WHAT IS IT ABOUT THE 'RIGHT TO COUNSEL' THAT THE BNI DOES NOT UNDERSTAND?

“The court in the execution of its duty to protect the citizen’s liberty always proceeds on the well-known principle, at any rate as acknowledged in democratic countries, of the primary necessity in the administration of the law to establish a healthy balance between the need to protect the community against crime and the need to protect individual citizens against abuse of executive power. Subject to the limits imposed on this twofold protection by the establishment and maintenance of the requisite balance, the scales are to be held evenly, at any rate in normal times, between the community, that is the State and the individual and there can be no question of ‘leaning over backward,’ so to speak, to favour the State at the expense of the citizen or to favour the citizen at the expense of the community. And the courts’ vigilance in protecting the citizen against any encroachments on his liberty by the executive becomes meaningful and real only when pursued on the basis of this principle.” Chief Justice Akufo-Addo, Ex Parte Braimah.

On 18th August 2009, the Human Rights Division of the High Court, presided over by Justice U. Paul Dery, in the case of Crabbe v. Attorney-General, delivered a basic lesson in decency, decorum and comportment to Ghana’s Bureau of National Investigations (“BNI”), that it is unconstitutional to question any person in the absence of that person’s lawyer, whether that person is formally under arrest or has been invited to a meeting or even to a “friendly conversation.”

The ‘right to counsel’, which is what the court upheld in the Crabbe case, is the fundamental and inalienable right of every person to have access to and the assistance of a lawyer of his choice at all times. This comes into particularly sharp focus when that person comes into contact with the law, so that once legal proceedings have commenced with respect to or against a person under circumstances where his liberty is threatened, that person is entitled to have access to and the assistance of a lawyer of his choice.

The decision in the Crabbe case came in the wake of two very interesting news stories, the import of which might have been lost on many. First, in an interview with the Daily Dispatch newspaper (reproduced at myjoyonline.com on 10th August 2009), President John Mills in answering a question about the recent performance of the BNI, is reported to have said this:

“I think they have done very well. We have always insisted on the institution acting within the law. I have also said publicly that so long as they operate within the law, they will have my full support. So far, I have no cause for regret. I think they are doing very well and they should be encouraged to do so.” [Emphasis added.]

By this interview, conducted at a time when the BNI was routinely refusing to recognize the citizen’s right to counsel, the President was emphatic that he had “no cause for regret” and that the BNI was “doing very well and… should be encouraged to do so.” Clearly, the President did not think that the BNI was doing anything wrong or was not operating within the law in denying the right of access to and assistance of counsel to persons.

Second, in a speech delivered at the 14th Awards Night of the Ghana Journalists Association on 15th August 2009 (published by myjoyonline.com on 16th August 2009), Vice President John Mahama said:

“… I wish to call on the security agencies in their investigations into any allegations of corruption or abuse of office by public office holders to exercise respect for the rights of the individuals they are investigating and carry out their work within the strict parameters of the constitution and the laws of Ghana.”

The obvious questions that beg for answers are: if the President was right, and that security agencies (including the BNI) were operating within the law and “doing very well”, what was the basis of the Vice-President’s appeal to or admonishment of the same “security agencies” to respect the rights of individuals under investigation? Does the Vice-President know something that the President does not know? Is it the case that the Vice-President was merely shooting the breeze when he gave that speech? Do the above-cited news reports suggest a public disagreement between the President and Vice-President on how security agencies, especially the BNI, are going about their work? As we ponder over these questions, the judgment of the court in the Crabbe case assumes particular significance as it resolves this matter in favour of the Vice President. But I digress.

Absent any face-saving-but-bound-to-fail appeal, this aversion that the BNI has for lawyers has been dealt a telling blow by our courts. But I would want to encourage the BNI to file an appeal so that three more senior judges of the Court of Appeal will emphasise what Justice Paul Dery has said. And then I would invite the BNI to appeal to the Supreme Court, so that five even more senior judges will rub it in some more.

But the purpose of this writing is not just to bask in the joy of this emphatic and resounding victory for human rights in Ghana. I write to trace the judicial and legislative history of the right to counsel, leading up to Justice Dery’s judgment, and to point out that this judgment cements a long-standing position that the citizen’s right to counsel is a fundamental and inalienable rule of law, and that although attempts have been made in Ghana to denigrate or otherwise do away with this right, it has stood the test of time and survived those who dearly wished for its death.

Under the First Three Post-Independence Constitutions
The 1957 Independence Constitution and 1960 First Republican Constitution did not contain any specific provisions on the right to counsel. As the Supreme Court infamously held in Re Akoto, even a declaration of fundamental rights and freedoms required by article 13 of the First Republican Constitution to be made by Ghana’s first President upon assumption of office, was nothing more than a declaration of intent, similar to the coronation oath of the Queen of England; it therefore did not constitute an enforceable Bill of Rights. The court was also of the view that article 13 was unenforceable because the use of the word “should” instead of “shall” did not impose legally enforceable rights, but only created a moral obligation.

I fully endorse the criticism of the Re Akoto decision by Professor Emeritus S. O. Gyandoh in his article titled “Principles of Judicial Interpretation of the Republican Constitution of Ghana,” as “mechanistic” and a missed “golden opportunity”.

As history and the sands of time turned, Ghana got that “golden opportunity” when the 1969 Second Republican Constitution came into force with an elaborate bill of rights. However, what is of much significance to current developments in Ghana is article 15(2) of that Constitution, which provided as follows:

“Any person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to consult Counsel of his own choice.” [Emphasis added.]

This provision is significant because it was reproduced in the Third Republican Constitution as article 21(2) and has been repeated in the Fourth Republican Constitution as article 14(2). It is important to point out that this formulation of the constitutional provision assumes the existence of the right to counsel as a fundamental human right. What the provision does is to require that at the point of arrest, restriction or detention, the citizen should be informed of this right.

It is interesting to note that the original formulation of this article by the 1968 Akufo-Addo Constitutional Committee did not include the words “restricted” and “of his right to Counsel of his own choice”, although clause 22(2)(d) of the draft constitution had provided that a person charged with an offence should be permitted to defend himself in court “by a legal representative of his own choice.” It appears that it was the 1969 Consultative Assembly that which inserted the word “restricted” and the right to counsel, which finally appeared in article 15(2).

I further note that article 15(2) did not reserve the right to counsel to only persons who have been arrested. The right also extended to persons who were restricted or detained. I do not think that the framers of the Second Republican Constitution were either being unnecessarily verbose, or engaging in an exercise to show off their knowledge of synonyms, when they specifically provided for the right to counsel to be respected when a person is “arrested, restricted or detained.” Arrest connotes being taken into custody, or taken in for questioning. Section 3 of the Criminal and Other Offences (Procedure) Act provides that an arrest is made where the person to be arrested voluntarily submits to custody. If that does not happen, then the person making the arrest is required to “actually touch or confine the body of the person to be arrested.” As the learned jurist and writer A. N. E. Amissah states in his book entitled “Criminal Procedure in Ghana”, an arrest is “any form of deprivation of personal liberty.”

The framers of the Constitution wanted the right to counsel to be respected, not only where there has been a formal arrest, but upon every other restriction or detention. Restriction refers to any form of limitation, constraint, restraint or control being exercised over a person. Detention means to be taken into custody, incarcerated or locked up. These words were deliberately used so as to cover every conceivable situation where any form of restraint, however slight, is exercised over any person by any authority.

