such a delayed judgment null and void, according to the learned judges, would be unconstitutional.
It is virtually impossible to read the ex parte Expandable Polystyrene decision without shouting “hurray!” This is a clear instance where the court did not wait for legislative amendment to deal with the obvious aberration that ex parte Aaba was. The court gave an interpretation that accorded with justice and practicality, and sought to remove the sting from the ex parte Aaba interpretation of Rule 2A. However, the law report gave a little peek into a gathering storm. Two members of the ex parte Expandable Polystyrene panel, who had been members of the ex parte Aaba panel, Kpegah and Adzoe JJSC, stated that they were “reluctantly” agreeing with the rest of the court. Adzoe JSC went on to flesh out that shared ‘reluctance’ by conceding that “perhaps, if our attention had been drawn to Article 157(3)…, our decision might have been different.” Although the learned judge still felt that Article 157(3) and Rule 2A dealt with “different situations”, he stated, “I have not been able to convince my colleagues on this panel, and I need not articulate my feelings into dissent. It is to this extent that I join my colleagues to dismiss the application.”
In spite of the relief that one may feel upon reading ex parte Expandable Polystyrene, one cannot help but to take note of Adzoe JSC’s “different situations” hint. One would have wished that the learned judge had gone further to “articulate [his] feelings into dissent” by writing a fully-fledged dissenting opinion, expatiating on those “feelings”. This is because it would appear arguable that Article 157(3) and Rule 2A dealt with different situations. Article 157(3) provides as follows:
…no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of the panel determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered.
It is therefore arguable that what this constitutional provision does is to prevent the withdrawal of a judge from a case between the close of that case and judgment. It also prevents a judge, until judgment is delivered, from being deemed to have, in some way, fulfilled the judicial function so that he has no further judicial authority in the case. It might have been preferable if the court had addressed this matter headlong, and Adzoe JSC had given more voice to his “feelings”. But, this was not the end of the matter – not by a long shot.
In an interesting judicial twist, virtually within minutes of delivering the ex parte Expandable Polystyrene decision, the Supreme Court had to deliver its judgment in the case of Godka Group of Companies v. PS International [2001-2002] SCGLR 918. This was an appeal from the earlier, unreported decision of the Court of Appeal in PS International v. Godka Group of Companies, which had attracted the opprobrium of the Supreme Court in the ex parte Aaba case. The Supreme Court upheld the decision of the Court of Appeal, followed its decision in ex parte Expandable Polystyrene, and was once again unanimous in stating that a judgment delivered after the six-week period was not null and void and that Rule 2A was administrative and directory, and not mandatory. Afreh JSC, who delivered the judgment of the court, quoted and immortalised the wisdom captured in the words of Forster JA when the case was on appeal thus:
… litigation as it was at present is already expensive enough. To construe… Order 63 Rule 2A in conformity with counsel’s submission and declare null and void a whole judgment obtained after years of litigation would be most unjust and unfair to the parties who have no control over the delivery of judgments by the courts. The parties would thereby be punished for the indolence and neglect of judicial officer but the real culprits pay no price.
Kpegah JSC was once again on the Supreme Court panel. This time he did not express any ‘reluctance’ or follow Adzoe JSC’s cue in ex parte Expandable Polystyrene. He simply stated as follows: “in view of the position taken by me, namely, agreeing to the decision dismissing the application in [ex parte Expandable Polystyrene], given today 24 July 2001, i.e. this very morning…, I will go along with my colleagues that the appeal be dismissed.”
Almost two years after ex parte Expandable Polystyrene and the Godka judgments, the Supreme Court had the opportunity to directly address the niggling questions that were raised by Adzoe JSC’s unspoken “feelings” in ex parte Expandable Polystyrene, in the case of Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21. This time, the decision of the Supreme Court was by a majority decision. In the lead judgment for the majority, Acquah JSC, as the then was, stated that under Article 157(3), a judge’s jurisdiction in a matter in respect of which concluding arguments had been made, could not be terminated until he has delivered his judgment. His Lordship appeared to take the debate a step further when he held that to the extent that Rule 2A sought to terminate that jurisdiction at a time when the judge had not delivered his judgment, that was incompatible with Article 157(3). He added that the raison d'être for enacting Rule 2A was not to cause hardship to parties who have no control over a judge’s time, but to ensure that the parties are not put to hardship by unreasonable delays. Declaring such a judgment a nullity would be detrimental to, and cause tremendous financial hardship on parties but have no effect on the judge who failed to comply with the rule.
Sophia Akuffo JSC, in concurring with the majority, stated that the only duty created by Rule 2A was that of the judge, who was required to deliver judgment within six weeks. If the judge delivered the judgment after the expiration of that time limit, that infraction of the rule was purely an administrative matter that raised internal disciplinary issues against the judge, and not a substantive issue against the judgment’s validity. Atuguba JSC’s opinion was striking. Although he also agreed with the majority that the application for certiorari ought to be dismissed, he arrived at that conclusion via another route altogether. He found a lot in common between Rule 2A and Article 157(3): that judgment must be delivered once the case closes. The constitutional provision requires the judge to deliver judgment but leaves a gap on the time frame, which is filled by Rule 2A’s requirement that judgment should be delivered within six weeks. In his view, non-compliance with the time limit imposed by Rule 2A was simply a defect that was curable under the rules.
Ampiah JSC started his dissenting opinion by saying clearly that in his view ex parte Aaba was “sound and good law.” He stated that Article 157(3) envisaged a situation where judgment had not been given, and placed an injunction on the judge to sit and deliver judgment. However, if the judge delivered the judgment erroneously, Article 157(3) was inapplicable and the judge, having become functus officio, could not be compelled to deliver another judgment. Although the learned judge agreed with Acquah JSC, as he then was, that the enactment of Rule 2A was not to cause unnecessary hardship on parties, he thought that the provision for appealing to the Chief Justice to enforce the delivery of a delayed judgment was adequate, so that if no opportunity was taken to comply with Rule 2A, the judgment delivered out of time would be rendered null and void. Having started by saying that he found the law in ex parte Aaba to be “sound and good,” his Lordship however stated later “there seems therefore to be a ‘gap’ in the law,” and concluded that “we must be bold enough to take the bull by the horns and ask for an amendment of the provisions of rule 2A.”
One would have thought that the 24th July 2001 Judgments and the ex parte Eastern Regional Development Corporation majority judgment would have finally taken all the sting and bite out of the ex parte Aaba interpretation of Rule 2A, and put the matter to rest. But that was not the case, and the monster, although weakened, was still very much alive and well. In the later case of Opanin Yaw Okyere v. Opanin Appenteng (unreported, Court of Appeal Suit No H1/23/2004, 9th July 2004)), the Court of Appeal, faced with an appeal that was based in part on Rule 2A, resorted to a very imaginative argument to avoid a strict interpretation of Rule 2A along the lines of ex parte Aaba. It does not appear from the judgment that the court’s attention was drawn to any of the previous Supreme Court judgments. Ansah JA, as he then was, was left to avoid the automatic application of Rule 2A on virtually ‘first principles’. He stated that although Rule 2A was mandatory, failure to comply with the Rule did not automatically render the judgment invalid. He explained that the judgment would only be rendered invalid upon non-compliance with the Chief Justice’s directives, after the trial court or party had notified the Chief Justice of the delay in delivering the judgment in the first place. His Lordship’s view was that the rules placed a duty on the parties to notify the Chief Justice of the delay, and that a party who fails to discharge that obligation could not take advantage of the delay.
The learned judge stated as follows:
The language of the rule was mandatory. However, a careful reading of the law shows that failure to comply does not attract as draconian a sanction as rendering the judgment invalid automatically, for the law provided in its wisdom a saving clause, in the event of non-compliance… The procedure is for first, the court to notify the Chief Justice of the delay and the cause and the expected date for the delivery of the judgment. Any party to the proceedings may also write to the Chief Justice and request a date to be fixed for the judgment to be delivered. After the Chief Justice has been so notified, he may fix a date for the judgment to be delivered. The Court has a duty to comply with the directives of the Chief Justice. I incline to the view that it is the non-compliance with the Chief Justice's directives that attracts that harsh consequence of invalidating the judgment.
Nothing showed that this procedure was followed; the plaintiff did not write to inform the Chief Justice of the failure to deliver the judgment within time nor request for a date for the judgment to be delivered and for him to exercise the power he has to issue the necessary directives. Where a law cast a duty on a party and imposed a precondition to exact a penalty in the event of a failure to do an act, (within a prescribed time), before the party could take advantage of that law he should show that he had first discharged the obligation so imposed on him. It has not been shown that the appellant fulfilled the conditions precedent to invalidating the judgment.
This decision of the Court of Appeal was clearly given per incuriam, as no reference was made whatsoever to the earlier, binding decisions of the Supreme Court. It is however interesting to observe how the Court of Appeal was compelled to dance around the monster. And, in the minds of the learned judges, the possibility still existed that a judgment delivered outside the six-week period would be considered null and void – if the court fails to comply with the Chief Justice’s directives issued after he has been duly notified of the delay.
As pointed out above, Order 63 Rule 2A(1) that was enacted in 1977 provided that when a case closes, the High Court “shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” It would appear that the use of the word “shall” in the sub-rule, which according to section 27 of the Interpretation Act, 1960 (CA 4) is to be “construed as imperative”, quietly lay at the heart of the view that the Rule 2A(1) was mandatory (see Luguterah v. Interim Electoral Commissioner [1971] 1 GLR 109 and Brefoh v. The Republic [1980] GLR 679).
This apparently was at the heart of Ampiah JSC’s dissenting opinion in the ex parte Eastern Regional Development Corporation case, and this was the critical part of Rule 2A that required legislative attention. The laudable policy considerations underlying the enactment of Rule 2A stood the risk of being defeated simply because of the way in which Rule 2A(1) was crafted and drafted. What became clear after the ex parte Eastern Regional Development Corporation decision was that the offending fang of the Rule 2A monster was sub-rule 2A(1), and it was that fang that needed to be removed. Without it, Rule 2A would still have the effect that the legislature intended. Under these circumstances it appeared that notwithstanding the pronouncements of the Supreme Court, only legislative intervention by way of an amendment would finally de-fang the monster created by ex parte Aaba, and resolve the matter once and for all. Maybe Ampiah JSC was right after all that “we must be bold enough to take the bull by the horns and ask for an amendment of the provisions of rule 2A.”
The legislature finally caught up with this matter in the High Court (Civil Procedure) Rules, 2004 (CI 47), which came into force on 3rd January 2005. Order 41 Rule 2 virtually re-enacts Order 63 Rule 2A, but completely omits Rule 2A(1).
The duty imposed on the court to deliver judgment as soon as possible after the close of the case and, and in any event not later than six weeks thereafter, is retained. Also retained is the provision that if the court is for some reason unable to deliver judgment within the specified time, the judge must immediately write to the Chief Justice, informing him/her about the delay, state the reasons for the delay, and give a proposed date for delivering the judgment. The right of any party to the action to notify the Chief Justice of any delay and request that a date is fixed to deliver the delayed judgment is also retained. The power of the Chief Justice, upon receiving either of the above written notifications, to fix the date and notify the court, which would then be bound to ensure that the judgment is delivered on that date, is also intact.
It is my respectful view that the provisions of Order 41 Rule 2 of CI 47 have finally and adequately dealt with the situation created by ex parte Aaba, and it must now be considered as settled law that the six-week requirement for delivering judgments is only directory or purely administrative, and not mandatory. In considering the rule, the courts will have to note the removal of the contents of the erstwhile Order 63 Rule 2A(1) from the re-enactment contained in Order 41 Rule 2. It is also expect that if the courts are faced with a similar question under CI 47, the courts will take into consideration Order 1 Rule 1(2), which constitutes the ‘Underlying Principle’ of the rules, and which provides that the rules are to be interpreted and applied to achieve speedy and effective justice, avoid delays and unnecessary expense, ensure complete, effective and final determination of disputes and avoid multiplicity of proceedings. The court will also be expected to consider Order 37 Rule 2, which imposes a duty on the parties, lawyers and the court to avoid delays and ensure that cases are disposed of as speedily as the justice of the case would permit.
It is still required that judges deliver judgments within six weeks from the close of legal arguments or addresses. However, if the judge delivers the judgment outside that stipulated period without having sought and obtained extension of time by the Chief Justice, that alone will not invalidate the judgment. When all the above are considered, it would appear that in Ghana, as was the case in Nigeria, what was required to finally and conclusively de-fang the ex parte Aaba monster and its Nigerian cousin, Ifezue, was legislative amendment.
In its complementary character, civil procedure functions as a vehicle for the actualization of substantive law and this role has been likened to that of ‘a handmaid rather than a mistress’ which must not be applied in such a hard and fast manner as to cause injustice in any particular case… In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all. Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take into account the function of that particular rule, and the objective it is intended to serve... Sophia Akuffo JSC, Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21 at 47.
Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case... Collins MR, In Re Coles and Ravenshear [1907] 1 KB 1 at 4.
In 1977, Order 63 of the erstwhile High Court (Civil Procedure) Rules, 1954 (LN 140A), was amended by the introduction of Rule 2A by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107). The then newly-introduced Order 63 Rule 2A(1) provided that when a case closes, the High Court “shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” Rule 2A(2) imposed a duty on the court to deliver judgment as soon as possible after the close of the case (i.e. when the evidence and final speeches or addresses have been concluded) and, and in any event not later than six weeks thereafter. Rule 2A(5) stated that if for some reason the court was unable to deliver its judgment within the specified time, the judge was to immediately write to the Chief Justice, informing him/her about the delay, stating the reasons for it, and giving a proposed date for delivering the judgment. Under Rule 2A(6), any party to the action could also notify the Chief Justice of any delay and request that a date be fixed to deliver the delayed judgment. Rule 2A(7) then empowered the Chief Justice, upon receiving any of the above written notifications, to fix the date and notify the court, which would then be bound to ensure that the judgment is delivered on that date.
