I-CAN-GHANA

THE REPUBLIC VERSUS WEREKO-BROBBEY & ANOTHER

2010-08-13T13:10:00.001Z

IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
(FAST TRACK DIVISION)- ACCRA
AD 2010

CASE NO. ACC 39/ 2010
10TH AUGUST, 2010

THE REPUBLIC PLAINTIFF
VRS.
1. CHARLES WEREKO- BROBBEY
2. KWADWO OKYERE MPIANI DEFENDANTS

R U L I N G
The first accused person namely Charles Wereko Brobbey, was the Chief Executive Officer of the Ghana @ 50 Secretariat. The second accused Kwadwo Okyere Mpiani was the Chairman of the National Planning Committee of the Ghana @ 50 Celebration. The second accused was also the former Chief of Staff and Minister for Presidential Affairs under the government of former President J. A. Kuffour.

The two have been charged before this court with four counts of willfully Causing Financial Loss to the State contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). The two have pleaded not guilty to all the four counts. Before the prosecution could start adducing evidence to discharge its burden, the accused persons separately filed two motions on notice challenging the jurisdiction of this court in trying them. The application filed by the first accused on the 24th May 2010, prayed as follows:

"(a) an order striking out the instant criminal action and charges against the first accused person and dismissing same as being premature and a gross violation of the right of appeal of first accused person against adverse findings of a Commission of Inquiry under Article 280 (1), (2), (3), (4), (5) and (6) of the 1992 Constitution or in the alternative;
’(b) an order staying proceedings of this criminal action until such time as the period allowed under the Constitution for first accused to challenge any adverse findings made against him by the Commission of Inquiry into the activities of Ghana @ 50 Secretariat has elapsed. "

Attached to first accused application were the Charge Sheet filed in this case and a photocopy of the White Paper on the Report of the Ghana @ 50 Commission of Inquiry.

The second accused in his application to this court prayed that the charges against him be struck out and the criminal action dismissed as being unlawful and a gross violation of his constitutional right. The second accused also exhibited the Charge Sheet and the White Paper on the Report of the Commission of Inquiry on the Ghana @ 50 celebrations. For purposes of easy reference the two accused persons will be referred to simply as applicants in this ruling.

APPLICANTS ARGUMENTS
Learned Counsels for both applicants have argued strongly that the prosecution mounted against the applicants violates articles 278 and 280 of the 1992 Constitution. The main thrust of learned Counsels for applicants argument is that, in as much as the charges preferred against the applicants originates from the adverse findings of the Ghana @ 50 Commission of Inquiry, the Attorney General is wrong in law by initiating this trial against applicants, who have a right of appeal against the said findings. The reasons advanced by Counsels are that by virtue of Article 280 of the 1992 Constitution the adverse findings of the Commission of Inquiry constitute a judgment of the High Court. They argued that being a judgment of the High Court; the Attorney General cannot prefer charges from the adverse findings. According to learned Counsels for applicants the only court proceedings that could take place after the Commission’s report, is for the applicants to exercise their right of appeal against the findings of the Commission at the Court of Appeal. Counsels submitted that in view of applicants’ constitutional rights of appeal, which they intend to exercise, the High Court cannot investigate or evaluate the adverse findings as the Attorney General is seeking to do in mounting this prosecution. Counsel for the second applicant in particular traced the constitutional history of Commissions of Inquiry in Ghana before the 1969 constitution and submitted that the framers of the 1969, 1979 and 1992 constitutions accepted the proposal that the findings of Commissions of Inquiry should no longer form the basis of criminal trials. Learned Counsel argued that the period before 1969 when adverse findings of Commissions of Inquiry were deemed prima facie evidence against persons adversely affected was no longer the law in view of article 280(2) of the 1992 constitution, which virtually is a re-enactment of the provision in the 1979 constitution. Counsels further argued that the applicants appeared before the Commission as witnesses complying with the Commission’s requirement and like all such persons they should not be subjected to any civil or criminal proceedings, under any enactment in accordance with section 8(2) of the Commission of Inquiry (Ghana@ 50) Instrument, 2009, CI 61. Learned counsel again submitted that by initiating this prosecution contrary to the provisions of article 280(2) of the 1992 Constitution as well as section 8(2) of CI 61, the Attorney General was exercising her discretion wrongly and arbitrary contrary to article 296 of the 1992 constitution.

Learned Counsels for the applicants therefore submitted forcefully that the instant prosecution of their clients is a blatant violation of their constitutional rights and for that matter the criminal charges should be struck out and the action against the applicants dismissed or stayed until their rights of appeal as provided by the constitution elapses.

PROSECUTION’S ARGUMENTS IN RESPONSE
The Attorney General in opposing the application by the applicants filed an affidavit on 10th June, 2010 and a supplementary affidavit on the 14th July 2010. In his submissions before this court learned Chief State Attorney who appeared for the Republic argued that the powers of the Attorney General to prosecute criminal offences in Ghana under article 88 of the 1992 constitution cannot be restrained by any court in as much as the power is exercised within the limits of the constitution. On this point Counsel referred this court to the case of Republic v. Circuit Tribunal, Koforidua, Exparte Nana Anku- Dododzah Didieye III, Court of Appeal unreported of 8th July 2005. Counsel argued further that there is no provision in the constitution that stops the Attorney General from prosecuting the applicants herein on the basis of the adverse findings made against them by the Commission of Inquiry into the Ghana@ 50 celebrations. Counsel submitted that the findings of the said Commission could only be deemed a judgment of the High Court after six months of the publication of the Commission’s report; hence nothing stopped the Attorney General from prosecuting the applicants before the six months matured. In a response to Counsel for the second applicant’s submission that the present prosecution amounts to a wrong and arbitrary exercise of discretion by the Attorney General, the Chief State Attorney cited the case of Republic v. Minister for the Interior; Ex-parte Bombelli (1984-86)1 GLR 204, and argued that where the Attorney General is called upon to execute its constitutional and statutory duties it cannot be said that the exercise of such duties amounted to abuse of discretion.

Counsel for the Republic argued further that the applicants herein were the main subject of the Ghana @ 50 Commission, so they should not be treated as ordinary witnesses for which they could take advantage of section 8(2) of CI 61. Counsel concluded that the applicants will be given a fair trial and for that matter this court should dismiss the application since they are without any merit.

Having heard Counsels for the Accused persons and the Republic, and having examined and studied the processes and exhibits filed in this application, I am of the view that the application raises one fundamental issue to be resolved. That issue is whether or not the adverse findings or the report of the Ghana @ 50 Commission constitute a Judgment as defined by Article 280 of the constitution and if so whether or not the Republic acting through the Attorney General can mount this prosecution in the circumstance of this case having regard to the provisions of Article 278 and 280 of the 1992 Constitution.

Before I proceed to address this major issue I would like to make some observations and also address some collateral issues that were joined in this application. The first observation is that the case of the applicants is not that the Attorney General has no power to prosecute crimes detected in the country as urged by learned Counsel for the Republic and averred in paragraphs 15 to18 of the affidavit in opposition. The case argued by Counsels for the applicants is that in the circumstance of this particular case, in as much as the prosecution is based on the adverse findings of the Ghana @ 50 Commission of Enquiry, the 1992 Constitution does not confer on the Attorney General the right to prosecute the applicants.

This court is mindful of the powers conferred on the Attorney General of the Republic by article 88 of the 1992 Constitution. Indeed by article 88 (3) the Attorney General shall be responsible for the initiation and conduct of all prosecution of criminal offences in Ghana. What I understood Counsels for the applicants as submitting is that under Articles 278 and 280 of the 1992 Constitution adverse findings of Commissions of Inquiry established under the said provisions are deemed to be judgments of the High Court subject only to appeal to the Court of Appeal; and by that constitutional provisions and arrangements the Attorney General has no right to prosecute persons against whom adverse findings are made, since the adverse findings constitute a judgment. Simply put the case of applicants is that; the Attorney General cannot prefer charges against the applicants out of an existing judgment against them. In other words Counsels for applicants are submitting that in the circumstance of this case the Attorney General already has a judgment against applicants, which judgment the applicants have the right of appeal to the Court of Appeal.

A collateral issue I seek to address is whether the charges preferred against the applicants in the charge sheet filed in this case is derived from the adverse findings of the Ghana @ 50 Commission. Clearly, the fact that the Ghana @ 50 Commission of Inquiry was established under article 278 of the 1992 Constitution is without any dispute. Indeed paragraph 1.0 of the Government White Paper exhibited by all the parties in this case provides as follows:-

"1.0 On June 1 2009 the Government of Ghana by Constitutional Instrument No. C1 61 of 2009 appointed a Commission of Inquiry under Article 278 of the 1992 Constitution of the Republic of Ghana to enquire into the operations of the Ghana @ 50 National Planning Committee, the Ghana @ 50 Secretariat and matters incidental to the Ghana @ 50 celebrations.”

From the above provision there can be no dispute that the Commission was established under Article 278 of the 1992 Constitution. The issue joined really by the affidavits filed by the parties was whether the charges preferred against the applicants originated solely from the Commission’s findings. Even though in his submissions before this court, learned Counsel for the Republic conceded that the charges are derived from the findings of the Commission’s report, I deem it necessary to address this issue in view of the disposition in paragraph 22 of the Attorney-General’s main affidavit in opposition to the application and the attached exhibit marked "AG3". The resolution of this issue is important particularly so since this application is being tried on affidavit evidence .The said paragraph 22 reads as follows:

“22. That the accused/applicants are very much aware that apart from the Commission’s work, separate SFO/Police Investigations were conducted into their conduct relating to the Ghana @ 50 affairs and the Police contacted them in that regard.”

The Attorney General then proceeded to exhibit a letter from the Serious Fraud Office marked as AG3 to support the above deposition. The content of the said exhibit which is addressed to the Director General of the Criminal Investigations Department, Police Headquarters, Accra, copied to the Honourable Attorney General and dated the 7th of January, 2010 will be reproduced for purposes of sound reasoning.

"Dear Sir,

INVESTIGATIONS INTO SUSPECTED STEALING OF STATE PROPERTY: TRASSACO VALLEY RESIDENTIAL FURNISHING FOR THE GHANA @ 50 CELEBRATIONS

This office had information about the suspicious removal/disposal of property purchased by the state and used to furnish houses at the Trassaco Valley for the Ghana @ 50 Celebrations.
The information available to the office is that the said items, which include furniture, air-conditioners and other fixtures, were subsequently taken away and cannot be traced.
We are forwarding to you a duplicate copy of our docket on the preliminary investigations we have conducted in order that you may undertake investigations into the said allegations as well as any other related issues which may come to your notice.
I am by a copy of this letter advising the Honourable Attorney General of our action.

Please kindly acknowledge receipt.

Yours faithfully,

B. MORTEY AKPADZI
EXECUTIVE DIRECTOR

Cc: The Hon. Attorney General and Minister for Justice
Attorney General’s Department, Accra. "

It is obvious that the investigations which is the subject of the above letter relates to alleged removal or disposal of fixtures from furnished houses at the Trassaco Valley for the Ghana @ 50 Celebrations. Having reproduced the letter from SFO, I think it is important I examine the charge sheet and the facts supporting same as an aid to determine whether the charges preferred against the applicants are derived from the findings of the commission or other source as paragraph 22 of the Attorney Generals affidavit in opposition sought to portray.

As indicated the applicants are charged with four counts as follows;

COUNT ONE
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29).

PARTICULARS OF OFFENCE
Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Okyere Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between May 2006 and December 2008 willfully caused financial loss to the state to the tune of GH¢ 46,999,563.00 by spending GH¢ 46,999,563.00 in excess of the amount of US$ 31.80 million or the cedi equivalent of GH¢ 29.31 million that was approved by Parliament for the Ghana @ 50 celebrations.

COUNT TWO
STATEMENT OF OFFENCE
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29)

PARTICULARS OF OFFENCE
Charles Wereko Brobbey, Chief Executive officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between February 2007 and January 2009 willfully caused financial loss of GH¢ 2,116,906.91 to the state in the form of interest paid by the State on a loan of GH¢ 10,438,036.37 you contracted from Prudential Bank without authority.

COUNT THREE
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, (Act 29)

PARTICULARS OF OFFENCE
Charles Wereko Brobbey, chief executive officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Okyere Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, in or about September 2006, willfully caused financial loss of GH¢ 966,048.52 to the State in the form of interest paid by the State on a bank overdraft you contracted from Prudential Bank without authority.

COUNT FOUR
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960(Act 29).

PARTICULARS OF OFFENCE
Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between May 2006 and December 2008 willfully caused financial loss to the State by expending the amount of GH¢ 19,352,498.00 being income that was realized from the activities and programs of the Ghana @ 50 Secretariat without authority.

The facts presented by the prosecution in support of these charges and to basically explain the circumstance under which the offences charged were allegedly committed, clearly demonstrates that the preferred charges originates from the findings of the Ghana @ 50 Commission. In fact in the particulars of the four charges as stated above, the applicants are charged for expending the various sums of monies stated therein without authority or causing the state to loss such sums of money. There is no count on the charge sheet that relates to removal or disposal of furniture, air conditioners or other fixtures from the furnished houses of the Ghana @ 50 Secretariat at the Trassaco Valley.

Having examined the charge sheet and the facts presented by the prosecution, I find clearly that the charges preferred against the applicants in this case have its origins from the adverse findings made by the Commission which was established under Article 278 of the 1992 Constitution.

I now address the fundamental issue in this case; which is whether the adverse findings so made by the Commission constitute a judgment of the High Court as defined by Article 280 of the 1992 Constitution. And if it is a judgment, is the Attorney General right in law in mounting this prosecution? In addressing the legal issues raised in this case, I have cautioned myself that the High Court has no jurisdiction to interpret provisions of our constitution and I do not attempt to assume that jurisdiction, which is preserved for our Supreme Court. I seek to address the legal issues under the authority of article 33 of the 1992 constitution, which vest the High Court jurisdiction to enforce the fundamental human rights enshrined in our constitution. The said article 33 provides as follows:-

"33(1)Where a person alleges that a provision of this constitution on the fundamental human rights and freedoms has been or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress’’.

The applicants herein are invoking the jurisdiction of the High Court to strike out, dismiss or stay this prosecution mounted by the Attorney General, in the circumstances of this case because it is a violation of their right of appeal guaranteed under article 280(2) of the 1992 Constitution. It is clear that the right of appeal, as provided under article 280(2) is not one of the specified rights and freedoms enshrined in Chapter 5 of the 1992 Constitution, however article 33(5) of the constitution guarantees other rights not specifically mentioned in chapter 5 of the constitution. Article 33(5) provides as follows:-

33(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man’’

I find the right of appeal guaranteed under article 280(2) of the constitution one of such rights inherent in a democracy and as such the High Court has the jurisdiction to enforce same under article 33 of the Constitution.