Thus if a person appears before any investigative authority such as the BNI, what triggers the right to counsel is whether that person can walk out of the offices, unhindered, at any time. If the person can do so without being restrained, then that person has not been “arrested, restricted or detained” and so issues concerning his/her right to counsel may not arise, particularly where the person voluntarily gives a statement to that authority. However, if, as we have seen from BNI’s unacceptable modus operandi, a mere refusal to answer questions leads to the person being formally restrained, then that person has been under arrest, restriction or detention all along, and his right to counsel would clearly have been violated during that period. Further, and as the court has held in the Crabbe case, once the BNI takes away your phones and moves you from office to office, you surely are under a restriction and the right to counsel immediately arises. This is reinforced by section 9(2) of the Criminal and Other Offences (Procedure) Act, which demands that “a person arrested shall, while in custody, be given reasonable facilities for obtaining legal advice.”

The Court of Appeal had the first opportunity to interpret and apply article 15(2) of the Second Republican Constitution in the case of Okorie alias Ozuzu v. The Republic, where a police officer who was investigating an alleged crime of murder, took statements from the accused, but failed to inform the latter of his right to counsel as required by article 15(2). The accused person confessed to the crime in those statements. He was convicted and sentenced to death. On appeal, his lawyers raised the issue that the statements had been taken in violation of the constitutional right to counsel and therefore should not have been admitted in evidence.

In the unanimous decision of the court that was read by Chief Justice Azu Crabbe, the court stated that on account of there having been no provisions on the right to counsel in the Independence and First Republican Constitutions, “there [was] complete lack of authority of any Ghanaian case law which should guide this court in solving the questions which face it.” His Lordship nevertheless said that because “the provisions of article 15(2) provide guarantees similar to those found in the Sixth Amendment to the United States Constitution” he was justified to “look for assistance from cases decided in the American jurisdiction on the Sixth Amendment.”

The relevant provision of the Sixth Amendment to the US Constitution provides as follows:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” [Emphasis added.]

The Court of Appeal reviewed a number of American cases on this provision and English cases on the matter and concluded that the right to counsel was “an extension of the common law principle relating to the liberty of the individual in a democratic society.” Thus, what article 15(2) did was to superimpose the “safeguards provided by the common law for the protection of the individual…, [over] the further safeguard that the person “arrested, restricted or detained” should be informed immediately of “his right to consult Counsel of his own choice.””

The court stated further as follows:

“The clause in the 1969 Ghana Constitution which guarantees the right of a person under arrest or detention to consult counsel appears to have been deliberately inserted by the Constitution-makers, having regard to the wanton suppression of personal liberty during the First Republic. The object of the whole provision of article 15(2), it seems to this court, is, to enable a person, who thinks that he is unlawfully detained or restricted, to apply, or to instruct counsel to apply on his behalf, to the High Court for an order of habeas corpus to secure his release… It seems to this court that the guarantee of the right to consult counsel is based on the Sixth Amendment to the Constitution of the United States of America, and in our opinion the interpretation of the second limb of article 15(2) should, therefore, be made consistent with the decisions of the Supreme Court of the United States on the Sixth Amendment, which, though not binding upon this court, are no doubt of persuasive authority in this country. So interpreted, it will mean that a departure from the procedures required by article 15(2) would render inadmissible at the resulting trial any confessional statement obtained from a suspect.”

The court also firmly and emphatically rejected arguments by the State that the accused persons waived their right to counsel by not objecting to making the statements, in the following words:

“An accused person cannot be held to have easily acquiesced in the loss of his fundamental rights, and the prosecution must prove that he knowingly waived those rights. There is no proof of any conscious waiver in this case, but counsel for the Republic…, has contended that failure to inform the second appellant of his right did not occasion a miscarriage of justice… [It] is irrelevant that an infringement of a constitutional right has not occasioned a miscarriage of justice. Any breach of the provisions of the Constitution carries with it not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say, the breaking of the fundamental law of the land…. The statements… were obtained in violation of the second appellant’s constitutional rights, and consequently, we hold that they were inadmissible in evidence at the trial of the second appellant.”

I must point out that although the court found that the statements obtained in violation of the right to counsel were inadmissible, it found that there was other evidence that was properly before the court, and which was sufficient to support the conviction. Thus the appeal failed. But the right to counsel was upheld. This means that in the absence of the other evidence, the convicted murderers would have walked free.

Under NRC/SMC
The “small amenities” coup of 13th January 1972 led to the suspension of the Second Republican Constitution by the National Redemption Council (Establishment) Proclamation, 1972. Section 3(2) of that Proclamation nevertheless provided that “enactments” and “rules of law” in existence immediately before 13th January 1972 were to “continue in force.”

The question then was whether the right to counsel was a “rule of law” that was to “continue in force” notwithstanding the suspension of the Second Republican Constitution. This question was answered with a resounding “yes” by Justice Taylor in the case of Republic v. Akosah, where the key issue was whether incriminating statements made by an accused person in the absence of his lawyers were admissible in evidence. The lawyer for the accused raised this objection on the basis of article 15(2) of the suspended Second Republican Constitution and the Okorie case. The state attorney argued that that Constitution and its provisions on fundamental human rights had been suspended and could therefore not apply to the matter before the court.

In an uncharacteristically short ruling, Justice Taylor described the argument that the rights formulated as rules of law in the Constitution have been abrogated by the Proclamation as “misconceived” because “article 15(2) is clearly a rule of law.” He said that in the Okorie case, Chief Justice Azu Crabbe “put the matter in such clear language as to dispel in my view any argument that article 15(2) is not a rule of law.” In effect the right to counsel was saved and not abrogated in spite of the suspension of the operation of the Second Republican Constitution. He therefore held that the statements were inadmissible and directed the jury to return a verdict of ‘not guilty.’ He said:

“… there is much to be said against a system that excludes a statement voluntarily made merely because the accused was not informed of his right to consult counsel of his own choice. …one important consideration… which commends itself to me, is that if the law enforcement officers of the State are permitted to depend for convictions on confessions instead of on an independent source pointing to guilt, the administration of justice will be discredited and the law enforcement officers will be encouraged to use brute force to obtain confessions. The quality of the material supporting convictions in an adversary system of justice will suffer.”

This decision of Justice Taylor, delivered on 6th November 1975, clearly did not go down well with the government of the day. Indeed as at that date, there was another matter (Marhaba v. The Republic) pending before Justice Taylor, and counsel for the accused person had raised an objection based on an alleged violation of the right to counsel. The matter had been adjourned for the state attorney to respond to the arguments. The government panicked. Before the adjourned date, the Supreme Military Council passed the Criminal Procedure (Amendment) Decree, 1975 (SMCD 3), to specifically make admissible, statements that are taken from accused persons in denial of their right to counsel. SMCD 3 provided specifically as follows:

“(1) Notwithstanding any enactment to the contrary, in any proceedings commenced after the first day of August, 1969, no statement shall be inadmissible by reason only of the fact that the person making such a statement had not been informed of his right to consult counsel of his own choice prior to the making of such a statement.(2) For the avoidance of doubt, the provisions of Article 15(2) of the suspended Constitution of 1969 shall not render any statement inadmissible as evidence.”

It is apparent that SMCD 3 sought to sound a death knell to the application of right to counsel to render inadmissible, statements obtained from citizens in violation of that right. But that statute is significant, at least, in one material respect: that it required an express legislation to make admissible, evidence obtained in violation of the right to counsel.