There is no doubt that the policy consideration behind this rule was laudable because it was aimed at compelling judges to deliver judgments quickly, thereby facilitating the speedy dispensation of justice. However, the application of the Rule was problematic. What was a status of a judgment delivered after the six-week period, without complying with the rules that demanded the written notification and request to the Chief Justice, to fix a date for judgment? Were the rules on the matter simply administrative or were they mandatory?
There appears to have been no reported cases on this issue until the Supreme Court ‘stepped to the plate’ in Republic v. Judicial Committee of the Central Regional House of Chiefs; ex parte Aaba [2001-2002] SCGLR 545. In a unanimous decision delivered on 25th July 2001, the court granted an application for certiorari to quash a judgment that had been delivered outside the six-week period, and cited and specifically criticized the earlier (1999), unreported decision in the case of PS International v. Godka Group of Companies, where the Court of Appeal had declined to set aside a judgment that was delivered outside the six-week period on the ground that Rule 2A was “purely administrative.” Kpegah JSC, relying on the maxim “justice delayed is justice denied,” was clear in his mind that the framers of the rules intended them to be binding on the courts because of the “obvious reason” that the courts ought not to inflict on parties, interminable delays in the delivery of judgments. He cited with approval, the Nigerian case of Ifezue v. Mbadugha [1984] NSCC 314, and stated emphatically that any judgment delivered outside the mandatory six-week period without extension of time by the Chief Justice was a nullity. Although the learned judge admitted that in Nigeria “the sting in the ratio of Ifezue v. Mbadugha” had been removed by amendments, and that “the courts in Nigeria might have experienced some unpleasant effects of the decision in the Ifezue case, hence the amendments,” he was unwilling to recommend such an amendment in Ghana for two reasons. The first reason was that the Ghanaian situation was different primarily because Rule 2A allowed for extension of time by the application of either the judge or the parties. The second reason was that “after over two decades on the statute books, this [was] the first time that the rule [was] being applied,” and it was therefore necessary that the rule be allowed to work for a while before any useful evaluation could be made as to whether or not it was achieving the intended objectives or resulting in miscarriage of justice. Further, if there were the need for any change at all, his Lordship surmised, that would be the function of the legislature and not the courts.
However, the decision in ex parte Aaba begged a number of questions, such as: how is the pain allegedly inflicted on parties by delays in the delivery of judgments removed, by quashing the delayed judgment and subjecting the parties to a re-trial? Is it not the case that such an approach would simply put the parties to more expense in time and money? Would not a truly liable party simply benefit from the tardiness of a trial judge?
These questions are not answered by the decision in ex parte Aaba. Even more worrying was that the court chose to explain away the fact that in Nigeria, legislative amendments had removed the “sting” and “unpleasant effects” of the Ifezue case. If, as Kpegah JSC stated, Rule 2A was enacted so that litigants would have the benefit of speedy judgments from the courts, it would be ironical that the rule would now turn around and sting the litigants for whose benefit it was enacted in the first place, particularly when litigants have absolutely no control over how and when a judge writes his/her judgment. In effect, if a judge simply reads his judgment one day after the six-week period, the fact that neither the judge nor the litigant notified the Chief Justice and obtained extension of time would completely invalidate or nullify the judgment. The ex parte Aaba interpretation of Rule 2A meant that litigants would pay a heavy price for the failure of a judge to do his/her duty, which duty was imposed, in the first place, for the benefit of the litigants. It is my considered view that the ex parte Aaba decision was not going to simply have a “sting” or “unpleasant effects,” but was going to create a monster that needed to be de-fanged, and de-fanged quickly.
Almost a year to the date of the ex parte Aaba decision (on 24th July 2002), the Supreme Court had another opportunity to consider Rule 2A in the case of Republic v. High Court, Accra; ex parte Expandable Polystyrene Products Ltd [2001-2002] SCGLR 749. This time, the court considered the provisions of Article 157(3) of the Constitution to the effect that a person sitting over a case in a superior court, and who has heard the arguments of the parties, could not become functus officio in respect of that case “until judgment is delivered.” The court accordingly departed from the ex parte Aaba decision, describing it has having been given per incuriam because the court in that case had not considered Article 157(3). Afreh JSC said that both Rule 2A and Article 157(3) had the same goal: a judge who concluded the hearing of a case could not withdraw from it and was required to give judgment as soon as possible after the close of the case. What Rule 2A did, according to the learned judge, was to prescribe a time within which that judgment must be delivered. The parts of the Rule that contained consequential measures upon a failure to deliver the judgment within the six-week period, according to the learned judge, simply showed what should be done under such circumstances. The learned judges of the court were at pains to state that they were not declaring Rule 2A unconstitutional, to the extent that the requirements in the Rule were considered as directory only. Any interpretation that sought to impose a mandatory requirement that would render such a delayed judgment null and void, according to the learned judges, would be unconstitutional.
It is virtually impossible to read the ex parte Expandable Polystyrene decision without shouting “hurray!” This is a clear instance where the court did not wait for legislative amendment to deal with the obvious aberration that ex parte Aaba was. The court gave an interpretation that accorded with justice and practicality, and sought to remove the sting from the ex parte Aaba interpretation of Rule 2A. However, the law report gave a little peek into a gathering storm. Two members of the ex parte Expandable Polystyrene panel, who had been members of the ex parte Aaba panel, Kpegah and Adzoe JJSC, stated that they were “reluctantly” agreeing with the rest of the court. Adzoe JSC went on to flesh out that shared ‘reluctance’ by conceding that “perhaps, if our attention had been drawn to Article 157(3)…, our decision might have been different.” Although the learned judge still felt that Article 157(3) and Rule 2A dealt with “different situations”, he stated, “I have not been able to convince my colleagues on this panel, and I need not articulate my feelings into dissent. It is to this extent that I join my colleagues to dismiss the application.”
In spite of the relief that one may feel upon reading ex parte Expandable Polystyrene, one cannot help but to take note of Adzoe JSC’s “different situations” hint. One would have wished that the learned judge had gone further to “articulate [his] feelings into dissent” by writing a fully-fledged dissenting opinion, expatiating on those “feelings”. This is because it would appear arguable that Article 157(3) and Rule 2A dealt with different situations. Article 157(3) provides as follows:
…no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of the panel determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered.
It is therefore arguable that what this constitutional provision does is to prevent the withdrawal of a judge from a case between the close of that case and judgment. It also prevents a judge, until judgment is delivered, from being deemed to have, in some way, fulfilled the judicial function so that he has no further judicial authority in the case. It might have been preferable if the court had addressed this matter headlong, and Adzoe JSC had given more voice to his “feelings”. But, this was not the end of the matter – not by a long shot.
In an interesting judicial twist, virtually within minutes of delivering the ex parte Expandable Polystyrene decision, the Supreme Court had to deliver its judgment in the case of Godka Group of Companies v. PS International [2001-2002] SCGLR 918. This was an appeal from the earlier, unreported decision of the Court of Appeal in PS International v. Godka Group of Companies, which had attracted the opprobrium of the Supreme Court in the ex parte Aaba case. The Supreme Court upheld the decision of the Court of Appeal, followed its decision in ex parte Expandable Polystyrene, and was once again unanimous in stating that a judgment delivered after the six-week period was not null and void and that Rule 2A was administrative and directory, and not mandatory. Afreh JSC, who delivered the judgment of the court, quoted and immortalised the wisdom captured in the words of Forster JA when the case was on appeal thus:
… litigation as it was at present is already expensive enough. To construe… Order 63 Rule 2A in conformity with counsel’s submission and declare null and void a whole judgment obtained after years of litigation would be most unjust and unfair to the parties who have no control over the delivery of judgments by the courts. The parties would thereby be punished for the indolence and neglect of judicial officer but the real culprits pay no price.
Kpegah JSC was once again on the Supreme Court panel. This time he did not express any ‘reluctance’ or follow Adzoe JSC’s cue in ex parte Expandable Polystyrene. He simply stated as follows: “in view of the position taken by me, namely, agreeing to the decision dismissing the application in [ex parte Expandable Polystyrene], given today 24 July 2001, i.e. this very morning…, I will go along with my colleagues that the appeal be dismissed.”
Almost two years after ex parte Expandable Polystyrene and the Godka judgments, the Supreme Court had the opportunity to directly address the niggling questions that were raised by Adzoe JSC’s unspoken “feelings” in ex parte Expandable Polystyrene, in the case of Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21. This time, the decision of the Supreme Court was by a majority decision. In the lead judgment for the majority, Acquah JSC, as the then was, stated that under Article 157(3), a judge’s jurisdiction in a matter in respect of which concluding arguments had been made, could not be terminated until he has delivered his judgment. His Lordship appeared to take the debate a step further when he held that to the extent that Rule 2A sought to terminate that jurisdiction at a time when the judge had not delivered his judgment, that was incompatible with Article 157(3). He added that the raison d'être for enacting Rule 2A was not to cause hardship to parties who have no control over a judge’s time, but to ensure that the parties are not put to hardship by unreasonable delays. Declaring such a judgment a nullity would be detrimental to, and cause tremendous financial hardship on parties but have no effect on the judge who failed to comply with the rule.
Sophia Akuffo JSC, in concurring with the majority, stated that the only duty created by Rule 2A was that of the judge, who was required to deliver judgment within six weeks. If the judge delivered the judgment after the expiration of that time limit, that infraction of the rule was purely an administrative matter that raised internal disciplinary issues against the judge, and not a substantive issue against the judgment’s validity. Atuguba JSC’s opinion was striking. Although he also agreed with the majority that the application for certiorari ought to be dismissed, he arrived at that conclusion via another route altogether. He found a lot in common between Rule 2A and Article 157(3): that judgment must be delivered once the case closes. The constitutional provision requires the judge to deliver judgment but leaves a gap on the time frame, which is filled by Rule 2A’s requirement that judgment should be delivered within six weeks. In his view, non-compliance with the time limit imposed by Rule 2A was simply a defect that was curable under the rules.
Ampiah JSC started his dissenting opinion by saying clearly that in his view ex parte Aaba was “sound and good law.” He stated that Article 157(3) envisaged a situation where judgment had not been given, and placed an injunction on the judge to sit and deliver judgment. However, if the judge delivered the judgment erroneously, Article 157(3) was inapplicable and the judge, having become functus officio, could not be compelled to deliver another judgment. Although the learned judge agreed with Acquah JSC, as he then was, that the enactment of Rule 2A was not to cause unnecessary hardship on parties, he thought that the provision for appealing to the Chief Justice to enforce the delivery of a delayed judgment was adequate, so that if no opportunity was taken to comply with Rule 2A, the judgment delivered out of time would be rendered null and void. Having started by saying that he found the law in ex parte Aaba to be “sound and good,” his Lordship however stated later “there seems therefore to be a ‘gap’ in the law,” and concluded that “we must be bold enough to take the bull by the horns and ask for an amendment of the provisions of rule 2A.”
One would have thought that the 24th July 2001 Judgments and the ex parte Eastern Regional Development Corporation majority judgment would have finally taken all the sting and bite out of the ex parte Aaba interpretation of Rule 2A, and put the matter to rest. But that was not the case, and the monster, although weakened, was still very much alive and well. In the later case of Opanin Yaw Okyere v. Opanin Appenteng (unreported, Court of Appeal Suit No H1/23/2004, 9th July 2004)), the Court of Appeal, faced with an appeal that was based in part on Rule 2A, resorted to a very imaginative argument to avoid a strict interpretation of Rule 2A along the lines of ex parte Aaba. It does not appear from the judgment that the court’s attention was drawn to any of the previous Supreme Court judgments. Ansah JA, as he then was, was left to avoid the automatic application of Rule 2A on virtually ‘first principles’. He stated that although Rule 2A was mandatory, failure to comply with the Rule did not automatically render the judgment invalid. He explained that the judgment would only be rendered invalid upon non-compliance with the Chief Justice’s directives, after the trial court or party had notified the Chief Justice of the delay in delivering the judgment in the first place. His Lordship’s view was that the rules placed a duty on the parties to notify the Chief Justice of the delay, and that a party who fails to discharge that obligation could not take advantage of the delay.
The learned judge stated as follows:
The language of the rule was mandatory. However, a careful reading of the law shows that failure to comply does not attract as draconian a sanction as rendering the judgment invalid automatically, for the law provided in its wisdom a saving clause, in the event of non-compliance… The procedure is for first, the court to notify the Chief Justice of the delay and the cause and the expected date for the delivery of the judgment. Any party to the proceedings may also write to the Chief Justice and request a date to be fixed for the judgment to be delivered. After the Chief Justice has been so notified, he may fix a date for the judgment to be delivered. The Court has a duty to comply with the directives of the Chief Justice. I incline to the view that it is the non-compliance with the Chief Justice's directives that attracts that harsh consequence of invalidating the judgment.