From the report of the Commission which was exhibited in this proceedings by the Attorney General and marked as ‘’AG2’’ there is no doubt that the Commission made adverse findings against the applicants herein. Indeed the White Paper issued by the Government contained a summary of the adverse findings. The particulars of offence recited under the four counts preferred against the applicants are but some of the adverse findings made against the applicants by the Commission. It is applicants’ right of appeal against the said adverse findings, that they argue, cannot be taken away by the Attorney General in mounting this prosecution.
For clarity of thought I shall reproduce the relevant provisions of Article 280 of the Constitution.

“280(1) A Commission of Inquiry shall
(a) Make a full, faithful and impartial inquiry into any matter specified in the instrument of appointment;
(b) Report in writing the results of the inquiry and conclusions stated in the report.
(c) Furnish in the report the reasons leading to the conclusions stated in the report.
(2) Where a Commission of Inquiry makes an adverse finding against any person, the report of the commission of inquiry shall, for the purposes of this constitution, be deemed to be the judgment of the High Court; and accordingly, an appeal shall lie as of right from the finding of the commission to the Court of Appeal.
(3) The President shall, subject to clause (4) of this article cause to be published the report of a commission of Inquiry together with the White Paper on it within six months after the date of the submission of the report by the commission.
(4) Where the report of a commission of Inquiry is not to be published, the President shall issue a statement to that effect giving reasons why the report is not to be published.
(5) A finding of a commission of Inquiry shall not have the effect of a judgment of the High Court as provided under Clause (2) of this article unless:
(a) Six months have passed after the finding is made and announced to the public; or
(b) The Government issues a statement in the Gazette and in the National Media that it does not intend to issue a White Paper on the report of the commission, whichever is the earlier.
(6) The right of appeal conferred by Clause (2) of this article on a person against whom a finding has been made, shall be exercisable within three months after the occurrence of either of the events described in clause (5) of this articles or such other time as the High Court or the Court of Appeal may, by special leave and on such conditions as it may consider just allow.”

For purposes of appreciating the nature, scope and effect of proceedings before Commissions of Inquiry established under Article 278, it is important to also consider the provisions of Article 281 of the constitution which provides as follows:

"281 (1) Except as may be otherwise ordered by the commission in the interest of the public morality, public safety or public order, the proceedings of a commission of Inquiry shall be held in public.
(2) Subject to the provisions of this chapter, the Rules of Court Committee established under article 157 of this constitution shall, by constitutional instrument, make rules regulating the practice and procedures of all commissions of enquiry and for appeals from commissions of inquiry.”

I shall later in this ruling revert to article 281(2) with regards to the legal effects of article 280(2), which deems the report and adverse findings of a commission of inquiry a judgment of the High Court, particularly the fact that the Rules of Court Committee have the constitutional mandate to formulate rules to regulate the practice and procedures of Commissions of Inquiry and the Court of Appeal’s jurisdiction to hear appeals from the findings of such Commissions. For now I shall address the constitutional history and development of Commissions of Inquiry in our country’s constitutional journey.

CONSTITUTIONAL DEVELOPMENT OF COMMISSIONS OF INQUIRY IN GHANA
This case calls for a judicial determination of the legal effects of reports of Commissions of Inquiry appointed under article 278 of the 1992 Constitution. Such a determination cannot be made without reference to the historical antecedents behind the establishment of Presidential Commissions under our constitutions.

I will take the history from the period before the 1969 constitution bringing into prominence in this ruling, two important documents in our constitutional history. These documents are the Memorandum on the Proposal for a Constitution for Ghana, 1968 and the Proposals of the Constitutional Commission for the Establishment of a Transitional (Interim) National Government for Ghana, 1978. For purposes of sound reasoning I shall again reproduced Chapter Twenty Four of the 1968 Report which is on Commissions of Inquiry and begins with paragraph 716 of that report.

CHAPTER TWENTY-FOUR
COMMISSIONS OF INQUIRY

"716. There may be circumstances where the National Assembly may appoint a Select Committee to inquire into a matter of public importance. But there may also be circumstances where an inquiry by a Select Committee would be inappropriate to deal with an inquiry into a matter of public importance. Where such is the case and where political considerations are apt to bedevil an issue it is our view that the matter in hand should be dealt with by an impartial and independent body charged with the duty of finding facts.
717. This means that the procedure of such an inquiry is bound to be inquisitorial rather than accusatorial as is the case with criminal trials. This will be so since the inquiry will be fact-finding and at worst censorial. We do not think that public inquiries should ever develop into criminal trials.
718. Since February 1966, there have been no less than seven Commissions of Inquiry which have investigated or are investigating various aspects of the conduct of public figures in high places. The revelations are startling. These Commissions of Inquiry have proved the value of impartial and independent ascertainment and discovery of facts. They illustrate, if any illustrations are needed, the need to have such inquiries conducted independently of both the Executive and Parliament.
719. Such considerations lead us to propose that the establishment of a Commission of Inquiry should be a constitutional matter and we accordingly propose that, in order to ensure the independence and impartiality of Commissions of Inquiry, a sole Commissioner or the Chairman of a Commission of Inquiry should always be a Judge of the Superior Court of Judicature or a person qualified to be appointed as such or a retired Judge of the Superior Court of Judicature.
720. The Commission should have all the powers, rights and privileges of the High Court of Justice such as powers in respect of enforcement of attendance of witnesses, the production of documents and immunity from action or suit for acts done in good faith in the performance of the duties of the Commission.
721. A Commission of Inquiry should make a full, faithful and impartial inquiry into any matter specified in its commission of appointment, report in writing the results of its enquiry and furnish in the Report the reasons leading to the conclusions arrived at or reported. The Commission should hold its sittings in public but where public morality, public safety or public order requires, we propose that a Commission of Inquiry should be able to sit in camera.
722. We propose that the rules of evidence to govern Commissions of Inquiry should be promulgated by the Rules of Court Committee of the Judiciary. As a guide to that Committee we think that such rules should not require a Commission of Inquiry to be bound by the ordinary strict rules of evidence applicable in the Courts of Law. A person duly summoned before a Commission of Inquiry should not be regarded as a witness of any particular party. He must be considered to be a witness of the Commission. Such a person should therefore give formal evidence as to the matters related by him in his written statement to the Commission and then be subject to cross-examination by Counsel on behalf of the Commission to test the accuracy of his statement and to deal with matters which are not dealt with in his statement. He should be liable to examination by Counsel on behalf of any person affected by the evidence given or that person himself and should be subject to re-examination on behalf of the Commission when this is required.
723. Finally, we propose that the appointment of a Commission of Inquiry should be by a statutory instrument issued by the President on the advice of the Prime Minister or as a result of a resolution passed by the National Assembly for the appointment of a Commission to inquire into a matter of public importance.
724. For the guidance of future authorities we quote hereunder a statement by Lord Kilmur on public enquires made in the House of Lords on the 14th day of May, 1959:
“The sanction of a public inquiry is necessary on occasions for the purpose of maintaining a high standard of public administration, and the modern system was deeply aware of the inadequacies of the machinery on inquiry by a select committee, on the one hand, and the limitations of the ordinary processes of law on the other… One must frankly admit that there is a conflict between the need of the State that the truth should be discovered on weighty matters which reflect on the functioning of its important agencies, and the position of the individual who finds himself involved. The vital point…… is that the procedure should only be invoked for weighty and important matters, for it is only then that the sacrifices on the part of the individual can be fairly demanded. That leaves our unending problem. Where the ordinary life of the ordinary citizen is invaded we must use all our skill and sympathy to ensure that this is done in the least hurtful manner. I hope I shall not be thought to be presumptuous if I ask for the co-operation of Parliament and of the Press in this important task.""

The next historical document I have considered is the Proposals of the Constitutional Commission for a Constitution for the Establishment of a Transitional (Interim) National Government for Ghana – 1978. The proposals which was an improvement of the 1968 memorandum, provided at Chapter Twenty-Three on Commissions of Inquiry, starting from paragraph 299 of the report as follows:

CHAPTER TWENTY-THREE
COMMISSIONS OF INQUIRY

"299. With the exception of two changes, we have recommended the re-enactment of the provisions of the 1969 Constitution on Commissions of Inquiry.
300. The first change proposed by us is to make it possible for a person adversely affected by the findings or recommendations of a Commission of Inquiry to appeal against such findings or recommendations.
301. Having regard to the fact that the findings and recommendations of a Commission of Inquiry can have serious legal consequences for persons affected thereby, not to mention the possible adverse impact on the reputation and image of such persons in the society, we consider it necessary that a person adversely affected by such findings or recommendations should be able to challenge the soundness, or legality of such findings or recommendations in court. For this purpose we propose that the report of a Commission of Inquiry shall be deemed to be a judgment of the High Court of Justice from which an appeal shall lie as a right to the Court of Appeal and if need be, to the Supreme Court.
302. The second change we propose relates to the publications of the Reports of Commissions of Inquiry. We believe that the findings of a Commission of Inquiry, established in the name of the people and financed from public funds, are of legitimate concern and interest to the people. Therefore, the public has a right to be informed of the findings and recommendations which result from the work of such a Commission. On the other hand, we recognize that in some cases the publication of the findings of a Commission of Inquiry may not be in the interest of the State or may be contrary to State security or may not be suitable for publication for other legitimate reasons. We do not think that it is wise or justifiable to oblige the Government in all cases to make such findings public. But we consider that the public has a right to know whether or not they may expect to see the Report of a particular Commission of Inquiry or whether the government has decided not to make the Report public. We, therefore, recommend a provision to the effect that where the Report of a Commission of Inquiry is not to be published the President shall issue a statement to that effect, giving reasons for the decision not to publish.
303. This provision does not require either that the President should publish all Reports of Commissions of Inquiry, or indeed, that he should actually justify the decisions not to publish in any particular case. What it does is to require the President to let the public know when he has decided not to publish a particular report and to tell them why he has taken such a decision. The reason given may – and most probably will – be so general as to be barely informative; but it will at least provide a good occasion for the press and interested members of the public to ask further questions or draw appropriate conclusions."

The above proposals clearly, formed the basis of the provisions under Chapter Twenty-three of the 1979 and 1992 Constitutions on Commissions of Inquiry. Indeed the 1992 Constitution did improve on the 1978 proposals by providing conditions under which the findings could be deemed judgment of High Court.

What then is the rationale behind the establishment of Commissions of Inquiry under our constitution? The rationale is not farfetched; it is what was stated in paragraph 301 of the 1978 proposals. In sum it is to accord the President the opportunity to cause investigations into certain matters of public importance by an impartial and independent body. And because the findings of such a body can have serious legal consequences for the persons affected thereby including adverse impact on their reputation in society, such persons should be able to challenge the soundness or legality of such finding in the courts of law, hence the arrangement that such findings be deemed to be a judgment of the High Court, from which an appeal shall be as of right to the Court of Appeal.

The proposal that findings of Commissions of Inquiry, established under the constitution should be deemed to be a judgment of the High Court and the acceptance thereof by the framers of our constitutions has changed the legal effects of such findings or reports. Before the 1969 Constitution, Commissions of Inquiry were appointed under the Corrupt Practices (Prevention) Act, 1963 (Act 230). The findings of such Commissions were prima facie evidence of the facts found and the persons affected suffer no liability until the Attorney General decided to prosecute and secured a conviction. In Akainyah and another v. The Republic (1968) GLR 548 at 555, Apaloo J.A. (as he then was) delivered as follows:-

"No liability to suffer any penalty attaches to any person against whom the commissioner makes adverse finding until the Attorney General, in exercise of the power conferred on him by section 4 of the Act, invokes the judicial power of the courts and procures a conviction.’’

The persons affected by the findings were only required to show cause, why they should not be convicted and sentenced based on the evidence adduced at the commission. Discussing the topic Commissions of Inquiry at Chapter Eight of his celebrated book, Criminal Procedure in Ghana, A.N.E Amissah stated at page220 as follows:-

"It is submitted that in showing cause, the accused may advance any reason which may persuade the court that he should not be convicted and sentenced on the basis of the report. In this aspect the procedure under Act 230 is similar to the summary committal for perjury procedure in respect of which it has been held that a judge is not entitled to prejudge the issue. The Act does not restrict the ways in which the accused may show cause. Section 6 provides that where the accused in showing cause states that he had no opportunity of cross examining any of the witnesses referred to as relied upon in the report; the court may call such witness to be cross-examined by the accused in which case both the court and the Attorney General can put further questions to the witness.’’

The effect and consequence of the report or findings of Commissions of Inquiry under the 1969, 1979 and 1992 constitutions is quite different. Under the said constitutions the effect of a report with adverse finding was to be deemed a judgment of the High Court and appealable to the Court of Appeal. Unlike the findings of the pre-1969 commissions, the post 1969 commissions attracted automatic constitutional sanctions until the persons affected succeed in setting aside the findings on appeal. For example under article 94(2) (d) of the 1992 Constitution a person, being a public officer who is found by a Commission of Inquiry to have defrauded the state or misused or abused his office, or willfully acted in a manner prejudicial to the interest of the state and the findings have not been set aside on appeal or judicial review, shall not be qualified to be a Member of Parliament.

Article 94(5) then provides thus:-

"94(5) A person shall not be taken to be disqualified to be a member of Parliament under paragraph(c) or (d) of clause (2) of this article if:-
(a) ten years or more have passed since the end of the sentence or the date of the publication of the report of the commission or committee of inquiry; or
(b) he has been pardoned. "

Further by article 62 of the 1992 constitution, a person affected by the adverse finding of a commission of inquiry shall not be qualified for election as the President of Ghana and the disqualification is not to be removed by the occurrence of the two events stated under article 94(5) above.

By these constitutional arrangements the Attorney General is not required to take any legal step to secure the criminal liabilities to be suffered by persons affected by the adverse findings or reports of Commissions of Inquiry, which are deemed to be judgments of the High Court against the persons affected and not just a prima facie evidence.

From the historical development of Commissions of Inquiry under our constitutional framework, it should now be clear that reports of such commissions containing adverse findings are judgments of the High Court as defined by the constitution, and the persons affected by the said judgment have the right of appeal to the Court of Appeal. If this was the thinking of the framers of our constitution, as demonstrated by the Constitutional Proposals cited in this ruling, can it then be right for the Attorney- General to prosecute the affected persons against whom the Republic has already secured a judgment; from which judgment they have the automatic right of appeal? No, I think the provisions in Chapter Twenty Three of the 1992 Constitution are clear enough on the intentions and aspirations of the framers as expressed in paragraph 301 of the 1978 Constitutional Proposals.

Now, what are the nature, effect and scope of the adverse findings made by the Ghana @ 50 Commission which forms the basis of this prosecution? The 1992 Constitution by article 280 (5) clearly sets the conditions under which such adverse findings shall be deemed to be a judgment of the High Court. The conditions are simply thus:-

(a) Six months after the finding is made and announced to the public; or
(b) If the Government does not issue a statement in the Gazette and in the national media that it does not intend to issue a White Paper on the report of the commission, whichever is earlier.