In the Marhaba case, Justice Taylor lamented that SMCD 3 “was passed nullifying in effect the legal implication of my decision” in the Akosah case, calling it “an unfortunate provision.” He added that in seeking to deprive article 15(2) of its effective sanction, the legal draftsman lost sight of the fact that the provision was not new to Ghana’s statute law, and that section 9 of the Criminal Procedure Code (now christened the Criminal and Other Offences (Procedure) Act) provided that a person who had been arrested should among others “be given reasonable facilities for obtaining legal advice.” He added:

“It seems therefore, that it is this provision which was raised to a constitutional level in 1969 and thus made a corner-stone of ordered liberty. Of course the legislature has spoken and the duty of the courts is to give effect to the legislative fiat but I must remark that it is infinitely better and a good measure of an advanced and civilised criminal justice system where the police endeavour to carry out investigations in order to obtain independent material pointing to guilt instead of their being encouraged to browbeat the citizen to make admissions to be used subsequently in convicting the citizen. Ours is an adversary system of justice, with the police having huge powers and extraordinary advantage over the citizen. The whole machinery of the coercive apparatus of the State is at their disposal. If these police powers are not to be subject to some form of control by the courts a really terrible state of affairs difficult to envisage or describe may ultimately emerge.”

One can literally hear the sadness and grief that Justice Taylor was expressing, as he continued as follows:

“S.M.C.D. 3 is now law. It is on the statute book and force must be given to it but I think the law officers of this Republic must try to persuade the police that the law exists to protect everyone, and that the courts of justice exist for just that purpose… In 100 years of trying to fulfil the law since our courts were established in 1876, the judges thereof have had very intimate knowledge of the problem and difficulties of the police and all that the courts do is to balance these difficulties with the needs for legality. For these reasons we have without question by convention adopted the Judges’ Rules which were formulated in England in 1912 although we have no statutory basis for it and we have so adopted them as guide-lines to help us to help the police because of the difficulties they face in their onerous work of maintaining order. I nearly said law and order!”

The panic and ‘politics’ behind the passage of SMCD 3 was not lost on Justice Taylor. He took the Chief State Attorney to the cleaners with these words:

“My expression of regret is without disrespect to the legislature; it is animated by the fact that S.M.C.D. 3 was passed when the appellants’ counsel’s argument on the exhibits had been concluded but the Republic had not yet answered the submissions made in the said arguments. The unfortunate impression thus created that the Republic’s representative instead of answering the submissions may have plied the corridors of power and thus sought help from another forum is the consideration that compels me to express regret. I find it difficult with my professional training to resist the feeling, perhaps emotional, that legal arguments advanced in the course of judicial proceedings in the courts ought not to be stifled by legislative interference as that may undermine the fair and proper administration of justice. I think those who practice law and advise the citizen in this Republic should be encouraged by all the estates of the realm: the legislature, the executive and the judiciary to cherish their just expectations that legal advice given to the public and legal proceedings and processes commenced on the basis of the then subsisting law will not be stultified post facto. If this is not done there will be no certainty in the law and the whole machinery of the law will be brought into disrepute. The law officers of the state have a responsibility by their advice to avoid this potential source of chaos and danger in our legal order.”

Subsequently, in his 1979 decision in Tinieye v. The Republic, Justice Taylor held, rather wryly, that although the accused persons were not informed of their right to counsel, “the provisions of SMCD 3 are so clear that it is neither possible nor permissible by any process of interpretation to hold that the statements which [they] made could be legitimately excluded as inadmissible evidence for failure to inform them of their right to consult counsel.”

It is important to point out that SMCD 3 did not abrogate the right to counsel, because section 9(2) of the Criminal and Other Offences (Procedure) Act, remained in force and by its terms, arresting authorities were mandatorily required to afford persons arrested reasonable facilities to obtain legal advice. What SMCD 3 succeeded in doing, was to make admissible, evidence obtained in breach of this right.

Under the 1979 Constitution
Justice Taylor’s decision in the Tinieye case was delivered on 15th August 1979, a little more than a month before the 1979 Third Republican Constitution came into effect. As pointed out above, article 21(2) of that Constitution reproduced the right to counsel provision from the Second Republican Constitution. Indeed, the 1978 Aboagye Mensah Constitutional Committee stated at paragraph 86 that:

“The provisions of the 1969 Constitution on the liberty of the individual, and the very eloquently and powerfully argued rationale provided for these provisions by the 1968 Constitutional Commission has received acclaim not only in this country but by learned and experience luminaries from other parts of the world. Nothing that has happened since those provisions were recommended and enacted has in any way affected the validity of their rationale nor their essential necessity and adequacy in the continuing defence of the ramparts of freedom of the individual from arbitrary or tyrannical governmental authority.”

The question to ask then is, what happened to SMCD 3 when article 21(2) of the Third Republican Constitution came into effect? Article 1(2) of that Constitution provided as follows:

“This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.”

Commenting on this provision, Justice Taylor said, in Sam v. Comptroller of Customs & Excise that it “at once cast into a crucible… all the laws of the land and subjected them to the test of constitutional propriety. All those that failed the test became void.” And according to Justice Sowah in Tufuor v. Attorney-General, this provision “is the constitutional criterion by which all acts can be tested and their validity or otherwise established.”

Article 4(6) of the Third Republican Constitution also provided that all existing law “shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.” It is therefore obvious that any portion of SMCD 3 that was not in conformity with the Constitution was no longer good law.

The learned writer, Maxwell in his book entitled “Interpretation of Statutes” has said that “it is impossible to construe absolute contradictions. Consequently, if the provisions of a later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later.” There are many decisions on the implied repeal of statutes in Ghana. My personal preference, in terms of clear and succinct language, is Ghana Railway & Ports Authority v. Okakbu, where the court said that “it is an elementary rule that an earlier statute must give way to a later, if the provisions of the later enactment are so inconsistent with, or repugnant to those of the earlier that the two cannot be reconciled; and one Act may repeal another expressly or by implication. It is enough if there are words which by necessary implication repeal it.”

Clearly, the entire provisions contained in SMCD 3 were inconsistent with and repugnant to the provisions of article 21(2) of the Third Republican Constitution. Although no court got the opportunity at the time to formally declare it so, SMCD 3 was rendered “void and of no effect” upon the coming into force of that constitution. SMCD 3 was passed, specifically to render as admissible, evidence taken in violation of the right to counsel at a time with the Second Republican Constitution was under ‘suspension.’ With the coming into force of the Third Republican Constitution, SMCD 3 was rendered inoperative.

However, one would have expected that the government of the Peoples National Party (“PNP”) would, even if just out of the abundance of caution, have specifically passed a Statute Revision Act to remove SMCD 3 and thereby rid Ghana’s statute books of that statute. The PNP did not find this necessary and did nothing about it until the party was removed from power.

Under the PNDC
When the PNP was overthrown, the Third Republican Constitution was suspended. The PNDC passed the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42), section 1(1)(b) of which provided as follows:

“All organs of Government, persons and authorities exercising legislative, executive, administrative or judicial power shall be guided in the performance of their functions by the following Directive Principles of State Policy which provide the basic framework for the exercise of all power of Government… respect for fundamental human rights and for the dignity of the human person are to be cultivated among all sections of the society and established as part of the basic framework of social justice.”

What then was the legal status of SMCD 3? Could it be said to have been revived and brought back into force on account of the suspension of the Third Republican Constitution?