Nothing showed that this procedure was followed; the plaintiff did not write to inform the Chief Justice of the failure to deliver the judgment within time nor request for a date for the judgment to be delivered and for him to exercise the power he has to issue the necessary directives. Where a law cast a duty on a party and imposed a precondition to exact a penalty in the event of a failure to do an act, (within a prescribed time), before the party could take advantage of that law he should show that he had first discharged the obligation so imposed on him. It has not been shown that the appellant fulfilled the conditions precedent to invalidating the judgment.
This decision of the Court of Appeal was clearly given per incuriam, as no reference was made whatsoever to the earlier, binding decisions of the Supreme Court. It is however interesting to observe how the Court of Appeal was compelled to dance around the monster. And, in the minds of the learned judges, the possibility still existed that a judgment delivered outside the six-week period would be considered null and void – if the court fails to comply with the Chief Justice’s directives issued after he has been duly notified of the delay.
As pointed out above, Order 63 Rule 2A(1) that was enacted in 1977 provided that when a case closes, the High Court “shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” It would appear that the use of the word “shall” in the sub-rule, which according to section 27 of the Interpretation Act, 1960 (CA 4) is to be “construed as imperative”, quietly lay at the heart of the view that the Rule 2A(1) was mandatory (see Luguterah v. Interim Electoral Commissioner [1971] 1 GLR 109 and Brefoh v. The Republic [1980] GLR 679).
This apparently was at the heart of Ampiah JSC’s dissenting opinion in the ex parte Eastern Regional Development Corporation case, and this was the critical part of Rule 2A that required legislative attention. The laudable policy considerations underlying the enactment of Rule 2A stood the risk of being defeated simply because of the way in which Rule 2A(1) was crafted and drafted. What became clear after the ex parte Eastern Regional Development Corporation decision was that the offending fang of the Rule 2A monster was sub-rule 2A(1), and it was that fang that needed to be removed. Without it, Rule 2A would still have the effect that the legislature intended. Under these circumstances it appeared that notwithstanding the pronouncements of the Supreme Court, only legislative intervention by way of an amendment would finally de-fang the monster created by ex parte Aaba, and resolve the matter once and for all. Maybe Ampiah JSC was right after all that “we must be bold enough to take the bull by the horns and ask for an amendment of the provisions of rule 2A.”
The legislature finally caught up with this matter in the High Court (Civil Procedure) Rules, 2004 (CI 47), which came into force on 3rd January 2005. Order 41 Rule 2 virtually re-enacts Order 63 Rule 2A, but completely omits Rule 2A(1).
The duty imposed on the court to deliver judgment as soon as possible after the close of the case and, and in any event not later than six weeks thereafter, is retained. Also retained is the provision that if the court is for some reason unable to deliver judgment within the specified time, the judge must immediately write to the Chief Justice, informing him/her about the delay, state the reasons for the delay, and give a proposed date for delivering the judgment. The right of any party to the action to notify the Chief Justice of any delay and request that a date is fixed to deliver the delayed judgment is also retained. The power of the Chief Justice, upon receiving either of the above written notifications, to fix the date and notify the court, which would then be bound to ensure that the judgment is delivered on that date, is also intact.
It is my respectful view that the provisions of Order 41 Rule 2 of CI 47 have finally and adequately dealt with the situation created by ex parte Aaba, and it must now be considered as settled law that the six-week requirement for delivering judgments is only directory or purely administrative, and not mandatory. In considering the rule, the courts will have to note the removal of the contents of the erstwhile Order 63 Rule 2A(1) from the re-enactment contained in Order 41 Rule 2. It is also expect that if the courts are faced with a similar question under CI 47, the courts will take into consideration Order 1 Rule 1(2), which constitutes the ‘Underlying Principle’ of the rules, and which provides that the rules are to be interpreted and applied to achieve speedy and effective justice, avoid delays and unnecessary expense, ensure complete, effective and final determination of disputes and avoid multiplicity of proceedings. The court will also be expected to consider Order 37 Rule 2, which imposes a duty on the parties, lawyers and the court to avoid delays and ensure that cases are disposed of as speedily as the justice of the case would permit.
It is still required that judges deliver judgments within six weeks from the close of legal arguments or addresses. However, if the judge delivers the judgment outside that stipulated period without having sought and obtained extension of time by the Chief Justice, that alone will not invalidate the judgment. When all the above are considered, it would appear that in Ghana, as was the case in Nigeria, what was required to finally and conclusively de-fang the ex parte Aaba monster and its Nigerian cousin, Ifezue, was legislative amendment.
AVIAN INFLUENZA CONTROL IN GHANA - A LEGAL PERSPECTIVE
Originally presented as a paper at the Association of Recognised Professional Bodies’ Seminar on Avian Flu held at the British Council Hall on 1st August 2007.
Introduction
The discovery of Avian Influenza (Bird Flu) in Ghana and attempts to control its spread has indeed thrown up some legal issues and questions. My basic thesis is that Ghana, in most cases, does not suffer from the lack of legislation on issue. What we suffer from is the lack of implementation, which means that we often forget about the existence of the law on our statute books. The result, often is that such laws remain in the original state of draft and do not see the necessary and required amendments to keep them in tune with the changing times.
The reality is that domesticated birds have been killed by the virus or culled to stem its spread. Culling is a rather exotic word, which in ordinary English means to select, collect, gather or harvest the best. However, from the nineteenth century (particularly in Australia and New Zealand), the word seems to have evolved from the idea of selecting the best animals from a herd, as a buyer of livestock might do, but then extended to slaughtering the weaker ones. The culled beasts were then the ones that had been killed. From the 1930s the word assumed a meaning employed by wildlife managers. The idea here is that a proportion of animals are killed, often the old and infirm ones, so leaving the remaining population on average fitter and of higher quality, better able to survive on the food available in the wild. In effect, the culled beasts were the ones that had been killed.
There now seems to be the general agreement that ‘cull’ is a good strong, agricultural-sounding word that has the happy additional advantage of avoiding using emotive words like kill or slaughter. So cull has shifted sense from “selection of the best” to “mass disposal”.
I have spent considerable time on defining this word because it appears to me that that is the primary if not the only mode of post-detection control of the disease in Ghana. What it means is that through no fault of the farmer, the day he wakes up to discovery of Bird Flu on his farm is the day he loses his investment for the season.
The Constitution in Articles 18 and 20 protects citizens from deprivation and invasion, respectively, of property. However, the protection under article 18 is expressed to be subject to “the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such manner as to promote the public benefit.” The article 20 protection is also subject to “law and as may be necessary in a free and democratic country for public safety or the economic well-being of the country, for the protection of health…” In short, the farmer’s right to keep and sell his birds is subject to laws that fit within the exceptions stated by articles 18 and 20.
National Building Regulations
Backyard poultry farms in commercial, industrial or residential areas – should be within “tolerable level” and coops should be located at a distance of not less than six metres from any habitable building or boundary wall or line of a habitable building.
Building intended for use by animals – coops should have total cubic content not exceeding 2.90m3, consent of local authorities required, no part of the building to be used for human habitation, use of fire-resisting materials, drainage approved by District Planning Authority, waste not to be discharged into open fields, etc.
Local Government Instruments
Assemblies have the function to prevent and control animal diseases, removal and destruction of dead animals, and the prohibition, restriction or regulation of the killing or same of animals.
Workmen’s Compensation Legislation
Where a workman suffers incapacity or dies from a disease due to the nature of his employment, the employer is liable to pay compensation. This is particularly applicable where the work involves contact with infested or infected animals or handling of animal carcasses.
Diseases of Animals Act
§ The Act lists specific animal diseases and provides for “any disease of an epizootic character that the Minister may… declare to be a disease within the meaning of this Act.”
§ If a disease breaks out in any district, area or place, the Minister of Agriculture is empowered to declare that place to be an infected area, and then the provision of the Act will apply to that infected area.
§ Where an area is declared to be an infected area, every owner of animals capable of suffering from the disease is required to immediately register with the nearest Agriculture Office in the district, declaring how many animals he owns and the area where the animals feed. He must also report any changes in the above circumstances. Further, no animal is allowed to enter or leave the infected area except in accordance with any directions and by such route as a veterinary authority may give or prescribe, as the case may be.
§ A owner or person in charge of an animal which dies of or suffers from a disease or which he suspects to have died of or be suffering from a disease, is required by law to immediately notify the nearest veterinary authority.
§ Until he is directed as to the disposal of the animal, the owner is required to immediately quarantine it
§ It is an offence to dispose of (sell or send away) any animals that have been in contact with the sick animal, except with the permission of the veterinary authority.
§ The veterinary authority has the power:
o “at all reasonable times” to demand the (i) production of an animal for inspection and (ii) any relevant information,
o to require any animal to be examined, inoculated, sprayed, dipped, washed, disinfected or quarantined to prevent outbreak or spread of disease,
o to disinfect or case to be disinfected any building, yard, pen, etc. where any disease has occurred,
o to destroy any fodder, fence, hedge, carcass, flesh, etc. which in his opinion is or is likely to be infected and which he considers cannot be effectively disinfected,
o to order that the hide or skin of any animal which has died of a disease be dried cured or otherwise disposed of,
o to cause any animal that has been in contact with an infected animal or carcass to be quarantined,
o to seize and detain any animal found at large and infected with a disease,
o if necessary in the interest of public health and subject to any regulations issued by the Minister, to destroy or cause to be destroyed any infected animal, and
o to issue directions and take appropriate steps regarding the disposal, movement, detention, inspection, examination, quarantining and destruction of animals.
§ An owner of an infected animal who is charged with an offence is presumed to have known of the existence of the disease unless he satisfies the court that he had no such knowledge and could not have known even with reasonable diligence.
§ Provisions are made for the appointment of veterinary guards for the prevention and detection of offences, the arrest of offenders, service and execution of summonses and warrants issued by magistrates in respect of alleged offences. Veterinary guards may arrest persons they find committing offences, without warrant, as long as they bring the arrested person before the magistrate or hand him over to the police, without unreasonable delay.
§ All public officers are authorised to take all such necessary action as the efficient execution of any of the provisions of the Act may reasonably require, and no action, suit or civil proceedings shall be brought against such person without the written consent of the Attorney-General. Under the Criminal Code, a veterinary authority or person acting under his direction cannot be prosecuted for offences arising from the exercise of their powers in the seizure, detention or destruction of any animal under the Act, except with the consent of the Attorney-General.
§ Offences under the Act are punishable by imprisonment not exceeding 6 months, or a fine or both.
§ COMPENSATION: The Minister for Finance is empowered to pay compensation out of the Consolidated Fund to any person who sustains loss by reason of any measure taken under the Act. However, there is no automatic right to compensation, and payment is based on the Minister’s discretion.
§ The exercise of this discretionary power is however regulated by article 296 of the Constitution, and the Minister is bound to act fairly and candidly, in accordance with due process of law, without arbitrariness, capriciousness or bias, resentment, prejudice or personal dislike.
From the foregoing, I submit that we have some legislative framework within which to act to regulate the spread of avian flu. But I would want to make the following suggestions for reform.
1. Education: We need to publicise these laws and educate relevant industry players
2. Enforcement: We should enforce the laws.
3. Health experts should review the laws and make proposals for any relevant amendments.
4. The National Youth Employment Programme should consider the training and hiring of veterinary guards to be hired by the government to implement the provisions of the law.
5. We should consider the sub-region in our plans and explore ways of cooperating with the relevant authorities in neighbouring countries as well as the harmonisation of relevant statutes.
Introduction
The discovery of Avian Influenza (Bird Flu) in Ghana and attempts to control its spread has indeed thrown up some legal issues and questions. My basic thesis is that Ghana, in most cases, does not suffer from the lack of legislation on issue. What we suffer from is the lack of implementation, which means that we often forget about the existence of the law on our statute books. The result, often is that such laws remain in the original state of draft and do not see the necessary and required amendments to keep them in tune with the changing times.
The reality is that domesticated birds have been killed by the virus or culled to stem its spread. Culling is a rather exotic word, which in ordinary English means to select, collect, gather or harvest the best. However, from the nineteenth century (particularly in Australia and New Zealand), the word seems to have evolved from the idea of selecting the best animals from a herd, as a buyer of livestock might do, but then extended to slaughtering the weaker ones. The culled beasts were then the ones that had been killed. From the 1930s the word assumed a meaning employed by wildlife managers. The idea here is that a proportion of animals are killed, often the old and infirm ones, so leaving the remaining population on average fitter and of higher quality, better able to survive on the food available in the wild. In effect, the culled beasts were the ones that had been killed.
There now seems to be the general agreement that ‘cull’ is a good strong, agricultural-sounding word that has the happy additional advantage of avoiding using emotive words like kill or slaughter. So cull has shifted sense from “selection of the best” to “mass disposal”.
I have spent considerable time on defining this word because it appears to me that that is the primary if not the only mode of post-detection control of the disease in Ghana. What it means is that through no fault of the farmer, the day he wakes up to discovery of Bird Flu on his farm is the day he loses his investment for the season.
The Constitution in Articles 18 and 20 protects citizens from deprivation and invasion, respectively, of property. However, the protection under article 18 is expressed to be subject to “the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such manner as to promote the public benefit.” The article 20 protection is also subject to “law and as may be necessary in a free and democratic country for public safety or the economic well-being of the country, for the protection of health…” In short, the farmer’s right to keep and sell his birds is subject to laws that fit within the exceptions stated by articles 18 and 20.
National Building Regulations
Backyard poultry farms in commercial, industrial or residential areas – should be within “tolerable level” and coops should be located at a distance of not less than six metres from any habitable building or boundary wall or line of a habitable building.