In the circumstance of this case the Government has issued a White Paper on the report of the Commission. From article 285(5) it is evidently clear that in as much as the Government has issued a White Paper on the report of the Commission the findings had become a judgment of the High Court. The reason is that under article 280(5), the findings became judgment when either of the two conditions stated therein first occurred. By issuing the White Paper the Government had elected to make the findings a judgment of the High Court, making the six months condition nothing to count. I am of the considered opinion that at the time this prosecution was mounted by the Attorney-General, the findings of the Commission which formed the basis of the charges against the applicants herein, was already a judgment of the High Court, by the issuance of the White Paper.

Assuming however that the six months condition is still to be counted, notwithstanding the issuance of the White Paper, then we have up to the 20th October, 2010 for the findings to mature into judgment. This is because pursuant to article 280(3), the report of the commission was published together with the White Paper on the 21st April, 2010. Clearly, counting from the 21st of April, 2010 the six months will elapse on 20th October, 2010, about seventy-one (71) days from today the 10th of August, 2010. The significance of this date therefore is that the adverse findings made by the commission shall be deemed a judgment of the High Court by that date, if my finding above that the Commission’s report is already a judgment is disputed. What then would be the current position of the applicants herein if the findings should be deemed a judgment in October, 2010?

Is it the case that before the adverse finding is deemed to be a judgment of the High Court, the affected persons could be prosecuted, because there is no judgment yet? No, as I have demonstrated in this ruling the intention of the framers of Chapter Twenty-Three of the 1992 constitution derived from the 1969 and 1979 constitutions is that public inquiries should not develop into criminal trials. The constitutional arrangements under article 280 of the 1992 constitution therefore does not allow the Attorney General to initiate prosecution against persons affected adversely by the findings of a Commission of Inquiry established under article 278 of the constitution. The initiation of this criminal trial against the applicants herein should it be allowed, will only lead to judicial absurdity, if the affected persons decide to exercise their right of appeal to the Court of Appeal. The reason is that engaging in this prosecution will not change the constitutional provision that six months after the publication of the Ghana @ 50 Commission of Inquiry report, the findings shall be deemed a judgment of the High Court. In the circumstance, I hold that the prosecution mounted against the applicants herein by the Attorney General violates the democratic right of appeal offered the applicants against the findings of the Commission of Inquiry into the Ghana @ 50 celebrations, since the constitution deems the findings a judgment against the applicants, subject only to an appeal under article 280 of the constitution.

The learned Chief State Attorney has argued that the prosecution of the applicants herein should not be disturbed because the Rules of Courts Committee established under article 157 of the constitution has not formulated rules to regulate the hearing of appeals against the findings of Commissions of Inquiry as required by article 281(2) of the constitution. It is not very clear whether or not the Rules of Court Committee as at today has published rules to regulate the procedure and practice of such commissions. Indeed at page 2 and paragraph 3.1 of the Commission’s report, the Commission commented that the absence of regulations governing the procedure for the Commissions of Inquiry was one of the main challenges encountered by the Commission in the discharge of its duties. The Commission however acknowledged the existence of a draft regulation put together by the Drafting Division of the Attorney General’s Department.

I am of the considered opinion that even though there is the need for such rules to regulate the practice and procedure of Commissions of Inquiry, the absence of such rules, if at all, does not take away the right of appeal of the applicants herein as guaranteed by article 280(2) of the constitution. Indeed the Court of Appeal has its own rules that regulate its practice and procedures. The Court of Appeal Rules, CI 19 as amended under Rule 7 grants the Court the right to prescribe its own rules in the exercise of its jurisdiction to hear appeals, in case no specific rules are prescribed in CI 19.

The prosecution of applicants herein, being persons affected by the adverse finding of the Ghana @ 50 Commission, undermines the provisions of Chapter Twenty-Three of the 1992 Constitution, particularly article 280(2) and (5) thereof. This trial will amount to a High Court evaluating its own judgment a duty reserved for the Court of Appeal under articles 280(2) and (6), 281 and 137(1) of the Constitution. Under article 137(1) of the 1992 Constitution, it is only the Court of Appeal that has the jurisdiction to re-evaluate the findings and decision of the High Court. The said article provides as follow:-

“137(1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law.”

Clearly as demonstrated article 280(2) and (6) of the 1992 Constitution confers on the Court of Appeal the jurisdiction to hear appeals against the findings of Commissions of Inquiry established under article 279 of the Constitution. It is thus evident that constitutionally this High Court as constituted has no jurisdiction to evaluate the soundness or legalities of the findings of the Ghana @ 50 Commission as the finding is deemed to be a judgment of the High Court.

This case for me reveals a very important constitutional development in this country, regarding the legal effects of findings or reports of Commissions of Inquiry appointed under the constitution. It is clear from my findings herein that such Commissions of Inquiry as established have undergone remarkable constitutional development from the 1969 constitution which ought to be recognized, registered and sealed with the judicial stamp of this country. This is a solemn and sacred duty that the courts are established to do. Under the 1992 constitution about four commissions of inquiry, including the Ghana @ 50 Commission had been established to investigate various important matters of public concern and interest. These commissions established under the 1992 constitution are as follows:-

1. The Commission of Inquiry (International Transfer of Football Players) Instrument, 1999 established under CI 22 of 12th March, 1999.
2. The Commission of Inquiry (Accra Sports Stadium Disaster) Instrument, 2001 established under CI 34 of 11th May, 2001.
3. The Commission of Inquiry (Yendi Events) Instrument, 2002 established under CI 36 of 26th April, 2002.

Indeed by article 280 of the constitution the reports of all the above commissions were deemed to be judgments of the High Court and persons affected by the adverse findings had the constitutional right of appeal to the Court of Appeal. It is however a matter of judicial notice that persons against whom adverse findings were made by the Commission of Inquiry into the Yendi events and the Commission of Inquiry into the Accra Sport Stadium Disaster were prosecuted in the High Court, notwithstanding the clear provisions of article 280 of the constitution, which clearly represent the aspirations of the great men and women who engineered our 1969, 1979 and the 1992 constitutions; the aspiration being that findings of commissions of inquiry should never develop into criminal trials. It is obvious that the objections raised in this case were lost on the persons against whom adverse findings were made by the two previous commissions mentioned above. The prosecution of the said persons at the High Court was a violation of their constitutional right of appeal against the findings of the two commissions; and it is this right that this court has been called upon to enforce under its jurisdiction as provided by article 33 of the constitution.

Flowing from the aspirations of the framers of our constitution that the findings of a commission of inquiry are not to develop into a criminal trial, I find that the Ghana @ 50 Commission of Inquiry itself respectfully erred when it recommended that Government may prosecute the applicants herein. At page 17 and at paragraph 6.1(xiii), the Commission recommended the following:-

‘’xiii. For the following reasons Government has the option of prosecuting the CEO and the Chairman under section 179A (3) of the Criminal Offences Act, 1960 (Act 29) for causing loss to the state:’’

The Commission then went ahead to formulate three reasons for this recommendation at page 17 and 18 of the report.

Besides the constitutional development of commissions of inquiry in our country as discussed in this ruling, the Constitutional Instrument that established the Ghana @ 50 Commission of Inquiry, CI 61, of 5th June, 2009 raised a serious legal issue by the provisions of its sections 8(2) and 10 which provides as follows:-

"8(2) A person shall not be subject to any civil or criminal proceedings under any enactment by reason of that person’s compliance with a requirement of the Commission.’’
10(1) Subject to paragraph (2), in any proceedings before the Commission a person called a witness shall be compelled to produce any document or article and answer any question as regards the subject matter of the proceedings although the document, article or answer may incriminate that person.
(2) Where a person gives incriminatory evidence under paragraph 1, the evidence shall not be used in any criminal or civil proceedings against that person.’’

The requirements of the Commission that persons appearing before it had to comply can be deduced from section 7 of CI 61, which is as follows:-

"7. For the purposes of the conduct of its proceedings, the Commission shall have power;
(a) to require a person to disclose truthfully, information within the knowledge of that person and which is relevant to the proceedings;
(b) to examine a witness on oath or affirmation and to administer the oath or affirmation;
(c) to issue subpoenas requiring the attendance of a person before the Commission and require the production of any article, documents or other record relevant to the proceedings;
(d) to cause a person who refuses to comply with the order or directives of the Commission or acts in any manner contemptuous of the Commission to be charged with contempt of court and for that person to be tried at the High Court; and
(e) to require a person to fill a form providing the information and within the period specified in the form.’’

These are the requirements of the Commission the compliance of which a witness shall be immune from any civil or criminal proceedings under any enactment. It is therefore, my opinion that the combined effect of sections 8 (2) and 10 of CI 61 is that when a person or a witness attends the Commission in compliance with its requirements then no civil or criminal proceedings shall be brought against such a person under any enactment, in this case for example the Criminal Offences Act of 1960, the enactment under which the applicants herein have been charged. It is a matter of judicial interest to observe that section 10 of CI 61 makes persons attending the Commission compellable witnesses with regards to the production of documents and answers to any question, even though such documents or answers may be incriminating. The legal effect to be noted here is that unlike criminal trials where the accused cannot be compelled to give evidence that may incriminate such accused; the situation was the opposite with proceedings before the Commission. It therefore made sense for the provision in section 10 (2) that such incriminating evidence in the form of answers to questions and the production of documents was not to be used in any criminal or civil proceedings against the persons who appeared before the Commission.

In this case it is settled that the prosecution of applicants herein is derived from the evidence and findings of the Ghana @ 50 Commission created under CI 61, so how is one to reconcile the clear provisions of sections 8 (2) and 10 of CI 61, with the Attorney General’s decision to use the evidence adduced through the attendance of the applicants herein before the Commission to prosecute them. I find the instant proceedings very contradictory to the very Constitutional Instrument which gave birth to the Commission and empowered it.

In drafting this ruling I have carefully examined the provisions of the Constitutional Instruments that established the three other Commissions under the 1992 constitution that preceded the Ghana @ 50 Commission. As stated earlier in this ruling these are; the Commission of Inquiry (International Transfer of Football Players) Instrument, 1999 CI 22; Commission of Inquiry (Accra Sport Stadium Disaster) Instrument, 2001, CI 34 and the Commission of Inquiry(Yendi Events) Instrument, 2002, CI 36. I observed that these three earlier Commissions only had a provision in their section 6 as follows:-

"A witness or lawyer appearing before the Commission is entitled to the same privileges and immunities as a witness or lawyer appearing before the High Court.’’

The Constitutional Instruments that established these three earlier Commissions did not have a provision like section 8 (2) of the CI 61 that established the Ghana @ 50 Commission, which provision sought to immune witnesses from any criminal or civil proceedings. Indeed, the provision quoted above from the Constitutional Instruments of the earlier Commissions was reproduced in CI 61 but in addition to that was section 8 (2). The provision of section 8 (2) in CI 61 is thus a departure from the earlier Constitutional Instruments created under the 1992 Constitution, as it guaranteed the immunity of witnesses who appeared before the Commission from any criminal proceedings. Consequently, it is my holding that besides the constitutional provision in article 280 (2) that declares the report of the Commission a judgment of the High Court thus making any prosecution based on the report a violation of the applicants right of appeal; the provisions of CI 61 particularly section 8 (2) makes the prosecution of the applicants herein an exercise contrary to CI 61 and hence wrong in law.

In this proceeding the learned Chief State Attorney argued in response to the submissions of learned Counsel for the second applicant, that the applicants herein attended the Commission not as ordinary witnesses, but as the main subject of the Commission. I observed that learned Counsel for the Republic took that stand due to the legal effects of sections 8 (2) and 10 of CI 61. For that reason learned Counsel for the Republic submitted that the applicants herein cannot take advantage of section 8 (2) of CI 61, which granted immunity to witnesses who attended the Commission and complied with its requirements, from any civil or criminal proceedings. Learned Counsels for the applicants have earlier argued that by this provision the applicants who appeared before the Commission in compliance with its requirement were immune from any civil and criminal proceedings under any enactment. What then was the status of the applicants before the Commission? And what was the subject of the Commission’s inquiry? Let me first address the issue of the subject of the Commission’s inquiry.

The terms of reference of the Commission were stated at section 5 of CI 61 and it provides as follows:-

‘’5. The terms of reference of the Commission were:-
a. to inquire into and report on allegations of improper use of public and of any other funds;
b. to inquire into the use by the Secretariat of any property, movable and unmovable;
c. to inquire into any other matter which appears to the Commission to be incidental to or reasonably related to the Ghana @ 50 celebrations which in the opinion of the Commission ought to be enquired into; and
d. to make recommendations in respect of the findings of fact by the Commission’’.

These were the same terms of reference captured in the White Paper on the report of the Commission at paragraph 3.0

From the above terms of reference can it be said that the applicants herein were the subject of the inquiry? The applicants are not named in the terms of reference of the Commission. Indeed the applicants are not named personally in the entire CI 61. It will therefore be wrong to hold that the applicants were the subject of inquiry by the Commission. The preamble of CI 61, the instrument that established the Commission clearly provided that the Commission was to inquire into the activities of the Ghana@ 50 Secretariat. The Secretariat was therefore the subject of the inquiry and not the applicants herein.

Now what was the legal status of the applicants before the Commission? A careful reading of CI 61 creates no doubts at all that those persons who appeared before the Commission were witnesses. This finding is re-enforced by the 1968 Constitutional Proposals quoted extensively in this ruling, whose paragraph 722, proposed among others that:

‘’A person duly summoned before a Commission of Inquiry should not be regarded as a witness of any particular party. He must be considered to be a witness of the Commission. Such a person should therefore give formal evidence as to the matters related by him in his written statement to the Commission and then be subject to cross-examination by Counsel on behalf of the Commission to test the accuracy of his statement and to deal with matters which are not dealt with in his statement. He should be liable to examination by Counsel on behalf of any person affected by the evidence given or that person himself and should be subject to re-examination on behalf of the Commission when this is required’’

It is important for me to emphasize at this juncture that the 1968 Constitutional Proposals which was adopted by the framers of the 1969 Constitution began the constitutional evolution of the legal effects of Commissions of Inquiry established under our constitutions.

In fact the Ghana@ 50 Commission of Inquiry itself stated in its report at page 2 under paragraph 2.2, that ‘’it extended specific invitations to Dr. Charles Wereko- Brobbey (CEO), the Chief Executive Officer of the Ghana @ 50 Secretariat(Secretariat) and Mr. Kwadwo Mpiani (Chairman), the Chairman of the National Planning Committee(NPC) to attend the proceedings.’’

Now from the Commission’s own report the applicants were invited to attend the proceedings and they did so in compliance with section 7 of CI 61. In the circumstance, I am satisfied that the applicants did appear before the Commission only as witnesses and not as the subject of the inquiry. The important question then is this, having invited the applicants to attend the Commission’s proceedings in compliance with the requirements of section 7 of CI 61, could the Republic turn round to institute this criminal proceedings against the applicants, notwithstanding the clear provision of section 8(2) of CI 61; which gives the applicants immunity from any civil or criminal proceedings? It is my considered opinion, as I have found earlier that section 8(2) of CI 61 makes the prosecution of the applicants in this case unlawful as being contrary to CI 61, the very legal framework that created and empowered the Commission.