To answer that question, I will borrow from Justice Archer’s poetic illustration of his favourite mythical sacred firebird, the phoenix. In Ampadu v. Dadzie, he said that “what is null and void cannot be resurrected or revived. It is unlike phoenix which can burn itself in a funeral pyre and then rise from its ashes with renewed strength and live on.” In Fattal v. Minister of Internal Affairs, he said that once a statute has been rendered inoperative, “unlike the phoenix, it will never rise from its ashes and operate again.” He added that when a statute becomes thus “extinct and obsolescent… its repeal is not necessary. It remains on the statute books not as operative law but as legal history evidencing the despotic handiwork of a military regime.” Its repeal, he said, “will only cleanse the statutory books of a piece of nauseous debris.”

In Amoah v. The Republic, Justice Kpegah, in deciding whether to hear an appeal that was filed out of time, minced no words in holding that section 1(1)(b) of PNDCL 42 required respect for the right to counsel. After quoting the said section, his Lordship had this to say:

“The law inexplicably makes no attempt to define what it considers as fundamental human rights. One thing I am certain of, considering our constitutional history and development, is that the right to counsel of one’s choice cannot be said to be outside the scope of what can be regarded as “fundamental human right” worthy of recognition and enforcement by the courts. This is why I view with concern the indecent haste with which the appellant was put before court after having been kept in police cells for several days without access to counsel. I am of the opinion that the appellant’s fundamental right to counsel of his choice has been violated in this case and he cannot be said to have been offered the opportunity to adequately prepare his defence. This is a case in which expert legal advice would have been of tremendous assistance to the appellant. To exacerbate his difficulties or predicament, the appellant was immediately taken to a prison in another region where his handicap in securing the services of counsel could only be enhanced. The cumulative effect or combination of certain factors in seriously inhibiting the appellant’s desire and capability of immediately pursuing an appeal cannot be ignored.”

At the time Justice Kpegah delivered this decision, SMCD 3 was on the statute books. It does not appear that Justice Kpegah’s attention was drawn to this. My view, however is that his Lordship was entitled to ignore SMDC 3 because it was no longer good law, notwithstanding the suspension of the Third Republican Constitution.

It is therefore interesting to discover that the ‘dead’ SMCD 3 ‘did a phoenix’ and it found its way back to court in the 1992 decision of the Court of Appeal in Nyarko v. The Republic. In that case an accused person who was not informed of his right to counsel before an alleged confession, contended that his constitutional right was violated, which therefore rendered his confession inadmissible. The court however held that the decisions in the Okorie and Akosah cases were “no longer good law” on account of SMCD 3, saying:

“…this clear provision of the law makes it impossible for any statement obtained in flagrant disregard of the provision of the constitution to be described as inadmissible.”

The court however found that under the Evidence Decree (now the “Evidence Act”) the confession statement was inadmissible because it was not made in the presence of an independent witness. The Court of Appeal in the Nyarko case did not consider the legal status of SMCD 3, thirteen years after it was effectively declared “void and of no effect” and thereby impliedly repealed by the Third Republican Constitution. And, by virtue of section 8 of the Interpretation Act, the suspension or repeal of that Constitution could not have revived SMCD 3. The only reason that the court considered and applied SMCD 3 was because it had somehow managed to remain in the statute books as a result of tardy legislative housekeeping. It has remained unnoticed for the most part, and no concrete steps had been taken to expressly remove this “nauseous debris” from our laws. But as lawyers will say, this decision was given per incuriam, i.e. given in inadvertence of the fact that it was rather SMCD 3 that was no longer law.

Under the Fourth Republican Constitution
The Fourth Republican Constitution came into effect on 7th January 1993, and its article 14(2) contains a near-verbatim reproduction of article 15(2) of the Second Republican Constitution and article 21(2) of the Third Republican Constitution. Article 14(2) provides as follows:

“A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.”

It appears to me that the ‘back and forth’ over the right to counsel was on the mind of the 1992 Asante Constitutional Committee when it said that:

“In an attempt to dispel the possible impression that a right not expressly guaranteed may enjoy less protection than those specifically set out, the Committee proposed that the provisions of Article 21 Clause 2 of the 1979 Constitution be retained.”

With the coming into force of the Fourth Republican Constitution, SMCD 3, even if it still had somehow retained legal force (which is denied) has once again been rendered null and of no effect. Yet SMCD 3 remains on our statute books. I respectfully urge the Statute Law Review Commissioner and Parliament to take immediate steps to remove this “nauseous debris” of a statute once and for all.

I however cannot see any court enforcing SMCD 3 under this constitutional dispensation, and it is not surprising that BNI’s lawyers did not even refer to this statute in their arguments in the Crabbe case.

My Concluding Comments
The BNI does not appear to appreciate that the right to counsel is a fundamental rule of law that has roots in common law and our statutes, and can only be taken away by express legislation. In the ‘dark’ past, SMCD 3 was that legislation. That is not the case any more. I therefore wonder why the BNI would want such a matter to end up in court for a pretty obvious judgment to be delivered against it. The BNI’s aversion to legal counsel for people it arrests or ‘invites’ made the institution risk a public slap on the wrist by the court, rather than uphold a basic principle of human rights.

Their position is even more disturbing because the judgments in the Okorie and Akosah cases and the provision in section 9(2) of the Criminal and Other Offences (Procedure) Act, have been reinforced as good law by article 14(2). Thus, any evidence that the BNI might obtain (and this applies even to confessions) in breach of the right to counsel stands the risk of being thrown out by the court as inadmissible evidence. Further, the denial or refusal of the right to counsel renders any arrest, restriction or detention of such a person unlawful and an actionable infringement of that person’s rights; and as article 14(5) says, such persons are entitled to compensation from the State!

In other words, this stance of the BNI does not only render any valuable evidence they might have gathered potentially inadmissible in court (and therefore useless for any purpose), it makes the State liable to compensate (i.e. pay money to) such persons. So that we do not only risk having criminals acquitted and discharged on account of critical evidence being rendered inadmissible; such persons can sue the state for compensation.

Let the BNI be reminded that an arrest per se is not an end in itself and is certainly no punishment. Indeed whatever the BNI thinks of itself, it can only arrest persons under one of the seven circumstances that the Constitution has set out in article 14(1), namely (i) to execute a sentence or court order against a convict, (iii) to execute a contempt order, (iii) to bring a person before court in execution of a court order, (iv) for the treatment or care of a sick person, drug/alcohol addict or vagrant, (v) for the education or welfare of a minor, (vi) to prevent the unlawful entry of a person into or effect the expulsion of a person from Ghana, or (vii) upon reasonable suspicion that the person has committed or is about to commit an offence.

The BNI is clearly suffering from the dilemma being an agency that was established and in place before a law was passed to recognise its existence and regulate its operations. It appears that by the time the relevant law, the Security and National Intelligence Agencies Act was passed in 1996, the BNI had acquired certain habits and had become addicted to certain practices, which it is finding very hard to turn away from. But this has got to end. We all have a role to play in weaning the BNI off its unacceptable habits and practices. And this will start by compelling the BNI (through court actions and public advocacy, to recognise that its continued existence under the 1996 Act was essentially as the nation’s “Internal Intelligence Agency,” and that the power of its officials even to make arrests pursuant to its functions under the Act, was specifically legislated under section 40 of the Act to be subject to article 14(2) in the following terms:

“Subject to the Constitution, an employee of any of the Internal Intelligence Agencies shall in the performance of his duties under this Act have the same rights and powers as are conferred by law on a police officer in the performance of his duties and shall have the same protection.”