Building intended for use by animals – coops should have total cubic content not exceeding 2.90m3, consent of local authorities required, no part of the building to be used for human habitation, use of fire-resisting materials, drainage approved by District Planning Authority, waste not to be discharged into open fields, etc.
Local Government Instruments
Assemblies have the function to prevent and control animal diseases, removal and destruction of dead animals, and the prohibition, restriction or regulation of the killing or same of animals.
Workmen’s Compensation Legislation
Where a workman suffers incapacity or dies from a disease due to the nature of his employment, the employer is liable to pay compensation. This is particularly applicable where the work involves contact with infested or infected animals or handling of animal carcasses.
Diseases of Animals Act
§ The Act lists specific animal diseases and provides for “any disease of an epizootic character that the Minister may… declare to be a disease within the meaning of this Act.”
§ If a disease breaks out in any district, area or place, the Minister of Agriculture is empowered to declare that place to be an infected area, and then the provision of the Act will apply to that infected area.
§ Where an area is declared to be an infected area, every owner of animals capable of suffering from the disease is required to immediately register with the nearest Agriculture Office in the district, declaring how many animals he owns and the area where the animals feed. He must also report any changes in the above circumstances. Further, no animal is allowed to enter or leave the infected area except in accordance with any directions and by such route as a veterinary authority may give or prescribe, as the case may be.
§ A owner or person in charge of an animal which dies of or suffers from a disease or which he suspects to have died of or be suffering from a disease, is required by law to immediately notify the nearest veterinary authority.
§ Until he is directed as to the disposal of the animal, the owner is required to immediately quarantine it
§ It is an offence to dispose of (sell or send away) any animals that have been in contact with the sick animal, except with the permission of the veterinary authority.
§ The veterinary authority has the power:
o “at all reasonable times” to demand the (i) production of an animal for inspection and (ii) any relevant information,
o to require any animal to be examined, inoculated, sprayed, dipped, washed, disinfected or quarantined to prevent outbreak or spread of disease,
o to disinfect or case to be disinfected any building, yard, pen, etc. where any disease has occurred,
o to destroy any fodder, fence, hedge, carcass, flesh, etc. which in his opinion is or is likely to be infected and which he considers cannot be effectively disinfected,
o to order that the hide or skin of any animal which has died of a disease be dried cured or otherwise disposed of,
o to cause any animal that has been in contact with an infected animal or carcass to be quarantined,
o to seize and detain any animal found at large and infected with a disease,
o if necessary in the interest of public health and subject to any regulations issued by the Minister, to destroy or cause to be destroyed any infected animal, and
o to issue directions and take appropriate steps regarding the disposal, movement, detention, inspection, examination, quarantining and destruction of animals.
§ An owner of an infected animal who is charged with an offence is presumed to have known of the existence of the disease unless he satisfies the court that he had no such knowledge and could not have known even with reasonable diligence.
§ Provisions are made for the appointment of veterinary guards for the prevention and detection of offences, the arrest of offenders, service and execution of summonses and warrants issued by magistrates in respect of alleged offences. Veterinary guards may arrest persons they find committing offences, without warrant, as long as they bring the arrested person before the magistrate or hand him over to the police, without unreasonable delay.
§ All public officers are authorised to take all such necessary action as the efficient execution of any of the provisions of the Act may reasonably require, and no action, suit or civil proceedings shall be brought against such person without the written consent of the Attorney-General. Under the Criminal Code, a veterinary authority or person acting under his direction cannot be prosecuted for offences arising from the exercise of their powers in the seizure, detention or destruction of any animal under the Act, except with the consent of the Attorney-General.
§ Offences under the Act are punishable by imprisonment not exceeding 6 months, or a fine or both.
§ COMPENSATION: The Minister for Finance is empowered to pay compensation out of the Consolidated Fund to any person who sustains loss by reason of any measure taken under the Act. However, there is no automatic right to compensation, and payment is based on the Minister’s discretion.
§ The exercise of this discretionary power is however regulated by article 296 of the Constitution, and the Minister is bound to act fairly and candidly, in accordance with due process of law, without arbitrariness, capriciousness or bias, resentment, prejudice or personal dislike.
From the foregoing, I submit that we have some legislative framework within which to act to regulate the spread of avian flu. But I would want to make the following suggestions for reform.
1. Education: We need to publicise these laws and educate relevant industry players
2. Enforcement: We should enforce the laws.
3. Health experts should review the laws and make proposals for any relevant amendments.
4. The National Youth Employment Programme should consider the training and hiring of veterinary guards to be hired by the government to implement the provisions of the law.
5. We should consider the sub-region in our plans and explore ways of cooperating with the relevant authorities in neighbouring countries as well as the harmonisation of relevant statutes.
THE CHALLENGES, PROSPECTS AND FUTURE OF THE MODERN LAWYER
Originally written on 17 March 2009, Delivered at the 2009 Law Week Celebrations, Faculty of Law, University of Ghana
The modern lawyer has three principal characteristics: (i) social role (ii) private practice and (iii) public practice.
Social role
The legal profession has always had an ambiguous social position. Leading lawyers have usually been socially prominent and respected. Yet, along with this high repute, lawyers have also engendered tremendous distrust and even hatred in many societies. "The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers." This accolade was spoken by Dick the Butcher, a follower of the anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Thus contrary to popular belief, that proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution. The surest way to chaos and tyranny even then was to remove the guardians of independent thinking.
The legal profession is inherently conservative because it is committed to working mainly through existing institutions and that law itself is predominantly intended to satisfy expectations arising from inherited patterns of behaviour. However, many lawyers have been on the side of revolutionaries and rebels. For instance Robespierre and Lenin were lawyers. There is also the long and rich tradition in many countries of lawyers’ serving as leaders of struggles for social justice such as Mahatma Ghandi, Thurgood Marshall, Nelson Mandela and J. B. Danquah.
The distrust is sometimes based on the inherent difficulties associated with law and some legal functions. Many would like law to be so clear that its application is equally certain in all cases and so simple that any person of sense can readily see how it applies. But the law as a discipline, shares the imperfection and complexity of society itself, and as such no such situation is attainable. The modern lawyer gets to carry the can for the basic difficulty of his/her craft. But I am quick to admit that the modern lawyer sometimes compounds this by multiplying obscurities, contradictions, and complexities. With respect to legal function, the one that is often distrusted by the average person (though it also produces some of the law’s heroes) is the litigator, particularly in criminal law. Even in the days of Plato and Aristotle, they condemned the litigator as one who was paid to make the worse cause appear the better and endeavoured by sophisticated tricks of argument to establish as true what any person of common sense could see was false.
The dilemma that the modern lawyer faces is whether in the course of litigation, his/her dominant duty is not to the client but to the truth and the law. Lawyers are required to take oaths to this effect, and are often technically been described as “officers of court.” But is the duty of the modern lawyer to fight for the rights of his client, but only up to the point where an honourable person could fairly put the case on his own behalf? Or are lawyers obliged to advocate zealously for their clients, even if they disagree with the client’s position or views, provided that they neither misrepresent the law nor misstate the facts? Where do we find a balance and can we find a balance at all?
Private Practice
Lawyers often are called ‘counsel’, and in the original sense of the word, giving advice as to how the law stands. But in his private practice the modern lawyer is concerned with how the law affects specific circumstances, which can for convenience be divided into two main types: transactional and litigious.
The modern transactional lawyer is concerned with the validity or legal efficacy of a transaction. This is the largest area of activity, in terms of the number of lawyers involved, time spent on the task, or the number of clients affected. If the client consults the lawyer after the events happen, the lawyer advises on legal significance of the events and suggests methods of overcoming legal deficiencies in what has been done. If the client consults the lawyer on future conduct, the lawyer helps the client plan a course of action that will achieve the desired outcome that the law permits and in a manner that minimizes the chances of future litigation.
Transactions cover the drafting of documents that transfer interests in land, transmit property on death, settle property, make agreements (especially commercial agreements of some complexity and duration), incorporating or dissolving corporate entities, varying the terms on which a corporate entity is conducted, and adjusting the ownership and control of property and income to comply with the requirements of taxation laws and minimize their impact on the property and income in question, to ensure the proper management of the assets and distribution of the proceeds among beneficiaries.
The litigious function is subdivided into three main stages. First is the case preparation: client interviews and investigating the circumstances on the basis of leads provided by the client, attending to the formal requirements of the procedure in question—which may involve drafting writs, settling pleadings and filing and arguing motions—and preparing for trial. Second is the trial proper, where the facts and law are established and argued before the judge and a decision is made. Third is the execution of the judgment—payment of damages, delivery of property, or performance of obligation in civil cases, payment of fine or imprisonment, etc., in criminal cases. Similar stages arise on appeal.
Public Practice
Many modern day law graduates choose to enter public service rather than private practice. Of the public roles played by members of the legal profession, that of judge is the most visible. A lawyer who wants to be a judge simply applies to the Judicial Service. There is no preparatory training programme although currently prospective High Court judges and judges of inferior courts are required to write an examination. It used to be the case that judges would resign and return to private practice or eminent lawyers decline to be considered for judicial positions, because the terms and conditions of the office were very poor. But that is no longer the case and the judiciary is beginning to attract some rather interesting talents.
Governments have always required legal specialists, and the scope for such employment is enormous. The Attorney-General and Minister of Justice must by convention be a lawyer, who heads a department concerned mainly with the legal issues of the government, as demanded by Article 88 of the Constitution. Increasingly, however, some government ministries (such as the Ministry of Finance) are establishing their own legal departments or hiring specialist lawyers as consultants. Lawyers also serve in high offices in the civil service.
There is the office of the prosecutor, a specialized officer under the general control of the Attorney-General. The prosecuting function is particularly delicate because criminal prosecution can be used as an instrument of oppression and persecution, even where conviction is not obtained, and because in most systems prosecutors are expected to act with a degree of fairness and restraint not necessarily expected of lawyers involved in civil litigation. There is also the legislative drafters who are expert lawyers trained to craft laws in readily comprehensible language, which is also a part of the Attorney-General’s department.
These are by no means exhaustive, because modern lawyers serve in almost all government Commissions and Authorities, State Corporations, etc., and as lecturers in public tertiary institutions.
Contemporary Trends
The legal profession has been undergoing enormous changes in recent years, and the pace of change can only accelerate. Perhaps the most obvious change of the past decade and a half is the increase in the number of women lawyers. In my class (1990), there were less than 10 women. In the very next year, the women were almost half the class and that trend has continued. However, this significant shift has not fully made itself felt at the partnership level in the nation’s leading law firms, for reasons that can be hotly debated (one contention is that the great number of work hours demanded of young lawyers imposes particular strains on women). The same argument can be made with respect to the legal academia where there is a notable decrease in the number of women. The entire Ghana Law School has a single woman lecturer and I am not sure that the Faculty of Law of the University of Ghana has any women on their academic staff. Nevertheless, at the associate level, in government and business the growing presence and prominence of women is evident.
The internal structure of the legal profession is also changing. Some of the leading law firms have entered into associations with foreign counterparts (mainly English law firms). Although this is not exactly prevalent right now, it is indicative of the profound changes in the legal profession brought about by globalization—the increasing exchange across international boundaries of capital, goods, technology, services, personnel, and ideas.
Law firms have also taken advantage of technological advances in computers and the Internet to avail themselves of electronic databases for legal research, to provide legal advice to clients far from their home offices, and even to develop software that can be used to reduce the human element in the preparation of contracts, licensing agreements, wills, and other documentation. I am an avid supporter these changes because they will better equip law firms to compete with large accounting firms that now hire lawyers and offer legal services. I am aware that some opponents worry that some of these developments are helping to erode the distinction between law and business. Maybe. But I am in the BUSINESS of practising LAW. As long as legal ethics are complied with, I believe that we should allow room for advancement. Today, many Ghanaian law firms are listed in Martindale-Hubbell. And, Ghanaian law firms are now ranked by Chambers & Partners. These would have been unimaginable just a few years ago. Indeed, I daresay that no one can stand in the way of advancement.
Conclusion
The modern lawyer needs a particular ideal that embodies his/her skills, qualities, and aspirations – a model to emulate, a standard for judging professional development, and a source of pride in being a lawyer. To accomplish this, the modern legal profession must function within a professionalism paradigm that re-creates the lawyer of practical wisdom who serves clients by always ascertaining the ‘theory of the matter’, i.e. what is in the best interest of my client?
The modern lawyer has three principal characteristics: (i) social role (ii) private practice and (iii) public practice.
Social role
The legal profession has always had an ambiguous social position. Leading lawyers have usually been socially prominent and respected. Yet, along with this high repute, lawyers have also engendered tremendous distrust and even hatred in many societies. "The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers." This accolade was spoken by Dick the Butcher, a follower of the anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Thus contrary to popular belief, that proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution. The surest way to chaos and tyranny even then was to remove the guardians of independent thinking.
The legal profession is inherently conservative because it is committed to working mainly through existing institutions and that law itself is predominantly intended to satisfy expectations arising from inherited patterns of behaviour. However, many lawyers have been on the side of revolutionaries and rebels. For instance Robespierre and Lenin were lawyers. There is also the long and rich tradition in many countries of lawyers’ serving as leaders of struggles for social justice such as Mahatma Ghandi, Thurgood Marshall, Nelson Mandela and J. B. Danquah.