In the applications before this court, the applicants who are the accused persons are praying that the charges preferred against them be struck out and the criminal action against them dismissed as violating their constitutional rights. The first applicant in the alternative prays that proceedings in this case be stayed until the time granted for appeal against the findings of the Commission’s report lapses.

I have considered the prayers sought by the applicants herein and I am of the opinion that in view of the clear constitutional provisions on the matter as addressed in this ruling, no useful purpose would be served in staying proceedings of this case. As I have found the Attorney-General is legally wrong in mounting this prosecution against the two applicants herein. Accordingly, I will sustain the prayers of the applicants and therefore struck out all the charges against the two applicants as contained in the charged sheet filed in this court on the 22nd of April, 2010 as in case No. ACC 39/2010. In deed the entire prosecution of the applicants in case No. ACC 39/2010 is hereby set aside as it infringes on the constitutional rights of the accused persons/ applicants herein. The applicants herein namely; Charles Wereko-Brobbey and Kwadwo Okyere Mpiani, who are the accused persons in case No. ACC 39/ 2010 are hereby discharged accordingly of the charges preferred against them in this case.

Before I end this ruling, I would like to emphasis the need for us as a nation to develop and advance our constitutional dispensation. I have tried to show in this ruling the wisdom behind the establishment of Presidential Commissions of Inquiry under our constitution. It is to enable the President appoint citizens of the required expertise to impartially and independently investigate matters of national importance, to evaluate the performance of our public institutions with a view of ensuring and maintaining efficiency and a high standard in our public adminstration. That exercise as rightly stated in the constitutional proposals of 1968 and 1978 could have serious negative consequences on the reputation of public office holders in such institutions investigated by such Commissions of Inquiry, hence the need to give such affected people the right to challenge the soundness of the findings. A citizen’s right of appeal has always been respected since ancient times. That was why Apostle Paul’s right of appeal was upheld by Governor Porcius Festus as recorded in the book Acts in the bible. In Acts, chapter 25: 8-12, we read the following:-

"8 Then Paul made his defence: I have done nothing wrong against the law of the Jews or against the temple or against Caesar.
9. Festus, wishing to do the Jews a favour, said to Paul, are you willing to go up to Jerusalem and stand trial before me there on these charges?
10. Paul answered: I am now standing before Caesar’s court, where I ought to be tried. I have not done any wrong to the Jews, as you yourself know very well.
11. If however, I am guilty of doing anything deserving death, I do not refuse to die. But if the charges brought against me by these Jews are not true, no one has the right to hand me over to them. I appeal to Caesar!
12. After Festus had conferred with his council, he declared: You have appealed to Caesar. To Caesar you will go!’’

The right of appeal clearly as fundamental as it is was respected and enforced under the constitution of the ancient Roman Empire. The right accorded Apostle Paul is not different from what our 1992 Constitution grants, under article 280 (2), to persons against whom adverse findings have been made by a Commission of Inquiry appointed under article 278 of the constitution. To mount criminal proceedings against such persons to whom the constitution has granted this right of appeal and to allow such prosecution to continue would be undermining the efficacy and the solemn provisions in our constitution. These provisions promote good governance and due process in our constitutional dispensation and we ought not to depart from them as a people.

What the findings and holdings in this ruling show is that if Government’s intention is to prosecute public officers who are alleged to have conducted themselves in a manner prejudicial to the interest of the state, in their public duties, the way to go is not the use of Commissions of Inquiry, under article 278 of the Constitution, because of the constitutional history behind the establishment of such Presidential Commissions, under our constitution. That intention requires Government to use the traditional investigative agencies under our laws so that the Attorney General could resort to the powers granted her under article 88 of the 1992 Constitution to mount the appropriate criminal proceedings, if necessary.

I further observed in this proceeding that it is not clear whether rules have been made by the Rules of Court Committee to regulate the practice and procedure of Commissions of Inquiry established under our constitution. In view of the constitutional significance of such Commissions of Inquiry; it is urgent that the provisions of article 281 (2) is given effect by the Rules of Court Committee. The need for rules to regulate the practice and procedure of Commissions of Inquiry cannot be over-emphasized. The 1992 Constitution has witnessed the establishment of three previous Presidential Commissions of Inquiry as observed in this ruling.

It is not clear whether the three earlier Commissions of Inquiry were guided in their practice and procedure by rules formulated by the Rules of Court Committee under the 1992 Constitution. I am tempted to believe that the Ghana@50 Commission of Inquiry may not be the last Commission to be established under the 1992 Constitution. It thus calls for the formulation and publication of rules to regulate the practice and procedures of Commissions of Inquiry by the Rules of Court Committee, so that the procedures and practice of such Commissions would be made clear as we advance in our governance.

In conclusion the charges against the two accused persons and applicants herein are accordingly struck out. The entire prosecution of the applicants in this case No. ACC 39/2010 is set aside as a violation of the applicants’ right of appeal guaranteed under article 280(2) of the 1992 Constitution of the Republic of Ghana.

(SGD)

SAMUEL MARFUL-SAU
(JUSTICE OF APPEAL)

COUNSEL
· MR. ANTHONY GYAMBIBY, CHIEF STATE ATTORNEY WITH HIM MRS. KEELSON, PRINCIPAL STATE ATTORNEY AND MR. PAUL ABARIGA, STATE ATTORNEY FOR THE REPUBLIC.

· MR. AKOTO AMPAW WITH HIM MR. ALEX QUAYNOR FOR THE FIRST ACCUSED/ APPLICANT

· MR. YONY KULENDI WITH HIM MR. EGBERT FAIBELLE JNR. FOR THE SECOND ACCUSED/APPLICANT

THE LAW SLAPPED ON THE TOP RADIO PANELIST

2010-02-20T12:10:00.001Z

THE LAW SLAPPED ON THE TOP RADIO PANELIST

Published in Ghanaian Times, Saturday, February 20, 2010 Page 15

208. Publication of false news
(1) A person who publishes or reproduces a statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour.
(2) It is not a defence to a charge under subsection (1) that the person charged did not know or did not have reason to believe that the statement, rumour or report was false, unless it is proved that, prior to the publication, that person took reasonable measures to verify the accuracy of the statement, rumour or report.

I have been deeply concerned about the tone and quality of discussions in the press generally, and the penchant for certain journalist, discussants, ‘social commentators’ and callers to make wild and unsubstantiated claims and allegations, attacking the integrity of other Ghanaians, and when challenged, limply say “I stand by my story.”

Personally, having been the victim of one such unwarranted attack by a newspaper, I definitely know how angry that makes one feel. I definitely empathize with political leaders who are subjected to such attack on almost a daily basis. But in a liberal constitutional dispensation, a person who is sufficiently aggrieved by such statements should head to the courts and file a civil action in defamation, and not rely on or employ the machinery of state to prosecute the author of the falsehood.

The gentleman is charged under section 208 of the Criminal Offences Act. This offence is not new and existed under section 440 of the Criminal Code, Cap. 9 (191 Rev.) Offences of this nature, just like the repealed criminal libel, have their roots in the old English statutes, namely the Slanderous Reports 1275 “de scandalis magnatum” (3 Edw 1, c 34); Penalty for Slandering Great Men, 1378 (2 Ric Stat 1, c 5) and Penalty for Slandering Great Men, 1388 (12 Ric 2, c 11), which prohibited “telling or publishing any false news or tales whereby discord or occasion of discord or slander might grow between the King and the people.”

Thus in the old English case of R v Harvey (1823) 2 B & C 257 it was held that a publication that King George III was labouring under mental derangement was “an offence on the ground that it tended to unsettle and agitate the public mind, and to lower the respect due to the King.” Thankfully, for the English, these statutes were repealed in 1887 by the Statute Law Revision Act, 1887 (50 & 51 Vict, c 59).

Section 208 of our law has remained intact and renewed notwithstanding the repeal of its English antecedents. However, it has been the subject of some judicial interpretation in Ghana, and it has, for instance been held that merely making a false and highly mischievous statement did not constitute an offence under the section. It must be shown that the statement was (i) published, and (ii) likely to cause fear and alarm to the public or to disturb the public peace.
The test whether the offence is committed, the courts have held, is not even the actual result, but whether the false statement was likely to cause fear or a breach of the peace.

The question that one would have expected to police to have considered in deciding to lay a charge and arraign the gentleman, was not whether some party supporter or supporters of the alleged target of the false statement actually massed up at the radio station; because that can be easily orchestrated. The question is whether such a statement is apt or prone to cause fear and/or a breach of the peace. Thus the character of the persons to whom the false publication was made, i.e. the persons who listen to the relevant radio station, must also be taken into account. The question that one would have expected the police to have asked itself, before charging and arraigning the gentleman was whether the reasonable Ghanaian listening to the gentleman’s empty effusions on radio was likely to be put in some fear. What fear? Fear that the target of the false statement is a person prone to committing arson? Or that Ghanaians are so fickle minded that we are likely to disturb the peace on account of the gentleman’s false statements, which were challenged there and then on air, and was it was shown that he had no bases whatsoever to make the allegations?

It is unfortunate that this section did not catch the eye of the government when criminal libel and other related offences were repealed in 2001. Or was it deliberately ignored? Although the section attracted the attention of the Statute Law Revision Commissioner in his recent review of statutes, all he did was to modernize the language of the drafting. For my part, I fully expect that the gentleman will be granted bail either on appeal or renewed application for bail. But I also fully expect the Attorney-General to put an end to this discussion by discontinuing the trial immediate. Then we can begin a discussion and debate whether this section still has relevance in a liberal democratic country.

EDITOR’S NOTE: The author wrote this article before the accused was granted bail.

What Is My Beef Against SIM Card Registration In Ghana?

2010-01-26T10:15:00.000Z

I do not have a beef (complaint or gripe) against the proposed registration of the ‘details’ of the SIM card holders in Ghana. Infact, I support the idea. What I have sought to do is to raise questions about who is leading that exercise, the use to which the information gathered would be put, and also to point to potential legal mine-fields that appear to have been completely lost on those who are in charge of the exercise.

Open Letter
I started to get concerned when I realised that ‘National Security’ has been pushing, behind the scenes for a long time and then in public, for the mandatory registration of the details of all mobile phone subscribers in Ghana, with deadlines and threats of disconnection of unregistered customers. Who gave ‘National Security’ that power? The concerns certainly increased when in the 2010 Budget Statement, we were informed in paragraphs 621, 628, 672 and 864 of plans by the Government to “acquire telecommunications monitoring equipment” ostensibly to “enhance compliance” with the ‘Talk Tax.’

On Monday 14 December 2009, I wrote an open letter to the Ministers of Finance and Communications, to express my concerns and ask certain questions. I am yet to receive a formal response. In the letter, I stated that although the registration and proposed monitoring equipment appeared to be two different, innocuous matters upon first reading, when read together, they threw up many questions that begged for answers. The questions I posed were as follows:

“1. Is there any suggestion or evidence that Telecom Operators have been cheating on the “Talk Tax”, which will then require the implementation of the monitoring of communications to “enhance compliance”?
2. What are the legal bases for the demands by ‘National Security’ for ‘registration’, and therefore unrestricted access to citizens’ details, from Telecom Operators?
3. Is it the case that: (i) at present, the Police, ‘National Security’ and the Military have easy access to individual mobile phone details by simply writing letters to Telecom Operators, without any court orders; (ii) telecom traffic travels in two types of paths, the ‘voice path’ being that in which the actual conversation moves from one network to another, and the ‘signalling path’ being the means by which one network can communicate with the other about a pending call; and that text messages pass through the signalling path, which is the path that the government wants to monitor; (iii) the Government wants to compel Telecom Operators to send all their signalling through ‘black boxes’ owned by the Government, which would monitor all call traffic (i.e. the originating and destination numbers, the time and length of call) and report the data back to the Government in real time; (iii) if or when implemented, the Government will know who we are, who we call, and how often we call, at the time we are calling; (v) although the Government may not be able to decipher the actual words of voice calls, it will be able to read every single SMS coming into and leaving networks, and know every website that a person visits on his/her phone or mobile internet device; (vi) however, by simply manoeuvring the signalling channel messages, the Government will be able to interrupt, process, intercept, block and/or divert calls, so that the Government can then eavesdrop and know every single detail of happenings on the intercepted calls, without our knowledge and/or the involvement of any competent judicial authority in Ghana; (vii) the current proposed implementation will allow the Government, not only to know who is phoning whom, but also from where to where (with accurate location placement), and whether a person is roaming and in which country and on which network; and (viii) by this means, it is possible to change signalling so that although a specific call is made, all traces of it can be removed or disguised so that no one can trace its origin or destination, and create an SMS or call that never existed?”

I also took the opportunity to refer the Ministers to Article 18(2) of the Constitution, which guarantees the citizens’ right to privacy of “correspondence” and “communication” and which provides that this right can only be interfered with “in accordance with law” and for specified purposes.

Existing Relevant Legal Provisions
In writing the letter, I was aware of the provisions of the Security and Intelligence Agencies Act, 1996 (Act 562) which provided that a person’s communications may be “intercepted,” but only upon a warrant issued by a judge of the superior courts. I was also aware of the provisions of the Electronic Transactions Act, 2008 (Act 772) which prohibits the divulging of subscriber information by providers of electronic communication services, except with the consent of the subscriber or upon a court disclosure order, and reserves to the subscriber the right to apply to the court to vacate the disclosure order.

I was also aware of the provisions of the Electronic Communications Act, 2008 (Act 775). This Act provides for the inclusion in telecom licences of “prescriptions regarding national defence and public security” and provides that the licences may be amended “by a written agreement” between the providers and the NCA, specifically where “national security considerations… require the amendment.” The law adds that under those circumstances the providers are “entitled to compensation.” I must also point out that this Act gives the President the power, by Executive Instrument, to issue orders to providers requiring them to intercept communication, provide any user information or otherwise in aid of law enforcement and national security.

If the government is required to comply with these detailed procedures before gaining access to subscriber information or communication, would it not be surely unlawful and unconstitutional for the government and its agencies to gain access anyway as a ‘default’ position by the combination of unrestricted access to the mandatory SIM card registration information (which shows who you are and what your number is) combined with the acquisition of the communications monitoring equipment (which shows whom you are calling, at what time, for what duration, etc.)? In other words, what is the point in having the protections that the laws offer, if the government has access to that information anyway?

Registration: The Way Forward
The requirement for the future registration of the details of SIM card owners is right. No legislation is required for this. But the attempt to compel existing owners to register with the threat of disconnection is fraught with legal problems. With each purchase of a SIM card, the provider enters into a contract with the subscriber. Some of those terms are expressed in the little sheets of paper contained in the ‘package’, and some are implied by law. With some providers, there is the requirement to provide the subscribers details, particularly with post-paid subscribers. One other provider demands that anyway, simply because the technology it uses will not allow the sale of their SIM cards at roadsides.