The BNI needs no reminder that it is not the court. It cannot send people to jail on its own accord. If it arrests a person, it must produce that person in court within 48 hours. Any evidence that the BNI gathers will be tested in court, and will only stand to convict a person if that evidence proves the commission of an offence beyond reasonable doubt. This is a heavy burden because the consequences on the reputation and life of a person alleged to have committed a crime are very great. As the work of the BNI will ultimately be tested in court, I would recommend to the BNI, the wise and enduring words of Chief Justice Akufo-Addo that the courts will always strive to maintain a balance between protecting the community against crime and protecting the citizen from abuse of executive power. The courts have clearly shown that they are prepared to hold these scales evenly and would not lean over backwards to favour the State or the community at the expense of the citizen; and vice versa. Let the BNI do the work that it was established to do. But the BNI must learn and obey the rudiments and fundamental principles of constitutional democracy, however belatedly, and begin to recast itself in the mould of an effective and efficient, yet law-abiding, intelligence body. Let the enforcer of the law respect and obey the law it seeks to enforce.

Yours in the service of God and Country,
Kojo Anan
http://kojoanan.blogspot.com
http://www.i-can-ghana.com

PLAYING GUTTER-TO-GUTTER WITH SECONDARY EDUCATION?

“He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.” John Stuart Mill, On Liberty


Introduction to Gutter Football
Young and aspiring footballers in Ghana often play an interesting version of the game called “Gutter-to-Gutter”. The ‘goal posts’ are literally two gutters (often wet, slimy, smelly and filthy) on either side of a road, potholed or otherwise. The aim is to play the ball into the gutter goals. Once in a while when a car approaches, the game gets suspended only to resume when the car has driven past, sometimes leaving a mixture of dust and smoke behind it. The most important item in this game is the ball, the “sock ball”. To the unlearned and untutored in matters concerning gutter-to-gutter football, the sock ball is made from a disused sock. It is filled with pieces of cloth and plastic, carefully and tightly rolled into a globe. As you might have guessed, in the course of the game, and depending on how many times the socks ball enters the gutter goal, it becomes wet, dirty, smelly and soggy. But the game continues nonetheless. At the end of the game, usually at nightfall, the players go to take a shower, argue the score (who scored most), have dinner and retire to bed. Everyone forgets about the sock ball that they have been kicking. It is left in the gutter and to the vagaries of the night time gutter tide or the night weather, or it is left on the road for passing cars to flatten out. Tomorrow, there will be another game, and a new sock ball for that game. Sock balls are a dime a dozen. No one really cares about what happened to yesterday’s sock ball. Discarded and unwanted.

This imagery is strong in my mind as I consider the way our politicians are treating the Ghanaian school pupil or student, just as the disused sock balls in a never-ending gutter-to-gutter game. Politicians are actually kicking our pupils and students around as they tinker with our education system on the basis of empty political grandstanding and party manifestos. That is truly sad. We the people of this nation should not allow this to happen.

The purpose of this piece is to call for an end to this silly game, particularly in the face of the vow by the NDC government to revert to the previous 3-year system, based in part on the fact that it had pledged to do this in its manifesto. This piece is also to question the rationale behind the 4-year system, and to advocate new thinking that is based on the peculiar needs of each child.

2008 NDC Manifesto: Card Stacking on Professor Anamuah-Mensah
The 2008 manifesto of the ruling NDC provides as follows:

Before the NDC assumed office in 1992 there was a total of 210 public sector Senior Secondary Schools. Under the NDC administration, public sector Senior Secondary Schools rose to an unprecedented high of 474 in 2001, an impressive increase and all within a period of 8 years. The NPP has been able to establish only nineteen (19) Senior Secondary Schools between 2001 and 2008. This shortfall is creating intense pressure on existing SSS facilities.

An NDC government shall address the deficiencies and weaknesses in a bold and comprehensive manner. In this regard an NDC government shall:

Revert the current SHS duration of four (4) years to three (3) years consistent with the recommendation of the Report of the Anamuah-Mensah Committee...

The first thing you might ask yourself when you read the above quote is: “where is the link between the number of SSS’ built by the parties and reverting to a 3-year programme?” Further, you might note that the NDC pledge was to revert the duration to three years was expressed to be “consistent” with recommendations of the Anamuah-Mensah Committee. But what did that committee say and under what circumstances did the committee make the alleged recommendation?

A Daily Graphic news item which was also carried by Myjoyonline.com on 27th May 2009, said as follows:

“Prof Anamuah-Mensah said the com­mittee, after looking at the two options of a three-year and a four-year duration for the SHS, settled on the three-year duration, with a caveat that infrastructure and resources would be devoted to the educa­tional sector, particularly from the kinder­garten, the primary to the junior high school (JHS) levels.

These levels formed the foundation for the secondary and tertiary levels of educa­tion and the committee thought that a "good foundation would ensure the sterling per­formance of students at those higher levels of education," he noted.

He said for him when the government accepted the report but made the duration four years, he thought that was because the infrastructural development and resources needed for the-effective implementation of the three-year programme were not avail­able.

However, he said currently figures showed that a criterion reference test, that is, the test to rate the literacy and numeracy of pupils in primary school, showed that only 10 per cent of them gained mastery over those skills.

Moreover, a large number of people who should have been absorbed into primary schools could not, while a large majority of pupils completed the basic level of edu­cation with no requisite skills for higher education or professional training, he noted.

Prof Anamuah-Mensah said education was the most important structure of any governance system, the basis for all other structures and so if it was toyed with, the results would affect the whole structure of the country.”

This is very interesting. The Anamuah-Mensah Committee did not recommend the blanket, wholesale, unmitigated and unqualified reversal to 3 years, as the NDC manifesto claims. In the words of the learned professor, his committee’s recommendation that the nation maintains a 3-year SHS system was based on a “caveat” (i.e. a warning, caution, qualification or stipulation) that adequate infrastructure and resources would be devoted to kindergarten, primary and JHS levels, which would provide sufficient grounding for a 3-year programme at the SHS. In other words, unless the conditions precedent existed, there was no justification for the 3-year program. The learned professor then said that he believes that the NPP opted for the 4-year programme because the infrastructure and resources required to justify the 3-year programme did not exist. Then he makes reference to a ‘criterion reference test’ that showed that only 10% of pupils gained mastery over literacy and numeracy skills in primary schools. That showed that the conditions precedent for the 3-year programme were non-existent.

What flows from the above is that anyone who is arguing for ‘reverting’ to the 3-year programme should first be required to satisfy Ghanaians that the conditions laid down by the Anamuah-Mensah Committee as prerequisites for the 3-year programme, exist. If those conditions do not exist, which I think is obvious, then we have no basis to revert to the 3-year programme. Clearly the provision in the NDC manifesto was card-stacking, i.e. presenting just part of the story; we probably should not trust or believe in party manifestoes. But as this interview with Professor Anamuah-Mensah shows, he himself did not believe (as at May 2009) that we were ready for the three-year programme. Indeed from his analysis, we probably can conclude that only 10% of pupils are ready for the 3-year programme.