The distrust is sometimes based on the inherent difficulties associated with law and some legal functions. Many would like law to be so clear that its application is equally certain in all cases and so simple that any person of sense can readily see how it applies. But the law as a discipline, shares the imperfection and complexity of society itself, and as such no such situation is attainable. The modern lawyer gets to carry the can for the basic difficulty of his/her craft. But I am quick to admit that the modern lawyer sometimes compounds this by multiplying obscurities, contradictions, and complexities. With respect to legal function, the one that is often distrusted by the average person (though it also produces some of the law’s heroes) is the litigator, particularly in criminal law. Even in the days of Plato and Aristotle, they condemned the litigator as one who was paid to make the worse cause appear the better and endeavoured by sophisticated tricks of argument to establish as true what any person of common sense could see was false.
The dilemma that the modern lawyer faces is whether in the course of litigation, his/her dominant duty is not to the client but to the truth and the law. Lawyers are required to take oaths to this effect, and are often technically been described as “officers of court.” But is the duty of the modern lawyer to fight for the rights of his client, but only up to the point where an honourable person could fairly put the case on his own behalf? Or are lawyers obliged to advocate zealously for their clients, even if they disagree with the client’s position or views, provided that they neither misrepresent the law nor misstate the facts? Where do we find a balance and can we find a balance at all?
Private Practice
Lawyers often are called ‘counsel’, and in the original sense of the word, giving advice as to how the law stands. But in his private practice the modern lawyer is concerned with how the law affects specific circumstances, which can for convenience be divided into two main types: transactional and litigious.
The modern transactional lawyer is concerned with the validity or legal efficacy of a transaction. This is the largest area of activity, in terms of the number of lawyers involved, time spent on the task, or the number of clients affected. If the client consults the lawyer after the events happen, the lawyer advises on legal significance of the events and suggests methods of overcoming legal deficiencies in what has been done. If the client consults the lawyer on future conduct, the lawyer helps the client plan a course of action that will achieve the desired outcome that the law permits and in a manner that minimizes the chances of future litigation.
Transactions cover the drafting of documents that transfer interests in land, transmit property on death, settle property, make agreements (especially commercial agreements of some complexity and duration), incorporating or dissolving corporate entities, varying the terms on which a corporate entity is conducted, and adjusting the ownership and control of property and income to comply with the requirements of taxation laws and minimize their impact on the property and income in question, to ensure the proper management of the assets and distribution of the proceeds among beneficiaries.
The litigious function is subdivided into three main stages. First is the case preparation: client interviews and investigating the circumstances on the basis of leads provided by the client, attending to the formal requirements of the procedure in question—which may involve drafting writs, settling pleadings and filing and arguing motions—and preparing for trial. Second is the trial proper, where the facts and law are established and argued before the judge and a decision is made. Third is the execution of the judgment—payment of damages, delivery of property, or performance of obligation in civil cases, payment of fine or imprisonment, etc., in criminal cases. Similar stages arise on appeal.
Public Practice
Many modern day law graduates choose to enter public service rather than private practice. Of the public roles played by members of the legal profession, that of judge is the most visible. A lawyer who wants to be a judge simply applies to the Judicial Service. There is no preparatory training programme although currently prospective High Court judges and judges of inferior courts are required to write an examination. It used to be the case that judges would resign and return to private practice or eminent lawyers decline to be considered for judicial positions, because the terms and conditions of the office were very poor. But that is no longer the case and the judiciary is beginning to attract some rather interesting talents.
Governments have always required legal specialists, and the scope for such employment is enormous. The Attorney-General and Minister of Justice must by convention be a lawyer, who heads a department concerned mainly with the legal issues of the government, as demanded by Article 88 of the Constitution. Increasingly, however, some government ministries (such as the Ministry of Finance) are establishing their own legal departments or hiring specialist lawyers as consultants. Lawyers also serve in high offices in the civil service.
There is the office of the prosecutor, a specialized officer under the general control of the Attorney-General. The prosecuting function is particularly delicate because criminal prosecution can be used as an instrument of oppression and persecution, even where conviction is not obtained, and because in most systems prosecutors are expected to act with a degree of fairness and restraint not necessarily expected of lawyers involved in civil litigation. There is also the legislative drafters who are expert lawyers trained to craft laws in readily comprehensible language, which is also a part of the Attorney-General’s department.
These are by no means exhaustive, because modern lawyers serve in almost all government Commissions and Authorities, State Corporations, etc., and as lecturers in public tertiary institutions.
Contemporary Trends
The legal profession has been undergoing enormous changes in recent years, and the pace of change can only accelerate. Perhaps the most obvious change of the past decade and a half is the increase in the number of women lawyers. In my class (1990), there were less than 10 women. In the very next year, the women were almost half the class and that trend has continued. However, this significant shift has not fully made itself felt at the partnership level in the nation’s leading law firms, for reasons that can be hotly debated (one contention is that the great number of work hours demanded of young lawyers imposes particular strains on women). The same argument can be made with respect to the legal academia where there is a notable decrease in the number of women. The entire Ghana Law School has a single woman lecturer and I am not sure that the Faculty of Law of the University of Ghana has any women on their academic staff. Nevertheless, at the associate level, in government and business the growing presence and prominence of women is evident.
The internal structure of the legal profession is also changing. Some of the leading law firms have entered into associations with foreign counterparts (mainly English law firms). Although this is not exactly prevalent right now, it is indicative of the profound changes in the legal profession brought about by globalization—the increasing exchange across international boundaries of capital, goods, technology, services, personnel, and ideas.
Law firms have also taken advantage of technological advances in computers and the Internet to avail themselves of electronic databases for legal research, to provide legal advice to clients far from their home offices, and even to develop software that can be used to reduce the human element in the preparation of contracts, licensing agreements, wills, and other documentation. I am an avid supporter these changes because they will better equip law firms to compete with large accounting firms that now hire lawyers and offer legal services. I am aware that some opponents worry that some of these developments are helping to erode the distinction between law and business. Maybe. But I am in the BUSINESS of practising LAW. As long as legal ethics are complied with, I believe that we should allow room for advancement. Today, many Ghanaian law firms are listed in Martindale-Hubbell. And, Ghanaian law firms are now ranked by Chambers & Partners. These would have been unimaginable just a few years ago. Indeed, I daresay that no one can stand in the way of advancement.
Conclusion
The modern lawyer needs a particular ideal that embodies his/her skills, qualities, and aspirations – a model to emulate, a standard for judging professional development, and a source of pride in being a lawyer. To accomplish this, the modern legal profession must function within a professionalism paradigm that re-creates the lawyer of practical wisdom who serves clients by always ascertaining the ‘theory of the matter’, i.e. what is in the best interest of my client?
EX-GRATIA AWARDS FUSS - Letter to Daily Guide Newspaper
Originally written on 26 January 2009
Dear Editor:
RE: ‘EX-GRATIA AWARDS FUSS – RANGE CAN BE REVIEWED DOWNWARDS’
I have had the privilege of reading the above-entitled article by your Apostle Kwamena Ahinful in his Controversy Column. The beauty of democracy is that we can disagree; and so I truly appreciate the Apostle’s position on my expressed views.
Permit me, however, to re-state and possibly flesh out my position on this matter, and then encourage all concerned Ghanaians to read the Constitution for themselves, to ascertain whether or not Parliament (or any other body) has the power to do the downward review that the Apostle recommends, and which some Member of the august House have been postulating.
Some have argued that Parliament has the power to review everything that it does. That may be true. But the source of Parliament’s powers is not Parliament itself, but the Constitution. So that whatever powers Parliament might have, are subject to such bounds and limitations contained in the Constitution. For example, Article 3(1) of the Constitution states expressly that “Parliament shall have no power to enact a law establishing a one-party State.” That means that whatever powers Parliament might have, it can NEVER pass a law that seeks to turn Ghana into a one-party state. Parliament under our Constitution, is not sovereign, and is supreme only to the extent that that ‘supremacy’ is given and, in some instances, circumscribed by the Constitution.
Article 3(1) is just one example of how Parliament’s powers are limited by the Constitution. My humble view is that the same principle applies to Article 68(9). The article simply states that “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime.”
I am fortified by the reference by Professor AKP Kludze JSC in the Supreme Court case of Asare v. Attorney-General, that “express enactment shuts the door to further implication and speculation.” The words in Article 68(9) are clear and express. The issue is captured in the simple questions: Has the pension become payable? Have the facilities become available? If so, can they be varied, and what would amount to a disadvantage?
Under Article 68(3), the ex-Presidents‘ “pension… and other allowances and facilities [are] prescribed by Parliament.” Article 71(2) then provides that “The salaries and allowances payable, and the facilities available, to the President…, shall be determined by Parliament on the recommendations of the Committee…” And Article 71(3) says that “For the purposes of this article, and except as otherwise provided in this Constitution, “salaries” includes allowances, facilities and privileges and retiring benefits or awards”
I must point out that these provisions are not novel. Article 71 is a near-verbatim reproduction of Article 58 of the 1979 Republican Constitution, which in itself had its roots in Article 52 of the 1969 Constitution. And, while the first two clauses of Article 68 are reproduced from Article 55 of the 1979 Constitution, the remaining clauses of Article 68 can be largely found in Article 44 of the 1979 Constitution. Specifically, clauses (8) and (9) of Article 68 of the current Constitution are exact reproductions of clauses (7) and (8) respectively of Article 44 of the 1979 Constitution.
On 19th July 1994, the Supreme Court delivered 4 judgments, namely, Yakubu v. Attorney-General [1993-94] 1 GLR 307, Wuaku v. Attorney-General [1993-94] 2 GLR 393, Abakah v. Attorney-General [1993-94] 1 GLR 325 and Osei-Hwere v. Attorney General, Supreme Court, Accra, 19 July 1994 unreported. Each of these cases discussed the meaning of the word “salaries” in Article 71 of the current Constitution, Article 58 of the 1979 Constitution and Article 52 of the 1969 Constitution, as the case may be. In all of the cases, the court held that the definition of the word “salaries” (particularly in the 1979 Constitution and the current Constitution) was specific only to the relevant article, on account of the use of the qualifying words “for the purposes of this article, and except as otherwise provided in this Constitution…” Accordingly that definition was not of general application throughout the Constitution.
However, among the 4 cases, the decision that I find immediately helpful and instructful is Yakubu v. Attorney-General, where the court found that the once President had not appointed to committee required to make recommendations under Article 71(1), the use of a car or the occupation of a bungalow by a judge were “only a facility accorded a serving superior court judge on his appointment to enable him perform the functions of his office effectively.” But these were the key words of the court: “Until there is a determination that these facilities should form part of a retiring justice of the superior court's benefits or awards, such a claim cannot be made as of right. When a recommendation has been made and the President has determined the retiring benefits and awards of the justices of the superior court of judicature the plaintiff may put up a claim since he has retired under the Constitution.”
In other words, the Supreme Court held that the judge, who was the plaintiff, in the matter would acquire an immediate right to those facilities once the President makes the required determination, after receiving the Committee’s recommendation. By parity of reasoning, the President himself would acquire the right to the pension once Parliament makes the prescription or determination after the Committee’s recommendation.
An examination of the provisions of the various Constitutions reveals the same flow of logic and reasoning in the provisions under reference. The Committee makes recommendations for presidential salaries (defined to include pensions), and those recommendations are sent to Parliament for ‘determination’ with respect to the sitting President or ‘prescription’ with respect to the ex-Presidents. Once Parliament ‘determines’ or ‘prescribes’ what has been so determined or prescribed they become immediately payable and available, and consequently, cannot be varied to the disadvantage of the intended beneficiaries. I add the sitting President because the package as prescribed by Parliament is now part of his “salary” as defined by Article 71(3). They cannot be varied to his disadvantage in his lifetime. I will return to this point later.
Clearly, from the foregoing the pension became ‘payable’ or otherwise owed, due, or to be paid to the ex-Presidents and the current President when Parliament voted on 6th January 2009. Also, the facilities became ‘available’ or obtainable by or offered to the ex-Presidents and the current President upon the same vote. Accordingly, on the same date, Article 68(9) came into full force and effect with respect to what was so prescribed or determined. The ex-Presidents and the current President, now have respective accrued rights to that package. Consequently, the now-payable pension and now-available facilities cannot be varied to the disadvantage of either the ex-Presidents during their respective lives or the current President whilst he is in office, and upon his leaving office, during his lifetime.
What then does the phrase “varied to his disadvantage”, mean? That phrase occurs 5 other times in the Constitution. First, Article 68(8) provides that “The salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office.” Second, Article 89(8) provides that “The allowances and privileges of the Chairman and other members of the Council of State shall be charged on the Consolidated Fund and shall not be varied to their disadvantage while they hold office.” Third, Article 95(7) provides that “The salary and other allowances payable to the Speaker shall not be varied to his disadvantage during his tenure of office.” Fourth, Article 127(5) provides that “The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of the Superior Court or any judicial officer or other person exercising judicial power, shall not be varied to his disadvantage.” And, Fifth, Article 187(12) provides that “The salary and allowances payable to the Auditor-General, his rights in respect of leave of absence, retiring award or retiring age shall not be varied to his disadvantage during his tenure of office.”
Clearly, and contrary to Apostle Ahinful’s posit, these Articles of the Constitution are not referring to what disadvantage that those salaries or amenities might bring upon the national purse. They clearly refer to drawing back, reducing, decreasing, lessening, diminution or scaling down the amenities that are guaranteed to the respective recipients. Thus, although the said amenities may be varied, they can only be varied if the variation does not result in any reduction or diminution relative to the conditions stated in the said Articles of the Constitution. And one can appreciate the possible reasoning of the framers of the Constitution in making the payable pension and available facilities to ex-Presidents immutable and irreversible – so that a succeeding government cannot seek to punish or impoverish an ex-President by taking away his/her Parliament-determined and Parliament-prescribed payable pension and available facilities.