But the vast majority of subscribers were not required, at the time of entering into the contracts, to provide those details. Any attempt to force them to comply with some new terms, is an attempt to unilaterally vary the terms of the respective agreements. That is unlawful and a breach of those contracts. Of course, subscribers can decide to voluntarily comply and provide those details. That would be most welcome, and this writer would want to take this opportunity to encourage Ghanaians to voluntarily provide that information.

However, they cannot be compelled, under the threat of being disconnected. If the providers do this, they will be inviting unto themselves the biggest class action litigation in the history of this country, and I foresee injunctions that would tie down this process for quite a while. They only other way forward, will be legislative intervention. We have done this before. When Ghana needed to register the identities of its nationals, it passed specific legislation to achieve that purpose. That is the way to go. Let Parliament pass law that requires this, going forward. Then the legislation and regulations made under it will set down the exact procedure for doing this, provide for the relevant forms, etc.

Monitoring Equipment
Returning to my worries about what the “telecommunications monitoring equipment”, I have seen a new law, titled Electronic Communications (Amendment) Act, 2009 (Act 786), which was signed into law and received Gazette notification on the same day, 31 December 2009 (which is quite unusual). This law effectively authorises the acquisition of the equipment, this time called “mechanisms and measures,” and then bars the use of the “equipment” or “mechanism” or “measures” for the purposes that I was concerned about. The new provision is as follows:

“The mechanisms and measures… instituted shall not have the capability to actively or passively record, monitor or tap into the content of any incoming or outgoing electronic communication traffic, including voice, video and data existing discretely or on a converged platform whether local or international.”

Conclusion
With this, I guess that I should not expect any response to my letter from the Ministers. What is clear is that my 14 December 2009 letter was not raising false alarms or merely crying wolf. There was clearly more in the woodworks than I even realised when I wrote the letter. Let ‘National Security’ take a step back and allow the Telecom Operators, NCA and Parliament work through this. Let the government and its agencies begin to comply with the provisions of the laws with respect to obtaining the telecommunication records of the citizens. Let the Telecom Operators stop providing customer information to law enforcement agencies upon the mere production of a demand letter. Right now they are exposed to potentially devastating law suits for acting in breach of the existing legislation. The providers should start asking for the court disclosure orders. Further, let the NCA, as the operator of the “telecommunications monitoring equipment,” have regard at all time to the law governing the use of that equipment, so that the NCA does not become a mere ‘pass through’ of information for the government. But by all means, let us pass law on the registration of existing SIM cards. And whilst at it, let us pass the data protection bill into law.

Whether this new legislation amounts to a sufficient protection of our right to privacy and how the law can be enforced in the event of a breach, is a matter that we might only ascertain in the future.

Yours in the service of God & Ghana,
Kojo Anan
(kojoanan.blogspot.com, www.i-can-ghana.com)

Open Letter to Ministers of Finance & Communications - Re: Registration of Mobile Phone Subscribers and Monitoring of Telecommunications

2009-12-14T13:54:00.005Z

14th December 2009

The Honourable Minister
Ministry of Finance & Economic Planning
Accra

AND

The Honourable Minister
Ministry of Communications
Accra

Dear Sirs,

Re: Registration of Mobile Phone Subscribers and Monitoring of Telecommunications

I write to express concern and to pose questions on two matters, namely (i) the demand by ‘National Security’ that mobile phone operators (“Telecom Operators”) must ‘register’ the details of all subscribers, and (ii) portions of the 2010 Budget Statement about plans by the Government to “acquire telecommunications monitoring equipment.” My letter is addressed to you, because primarily, the concerns fall squarely within the purview of your respective ministries. But I make this an ‘open letter’ as the subject is one that the people of Ghana need to be aware of and so that we can all arrive at informed conclusions on the matter.

Before asking the question, I would crave your indulgence to refer to Article 18(2) of the Constitution, which guarantees the citizens’ right to privacy of “correspondence” and “communication” and which provides that this right can only be interfered with “in accordance with law” passed for specified purposes. The Article states expressly as follows:

“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”

Registration:
I note that ‘National Security’ has been pushing, behind the scenes for a long time and recently in public, for the mandatory registration of the details of all mobile phone subscribers in Ghana. I am aware that they now want to set a deadline before 25th December 2009 for the mandatory registration of all new customers. This is to be followed (at a date that has not been specified yet) by the disconnection of any existing, unregistered customers.

Monitoring:
I note further that paragraph 621 of the Budget Statement announced a “special audit initiative to cover the telephony sector.” Paragraph 628 announced the establishment of a special Communications Service Tax (“CST” or “Talk Tax”) Unit and the commencement of “procurement process to acquire telecommunications monitoring equipment and software” ostensibly for the CST Unit to track payments. Paragraph 672 mentioned an increase in “monitoring activities” to “enhance compliance” with the CST. Finally, paragraph 864 mentioned, again, the need for “increased monitoring” of the CST to ensure compliance.

Questions:
Sirs, these would appear innocuous upon first reading. However, read together, the proposed registration and proposed monitoring throw up many questions that beg for answers. These questions are:

1. Is there any suggestion or evidence that Telecom Operators have been cheating on the “Talk Tax”, which will then require the implementation of the monitoring of communications to “enhance compliance”?
2. What are the legal bases for the demands by ‘National Security’ for ‘registration’, and therefore unrestricted access to citizens’ details, from Telecom Operators?
3. Is it the case:
a. That at present, the Police, ‘National Security’ and the Military have easy access to individual mobile phone details by simply writing letters to Telecom Operators, without any court orders;
b. That telecom traffic travels in two types of paths, the ‘voice path’ being that in which the actual conversation moves from one network to another, and the ‘signaling path’ being the means by which one network can communicate with the other about a pending call; and that text messages pass through the signaling path, which is the path that the government wants to monitor;
c. That the Government wants to compel Telecom Operators to send all their signaling through ‘black boxes’ owned by the Government, which would monitor all call traffic (i.e. the originating and destination numbers, the time and length of call) and report the data back to the Government in real time;
d. That if or when implemented, the Government will know who we are, who we call, and how often we call, at the time we are calling;
e. That although the Government may not be able to decipher the actual words of voice calls, it will be able to read every single SMS coming into and leaving networks, and know every website that a person visits on his/her phone or mobile internet device;
f. That however, by simply maneuvering the signaling channel messages, the Government will be able to interrupt, process, intercept, block and/or divert calls, so that the Government can then eavesdrop and know every single detail of happenings on the intercepted calls, without our knowledge and/or the involvement of any competent judicial authority in Ghana;
g. That the current proposed implementation will allow the Government, not only to know who is phoning whom, but also (i) from where to where (with accurate location placement), and (ii) whether a person is roaming and in which country and on which network; and
h. That by this means, it is possible to (i) change signaling so that although a specific call is made, all traces of it can be removed or disguised so that no one can trace its origin or destination, and (ii) create an SMS or call that never existed?

Conclusion:
Sirs, as I stated above, this letter is just to ask the questions and to elicit responses, if any. If or when you respond to the above, we will continue with this discussion.

Yours in the service of God and Ghana,

Kojo Anan
(kojoanan.blogspot.com, www.i-can-ghana.com)

cc. The Honourable Minister
Ministry of Information
Accra

The Parliamentary Majority Leader
Parliament House
Accra

The Parliamentary Minority Leader
Parliament House
Accra

The Director-General
National Communications Authority
Accra

The Press

17 YEARS OF CONSTITUTIONAL DEMOCRACY – THE MANIFESTATIONS OF MILITARY ‘JUSTICE’

2009-11-23T18:51:00.001Z

“Fiat justitia, ruat coelum,” i.e. "Let justice be done, though the heavens fall."
Lucius Caesoninus, Roman statesman.

There are 2 developing news stories about the military and the law that should give Ghanaians grave cause for concern. The first is the story that 2 persons arrested in Bawku (the “Bawku Two”) were stripped naked and marched through the town. The second is the alleged absconding of one of the three persons standing trial for alleged murder.

The Story of the Bawku Two

Of course, the military denied having stripped the Bawku Two naked. Of course, we could tell from the radio interviews that the military spokespersons were lying or had naively believed the denials of the perpetrators. Of course, we have now seen pictures and video, which confirm that the military lied to Ghanaians and that the Bawku Two were clearly subjected to torture.

I have had occasion to comment about the modus operandi of some of Ghana’s security institutions, who, some 17 years into constitutional democracy, are yet to come to full terms with what that entails. I have spoken with security personnel who think that the constitution should rather be amended to recognise the way they operate. And, of course, I have spared no words and effort in telling them how preposterous that position is.

Ghanaians, I believe, recognise the severity of the situation in Bawku and appreciate all the efforts that are being made to bring calm and sanity to Bawku. However, nothing that is happening there provides any justification for the treatment meted out to the Bawku Two. And what was that supposed to do? Bring an end to the fighting there? If the military had any evidence that the Bawku Two have committed any offences, they should simply put them before court and let the courts of the land do their work. Security institutions in Ghana must understand that they have no power to discipline any person for any alleged infractions of the law. The era where persons who are arrested were subjected to brutalisation that was given exotic names like ‘talk-true-slaps’ should be really and truly over.

But as a nation, we are collectively guilty for turning a blind eye to the continued brutalisation of suspects. We see, on our televisions screens and in our newspapers, persons arrested for alleged crimes, bearing all kinds of swellings and injuries, which could not have been self-inflicted. Yet we pretend that we have not seen them. One day, very soon, a court in Ghana is going to summon the guts to free persons accused of committing crimes, on the sole ground that confession statements were obtained by means of torture. Then the full effect of these obvious beatings will come home to us.

When some human rights advocates raise questions, we berate them and call them names on our radio stations. Guess what? You, dear reader, might be the next victim of police or military beatings, if we do not take a collective decision to end this obvious injustice and blatant violation of our constitution. Today it is the Bawku Two. Tomorrow it might be YOU. The only difference between you and the Bawku Two, is that it has not happened to you yet.

Article 15(1) of our constitution provides that “the dignity of all persons shall be inviolable.” “Dignity” refers to the self-esteem, self-respect, worth, nobility and even the pride of a person. What the constitution says is that this should be considered and treated as sacred and sacrosanct and shall not be violated. By the use of the word “shall” it is mandatory for everyone to respect this. And, this applies to “all persons”, that is each and every person, including persons who are arrested. That is why article 15(2) specifically provides as follows:

“No person shall, whether or not he is arrested, restricted or detained, be subjected to -
(a) torture or other cruel, inhuman or degrading treatment or punishment;
(b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.”

There is no doubt, from the pictures and video that we have seen, that the Bawku Two were subjected to torture. The stripping and parading through the streets was vicious, heartless ruthless and cold-blooded. It humiliated, debased and demeaned the gentlemen. This is what article 15(2) outlaws. There is no doubt that the military authorities in Bawku, blatantly infringed Article 15 with respect to the Bawku Two, and urgent action has to be taken against the perpetrators of these acts.

It was in 1966, after Kwame Nkrumah’s overthrow, when another Ghanaian (Boye Moses) was chained and caged, and driven through the streets of Accra, to alleged cheers from onlookers. To date, I have not read that Mr. Moses was subsequently convicted of having committed any offence. Yet this nation turned a blind eye to (and by conduct, endorsed) this public humiliation. I heard some radio journalists and discussants seeking to justify the treatment of the Bawku Two. That was truly sad. This might not happen to me, personally. But that is no justification for it happening to the Bawku Two. It does not appear from the happenings in Bawku that we have moved one step from the 1966 crude mentality. I sincerely wish to be proved wrong by the military taking action against the perpetrators, so that they are tried in civilian courts or face a court martial. The Bawku Two should also take civil action against the state (vicariously) and the direct perpetrators of this act, to make them pay civil damages for this breach of their human rights.

The Story of the Escaped Murder Suspect

It is against this background that we should consider the strange story that we are being told by the military authorities, that a person accused of and charged with murder, and who is not on bail, was allowed to return to his barracks, was allowed to continue to work as a soldier, was transferred from Tamale to Accra, was given responsibility for checking armed robbery, and has escaped – or, as we are hearing today, has been given a posting outside Ghana. I cannot believe that the entire nation is not having a massive, collective heart attack over this matter.

On Wednesday 25th March 2009, the front page of the Daily Graphic quoted the trial judge in Tamale, Mr. Justice Lawrence Mensah as saying that “the accused persons, who are presumed to be in the custody of the military, whether in Tamale, Accra or elsewhere, should be transferred forthwith to prison custody in Tamale to facilitate their easy access to the court.” The judge, after making this order, adjourned the case “to allow the military ample time to produce the suspects when the case is called the next time.”

The Ghanaian Times report of the same date (tucked at the back page) stated that the accused persons had failed to show up in court when the case was called. The acting Director of Public Prosecutions, who had travelled from Accra for the trial in Tamale, is reported to have expressed surprise and thus prayed the court “to direct the Military Command to transfer the three soldiers from military custody to prisons remand to facilitate the trial.” The court obliged and made the relevant order.

According to the Ghanaian Chronicle report of the same date (in the centre spread), Justice Mensah’s order was specifically directed at the “Commanding Officer (CO) of the 6th Infantry Batallion Regiment of the Ghana Armed Forces in Tamale.”

Was this peremptory order ever overturned or varied? Was it complied with? Did the transfer per se of the trial to Accra remove this order? Under what circumstances did other persons decide to grant the accused persons liberties that the court had not given?

These accused persons were not even on bail, which meant that they were supposed to be in custody, whether police or military. How on earth could these accused persons be allowed to live in their homes and be allowed to continue to work and earn a living, so that one of them would simply take a hike and not return?

When a person is arrested, he immediately becomes a ward of the state, and can only walk free if the police (or other arresting authority) grant him bail. When that person is subsequently charged and put before court, he immediately becomes a ward of the state again. That is why upon the first appearance, his lawyers will have to apply for bail. Unless the court grants bail, that person must return into custody. When an accused person is charged with murder, section 96 of the Criminal and Other Offences (Procedure) Act provides in mandatory terms that a court shall refuse to grant bail in a case of murder. The only instance where a person charged with murder might obtain bail is where his prosecution has been delayed unreasonably; then his lawyers might be successful in doing an article 14(4) application for bail. But it is clear that unless and until an accused person who has appeared before a court has been granted bail, he must be kept in custody.

There are therefore many questions that are begging for answers. Do we have a situation in Ghana where some accused persons are more ‘special’ than others? Why should some accused person be allowed all the liberties of the free, at a time when they had not been admitted to bail and the court had made a specific order relating to their confinement? Has the court’s order been treated with contempt? One of the Underlying Objects and purposes of the law of contempt is protect orderly administration of law. The due administration of justice requires no usurpation of the functions of the court. Thus the power to commit for contempt extends to disobedience to orders made by the court. Justice Mensah’s orders were clear. If someone has violated those orders, isn’t that person in contempt of court?

We cannot even say that this accused person has ‘jumped bail.’ There was simply no bail, and no bail means that the person should be kept in custody. How then can Ghanaians simply take this matter in our stride as if nothing has happened and then allow the military to feed us with changing stories? If it was the military hierarchy that decided to breach the court’s order, can we trust their claims of investigating the matter? Indeed, do we need another investigation? Is this not a proper case for the Attorney-General to commence contempt proceedings against the persons who violated the court order, so that they come to court and show why they should not be committed for acting in violation of a court order?