Legal Issue
Be that as it may, the current cabinet decision to revert to the 3-year programme can at best be described as a recommendation or proposal. It is not a fait accompli or done deal. This is because the current 4-year system is backed by law. Section 1(3) of the Education Act, 2008 (Act 778), provides as follows:

"The second cycle level of education shall consist of four years of senior high school education, vocational, business and agricultural education, or appropriate apprenticeship training of not less than one year." [Emphasis added]

The current Minister for Education has admitted, and rightly in my view, that it is only an amendment of this provision that will provide a legal basis for the reverting to the 3-year programme. This means that an amendment bill will have to be drawn up by the Attorney-General’s Department, and submitted to cabinet. Then the draft bill has to be sent to Parliament for its consideration. As we all know, Parliament is currently in recess and will only resume in October 2009. The effect is that unless Parliament is recalled from recess to consider a draft amendment bill, the decision to revert to the 3-year programme cannot take effect before the 2009 academic calendar begins to run, unless Parliament is going to pass a retroactive amendment of Act 778. Then that will open a can of worms.

That is why I am concerned about news reports that although Parliament has not convened to consider a possible amendment of the Act, steps are already being taken to implement a change back to 3 years. If that is true, then it has to be pointed out to the government that this is an illegality which will not stand up in court. No one, not even the government, should take it for granted that Parliament will do as the government pleases, and so once the government decides, that decision can be implemented, in the hope that Parliament will pliantly rubber stamp the government’s decision. Parliament has come under severe and brutal attack in recent months over the circumstances surrounding the approval or determination of what is now popularly known as “Ex Gratia”. I have confidence that MPs require no reminder that they owe us a duty to inquire and debate this matter thoroughly.

In other words, absent the required amendment of Act 778, any implementation of, or preparatory steps to, the 3-year programme amounts to a blatant breach of the law.

In Parliament and Outside Parliament: Enter Mr. Tettey-Enyo
But what is Act 778, and what were the circumstances surrounding its passage into law?

The draft education bill which became Act 778, came up for First Reading in Parliament on 10th November 2008. It was presented by the then Honourable Majority Leader, NPP’s Mr. Osei-Aidooh, on behalf of the then Honourable Minister for Education, Youth and Sports, Professor Dominic Fobih. The Bill was then referred to the Committees on Finance and Education, which were to “look at the document and advise whether it [was] one of an urgent nature.”

Just 4 days later, the Bill came up for Second Reading. This time the Honourable Minister for Education, Youth and Sports, Professor Dominic Fobih was present in Parliament. In moving the motion for the Second Reading of the Bill, he stated that since 1961 when the original Education Act was passed, there had been no other law enforcing all the changes and transformation that had taken place in education. He said that although the 1987 education reforms had effected significant changes to the structure and content of education, it was not backed by law. He conceded that the 2007 reforms introduced by his government did not also have legal support and said that “there is therefore a need for legal backing to support all these changes.”

When the Honourable Minister had moved the motion and the question was proposed, MPP’s Mr Balado Manu (Honourable MP and Chairman of the Committee that took only 3 days to consider the Bill) supported the motion and indeed became the chief shepherd of the Bill as it went through Parliament through Second Reading, Third Reading, Consideration, Second Consideration and Passage, within 4 hours! In his speech in support of the motion, he highlighted the then proposed change of the 3-year secondary education to 4 years. He said that “the second cycle education consists of four years of senior high school education, technical, vocational and business and agricultural programmes of education.” In concluding, Mr Manu stated that the Committee had recommended that Parliament passes the Education Bill subject only to additional clauses and amendments that the Committee had proposed. It is instructive to note that none of the proposed amendments related to the proposed 4-year term for secondary education.

When Mr Manu was done, Mr Tettey-Enyo, the ranking member of the then opposition NDC (and now Minister of Education) rose, in his words, “to contribute to the motion on the floor and to say that the Education Bill is long overdue.” He revealed that the drafting of the Bill had taken almost 10 years to complete and “so it is very necessary that hon. Members of this august House to realise the importance of this Bill.” Mr. Tettey-Enyo then dwelt on what he called “the merits of the Bill as the hon. Chairman of your Committee has already enumerated.” Mr. Tettey-Enyo was effusive in his praise for the Bill and concluded his contribution as follows:

"We want to make the system creditable and well planned and well managed to be able to attract the support that we require to bring up our educational system to the levels that we are desiring for the country. With these few words, Mr. Speaker, I call upon hon. Members of his House to support the passage of this important Bill into law."

Dear reader, let us get this right. As noted above, the said Mr. Tettey-Enyo is the current Minister of Education. On 14th November 2008, as the minority’s ranking member of the Education Committee, he had every opportunity to voice his opposition and that of his party to the then proposed increase in the duration of senior secondary education from 3 years to 4 years. That fact of the 4-year duration had been highlighted in the contribution of NPP’s Mr. Manu, the chairman of the Committee. But all Mr Tettey-Enyo did was to praise the Bill, saying that it was “long overdue”, and then encouraging MPs to “support the passage of this important Bill into law.”

However, in a little over two months later, the same Mr. Tettey-Enyo, this time as minister-designate for education, was reported in a Daily Graphic story that was posted on Myjoyonline.com on 26th January 2009 to have “dropped the hint” that one of the first things that the NDC government would do in the educational sector is to abolish the 4-year term of the SHS and revert to the 3-year programme, in fulfilment of a promise in its manifesto. According to him, the 4-year programme had been announced by the NPP administration when it had not put in place the needed infrastructure, syllabi and textbooks to make it work. Although he conceded that the change would require an amendment to the existing law and he is quoted to have said that “what is important is the duration of the system and the new government will go strictly by its manifesto and reverse the decision of the NPP government."

He is further reported to have said the change in the duration from three years to four years was a political decision taken by the NPP, since the Anamoah-Mensah Committee which the NPP had put in place endorsed the three-year duration. "It was, therefore, surprising that the NPP government came out with a White Paper to introduce the four-year secondary system," he is reported to have said.

Clearly, when Mr. Tettey-Enyo was speaking in support of the Education Bill on 14th November 2008, after his Committee had had only 3 days to consider the provisions of the Bill, he presumably knew of the contents of the manifesto of his party, which had been launched just about a month before then. He also presumably knew what the Anamuah-Mensah Committee had recommended, and the conditions contained in those recommendations. He claimed in January 2009 that the NPP had opted for the 4-year scheme in a move that he found “surprising”. Yet he did not state or voice any opposition to the 4-year programme in Parliament. He actually supported the Bill in its entirety! Now he was saying that there was no infrastructure, syllabi and textbooks to support the 4-year programme. Why didn’t Mr. Tettey-Enyo bring these matters out in Parliament, and lead the minority caucus to vote against the Bill? If he was truly surprised that the NPP government introduced the 4-year system by a “white paper”, why was he so silent on this matter on the floor of Parliament?

These are questions that beg for answers from Mr. Tettey-Enyo. If he is going to be the one to steer the proposed amendment bill through Parliament, he is well advised to consider these questions and prepare answers. Right now, he sounds like the character that John Stuart Mill speaks about in the quotation that started this writing.