Lets look at some brass tacks. If Parliament has prescribed or determined a payable pension of ¢3,200 a month for an ex-President, reducing this to ¢3,199.99 would mean that the ex-President would be disadvantaged by ¢0.01. That would be unconstitutional because it would breach Article 68(9). If Parliament had prescribed or otherwise determined that ex-Presidents should use the Presidential lounge at the Kotoka International Airport in their travels, any change which compels them to use, say, the VIP lounge (when the Presidential lounge still exists), would be to their disadvantage, to the extent that the VIP lounge facility is of less comfort than what is offered by the Presidential lounge. That also would be unconstitutional.
It is definitely because of the irreversible nature of the payable pension and available facilities that the framers of the Constitution, in their wisdom, provided that Parliament must make the determination or prescription. Parliament was therefore expected, before it voted on any pension/facilities, to carefully deliberate and debate the matter. The last Parliament did not. Whenever a Parliament rushes to do a determination/prescription, they expose the good people of this country to this situation where our hands are tied and we cannot reverse something that, probably, the majority of us think is too extravagant. But for will or for woe, our Parliament has set down, laid down, fixed and imposed this, without any deliberation on the floor of the House (by their own admission). We are bound.
I have noted other arguments in opposition to my humble position, which suggest that once the ex-President has not been paid any pension yet, Article 68(9) is inapplicable, and that the package can be reviewed. I respectfully disagree. The specific wording of Article 68(9) does not support this contention. The words, once again, are as follows: “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime” [Emphasis added.] Read carefully, this provision clearly anticipates that the pension will become payable even whilst the beneficiary is still President. This is because Article 71(3) states considers the President’s “retiring benefits or awards”, i.e. “pension” as part of his salary, which is then absolutely guaranteed against reduction or diminution generally under Article 68(8) (whilst he is in office) and specifically under Article 68(9) (when he is out of office). If the pension becomes payable (i.e. the right to it accrues) even whilst the President is still in office, and is then guaranteed or protected against reduction or diminution even before the President leaves office and is yet to even make his first drawing of the pension, the argument that a variation can be lawfully made simply because payment of the first pension has not been made is, with utmost respect, not backed by the Constitution. I concede that the argument might sound attractive, because many are thinking of ways to reverse this package and to provide for a less pension package. But the answer to this argument lies in the wisdom of Professor AKP Kludze JSC’s already-quoted words that “express enactment shuts the door to further implication and speculation.” The words in the Articles quoted are clear and unambiguous, with absolutely no equivocation or vagueness. I respectfully do not see how any further inferences, propositions, assumptions, conjectures and suppositions can be made with respect to those words, so as to justify a review on the grounds advocated.
I also note that some MPs appear to have seen the error of their ways, after the fact, and now I hear and see MPs scrambling to find some procedural irregularity in the 6th January vote so as to provide a ground to void that vote. We truly live in interesting times. What has emerged, from where I stand, is that the only things that are alleged to have been ‘wrong’ with that vote was that the Parliamentarians did not discuss and debate the matter on the floor of the House or that it was not on the Order Paper for the day. May we ask the Honourable ladies and gentlemen of the House, whether matters that are to be discussed in closed-sessions are required to appear on the Order Paper? May we ask the same persons whether there is a rule of law or parliamentary practice that says that if a Parliament knowingly shirks its responsibility to deliberate a matter before voting on it, that vote can be voided on the ground of the non-deliberation?
So, what is the way forward? I can foresee three possible developments. First, Parliament will conjure up a ‘ghost’ procedural defect in the proceedings leading to the 6th January vote (e.g. that Parliament was inquorate), and therefore vote to void the 6th January vote. Second, we will leave the package as it is for it to be a painful reminder of what a Parliament can do to a nation when it is lulled or lured into a catnap and thereby abandons its responsibilities to the good people of the nation. Third, the ex-Presidents and the current President will refuse to take full advantage of the package and opt for less. Question: What do you call ex-Presidents and a current President rejecting or accepting a less-than-juicy package? Answer: A good start. We can then use the value of the remainder of the package to, for instance, provide classroom desks to public schools nationwide.
I end, still mindful of the good Apostle’s view that I all I might have succeeded in doing is to confuse the confusion. Maybe. But that is just my two-pesewa view, and I really do not expect everyone to agree with me. That would not be democratic.
Dear Editor:
RE: ‘EX-GRATIA AWARDS FUSS – RANGE CAN BE REVIEWED DOWNWARDS’
I have had the privilege of reading the above-entitled article by your Apostle Kwamena Ahinful in his Controversy Column. The beauty of democracy is that we can disagree; and so I truly appreciate the Apostle’s position on my expressed views.
Permit me, however, to re-state and possibly flesh out my position on this matter, and then encourage all concerned Ghanaians to read the Constitution for themselves, to ascertain whether or not Parliament (or any other body) has the power to do the downward review that the Apostle recommends, and which some Member of the august House have been postulating.
Some have argued that Parliament has the power to review everything that it does. That may be true. But the source of Parliament’s powers is not Parliament itself, but the Constitution. So that whatever powers Parliament might have, are subject to such bounds and limitations contained in the Constitution. For example, Article 3(1) of the Constitution states expressly that “Parliament shall have no power to enact a law establishing a one-party State.” That means that whatever powers Parliament might have, it can NEVER pass a law that seeks to turn Ghana into a one-party state. Parliament under our Constitution, is not sovereign, and is supreme only to the extent that that ‘supremacy’ is given and, in some instances, circumscribed by the Constitution.
Article 3(1) is just one example of how Parliament’s powers are limited by the Constitution. My humble view is that the same principle applies to Article 68(9). The article simply states that “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime.”
I am fortified by the reference by Professor AKP Kludze JSC in the Supreme Court case of Asare v. Attorney-General, that “express enactment shuts the door to further implication and speculation.” The words in Article 68(9) are clear and express. The issue is captured in the simple questions: Has the pension become payable? Have the facilities become available? If so, can they be varied, and what would amount to a disadvantage?
Under Article 68(3), the ex-Presidents‘ “pension… and other allowances and facilities [are] prescribed by Parliament.” Article 71(2) then provides that “The salaries and allowances payable, and the facilities available, to the President…, shall be determined by Parliament on the recommendations of the Committee…” And Article 71(3) says that “For the purposes of this article, and except as otherwise provided in this Constitution, “salaries” includes allowances, facilities and privileges and retiring benefits or awards”
I must point out that these provisions are not novel. Article 71 is a near-verbatim reproduction of Article 58 of the 1979 Republican Constitution, which in itself had its roots in Article 52 of the 1969 Constitution. And, while the first two clauses of Article 68 are reproduced from Article 55 of the 1979 Constitution, the remaining clauses of Article 68 can be largely found in Article 44 of the 1979 Constitution. Specifically, clauses (8) and (9) of Article 68 of the current Constitution are exact reproductions of clauses (7) and (8) respectively of Article 44 of the 1979 Constitution.
On 19th July 1994, the Supreme Court delivered 4 judgments, namely, Yakubu v. Attorney-General [1993-94] 1 GLR 307, Wuaku v. Attorney-General [1993-94] 2 GLR 393, Abakah v. Attorney-General [1993-94] 1 GLR 325 and Osei-Hwere v. Attorney General, Supreme Court, Accra, 19 July 1994 unreported. Each of these cases discussed the meaning of the word “salaries” in Article 71 of the current Constitution, Article 58 of the 1979 Constitution and Article 52 of the 1969 Constitution, as the case may be. In all of the cases, the court held that the definition of the word “salaries” (particularly in the 1979 Constitution and the current Constitution) was specific only to the relevant article, on account of the use of the qualifying words “for the purposes of this article, and except as otherwise provided in this Constitution…” Accordingly that definition was not of general application throughout the Constitution.
However, among the 4 cases, the decision that I find immediately helpful and instructful is Yakubu v. Attorney-General, where the court found that the once President had not appointed to committee required to make recommendations under Article 71(1), the use of a car or the occupation of a bungalow by a judge were “only a facility accorded a serving superior court judge on his appointment to enable him perform the functions of his office effectively.” But these were the key words of the court: “Until there is a determination that these facilities should form part of a retiring justice of the superior court's benefits or awards, such a claim cannot be made as of right. When a recommendation has been made and the President has determined the retiring benefits and awards of the justices of the superior court of judicature the plaintiff may put up a claim since he has retired under the Constitution.”
In other words, the Supreme Court held that the judge, who was the plaintiff, in the matter would acquire an immediate right to those facilities once the President makes the required determination, after receiving the Committee’s recommendation. By parity of reasoning, the President himself would acquire the right to the pension once Parliament makes the prescription or determination after the Committee’s recommendation.
An examination of the provisions of the various Constitutions reveals the same flow of logic and reasoning in the provisions under reference. The Committee makes recommendations for presidential salaries (defined to include pensions), and those recommendations are sent to Parliament for ‘determination’ with respect to the sitting President or ‘prescription’ with respect to the ex-Presidents. Once Parliament ‘determines’ or ‘prescribes’ what has been so determined or prescribed they become immediately payable and available, and consequently, cannot be varied to the disadvantage of the intended beneficiaries. I add the sitting President because the package as prescribed by Parliament is now part of his “salary” as defined by Article 71(3). They cannot be varied to his disadvantage in his lifetime. I will return to this point later.
Clearly, from the foregoing the pension became ‘payable’ or otherwise owed, due, or to be paid to the ex-Presidents and the current President when Parliament voted on 6th January 2009. Also, the facilities became ‘available’ or obtainable by or offered to the ex-Presidents and the current President upon the same vote. Accordingly, on the same date, Article 68(9) came into full force and effect with respect to what was so prescribed or determined. The ex-Presidents and the current President, now have respective accrued rights to that package. Consequently, the now-payable pension and now-available facilities cannot be varied to the disadvantage of either the ex-Presidents during their respective lives or the current President whilst he is in office, and upon his leaving office, during his lifetime.
What then does the phrase “varied to his disadvantage”, mean? That phrase occurs 5 other times in the Constitution. First, Article 68(8) provides that “The salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office.” Second, Article 89(8) provides that “The allowances and privileges of the Chairman and other members of the Council of State shall be charged on the Consolidated Fund and shall not be varied to their disadvantage while they hold office.” Third, Article 95(7) provides that “The salary and other allowances payable to the Speaker shall not be varied to his disadvantage during his tenure of office.” Fourth, Article 127(5) provides that “The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of the Superior Court or any judicial officer or other person exercising judicial power, shall not be varied to his disadvantage.” And, Fifth, Article 187(12) provides that “The salary and allowances payable to the Auditor-General, his rights in respect of leave of absence, retiring award or retiring age shall not be varied to his disadvantage during his tenure of office.”
Clearly, and contrary to Apostle Ahinful’s posit, these Articles of the Constitution are not referring to what disadvantage that those salaries or amenities might bring upon the national purse. They clearly refer to drawing back, reducing, decreasing, lessening, diminution or scaling down the amenities that are guaranteed to the respective recipients. Thus, although the said amenities may be varied, they can only be varied if the variation does not result in any reduction or diminution relative to the conditions stated in the said Articles of the Constitution. And one can appreciate the possible reasoning of the framers of the Constitution in making the payable pension and available facilities to ex-Presidents immutable and irreversible – so that a succeeding government cannot seek to punish or impoverish an ex-President by taking away his/her Parliament-determined and Parliament-prescribed payable pension and available facilities.
Lets look at some brass tacks. If Parliament has prescribed or determined a payable pension of ¢3,200 a month for an ex-President, reducing this to ¢3,199.99 would mean that the ex-President would be disadvantaged by ¢0.01. That would be unconstitutional because it would breach Article 68(9). If Parliament had prescribed or otherwise determined that ex-Presidents should use the Presidential lounge at the Kotoka International Airport in their travels, any change which compels them to use, say, the VIP lounge (when the Presidential lounge still exists), would be to their disadvantage, to the extent that the VIP lounge facility is of less comfort than what is offered by the Presidential lounge. That also would be unconstitutional.
It is definitely because of the irreversible nature of the payable pension and available facilities that the framers of the Constitution, in their wisdom, provided that Parliament must make the determination or prescription. Parliament was therefore expected, before it voted on any pension/facilities, to carefully deliberate and debate the matter. The last Parliament did not. Whenever a Parliament rushes to do a determination/prescription, they expose the good people of this country to this situation where our hands are tied and we cannot reverse something that, probably, the majority of us think is too extravagant. But for will or for woe, our Parliament has set down, laid down, fixed and imposed this, without any deliberation on the floor of the House (by their own admission). We are bound.
I have noted other arguments in opposition to my humble position, which suggest that once the ex-President has not been paid any pension yet, Article 68(9) is inapplicable, and that the package can be reviewed. I respectfully disagree. The specific wording of Article 68(9) does not support this contention. The words, once again, are as follows: “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime” [Emphasis added.] Read carefully, this provision clearly anticipates that the pension will become payable even whilst the beneficiary is still President. This is because Article 71(3) states considers the President’s “retiring benefits or awards”, i.e. “pension” as part of his salary, which is then absolutely guaranteed against reduction or diminution generally under Article 68(8) (whilst he is in office) and specifically under Article 68(9) (when he is out of office). If the pension becomes payable (i.e. the right to it accrues) even whilst the President is still in office, and is then guaranteed or protected against reduction or diminution even before the President leaves office and is yet to even make his first drawing of the pension, the argument that a variation can be lawfully made simply because payment of the first pension has not been made is, with utmost respect, not backed by the Constitution. I concede that the argument might sound attractive, because many are thinking of ways to reverse this package and to provide for a less pension package. But the answer to this argument lies in the wisdom of Professor AKP Kludze JSC’s already-quoted words that “express enactment shuts the door to further implication and speculation.” The words in the Articles quoted are clear and unambiguous, with absolutely no equivocation or vagueness. I respectfully do not see how any further inferences, propositions, assumptions, conjectures and suppositions can be made with respect to those words, so as to justify a review on the grounds advocated.