Conclusion

We must juxtapose the treatment of these military men to the treatment given by the same military to the Bawku Two. A specific court order directing the confinement custody of military men accused of murder is flouted by the military. But the same military arrests two ordinary men (who have not been charged with any offence), and subject them to torture and cruel and inhuman treatment.

The good people of this country must demand of the powers that be to call the military to order immediately. Our near-silence on these matters does violence to the word “Justice” in our national motto, which connotes fairness, impartiality and evenhandedness. We are 17 years into constitutional democracy. Let Justice be manifestly done, and let’s see if the heavens will fall.

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

2009-08-25T18:41:00.002Z

“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?

2009-08-14T16:56:00.008Z

“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

MARKETING GHANA: BETWEEN OBAMA, FACEBOOK DEBATES, STRAY COWS AND TOILET WARS!! (Final Part)

2009-07-21T17:30:00.002Z

And So What?
So how did all this end, and where does it lead us to or leave us? Is this just some intellectual babble? Did we just talk and end the matter there? I was resolved not to let all of the gems gathered in the discussion go to waste. So I made use of a facility on Facebook by which one can introduce people into ‘friendships.’ I was privileged to be Facebook ‘friends’ with a government deputy minister with direct responsibility for branding Ghana. I therefore introduced these ‘friends’ to each other and to this Deputy Minister, in the hope that some of the things we shared can move from the ‘talk’ stage to the ‘walk’ stage. Then we would have made some progress.

But as I was thinking about progress, then my beloved Cape Coast hit the headlines, this time on account of a political struggle over the control of public toilets. Let us be clear on one thing. Public toilets are very important in Ghana. Indeed, in many places, they constitute significant land marks. And just before anyone thinks that I am being merely cynical or flippant, I will want to refer to at least five local government regulations, which expressly mention certain public toilets as boundaries of some Town/Area Council Zones: LI 1421 (West Akyem), LI 1427 (Yilo Krobo), LI 1453 (West Dagomba), LI 1488 (Atebubu) and LI 1614 (Kumasi). Further, revenue from public toilet facilities is so critical to local government authorities that it has been legislated in our statute books. The Local Government Act, Schedule 6, titled “Revenue of Local Government Bodies”, Item 10 (viii), mentions “Toilet Receipts” as one of the statutory sources of revenue.

To my mind, public toilets should not be the first reference point for any citizen of this country who seeks to ‘answer nature’s call.’ But that is the case in many communities in Ghana, simply because in the 21st century, there are homes and workplaces in Ghana that do not have toilet facilities, and so many people have to use public toilet facilities all the time. But Ghana’s Building Regulations demand that every house must have toilet facilities. Under Part XIV of the Regulations, every house must have a water closet, where water is available, or an earth closet or chemical closet, where there is no water. The law also provides detailed specifications for installing and maintaining these in homes. With respect to offices, the Labour Act imposes a burden on all employers to ensure that employees have access to “separate, sufficient and suitable toilet and washing facilities and adequate facilities for the storage, changing, drying and cleansing from contamination of clothing for male and female workers.” The Factories, Offices and Shops Act also require that “adequate and suitable sanitary conveniences conveniently accessible to persons employed shall be provided, maintained and kept clean in every factory, office and shop, and effective provision shall be made for their lighting and ventilation.”

It is therefore illegal to build a home or run a factory, office of shop without toilet facilities. We must enforce these laws. The non-enforcement of these laws means that many people depend on public facilities as the first port of response when ‘nature calls.’ This is what has created a huge business and statutory source of income for local government authorities, who, ironically, are required to enforce the Building Regulations. Local government bodies, as we are learning, farm out the actual running of these facilities to various people, and the contractors are selected on the basis of their political party affiliations. Thus with every change of government we will have crises on our hands when the winning parties’ foot soldiers begin to demand a change in control over such facilities, so that they also can ‘enjoy’ the “toilet receipts.” This is the source of the problem, and we simply have to de-emphasise the importance of public toilet facilities by enforcing the laws.

The public toilet story from Cape Coast is not new or isolated. Each forcible take over or quarrel makes its way into the news. Ashiaman public toilets were taken over with force and threats of violence. I heard one public toilet ‘contractor’ screaming on Peace FM that she had placed an injunction on the ‘tsiafi’. Oh… Ghana! And the Cape Coast version of the story is on the internet (myjoyonline.com) for all to see. A prospective tourist who does a Google search on ‘Cape Coast’ probably seeking to visit the Cape Coast Castle, will see that the most topical issue to arise from the beloved city, since Obama left, is over who controls public toilets. In Accra, cows and goats and sheep still roam a road as major as the Graphic Road on an almost daily basis, competing with vehicles for space. The Obama-by-night road refurbishments are still in place and holding out against the rains. (Hey, did Obama take the rains away with him?) The polished and refurbished hospital and King’s Palace are still there for all to see.

My love for Ghana has not diminished. Obama was a high. The toilet fights are a low. Today, I am somewhere in between highs and lows on this sometimes creaking roller-coaster called Ghana. I am still incurably romantic to believe that I can be part of turning this wheel on which we turn, even if T.S. Eliot will call me “a fool fixed in his folly.”

Maybe Obama left Ghana with the smell of fresh paint in his nostrils, and with our rains. Maybe not. But we still have a nation to build and market, a nation that lives in many centuries at the same time. That is our beloved Ghana. But whilst at it, let’s simply enforce the law – one house, at least one toilet. Cage the cows and goats. That would be a great start. Simple.

Yours in the service of God and Country,
Kojo Anan

MARKETING GHANA: BETWEEN OBAMA, FACEBOOK DEBATES, STRAY COWS AND TOILET WARS!! (Part IV)

2009-07-21T17:25:00.003Z

The Facebook Discourse
I turned the emotional overdrive into emails, Facebook and Twitter posts. I put out a ‘status’ on Facebook on 12 July, screaming: “What are we marketing about Ghana, especially after Obama? Has the tide simply ebbed as usual and that's it? There should be no calm after the Obama storm. We gotta keep this ball bouncing. Will we simply go to sleep from exhaustion? Has the adrenalin disappeared? Is ANYONE listening?” This elicited well over 100 responses on Facebook on that day alone, in the most frank, instructive, honest and no-holds-barred discussion that I have ever had on Facebook. Some of the statements were also bold and brutal: the truth hurts, sometimes.

Here is the discussion:

Ken: We have been there before! What is changed since then? The mentality is still the same....!

Kojo: Oga, the slogan and adverts should have been out there even before the visit. GIPC where are you?

Bridget: It is up to us,… Some of us are pushing 40. Let's ask what we impact we would've had on our community by the time we turn 48? We're running out of time!

Yaw (we call him ‘Krazy’): Marketing? The best bit of branding is the experience. We've got to make the product work for the brand. Advertising and sloganeering are but a small, tiny bit of marketing. If we leave a broken poor quality product as is, forget the talk about branding. And yet if it must take Obama to come and tell us this before we see the need to, I fear we then have a bigger problem. If we see another headline saying there's a fight about a latrine somewhere, no we are simply back to the same old…

Robert: Hear Hear Krazy.... When it comes to issues related to branding and marketing of Ghana, we have simply joked about it… We simply don’t get it and it amazes me, given the legion of marketing and brand experts in Ghana.

Bob: … It is horrendously expensive to mount an advert campaign of the type you see for Malaysia and India. And when the public has a negative perception of a product that is largely correct, the amount of money you have to spend to overcome that is huge. And any progress you may have can be quickly undone by word of mouth. Fix the product, then promote it.

Robert: …we are not even at the point where we understand what the product should be like, what its current ailments are, before we even start a conscious programme of fixing it. In a corporate setting it fairly easy to find out what the ailments, conduct an organizational/product/brand audit and then you start the fixing. So what are Ghana’s current brand or product ailments and how do we start fixing it?? Forget promotion for now!

Krazy: “…we do know the country is dirtier than we would like it to be. I doubt that the destination brand has place for cows and goats roaming everywhere. And that we want a country with no proper public toilet system, poor electricity and water supply etc. So we do know many of the systemic failures. What will a visit to Korle Bu for example say about us today? Or our airport? To get a point of parity with those who are successful, we need to fix this. So let’s get on and then while we are sorting this out, we can agree what the differentiator of the Ghana brand will be.

Robert: Hear Hear! Krazy the point I seek to make is that since the resolution of cows and goats roaming everywhere, proper public toilet system, poor electricity and water supply, and simple customer service at our international airports, are the first steps in an international marketing programme, we might need to conscientise Ghanaians to same. As it is these common garbage and power problems are not being solved in any expedient manner because both policy makers, and I daresay a large majority of Ghanaians, are not at the point where they realise that these are the basic building blocks. Maybe, if we are made aware that the most sophisticated advertising agency cannot produce and AD great enough to market a dirty country, we might be up and doing.

Me: There are indeed problems with this country. So we do not market even the little we have at all? This is no chicken and egg situation. Surely not rocket science too. Market what you have and fix what is broken. Ghana does not have to be a complete work before we market. There is dirt in America too. I have seen worse places in Chester, Pennsylvania. So until that is fixed, America should not market what they have? Or is it that we think that we have NOTHING? I am not a marketing guru, but what I am saying is that we can make a start with what we have. Angola is marketing CAN 2010. Is that wrong? We did nada for CAN 2008. Or that also had to wait till we fixed all of our problems? I disagree.

Kwaku: SPOT ON!!!! Yaw (Krazy) when it comes to Korle-Bu you know who I am????? I’ve seen similar or even worse hospitals in Montreal, London and Houston!!!!!

Robert: There is a lil’ problem with the ‘market what you have and fix what is broken’ thesis. When you draw visitors to a destination brand and they encounter what you hope to fix, they recoil and tell several others that Ghana is not worth patronising. Never mind you might have spent millions of dollars on such a campaign. So … [as] alluded to earlier, any progress you have made can be quickly undone by word of mouth. So the ‘market what you have and a fix what is broken’ thesis can be trick and destination brand marketers would be very cautious in proceeding down that path. And don’t forget, we do not have the luxury of coming from a part of the world that particularly enjoys good global press; so a visitor to “HOSPITABLE GHANA” who experiences stray cows and goats and power outages, could do you more damage by word-of-mouth that you can never fix through any marketing efforts.

Me: Sorry, Robert, I think that maybe you are being way theoretical on what tourists might want to see, and maybe I am being too simplistic. But power goes out in America too… So we might have our problems. But if we are marketing, say the Conference Centre as a conference tourism destination, common sense will demand that we fix the power issues there and in our hotels, or at least have stand-by power, as for the goats and cows on the streets, I think that you might see some of that in India, maybe not Delhi, yes. But if we are serious about attracting tourists, we very well should be serious about fixing the system. Maybe the two can move in tandem without one waiting for the other.

Kwaku: Brilliant using India as an example!!! The actors of award winning "Slum Dog Millionaire" were living in worse squalor than you can imagine in Ghana!!! The squalor was advertised and so.............???

Robert: I hear you.

Me: Obama did not bring us a plane load of cash, thank God. He left us with words that challenged us to think and move beyond where we are at right now!! That means doing something, heck, anything about our state. So on that, I think that we are all on the same page. Thus a clear strategy to move forward, even if predicated on what he said, which will involve fixing this system and selling what we have, is not really out of place. A person coming to Ghana to see slave forts cannot really expect the comfort of Los Angeles, just like the person who goes to Nepal to see or climb Everest. But like Nepal, we can begin to ensure that some decent level of facilities exists. So let's fix it. Let's fix the Elmina castle too. Let's ensure that both facilities have proper toilets, running water, electricity, better nearby hotels, etc., in the hope that the money we raise from tourists will be sufficient to maintain the facilities.

Bob: I don't think anyone is arguing that everything must be fixed before we can promote anything. But what we are selling (tourist destination or investment destination) need to actually work and the message needs to be consistent with the reality. Kojo Anan is right that tourists from developed countries will want an "authentic" experience rather than Accra Mall but there are minimum standards of comfort, health/sanitation, transportation, and service ethic which we do not yet meet. Some visitors (i.e., the "backpackers") want to rough it. Tourists with more money to spend really don't want it rough. Tourists want to see wild animals... they don't understand the variety or size of Africa. I am not referring to goats, cows, mosquitoes, or geckos. How do visitors get to Mole? And what experience awaits them there? I still remember a few years ago when I had visitors in town, and [the hotel] left us sitting in the outdoor lobby of one of their cottages, being eaten by mosquitoes, while one of their people ran back and forth (4 times, I recall) trying to get any card key to work in any room. That is what the visitors remember about Ghana. And before we pay any more homage to the Malaysia and India advertising campaign....does anyone have numbers to show if they have delivered results commensurate for their cost?

Me: Bob, I also have memories of at least one experience in a London hotel when the 'key' could not open the door, and it took a couple of visits to the lobby for the lady to re-programme the key. Finally, they changed my room. But it is not the only thing I remember about London. I am not sure that anyone can fully quantify the returns of an advertising campaign. For my kids, they have heard that India is INCREDIBLE and Malaysia is TRULY ASIA. But in India, cows still walk some of the roads. And in Malaysia, an opposition leader is in jail on contrived or trumped up charges of 'sodomy'. Whether marketing translates into sales is another matter; but marketing must lead to sales. But at least start thinking of, and exploit, the marketing opportunities, particularly one that falls freely on our laps like the Obama visit; and by all means fix your system.

Bob: Again, I don't think we have a fundamental disagreement. And I am not arguing that any other place is better or that mishaps don't occur everywhere. In the specific instance I mentioned, the two visitors did talk about that incident for several years afterwards; refused to stay at [the hotel] again; and seemed to be avoiding further visits to us to the extent that was possible. By the way, I am guessing you were not attacked by mosquitoes while resolving your key problem in London... ;-) Further… it is a fact of marketing life that negative experience and word of mouth trumps marketing message. And the dual downsides of marketing spend in advance of product readiness is that the marketing spend diverted resources from fixing the actual problem, and the amount of marketing spend needed later to overcome the negative perception spread by people who were drawn in during the first campaign and were disappointed. So we should target something we are capable of fixing well and quickly, and market that. Learn from the experience, and move on to bigger things.

Ato: Truly, if Prez Mills and co let this once-in-a lifetime PR opportunity go to waste without capitalising on the marketing potential, I'll......words fail me! I would've wished that there would've been a committee set up months ago with the sole aim of parlaying this into a huge marketing push for tourism and investment, showcasing the best of Ghana buttressed by solid infrastructural upgrades...