Mr. J. H. Mensah’s Timely Warnings
If any MP deserved the title “hero” in the deliberations in Parliament on 14th November, that would be NPP’s Mr J. H. Mensah, and to an extent, the harassed NDC’s Mr Inusah Fuseini. I will deal with Mr Fuseini’s unfolding drama and harassment later in this writing. But Mr Mensah did not mince words or pull any punches. He started by describing to Mr Tettey-Enyo’s assertions in support of the Bill, that it should be passed because it had taken 10 years to bring the Bill to Parliament, as “regrettable,” adding that “this is too important a matter to have been brought to this House at the tail end [and] in the middle of a parliamentary and presidential election.” Mr. Mensah was to get even more excoriating when he said as follows:

“I am afraid that the Parliament today cannot do justice to this matter as it deserves to be dealt with. I hope that our successors in the next Parliament – unfortunately I would not be here – would go back to this matter and consider it in great detail because we have said that the production of an efficient and well-educated human capital asset is at the basis of all our national development strategies, and a number of things have not been dealt with sufficiently.”

Mr Mensah was not done. In the face of some considerable heckling by NPP’s Mr Manu on the issue of adequately resourcing education, he said:

“Mr. Speaker, those words are ten for a penny that they should be resourced. Who is to decide? It is this Parliament. What have we decided? After being here for 12 years, I am making a confession mea culpa that we are guilty that is all. We have not addressed the matter. In this report that they have said they should be adequately resources, what does “They should be adequately resourced” mean?”

Mr Mensah was interrupted by NDC’s Mr. Twumasi-Appiah who was ruled out of order when he wanted Mr. Mensah to repeat his mea culpa confession.

When Mr Mensah was allowed to continue, he referred to a publication from GETFund which showed that in 2007, while the number enrolled in the JSS was approximately 255,000, only half of this number made it to the first senior secondary year. He said, “in other words, we are throwing unto the streets a half of all the graduates from our JSS, not knowing what we are doing with them.”

Mr Mensah was interrupted again by Mr Manu who was also ruled out of order. But his concluding words were biting:

"Mr. Speaker, I am obeying your instruction to call a halt but I am just leaving this message to the House and to the nation that we have toyed around enough with this matter and that we should get serious, confront the serious facts, the difficult facts and make a real effort to make the educational reform a reality instead of a declaration."

He sat down to “Hear! Hear!”

Lee Ocran’s Contribution
The next significant contributor was NDC’s Mr. Lee Ocran. Let me point out that Mr. Ocran was also the chairman of the NDC’s manifesto committee and was also presumably as well-versed in its contents and declared intention to reverse the 4-year system as Mr. Tettey-Enyo. But hear him:

"Mr. Speaker, the Bill is good, the intention is very good but I think we must have a serious look at it so that where there are deficiencies we fix them."

He then elaborated on how to correct what he considered as “deficiencies” thus:

"Let us be able to provide the facilities that would make teaching and learning possible. Books, libraries, these days we have computer laboratories and so on, so that when the child comes out from school, he is not that kind of child who cannot pronounce or who cannot slip through one sentence. It is not good, then he better not have been to school."

Mr Ocran concluded his contribution with the following words:

"Mr. Speaker, thank you for giving me the opportunity and I hope that those who would be involved in the implementation of this Bill will try to fix things properly so that we have the best coming out of our educational system."

As noted above, one would have expected Mr. Ocran (now ambassador-designate), from his privileged position as chairman of NDC’s manifesto committee, to have at least voiced his party’s opposition to the 4-year programme in the bill. But he rose in Parliament, did nothing of the sort, but praise the bill as “good, the intention is very good.” Although he spoke of deficiencies, which he highlighted, he never mentioned the 4-year programme. Mr. Ocran therefore leaves us with a number of questions, including, whether he really had read the Bill or NDC’s manifesto?

It is worthy of note that NDC’s Mr. Twumasi-Appiah also spoke in support of the motion, which was eventually carried when the question was put. The Bill was then immediately taken to the Consideration Stage by Parliament waiving Standing Order 128(1) that required that at least 48 hours should lapse between the Second Reading and the Consideration Stage.

Inusah Fuseini, the Rookie MP
I think that NDC’s Mr Fuseini was a freshman/rookie/greenhorn MP in 2008. With the wisdom of hindsight, he deserves a hero’s mention because he was really the only MP who said anything that remotely sounded like an opposition to the Bill’s provisions on the duration of schooling. But I find that he allowed himself to be too easily pushed off his arguments by NPP’s Mr. Manu and others. His argument was only presented half-heartedly and, as is worthy of note, did not exactly reflect the NDC’s manifesto position on the matter.

Mr. Fuseini’s first bite was to say that the provision in clause 1 of the Bill (now section 1 of Act 778), which provided for 2 years of kindergarten was “too mandatory” and would prevent the people running kindergartens from promoting or ‘demoting’ children, as the case may be. He advocated a “flexible rendition that allows kindergarten education to be at least two years.” But Mr Fuseini had apparently bitten more than he could chew. The NPP’s Mrs. Akosua Osei-Opare called his suggestion “inappropriate for this purpose,” arguing that there was the need to set a standard, even if some people would be jumped. Prof. Fobih supported Mrs Osei-Opare saying that it was necessary to set indices for determining credentials and that whatever acceleration might occur “we still have the national structure clearly defined and this is what we mean in this Bill.”

But Mr. J. H. Mensah did not appear to be too convinced by the arguments of his colleagues from the NPP. He rose to say that if the word “year” was causing a problem, the words “grade” or “level” may be considered. The NDC’s Mr Twumasi-Appiah also spoke in support of Mr. Fuseini and merely sought to explain further, what Mr Fusieni had said.

However the NPP’s Mr. Manu countered that “That is the norm: out of the norm there can be special cases that cannot be taken into making a law.” When Mr Fuseini rose to speak again, the First Deputy Speaker, who was in the chair, said the freshman MP was “pushing us back” and that if the latter “felt strongly about it” he should consider bringing it up at the Second Consideration stage. The House (both sides) then spent considerable time debating other aspects of the Bill and approving other amendments.

Mr. Fuseini tried very hard to hold his ground. Just when the question had been put and the motion for the reading had been carried, he drew the First Deputy Speaker’s attention to his arguments. With this, Mr. Fuseini moved for the matter to be taken to a Second Consideration. He was seconded by Mr. Tettey-Enyo, who however remained loudly silent during this stage of the debate. Mr Fusieni’s first amendment proposal was to insert the words “not less than two years” into the provision of the Bill on the duration of kindergarten was roundly defeated. But he soldiered on and introduced his second amendment proposal, which was that the words “four years” should be deleted and replaced with the words “not less than three years.” He referred to the Anamuah-Mensah Report, and argued that adopting those words would “offer us an opportunity in future, without necessarily amending the provisions of clause 1(3) to revert to the three years when we are satisfied that the amenities and facilities exist that will allow the course to run in three years.”

Mr Fuseini added that this would reduce the time and expense that might be incurred in future if the matter had to be brought back to the floor of Parliament for an amendment. He urged Parliament to use “the opportunity to make it flexible enough to be able to adjust to the programme in future.”

But this was met with a forceful rebuttal by NPP’s Mr. Manu who wondered what calculations Mr. Fuseini had done “to arrive at the three years that he is talking about? Has he foreseen or does he foresee a situation where conditions in this country would be so much improved, that secondary education can be done in two years? Why is he settling on three years?” Mr Manu added that what existed was three years but that there was research showed that this was not helping student “to progress in the educational ladder.” Mr. Manu found Mr Fuseini’s proposed amendment “unacceptable and... should be treated with the contempt that it deserves.”