I also note that some MPs appear to have seen the error of their ways, after the fact, and now I hear and see MPs scrambling to find some procedural irregularity in the 6th January vote so as to provide a ground to void that vote. We truly live in interesting times. What has emerged, from where I stand, is that the only things that are alleged to have been ‘wrong’ with that vote was that the Parliamentarians did not discuss and debate the matter on the floor of the House or that it was not on the Order Paper for the day. May we ask the Honourable ladies and gentlemen of the House, whether matters that are to be discussed in closed-sessions are required to appear on the Order Paper? May we ask the same persons whether there is a rule of law or parliamentary practice that says that if a Parliament knowingly shirks its responsibility to deliberate a matter before voting on it, that vote can be voided on the ground of the non-deliberation?
So, what is the way forward? I can foresee three possible developments. First, Parliament will conjure up a ‘ghost’ procedural defect in the proceedings leading to the 6th January vote (e.g. that Parliament was inquorate), and therefore vote to void the 6th January vote. Second, we will leave the package as it is for it to be a painful reminder of what a Parliament can do to a nation when it is lulled or lured into a catnap and thereby abandons its responsibilities to the good people of the nation. Third, the ex-Presidents and the current President will refuse to take full advantage of the package and opt for less. Question: What do you call ex-Presidents and a current President rejecting or accepting a less-than-juicy package? Answer: A good start. We can then use the value of the remainder of the package to, for instance, provide classroom desks to public schools nationwide.
I end, still mindful of the good Apostle’s view that I all I might have succeeded in doing is to confuse the confusion. Maybe. But that is just my two-pesewa view, and I really do not expect everyone to agree with me. That would not be democratic.
ANANE WALKS ON PROCEDURE – THE EXTENT OF AN OCTOPUS’ ROAMING TENTACLES
Originally written on 31 October 2007
Dr. Richard Anane, MP and former Minister of Roads and Highways, took on the Commission on Human Rights and Administrative Justice (CHRAJ) in court and walked out of court a “free” man, with all the adverse findings made against him set aside by the court. He had been accused of corruption, and other charges, including abuse of office. CHRAJ dismissed the corruption charges but went ahead to make adverse findings against him on abuse of office and conflict of interest and even strayed into the area of perjury. Dr. Anane resigned from his ministerial position and took on CHRAJ in court. He won. CHRAJ proceeded to the Supreme Court to challenge the High Court. The rest is recent history.
According to the High Court, the Commission made grievous procedural errors, which necessitated the quashing of its findings and an order expunging those from the Commission’s records. It is my respectful view that regarding corruption and misappropriation investigations, the Constitution permits CHRAJ to virtually roam Ghana’s highways and byways, the newspapers and the airwaves, with very long, constitutionally guaranteed, investigative tentacles with or without either a formal complaint having been filed or a formal allegation having been made to the Commissioner. However, in all other matters, CHRAJ’s investigative jurisdiction is restricted and can only be invoked on the basis of a formal complaint or allegation.
Relevance of Procedure
In the celebrated 1907 English case, Re Coles and Ravenshear Collins MR said as follows:
Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.
Collins MR's reasoning has resonated in Ghana's courts, and has found eloquent expression in Sophia Akuffo JSC's 2003 dictum in Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation as follows:
In its complementary character, civil procedure functions as a vehicle for the actualization of substantive law and this role has been likened to that of “a handmaid rather than a mistress” which must not be applied in such a hard and fast manner as to cause injustice in any particular case. In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all. Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take into account the function of that particular rule, and the objective it is intended to serve.
There are theoretical underpinnings of the rules of procedure, which, although is law, is considered by many as 'adjectival' law, a means to an end. The concept of the rule of law demands respect, not only for the substantive law, but for the procedural law as well. That is why if you have a case against another person, you don’t simply write your plaint on a sheet of paper and walk into a judge's court or chambers to demand justice. You must comply with the procedure that is laid down both for invoking the judge’s jurisdiction and for the orderly conduct of cases. In the very first reported Ghanaian case on judicial review, Ware v. Ofori-Atta, the court struck down some actions of the Nkrumah government on account of its failure to comply with the procedural law.
Therefore, it is only where a strict application of the rules of procedure would lead to injustice, that the law vests the court with the discretion to disregard certain breaches of procedure. However, where the rules of procedure are jurisdictional in themselves, and that is to say that the jurisdiction of the judicial, quasi-judicial or administrative body can only be invoked via a laid down procedure (statutory, in this case), there is no discretion to waive or overlook that procedure.
Judicial Review, Not An Appeal
We must note that the matter before the court was not an appeal. It was an application for judicial review of what CHRAJ did. The court did not therefore go into the merits of the case. The High Court has not pronounced Dr. Anane “guilty” or “not guilty”. What has happened is a review to ascertain whether CHRAJ, in the course of conducting the hearing, complied with the law, and if not, whether the non-compliance was so fatal that the entire hearing and its conclusions have to be quashed by a "writ of certiorari". In other words, what the court did, was not to determine whether or not Dr. Anane was guilty of corruption, abuse of office and/or perjury, but to conduct an examination and inspection of the CHRAJ hearing and conclusions, and to correct errors of law and to review erroneous or unwarranted acts or proceedings, if any. What the court found was that the inferior tribunal (CHRAJ) had abused or exceeded its jurisdiction or proceeded illegally. Under those circumstances, the Court was entitled, in the exercise of its discretion, to issue a writ of certiorari, quashing those proceedings and findings.
CHRAJ’s Investigative Jurisdiction
It would appear that CHRAJ put itself into a fatal procedural quagmire by not paying regard to the relevant, applicable laws relating to its jurisdiction and procedure. Section 12 of the CHRAJ Act appears to lay down a “complaint” process for invoking CHRAJ’s jurisdiction. It provides as follows:
Section 12 - Provisions Relating to Complaints.
(1) A complaint to the Commission shall be made in writing or orally to the national offices of the Commission or to a representative of the Commission in the Regional or District branch.
(2) Where a complaint is made in writing it shall be signed by the complainant or his agent.
(3) Where a complaint is made orally, the person to whom the complaint is made shall reduce the complaint into writing and shall append his signature and the signature or thumbprint of the complainant.
(4) Notwithstanding any law to the contrary, where a letter written by-
(a) a person in custody; or
(b) a patient in a hospital, is addressed to the Commission, it shall be immediately forwarded, unopened and unaltered to the Commission by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which he is a patient.
(5) A complaint under this Act may be made by any individual or a body of persons whether corporate or unincorporated.
(6) Where a person by whom a complaint might have been made under this Act has died or is for any sufficient reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or other individual suitable to represent him.
Having provided for the above, the Act, in section 26 empowered CHRAJ to regulate its proceedings by way of a constitutional instrument. The section provides as follows:
(1) Subject to the provisions of the Constitution and to any Act of Parliament made under the Constitution, the Commission shall make, by constitutional instrument, regulations regarding the manner and procedure for bringing complaints before it and the investigation of such complaints.
(2) The exercise of the power to make regulations may be signified under the hand of the Commissioner or in his absence, a Deputy Commissioner.
CHRAJ's problem appears compounded when one considers Article 218 of the Constitution. The Article states clearly as follows:
The functions of the Commission shall be defined and prescribed by Act of Parliament and shall include the duty-
(a) to investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties;
(b) to investigate complaints concerning the functioning of the Public Services Commission, the administrative organs of the State, the Armed Forces, the Police Service and the Prisons Service in so far as the complaints relate to the failure to achieve a balanced structuring of those services or equal access by all to the recruitment of those services or fair administration in relation to those services;
(c) to investigate complaints concerning practices and actions by persons, private enterprises and other institutions where those complaints allege violations of fundamental rights and freedoms under this Constitution;
...
(e) to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations.
A close reading of the Article suggests that in all instances CHRAJ’s investigative jurisdiction is only invoked by complaint, except in corruption and misappropriation matters (under Article 218(e)) where CHRAJ can arguably act without a complaint. Indeed, in Article 218(e) matters, CHRAJ can act on mere allegations and suspicion. However, the word “corruption” also appears in respect of a complaint in Article 218(a). It might be argued that that was the result of confusion in the drafting of the Article. I respectfully disagree with that school of thought. My humble view it that that the framers of the Constitution deliberately provided for investigation of corruption or misappropriation matters by either complaint (under Article 218(a)) or on CHRAJ’s own motion (under Article 218(e)).
CHRAJ is given further investigative powers under Chapter 24 of the Constitution. That chapter commences with Article 284, which states as follows:
A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.
Article 286(2) then provides as follows:
Failure to declare or knowingly making false declaration shall be a contravention of this Constitution and shall be dealt with in accordance with article 287 of this Constitution.
Then, in Article 287, which bears the rather notable side note “Complaints of Contravention”, the Constitution says:
(1) An allegation that a public officer has contravened or has not complied with a provision of this Chapter shall be made to the Commissioner for Human Rights and Administrative Justice… who shall, unless the person concerned makes a written admission of the contravention or non-compliance, cause the matter to be investigated.
(2) The Commissioner for Human Rights and Administrative Justice…, may take such action as he considers appropriate in respect of the results of the investigation or the admission.
Article 287 clearly appears to lay down a procedure for the enforcement of Chapter 24 issues as follows:
1. An allegation made to the Commissioner,
2a. Opportunity for the alleged contravener to make a written admission of culpability, and if he fails to do so,
2b. The Commissioner’s investigation.
3 The Commissioner taking action
The first two steps appear to be conditions precedent to the Commissioners’ investigative jurisdiction under Article 287(1). The requirement for there to be “an allegation… made to the Commissioner” appears to me to be mandatory, by the use of the word “shall”. Section 27 of the Interpretation Act provides that “”shall” shall be construed as imperative”. A matter that is imperative is an obligation, and its direct antonym is the word “option.” It means that with respect to Article 287(1), there are no alternatives or choices. There MUST be an allegation made to the Commissioner. I submit that “made to,” means to formulate, compose, put together, present, produce, create, bring about or generate, all to or directed at the Commissioner. These suggest a deliberate process of addressing an allegation to the Commissioner.
Then, by the further use of the word “shall,” there must be an opportunity given to the alleged contravener, after the formal allegation, to make a written admission. The Commissioner may only conduct investigations if the contravener fails to make the written admission. The Commissioner then has the power to exercise the Article 287(2) powers after either the admission or the investigation.
Further, the word “allegation” should be interpreted by a “convenience of reference” to the side note to Article 287, namely “Complaints of contravention.” I concede that section 4 of the Interpretation Act, As amended by section 1 of the Interpretation (Amendment) Act, 1961 (Act 92), says that “notes and references placed at the side of any provision are intended for convenience of reference only and do not form part of the enactment.” But if we consider that marginal note even for “convenience of reference only,” it would suggest that the allegation mentioned in Article 287(1) requires much more than stories in the press. Please note that when Article 218(e) spoke of the Commissioner’s power to “investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials…” it left it bare, without any qualification as to how the allegation is made. However, the use of the word “allegation” in Article 287 is qualified by the words “shall me made to the Commissioner.” Thus, whereas the Commissioner’s investigative powers might extend to bare allegations under Article 218(e), allegations under 287(1) require a formal complaint. In other words, the allegation under Article 287(1) must be framed as a formal complaint “made to the Commissioner.” I doubt if allegations made in the media can rightfully constitute “an allegation… made to the Commissioner.”
The effect of the above Articles is that even in respect of conflict of interest issues involving public officers and the failure of public officers to declare their assets, there must be a COMPLAINT or ALLEGATION made directly to Commissioner himself/herself.
It is arguable that it is pursuant to these powers, particularly the power to make rules that regulate its own procedure under section 26 of the CHRAJ Act, that CHRAJ itself enacted the CHRAJ (Complaints Procedure) Regulations in 1994, and set out an elaborate complaint procedure for its work. CHRAJ is bound by its own rules on procedure.
CHRAJ’s “Octopus Jurisdiction”
Simply, where there are no COMPLAINTS made to CHRAJ, it cannot investigate, except under Article 218(e), i.e. in matters of corruption and misappropriation. Thus whilst there ought to be a formal complaint in respect of non-corruption charges to invoke CHRAJ’s jurisdiction, no complaint will be required on the corruption and misappropriation charges.
What it then means is that in respect of the corruption allegations made against Dr. Anane, CHRAJ did not err as it had the jurisdiction to proceed WITHOUT a complaint under Article 218(e), what we may now call CHRAJ’s “octopus jurisdiction”. In other words, under Article 218(e) CHRAJ has the power to “roam the highways and byways or behave like the proverbial octopus stretching its tentacles to look for complaints to investigate.” However in all the other matters, including abuse of office under Article 218(a), conflict of interest under Article 284 and failure to declare assets or making a false declaration of assets under Article 286(2), CHRAJ can only proceed on the strength of a formally lodged complaint. The effect is that when CHRAJ decided that it could not make any findings against Dr. Anane on the corruption allegations, it should have ended the investigation right there, because it had no jurisdiction to investigate any other charge outside Article 218(e) in the absence of a complaint.