Krazy: … It almost amuses me that when we see some dirt in some part of another country we use that as some sort of reason why we are not alone. How many of you, let us bring this closer home, will advice a cell phone company that has major problems with its basic services (making calls) to leave that and splatter our cities with bill boards and TV ads? What would be your reaction? India has the Bangalore miracle, a middle class that by itself in numbers is more than 15 times the population of Ghana – you think the marketing jobs to be done are the same? Some parts of America may be dirty but many parts are clean. But in Ghana's case, some parts are clean and many are dirty. Korle Bu is our number one hospital – are you comparing to the number one hospital in Canada? Guys, just like in business, unless we face the reality, we do superficial stuff. And then when the marketing budget is blown, we see we go nowhere.

Ignatius: Guys, I'm just reading through your postings and enjoying the back and forth about branding Ghana, ad campaigns and all that good stuff. But here is the bottom line for me – we need a huge attitude change, as a country, and get our priorities right! We have a ministry of tourism (with ministers and deputies, special assistants etc.). and we have a Ghana Tourist Board. So what exactly do these folks do? Just take a trip to the Salaga Slave Market and the Well – just pathetic. In fact the well is an eye sore--there is really nothing preserved there, only a sign board... and a well hidden in the bush somewhere. But this is supposed to be of huge historical significance! I recall an American colleague of mine on the trip remarking that it wouldn't really require much to preserve the place...and I agree. I really don't think our leaders understand what tourism entails (after their numerous trips overseas to conferences etc). We really need to get our priorities right! Guess what, most of the good promotional stuff on Ghana I've seen on US TV have been produced by foreigners, and not Ghanaians – the Discovery channel/Travel Channel has done some good stuff (like their show titled "Ghana Presidential Tour") – they've basically given Ghana priceless exposure on US TV for free, and what have we done to take advantage of these?

Later that day, whilst watching CNN’s State of the Nation, I took pictures of Anderson Cooper, Wolf Blitzer, Obama, Fritz Baffour (the wannabe tour guide) and the real Cape Coast Castle tour guide as they appeared on TV, and posted them on Facebook, and the following ensued:

Me: I am watching one of my most favourite programmes on CNN, and Anderson Cooper is interviewing Obama from Cape Coast. This is Cape Coast's finer moments. But is anyone going to take this forward from here?

Krazy: Go to Salaga Market, the baobab tree of Babatu still stands with metal fetters...priceless. I have been to the slave wells in Northern Ghana...breath-taking. Look at the crocodile pond in Paga. But they are all in the state of nature. What is it that makes Niagara Falls great and not Kintampo Falls? It is the augmented product. The EXPERIENCE built around service. We will go nowhere, I repeat NOWHERE, if we try to circumvent the basics of marketing in the hope that somehow we will find a great way to market without the fundamentals. Marketers of products frequently ask – how does this product fare against the competition in a blind test? There is a reason – branding is hard work, man.

Me: I have not said that we can simply market without getting the product fixed. I fail to see why we cannot market the castle in Cape Coast as it is whilst working at getting others in a better state. Granted. So let's discuss Cape Coast. WHAT, in your view, must Ghana do, to make it more attractive for marketing? That is what I mean by taking it forward from here. What we are saying are not mutually exclusive. It is not as if there is NOTHING right now. So sell what we have and improve on or create what we don’t have or have not developed.”

Krazy: Let us say one main source of interest is the Diaspora. How you get a visa; flight connections to Accra and then transport to Cape Coast; accessibility of clean functioning but reasonably priced hotels... add that to the possibility of well-resourced libraries and librarians nearby; if possible with audio-visual augmentation. Can we have close by DVDs and records of websites that record the thoughts of world authorities on slavery? Interviews and recordings of some of the debates, a hall of pictures of some of the relatives of governors and slaves, etc. etc? If a person came to the castle and wanted to go to Salaga market, dirt, goads, nothing other than the tree… no nearby good hotel, nothing! I don’t want to go on. In Kintampo I nearly wept at the state of affairs when I saw what nature had given us and what little we had done with it. Contrast that with say Wimbledon, where out of nothing there is now a global brand!

I had no response to this. By the way, Krazy has written a brilliant piece on how that once-little suburb of London has evolved and re-branded itself into what it is today.

MARKETING GHANA: BETWEEN OBAMA, FACEBOOK DEBATES, STRAY COWS AND TOILET WARS!! (Part III)

2009-07-21T17:23:00.000Z

The Visit
When I heard that Obama would be visiting Ghana, I was over the moon. This was THE cool man, coming to THE cool country and visiting THE cool city. I hurried home from a trip to his country, just to be here and feel his presence. To me, the trip was all that I expected it to be, except in one material particular. Obama denied us the opportunity to pull the biggest crowd that he would ever have seen in his life, when post-9/11 security concerns did not permit a Clinton-style outdoor event. I am told that in 1998, Clinton pulled about 500,000 people to the Black Star Square (which by the way, received a significant poetic mention by no mean a person than Maya Angelou, and at no mean event than Michael Jackson’s funeral service). Obama could have pulled 10 times that crowd, easily, to confound the noise that was made when he pulled 700,000 in Oregon and 200,000 in Germany, during the campaign. Somehow the Sadam Hussein/Osama bin Laden combi denied both Obama and Ghanaians such a history-making and record-shattering event.

Those security concerns meant that majority of Ghanaians, including my humble self, could only watch Obama on home TVs. Having only to watch him on TV, Obama could have been anywhere in the world. But we knew that he was HERE, for three main reasons. First, traffic movement in Accra was restricted on account of blocked roads, making it wiser to stay at home and expect that there would be no power cuts. Second, we had witnessed roads being fixed at midnight with floodlights, and a hospital and a King’s palace were refurbished and repainted with great speed. I hear, and it is probably not true, that a world leader once said: “all Third World countries have the same smell – the smell of fresh paint.”

The third reason (and how could we ever forget that he was in Ghana?) was the pathetically poor picture and sound quality that GTV and MetroTV conspired to inflict on us. There was absolutely no excuse for that shambolic performance. Those TV stations humiliated Ghana, and it was painful watching major networks like CNN, BBC and Sky, carrying the awful live pool feed with a disclaimer: that the poor quality was from the “source”. It hurts to think that people were paid to transmit that picture and sound quality, which did not even sync. I am convinced that even my mobile phone could have done a better job. Being as smart as they are, those more serious news networks did their own filming and immediately threw whatever they recorded from our feed into the trash bin, so that their playbacks of the event were crystal clear.

I will not go too much into what Obama had to say to us. Let’s just say that only a black man could have said that to Africa. Neither Bill Clinton nor George Bush (nor any American President before them) summoned enough guts (or maybe even cojones) to say what Obama said to us, to us in our face. And, if this had been John McCain, we would have jumped up and down on his bare back and screamed “don’t you dare patronize us.” Why? Those past American Presidents might look like each other on dollar notes, but they don’t have enough melanin! But this was one of our own, a son of the African soil with African blood running through his veins, telling us the painful home truth, from his heart, and his famous Teleprompters, that we are responsible for our own fate. Oh, and some even felt that he delivered the speech ex tempore. That is Barack Obama. And whilst at it, can someone buy Teleprompters for our Presidents, for now and the future? Teleprompters are cool, just like Cape Coast.

Then Obama went to Cape Coast, where he was given a tour of the Cape Coast Castle by Comedian-Turned-MP-Turned-Castle-Tour-Guide, Fritz Baffour. Obama was also interviewed by Anderson Cooper for CNN and Adam Boulton for Sky News. It was great seeing Cape Coast’s name on TV when the most important person on earth, Obama, was being interviewed. My Fante-ness was in full flow. I felt warm and cold at the same time. This was it – Obama was marketing Cape Coast (and Ghana) for us, for free. Every news organisation on earth, worth its salt (even FoxNews and Wall Street Journal, even if reluctantly), was focusing on us. I went into a romantic overdrive. My head was a tad reluctant to get involved, but my heart was busy telling my head to “stay at home and stop interfering,” as Edward Monkton would have put it. This was our opportunity to milk the event and sustain the attention on Ghana, particularly our tourism potential. I thought that it was time to brand Ghana the way Malaysia is ‘Truly Asia’ and India is ‘!ncredible’. “Get on CNN the way Angola is marketing CAN 2010!” I screamed.

MARKETING GHANA: BETWEEN OBAMA, FACEBOOK DEBATES, STRAY COWS AND TOILET WARS!! (Part II)

2009-07-21T17:18:00.001Z

Barack Obama
I am also one of those Ghanaians who believe that the Obama visit to Ghana has given us a rare opportunity to market this country. The mix of Cape Coast and Obama is unbeatable. On the eve of the Obama visit, Bono the musician said wrote in the New York Times that Ghana is the ‘Birthplace of Cool”. He was right generally; but wrong on specifics. “Cape Coast IS the Birthplace of Cool.” You see, I like Barack Hussein Obama, the most unlikely American president with the most ‘un-American name’ possible and who does not look like the rest of the Presidents on the dollar notes. This man makes it cool to be black, and has even stopped using the rather ridiculously anglicized version of his name “Barry,” which he bore when he played basketball in High School. If he had been from Cape Coast, he still would be “Barry”. Just check out the name my Fante dad gave to me…, and I say this with a smile. Good beads don’t bling… I like that.

I first read about Obama when he became the first black President of the Harvard Law Review. I knew then that this guy was in for big and great things, and probably would become the first black President of the United States. Years later when I watched clips of his ‘audacity of hope’ speech at the 2004 Democratic Convention, I was moved to tears. I downloaded that speech from the internet, memorized substantial portions of it, unashamedly plagiarized other portions for my own speeches and writings to the unsuspecting public, and, of course, did not acknowledge my source! What is worse, I smuggled portions of the speech into those of a couple of Ghanaian CEOs who asked me to read over and edit some of their speeches. Guilty as charged. Copying Obama is cool. Cape Coast defines cool… whatever you do to Cape Coast, expect retaliation.

When Obama announced his candidacy for President, I had some doubts as to whether he could make it. It seemed a very long journey. For a while, and although I have no vote in the United States, I put my emotional ‘weight’ behind John Edwards. My friend and classmate, Kofi Dom, could not believe that I was backing Edwards when I was the first person he knew, who owned and had read all of Obama’s two books. My other friend, mate and self-proclaimed ‘son in law’ Abieku Neizer-Ashun in faraway Washington State also felt a tad betrayed because he had bought and brought to me, Obama’s ‘Audacity of Hope’. But my initial lack of confidence in Obama winning the race to the White House was a lack of confidence in my own mind, thus: how on earth would a predominantly white America, vote for a black person as President? After all, it was in North America that I discovered that I was black. For all of the one year that I lived and schooled there, their dogs would sometimes barked at me. I must have looked strange to the canines. When OJ Simpson was engaging in that live, slow car chase with the LAPD in the aftermath of his wife’s murder, drunk Caucasian boys and girls made silly noises and pointed at me, and two other black school mates (one from Barbados and the other from Tanzania), as we made our way to and from the eat-all-you-can-for-four-dollars Chinese food eatery, Buffet Uncle Tong, in downtown Kingston, Ontario.

So I thought I had sufficient basis to mask and cushion what I considered the impending, obvious disappointment of an Obama loss by supporting Edwards. But the watershed and defining moment was when Obama won the Iowa caucuses, because on that night, I swung my voteless, meaningless support behind him. If any black man could win a caucus in the almost lily-white land of corn, beans and steel, otherwise known as Iowa, that person was going to be the next President of America. I stayed up on every primary night to watch him whip Hillary Clinton silly, and then make that beeline for the White House, trampling on a hapless John McCain and a clueless, winking Sarah Palin in the process. I reckon McCain is still wondering what hit him. Palin has never recovered – she just announced a confused resignation as Governor of Alaska. To McCain’s credit, he pulled the highest number of votes for any losing candidate in American electoral history, I hear. But he was up, not against a person; he was up against a movement. Obama’s time had come, and history could not afford to wait for Obama a day longer.

I wept on the dawn when Obama was declared President. I was ashamed that in some way, I had allowed some of the not-too-pleasant aspects of my rather short stay in school in North America to define who I was and what I had become. But my resolve, after watching him deliver that speech in Chicago, was that the mere fact that God gave me more melanin than others, hence my darker skin colour, was no longer an excuse to carry a chip on my shoulder that was the size of Africa – with Madagascar added on for good measure. Not that I have ever sought to make that an excuse, but deep in the recesses of my mind, I still felt quite looked down upon and sometimes patronised by some Caucasians, even friends… sometimes. Often, when you are almost the only black face in a class, meeting, course, seminar or conference, you either shut up and hope to leave unnoticed or feel you have to work or think twice as hard to earn your place. To date, when I enter some shops in some countries, I still feel the eyes of the security personnel trained on me, with some actually following me to ensure that I don’t nick a pen from the shop. I appreciate that maybe some of this is more of my own perception than reality, but that was how I felt. But with Obama’s victory, I would be ashamed of myself to ever feel that way again. The Thousand could not defeat the Thirty… that is the spirit of Cape Coast.

MARKETING GHANA: BETWEEN OBAMA, FACEBOOK DEBATES, STRAY COWS AND TOILET WARS!! (Part I)

2009-07-21T15:34:00.006Z

Cry A Beloved City

Being a Ghanaian and living in Ghana has its own dynamics and is often like a roller-coaster ride – one minute you are up, the next minute you are down, and the very next minute, you are somewhere in between up and down. Often, I feel like the schizophrenic ghost in Ama Ata Aidoo’s Dilemma of a Ghost, wondering whether I should go to Cape Coast or Elmina. When President Barack Obama’s trip planners were faced with this choice, they chose Cape Coast, much to the angst of the good people of Edina: the land where in 1471, the Portuguese Don Diego d’Azambuja met wise King Kwamena Ansah, and learnt about the sea’s impossible dream of living in the houses of men. Things happen in Ghana that literally send your mind to the Elmina-Cape Coast junction and make you wonder whether we can turn this wheel on which we turn.

There was this sinking feeling when Joy FM carried the news item from Cape Coast of a threatened brawl between the Metropolitan Chief Executive some members of the local NDC over the control of public toilets. Public toilets? In the 21st Century? As the story has it, in many parts of Ghana, the immediately past NPP government gave control over public toilets to its ‘people’. Thus, come the change of government, members of the NDC in those parts of the country believe that it is their time to also assume control of such toilets and the ‘riches’ that are derived from the desire to ‘answer nature’s call.’ Has anyone listened to the latest political satire of a song by the always irreverent Hiplife artist called A-Plus, where he belts out the question: ‘dem tsi-efi yi, whana ne tse-ifi aa…?”

THIS is the country and the very proud city of Cape Coast that Barack Obama just visited!

I like to say that this is the country of “beautiful nonsense” and that I will never exchange my Ghanaian passport for any other. If anyone tries to take away my Ghanaian-ness, we will be headed to court for a brutal fight, and I assure you, there will be blood all over the floor – not mine. And it will take quite a bit…, quite a bit…, ok, really a whole lot, to get me to live permanently outside Ghana.