NDC’s Mr Ocran rose only to offer a weak defence of Mr. Fuseini. He claimed that “’not less than three years’ means it can be four, five, six and seven depending on the situation.” But this was significant. The chairman of NDC’s Manifesto Committee, which considered the 4-year duration as a near abomination, was willing to consider an amendment, which in his view, could extend the duration to seven years! Mr Ocran ended by saying that “I do not see the need for long English and talk about it.”

NPP’s Mr. Felix Owusu-Adjapong then rose and forcefully argued that there was no need to gamble with “certain things” and that when it comes to education, “we need to be very certain as to what we are trying to do... If in fact, at a certain level of the development of this country, there will be need for us to amend this clause, we will go through the proper procedure. This is not a clause we want to leave with administrators who may be operating this at their whims and caprices; it is a thing we need to be sure of.” He added that MPs “should not abdicate [their] rights to look at things which really are fundamental to the development of this country.” He then asked Mr. Fuseini to “possibly withdraw and we make progress.”

The Hansard does not record whether Mr. Fuseini withdrew his proposed amendment. The document strangely claims that the “question [was] put and amendment agreed to.” However MPs who were present on that day have confirmed to me that the amendment was actually defeated. Then, after a few comments by Mr. Mensah and Prof. Fobih, the Bill was read the third time and passed. President Kufuor only assented to it on 6th January 2009.

I have taken the trouble to walk us through the parliamentary debates because it shows, graphically, what happened in Parliament, leading to the passage of Act 778. Parliament passed this Act with much speed, a situation that Mr. J. H. Mensah was clearly unhappy with. It was as if the Act had to be passed anyway because soon after that, Parliament adjourned to 16th December 2008. It is also critical to note that none of the NDC MPs who spoke on the matter directly opposed the 4-year programme. What Mr. Fuseini tried to do was not in consonance with the NDC Manifesto. All he wanted was “flexibility” that would allow a reversion to the 3-year programme without resorting to parliament. But as explained by Mr. Ocran, Mr. Fuseini’s defeated amendment would have meant that the duration could actually go up to seven years!

My View
From the foregoing, it is obvious that the NDC Manifesto contains an inaccurate representation of the Anamuah-Mensah recommendations. It is obvious to everyone who wants to assess this matter that the conditions that the Anamuah-Mensah Committee said should exist to ground the 3-year programme do not exist. The result is that many Ghanaians, worried by the gutter-to-gutter mentality that is being exhibited by our politicians on the matter of education, are seeking to protect their children in many ways. As I write, many who can afford it, are sending their children to high school in South Africa, the latest education Mecca for the well-to-do in Ghana. Others have simply removed their children off the national JHS/SHS programme and are paying ‘an arm and a leg’ for their wards to write the International O’Level and A’Level, that are being offered by many private schools in Ghana. Others, whose children have remained on the national programme, ensure that the children go to the best primary schools and JHS’, which is a near-certain guarantee that the wards will end up in the Mfantsipims and Wesley Girs’, and subsequently the Universities.

Dear reader, the gutter-to-gutter that the politicians are playing with the future of our children means that we are creating or deepening the concept of a class society, where those who have will use their resources to protect their children from the gutter-to-gutter, and those who do not have (and who constitute the vast majority of us), are left at the mercy of the politicians, just like the sock ball I described earlier in this writing.

I have heard parents whose children are wring the IGSCE say that even if their wards have to do university education in Ghana, the A’Level guarantees that they will enter the University of Ghana at Level 200 and not waste a year at Level 100. That is sad. And from Professor Anamuah-Mensah’s Daily Graphic interview, we are not ready for the 3-year programme.

But are we ready for the 4-year programme? Is that really the answer to the issue confronting senior secondary education in Ghana? If indeed some students can complete the SHS course and pass the relevant exams within 3 years, what is the justification for holding them back and compelling them to spend an extra year in the SHS?

I am of the firm belief that the progress of a student in school should depend on the student’s own ability and not the lack of ability of another student; this is what the mandatory 4-year programme appears to me to suggest. By passing law that requires a mandatory school duration, we are seeking to impose a kibbutz-like, one-size-fits-all education scheme that is bound to fail. Indeed, as the current wording of Act 778 stands, it would be illegal for a school to put a brilliant student on a fast track or even cause a student to be repeated in class on account of poor performance. Section 1(3) says “The second cycle level of education shall consist of four years of senior high school.” It does not permit any equivocation or change. It does not reserve any right in the schools to do otherwise. Thus a strict application of this provision would mean that a parent can head to court for an order that the decision by a school that that parent’s child should repeat a year (even on account of proven poor performance) is illegal. It is my respectful view that any statute that casts the duration of any educational system in stone, as section 1(2) & (3) of act 778 seeks to do, is at least retrogressive and at worst not in tune with modern educational methods.

A similar argument applies to the mandatory 3-year programme that the NDC is proposing now. If it is indeed the case that majority of the student cannot complete the syllabi successfully, so as to make them well-grounded for university education, why are we rushing to revert to this programme?

Dear reader, the answer to the current problem does not lie in a debate over three years as against four years. That is gutter-to-gutter politics! The answer should lie in determining what is in the best interest of each student, based on his/her ability. We aim at law that puts this up at the key matter for consideration. It should be possible for a school’s authorities, a student’s parents and the student himself/herself to sit, discuss and implement what is in the best interest of that student. It might be that the student will be able to complete the course in, say, two years. However, this tripartite group might be able to agree that with respect to the student’s social development, he/she may not be ready for life in the university, and might have to spend an extra year or more in school, just to “grow up”. This tripartite does not need the strictures and long-arm interventions of MPs and the law to determine and impose what is in the best interest of the child.

This is system is not new. It is in play in many of the private schools in Ghana. And it is working well. We do not need to re-invent the wheel. By all means let us provide the standard duration for every level of education in Ghana. But let the statute provide express wording that vests considerable discretion in the actual implementing parties so that they can adjust this as they deem fit, on a case-by-case basis. I foresee that majority of students will go through the normal duration. But the law must recognise special circumstances that will require change on the basis of either proven ability or the proven inability of the student.

That is why we should not rush to implement the 3-year system before Parliament has debated it. This is because I fully expect that in the upcoming debate, our MPs will note and remember that the issue is not one of political jousting over who has a better idea, or who is tinkering with whose original idea, or who needs to implement a campaign promise based on a misreading of the Anamuah-Mensah recommendation. That is pointless political arrogance and self-importance that we do not need. Our children do not need to be reduced to the level of the sock ball that is kicked around by one Parliament, and is discarded by the next Parliament because there is a new game up. This is not a Gutter-to-Gutter game. This involves the very lives of our children, our future. We require sober minds that are willing, prepared and able to work through this and to bring out what is best for our country and its future.

Maybe, just maybe, Mr. Fuseini was really up to something. He probably did not articulate his position very well and allowed himself to be bullied off his message. Maybe he needed more time to construct his thoughts and that the rather supersonic speed with which the Act was passed deprived him of this opportunity. We need to revisit and resolve this matter to the best of our abilities, at least for the time being. If sometime in the future, we need to address this again, we must and we will. But we surely do not need the partisan pallour that this is taking. This is something that requires serious multi-partisan and non-partisan effort. Let it not be said that the only times that we see multi-partisanship in our Parliament is when the matter at stake has to do with their terms and conditions of service. Sorry, I had to go there.

We have another chance to bite at this grape; not cherry. I pray that we take a good bite at a ripe grape, so that it cannot be said that “the fathers ate the sour grapes, and the children’s teeth were set on edge.”

Yours in the service of God and Country,

Kojo Anan