Conclusion
In conclusion, CHRAJ's investigative jurisdiction, in respect of all matters (except corruption and misappropriation of public moneys by officials), is only invoked by a Complaint filed under CHRAJ’s own rules of procedure. If there is no Complaint lodged (which might mean that there is no complainant), CHRAJ cannot choose and pick, and hunt for and peck at stories from the newspapers and elsewhere to investigate; except, of course, where the matters relate to corruption and misappropriation of public money by officials. Further, I note the possible suggestion that the use of the word “corruption” in Article 218(a) and in Article 218(e) might have resulted from some confusion in the drafting of that Article. It is however my respectful view that what the Article actually does is to give CHRAJ the right to investigate corruption and misappropriation of public moneys by officials, whether it is presented via a formal complaint (under Article 218(a)) or based on allegations or suspicion under CHRAJ’s “octopus jurisdiction” (under Article 218(e)). But as things stand now, the procedural rules with respect to complaints cannot be wished away and considered as matters of mere procedure. They are jurisdictional in nature.
Dr. Richard Anane, MP and former Minister of Roads and Highways, took on the Commission on Human Rights and Administrative Justice (CHRAJ) in court and walked out of court a “free” man, with all the adverse findings made against him set aside by the court. He had been accused of corruption, and other charges, including abuse of office. CHRAJ dismissed the corruption charges but went ahead to make adverse findings against him on abuse of office and conflict of interest and even strayed into the area of perjury. Dr. Anane resigned from his ministerial position and took on CHRAJ in court. He won. CHRAJ proceeded to the Supreme Court to challenge the High Court. The rest is recent history.
According to the High Court, the Commission made grievous procedural errors, which necessitated the quashing of its findings and an order expunging those from the Commission’s records. It is my respectful view that regarding corruption and misappropriation investigations, the Constitution permits CHRAJ to virtually roam Ghana’s highways and byways, the newspapers and the airwaves, with very long, constitutionally guaranteed, investigative tentacles with or without either a formal complaint having been filed or a formal allegation having been made to the Commissioner. However, in all other matters, CHRAJ’s investigative jurisdiction is restricted and can only be invoked on the basis of a formal complaint or allegation.
Relevance of Procedure
In the celebrated 1907 English case, Re Coles and Ravenshear Collins MR said as follows:
Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.
Collins MR's reasoning has resonated in Ghana's courts, and has found eloquent expression in Sophia Akuffo JSC's 2003 dictum in Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation as follows:
In its complementary character, civil procedure functions as a vehicle for the actualization of substantive law and this role has been likened to that of “a handmaid rather than a mistress” which must not be applied in such a hard and fast manner as to cause injustice in any particular case. In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all. Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take into account the function of that particular rule, and the objective it is intended to serve.
There are theoretical underpinnings of the rules of procedure, which, although is law, is considered by many as 'adjectival' law, a means to an end. The concept of the rule of law demands respect, not only for the substantive law, but for the procedural law as well. That is why if you have a case against another person, you don’t simply write your plaint on a sheet of paper and walk into a judge's court or chambers to demand justice. You must comply with the procedure that is laid down both for invoking the judge’s jurisdiction and for the orderly conduct of cases. In the very first reported Ghanaian case on judicial review, Ware v. Ofori-Atta, the court struck down some actions of the Nkrumah government on account of its failure to comply with the procedural law.
Therefore, it is only where a strict application of the rules of procedure would lead to injustice, that the law vests the court with the discretion to disregard certain breaches of procedure. However, where the rules of procedure are jurisdictional in themselves, and that is to say that the jurisdiction of the judicial, quasi-judicial or administrative body can only be invoked via a laid down procedure (statutory, in this case), there is no discretion to waive or overlook that procedure.
Judicial Review, Not An Appeal
We must note that the matter before the court was not an appeal. It was an application for judicial review of what CHRAJ did. The court did not therefore go into the merits of the case. The High Court has not pronounced Dr. Anane “guilty” or “not guilty”. What has happened is a review to ascertain whether CHRAJ, in the course of conducting the hearing, complied with the law, and if not, whether the non-compliance was so fatal that the entire hearing and its conclusions have to be quashed by a "writ of certiorari". In other words, what the court did, was not to determine whether or not Dr. Anane was guilty of corruption, abuse of office and/or perjury, but to conduct an examination and inspection of the CHRAJ hearing and conclusions, and to correct errors of law and to review erroneous or unwarranted acts or proceedings, if any. What the court found was that the inferior tribunal (CHRAJ) had abused or exceeded its jurisdiction or proceeded illegally. Under those circumstances, the Court was entitled, in the exercise of its discretion, to issue a writ of certiorari, quashing those proceedings and findings.
CHRAJ’s Investigative Jurisdiction
It would appear that CHRAJ put itself into a fatal procedural quagmire by not paying regard to the relevant, applicable laws relating to its jurisdiction and procedure. Section 12 of the CHRAJ Act appears to lay down a “complaint” process for invoking CHRAJ’s jurisdiction. It provides as follows:
Section 12 - Provisions Relating to Complaints.
(1) A complaint to the Commission shall be made in writing or orally to the national offices of the Commission or to a representative of the Commission in the Regional or District branch.
(2) Where a complaint is made in writing it shall be signed by the complainant or his agent.
(3) Where a complaint is made orally, the person to whom the complaint is made shall reduce the complaint into writing and shall append his signature and the signature or thumbprint of the complainant.
(4) Notwithstanding any law to the contrary, where a letter written by-
(a) a person in custody; or
(b) a patient in a hospital, is addressed to the Commission, it shall be immediately forwarded, unopened and unaltered to the Commission by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which he is a patient.
(5) A complaint under this Act may be made by any individual or a body of persons whether corporate or unincorporated.
(6) Where a person by whom a complaint might have been made under this Act has died or is for any sufficient reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or other individual suitable to represent him.
Having provided for the above, the Act, in section 26 empowered CHRAJ to regulate its proceedings by way of a constitutional instrument. The section provides as follows:
(1) Subject to the provisions of the Constitution and to any Act of Parliament made under the Constitution, the Commission shall make, by constitutional instrument, regulations regarding the manner and procedure for bringing complaints before it and the investigation of such complaints.
(2) The exercise of the power to make regulations may be signified under the hand of the Commissioner or in his absence, a Deputy Commissioner.
CHRAJ's problem appears compounded when one considers Article 218 of the Constitution. The Article states clearly as follows:
The functions of the Commission shall be defined and prescribed by Act of Parliament and shall include the duty-
(a) to investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties;
(b) to investigate complaints concerning the functioning of the Public Services Commission, the administrative organs of the State, the Armed Forces, the Police Service and the Prisons Service in so far as the complaints relate to the failure to achieve a balanced structuring of those services or equal access by all to the recruitment of those services or fair administration in relation to those services;
(c) to investigate complaints concerning practices and actions by persons, private enterprises and other institutions where those complaints allege violations of fundamental rights and freedoms under this Constitution;
...
(e) to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations.
A close reading of the Article suggests that in all instances CHRAJ’s investigative jurisdiction is only invoked by complaint, except in corruption and misappropriation matters (under Article 218(e)) where CHRAJ can arguably act without a complaint. Indeed, in Article 218(e) matters, CHRAJ can act on mere allegations and suspicion. However, the word “corruption” also appears in respect of a complaint in Article 218(a). It might be argued that that was the result of confusion in the drafting of the Article. I respectfully disagree with that school of thought. My humble view it that that the framers of the Constitution deliberately provided for investigation of corruption or misappropriation matters by either complaint (under Article 218(a)) or on CHRAJ’s own motion (under Article 218(e)).
CHRAJ is given further investigative powers under Chapter 24 of the Constitution. That chapter commences with Article 284, which states as follows:
A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.
Article 286(2) then provides as follows:
Failure to declare or knowingly making false declaration shall be a contravention of this Constitution and shall be dealt with in accordance with article 287 of this Constitution.
Then, in Article 287, which bears the rather notable side note “Complaints of Contravention”, the Constitution says:
(1) An allegation that a public officer has contravened or has not complied with a provision of this Chapter shall be made to the Commissioner for Human Rights and Administrative Justice… who shall, unless the person concerned makes a written admission of the contravention or non-compliance, cause the matter to be investigated.
(2) The Commissioner for Human Rights and Administrative Justice…, may take such action as he considers appropriate in respect of the results of the investigation or the admission.
Article 287 clearly appears to lay down a procedure for the enforcement of Chapter 24 issues as follows:
1. An allegation made to the Commissioner,
2a. Opportunity for the alleged contravener to make a written admission of culpability, and if he fails to do so,
2b. The Commissioner’s investigation.
3 The Commissioner taking action
The first two steps appear to be conditions precedent to the Commissioners’ investigative jurisdiction under Article 287(1). The requirement for there to be “an allegation… made to the Commissioner” appears to me to be mandatory, by the use of the word “shall”. Section 27 of the Interpretation Act provides that “”shall” shall be construed as imperative”. A matter that is imperative is an obligation, and its direct antonym is the word “option.” It means that with respect to Article 287(1), there are no alternatives or choices. There MUST be an allegation made to the Commissioner. I submit that “made to,” means to formulate, compose, put together, present, produce, create, bring about or generate, all to or directed at the Commissioner. These suggest a deliberate process of addressing an allegation to the Commissioner.
Then, by the further use of the word “shall,” there must be an opportunity given to the alleged contravener, after the formal allegation, to make a written admission. The Commissioner may only conduct investigations if the contravener fails to make the written admission. The Commissioner then has the power to exercise the Article 287(2) powers after either the admission or the investigation.
Further, the word “allegation” should be interpreted by a “convenience of reference” to the side note to Article 287, namely “Complaints of contravention.” I concede that section 4 of the Interpretation Act, As amended by section 1 of the Interpretation (Amendment) Act, 1961 (Act 92), says that “notes and references placed at the side of any provision are intended for convenience of reference only and do not form part of the enactment.” But if we consider that marginal note even for “convenience of reference only,” it would suggest that the allegation mentioned in Article 287(1) requires much more than stories in the press. Please note that when Article 218(e) spoke of the Commissioner’s power to “investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials…” it left it bare, without any qualification as to how the allegation is made. However, the use of the word “allegation” in Article 287 is qualified by the words “shall me made to the Commissioner.” Thus, whereas the Commissioner’s investigative powers might extend to bare allegations under Article 218(e), allegations under 287(1) require a formal complaint. In other words, the allegation under Article 287(1) must be framed as a formal complaint “made to the Commissioner.” I doubt if allegations made in the media can rightfully constitute “an allegation… made to the Commissioner.”
The effect of the above Articles is that even in respect of conflict of interest issues involving public officers and the failure of public officers to declare their assets, there must be a COMPLAINT or ALLEGATION made directly to Commissioner himself/herself.
It is arguable that it is pursuant to these powers, particularly the power to make rules that regulate its own procedure under section 26 of the CHRAJ Act, that CHRAJ itself enacted the CHRAJ (Complaints Procedure) Regulations in 1994, and set out an elaborate complaint procedure for its work. CHRAJ is bound by its own rules on procedure.
CHRAJ’s “Octopus Jurisdiction”
Simply, where there are no COMPLAINTS made to CHRAJ, it cannot investigate, except under Article 218(e), i.e. in matters of corruption and misappropriation. Thus whilst there ought to be a formal complaint in respect of non-corruption charges to invoke CHRAJ’s jurisdiction, no complaint will be required on the corruption and misappropriation charges.
What it then means is that in respect of the corruption allegations made against Dr. Anane, CHRAJ did not err as it had the jurisdiction to proceed WITHOUT a complaint under Article 218(e), what we may now call CHRAJ’s “octopus jurisdiction”. In other words, under Article 218(e) CHRAJ has the power to “roam the highways and byways or behave like the proverbial octopus stretching its tentacles to look for complaints to investigate.” However in all the other matters, including abuse of office under Article 218(a), conflict of interest under Article 284 and failure to declare assets or making a false declaration of assets under Article 286(2), CHRAJ can only proceed on the strength of a formally lodged complaint. The effect is that when CHRAJ decided that it could not make any findings against Dr. Anane on the corruption allegations, it should have ended the investigation right there, because it had no jurisdiction to investigate any other charge outside Article 218(e) in the absence of a complaint.
Conclusion
In conclusion, CHRAJ's investigative jurisdiction, in respect of all matters (except corruption and misappropriation of public moneys by officials), is only invoked by a Complaint filed under CHRAJ’s own rules of procedure. If there is no Complaint lodged (which might mean that there is no complainant), CHRAJ cannot choose and pick, and hunt for and peck at stories from the newspapers and elsewhere to investigate; except, of course, where the matters relate to corruption and misappropriation of public money by officials. Further, I note the possible suggestion that the use of the word “corruption” in Article 218(a) and in Article 218(e) might have resulted from some confusion in the drafting of that Article. It is however my respectful view that what the Article actually does is to give CHRAJ the right to investigate corruption and misappropriation of public moneys by officials, whether it is presented via a formal complaint (under Article 218(a)) or based on allegations or suspicion under CHRAJ’s “octopus jurisdiction” (under Article 218(e)). But as things stand now, the procedural rules with respect to complaints cannot be wished away and considered as matters of mere procedure. They are jurisdictional in nature.
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