I am also one of those ‘local mixed breed’ and ‘proudly, ethnically impure’ Ghanaians, who claim lineage to quite a few tribes in Ghana. Of all the tribes that I have blood connections with, I think that I am most in love with my Akyem and Fante sides. The Akyem is from Achiase, from where my mother (when all the other tribal connections are discounted) hails, where my late father was born and grew up, the home of the Jungle Warfare School, the only city with a railway junction in Ghana, known and dearly called ‘Russia’ by ‘Achiaseans’ in the diaspora, which includes even those residing in Accra. My claim to being associated with Fante-ness is because my late father really came from and is buried in the beautiful, serene beach city of Biriwa. But there are other reasons why I love my Fante links. I lived and schooled in Fanteland, and somehow, there is something about being associated with Fante that never leaves you. And, the Fante language is the smoothest language on earth. For instance, almost every language I know of has a monosyllable for the word ‘Yes’. But not Fante – we have the dual-syllabic ‘ee-nyo’.

I like to think that I have roots in Cape Coast, the capital of the Central Region, and easily Ghana’s education capital. I did one term of primary education at ‘Master Sam’, where we sang the same song at each Friday worship service: Captain of Israel’s Host and Guide. The two verses of that Methodist hymn are literally etched in my brain! Then I spent seven years of secondary school at the only School on earth, Mfantsipim, the birth place of secondary education in Ghana. How do you say Dwen Hwe Kan in English? Impossible! Yes, yes, there are other institutions of learning scattered all over God’s earth, but there is only one School! Although I have spent more years living and working in Accra, my Ga has never been as good as my Fante. Cape Coast holds many good memories for me, as it was the city in which I really grew up. The city whose biggest football clubs are called DWAFS and VIPERS. It was in Cape Coast that I first heard the phrase “ahwen pa nkasa” to wit “good beads don’t bling.” But it was in the same city that I heard the proud statement:

Oguaa akoto, akoto dwrodwroba aa ogu won tu ano
Aduasa nye apem koo ee, aa apem antum won
Eyee Oguaa den na Oguaa aanye wo bi?

Tomorrow, I will post Part II of this writing, to introduce Barack Obama into this mix.

Buying Landed Property in Ghana – Frequently Encountered Issues

2009-07-15T14:01:00.003Z

I presented a paper at a Property Seminar organised by Legacy&Legacy at the La Palm Royal Hotel on 28th April 2007. These are my notes; probably a rough-and-ready checklist for land transactions in Ghana.

Freehold
o Highest interest in land
o Indefinite period
o Devolution ad infinitum, except upon a failure of successors
o Constitutional bar on granting freehold over stool lands
o Constitutional bar on granting freehold to non-Ghanaians
o Overall gradual shift from freehold to leasehold, especially in urban areas
Leasehold
o Interest granted for a specified period
o Especially in the case of Government lands
o Constitutional bar on granting leasehold exceeding 50 years to non-Ghanaians
o Most leases are renewable
Procedure for purchase
o Identify the land
o Preliminary physical inspection
o Take copies of vendor’s title deed and filed site plan
o Searches at relevant land registries
o Other inquiries as to ownership/availability, e.g. make inquiries in the area, if property owned by company – registered encumbrances (with Registrar-General’s department)
o Consents
o Drafting of transfer document
o Payment of final purchase price and execution of transfer document
o Stamping and registration
o Additional inquiries in respect of buildings:
 Proper building permits
 Compliance with zoning and planning regulations
 Structural defects
Closing & Thereafter
o Possession/occupation
o Complete the contract (signing, witnessing, oath of proof and oath of execution)
o Pay the balance of the agreed consideration, if any
o Pay stamp duty (within 2 months or you pay a penalty)
o Registration with Land Title Registry (registrable areas) or Deeds Registry (yet-to-be-declared registrable areas). Might involve the re-drawing of the site plan as part of plotting.
o Capital Gains Tax – Vendor
o Gift Tax by the beneficiary, if the land was gifted
o Annual property rates (levied on buildings)
o Annual ground rent, subject to the contractual terms (levied on land generally)
o Note renewal terms, if any, with respect to leaseholds.
CHECKLIST
(1) Visual inspection
(2) Title documents: title deed, site plan, land title certificate, etc.: a. Does the grantor have capacity? (i. Government – acts by Lands Commission ii. Stool – Head of Stool with concurrence of elders, Lands Commission and the Office of Stool Lands Administrator iii. Family – Head of Family acting with consent of principal members); b. Signatures/Thumbprints (i. Grantor/Lessor, ii. Grantee/Lessee , iii. Concurring signatories); c. Consideration (How much? Mode of payment?)
(3) Description: a. Street name and number, b. Plot number, c. Particular description/designation, e.g. Joey Villa
(4) Type of Use: a. Residential, b. Commercial, c. Mixed Use, d. Compliance with planning and zoning permission, and e. Home Improvement – have the necessary permits been secured?
(5) Type of Interest: a. Freehold, b. Leasehold, c. Others (e.g. licence)
(6) Searches: a. Land Title Registry, b. Deeds Registry/Lands Commission
(7) Stamping: a. LVB number, b. Adequacy of stamping,
(8) Registration: a. Presentation & Plotting, b. Deeds Registry number, c. Land Title Registry number
(9) Covenants in Leases: a. User and other restrictive covenants, b. Overriding interests – rights of way, natural rights of water, easements
(10) Consents: a. Lands Commission – Government and stool lands, b. Minister for Lands & Forestry via Administrator of Stool Lands
(11) Litigation status: a. Courts, b. Traditional authorities
(12) Property tax payments: check with the relevant Metropolitan/Muncipal/District Assembly
(13) Home Improvements: a. Construction/alteration permits, b. Approved site plans – approval letter and date, c. Compliance with zoning and planning laws – Town & Country Planning Departments, d. Compliance with regulations of central and local government authorities, e. Structural report by Building Inspector/Engineer

Promoting Responsibility and Professionalism: The Law Court and Media Freedom

2009-07-15T12:45:00.000Z

I presented a paper as the Guest Lecturer at the Ghana Institute of Journalism Sam Arthur Memorial Lecture on 25th April 2006. It focused on what I termed, “Journalistic Pitfalls and Minefields in the Post-Criminal Libel Era.” The main theme was that agenda-setting by journalists and the constitutional protection given to journalists and the media come with a price. Journalists must therefore know what these potential pitfalls and minefields are. These are my notes from that lecture.

STATUTORY OFFENCES
 Threats of libel or slander
 Extorting property from another person by means of threats
 Failure to register a newspaper or publication: a maximum of 12 months imprisonment and/or a fine
 Failure to publish a rejoinder: a fine
 Failure to comply with the laid down broadcasting standards: a penalty including a pecuniary penalty determined by the National Media Commission

CONTEMPT OF COURT
Criminal Contempt
Words or acts that obstruct or tend to obstruct or interfere with the due administration of justice. It is in the nature of public injury and seeks to protect the public interest.

Contempt in facie curiae
Contempt in the face of the Court, i.e. any word spoken or act done in or in the precinct of the court, which obstructs or interferes with the due administration of justice or is calculated to do so, for example:
 assaults in court
 insults to the court
 interruption of court proceedings
 recording, filming, photographing or sketching in court without the court’s permission.

Contempt outside the Court
Words spoken/published, or acts done outside the court, intended or likely to interfere with/obstruct the fair administration of justice, for example:
 publications intended or likely to prejudice the fair trial or conduct of proceedings
 publications which prejudge issues in pending proceedings
 publications which scandalize or otherwise lower the authority of the court
 acts that interfere with or obstruct persons having duties to discharge in a court
 acts in abuse of the processes of the court.

Civil Contempt
Disobedience to a judgment, order or other process of the court, for example:
 refusal or neglect to do an act required by a judgment order of the court generally or within a time specified
 disobedience of a judgment or order requiring a person to abstain from doing a specified act
 breach of an undertaking given to the court

CIVIL DEFAMATION
 Publication of words that tend to lower a person in the estimation of right thinking members of the society
 Note the relevant defences:
o Justification: You must be able to justify the precise imputation complained of, and the onus to justify the imputation complained of is on you
o Fair Comment: (a) that each and every statement of fact in the words complained of are true; and (b) that the comment on the facts so proved was bona fide and fair on a matter of public interest
o Qualified Privilege: You have a legal, social or moral interest and duty to make or publish the matter complained of (without malice), to the person to whom it is made, and that the person to whom it is made, has a corresponding interest or duty to receive it.
 Damages: Societal/Judicial response to the quality of stories? New reach of media (radio and TV reviews, internet, etc.)?

PRODUCT ADVERTISING
News media to ensure that claims made on behalf of a product can be substantiated
Food
 False, misleading or deceptive adverts regarding the character, nature, value, additives, substance, quality, composition, merit or safety of food
 Advertising food in breach of prescribed standards Advertising salt that is not fortified with potassium iodate
 Advertising infant formula, any other product marketed as being suitable for feeding infants up to six months of age, follow-up formula, feeding bottles, teats and pacifiers
Beverages
 Alcohol ads are not to:
o be targeted at children, be played during or in close proximity to children’s programmes or feature children or role models
o imply success upon consumption, or therapeutic, stimulating, sedative or tranquilizing qualities
o infer improved performance or preference for high alcohol content, or link consumption to driving or aphrodisiac effects
o suggest that it is acceptable, helps resolve personal problems, is essential attributes of masculinity of femininity
o portray favourable aggressiveness or promote anti-social behaviour
o show alcohol consumption whilst working
Drugs
 False, misleading or deceptive ads regarding a drug’s character, constitution, value, potency, quality, composition, merits or safety
 Advertising drugs in breach of prescribed standards
 Ads of drugs to treat, prevent or cure the following: STD’s and other genito-urinary diseases, AIDS or diseases connected with the human reproductive functions, Amenorrhoea, Arterio-Sclerosis, Bladder Stones, Blindness, Cancer, Deafness, Diabetes, Diphtheria, Dropsy. Epilepsy or fits, Erysipelas, Gallstones, Goitre, Heart disease, Hernia or rupture, Kidney stones, Leprosy, Locomotortazy, Lupus, Nephritis or Bright’s disease, Paralysis, Pleurisy, Pneumonia, Poliomyelitis, Scarlet fever, Septicaemia, Smallpox, Tetanus or lock-jaw, Trachoma, Tuberculosis or consumption.

CONCLUDING COMMENTS
 Individual journalists should join the Ghana Journalists Association (GJA) and be prepared to submit to the powers of the Ethics and Disciplinary Council
 There should be corporate membership of GJA for news media organisations
 Constitutionally protected rights of the media are not absolute (national security, public order and public morality considerations)
 Lack of Adequate Training in legal issues
 Bravery/Investigative Journalism/Sheer Foolhardiness
 Issues of privacy and what constitutes “fair game”

PROSTITUTION – LEGALIZING A LEGALITY… OR A HIDDEN AGENDUM?

2009-07-10T10:45:00.000Z

I was intrigued by a campaign for the ‘legalization’ of prostitution in Ghana, particularly when that was coming from the Ghana Aids Commission. I wrote this piece which got published in the Daily Graphic. Please read on:

This campaign pre-supposes that prostitution is illegal, because calling for ‘legalization’ of a thing assumes that the thing is unlawful in the first place. My contention, however, is that prostitution, as defined in our statute books, is not an offence. Accordingly calls for its ‘legalization’ have no bases in the law. Simply, there is nothing to legalize, as far as prostitution as an act is concerned. What the law does is to criminalize certain acts that accompany or are related, supplementary or incidental to the actual act of prostitution. I would not want to believe that what the “Legalize Prostitution” campaigners are asking, is for those related offences to be legalized. I beg to differ. It would appear that the campaigners have not averted their minds to the real impact of their argument in the face of the law. The purpose of this piece to highlight what the law actually says because a debate or campaign that fails to take into consideration the actual state of the law is, respectfully, uninformed and amiss.

Definition
The Criminal Code defines the term “prostitution” to include:

“… the offering by a person of his body commonly for acts of lewdness for payment although there is no act or offer of an act of ordinary sexual connexion.”

The use of the word “include” could mean that the definition is not absolute and all encompassing. It could also mean that the meaning of the word is so well known, accepted and notorious that all that is required is to expand its scope to cover possible gray areas. Whichever way one looks at it, the above definition contains three key ingredients as follows:

(1) Offer by a person of his/her body: The definition is not limited by gender. By this ingredient the person must present or tender his/her body to another person for the purposes stated in the definition. Accordingly, if there is no such offer of a person’s body by that person, the act will not fall within the legal definition.
(2) Acts of lewdness: The definition covers “lewdness” whether or not it involves, results in or leads to actual sexual acts. Although the Criminal Code does not define the word “lewdness,” that word is generally accepted to be synonymous with other terms such as gross indecency, licentiousness, immoral or degenerate conduct, and lustful and lecherous acts.
(3) Payment: In a restricted legal sense a payment is the performance of a duty, promise or obligation, or the discharge of a debt or liability by delivering money or something else, where the money or other thing is accepted as extinguishing or reducing the debt or obligation. In effect the “acts of lewdness” must create a debt or obligation in favour of the person who offered his/her body (the “prostitute”). Payment then occurs where the prostitute accepts anything as imbursement or compensation for the said use of his/her body.

Nowhere in the Criminal Code is prostitution, as defined above, made a crime. It is on this basis that I consider the “Legalize Prostitution” campaign as stillborn and fundamentally and incurably flawed. However, Chapter 7 of the Code, which is aptly headed “Offences Against Public Morals”, criminalizes certain acts that are closely related to prostitution, and it is a discussion of these that I now turn.

Exposing Children to Prostitution
The first related crime is committed by a person who has the custody, charge or care of a child under the age of 16, and allows or permits that child to reside in or frequent a brothel. A brothel, according to the Code, is any premises or room used for prostitution purposes. There is persuasive authority to the effect that a prostitute who lives with his/her child in premises that he/she uses for prostitution is guilty of this crime. This provision, seeks to protect children from exposure to prostitution. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” Surely, the campaigners are not saying that the law should be amended to permit children to live in or visit brothels.

‘Pimping’
The second related crime is committed by a person who either (i) “knowingly” lives on the earnings of prostitution, or (ii) for the purposes of gain, exercises control, direction or influence over the movements of a prostitute in a manner that aids, abets or compels prostitution. This covers what is generally referred to as “pimping”. It is arguable that the prostitute also commits this offence because he/she lives on the earnings of prostitution. However, a full reading of the law shows that that provision only applies to a person, other than the prostitute, who knowingly lives on such earnings. The Code shows this by empowering District Magistrates to issue search and arrest warrants where there is evidence on oath that any person residing in or frequenting a brothel “is living wholly or in part on the earnings of any prostitute.” Further, a person who (i) lives with a prostitute, (ii) is habitually in the company of a prostitute or (iii) exercises any control over a prostitute, is deemed to be “knowingly” living on the earnings of prostitution, unless he is able to satisfy the court to the contrary. There is persuasive authority to the effect that a person who allows a prostitute to have the use of his room at specified times at a charge is guilty of this crime.

Pimps are known to be people who control prostitutes and subject them to all forms of maltreatment, thereby keeping the prostitutes in subjection and under their influence. Often this is against the will of the prostitutes themselves, some of whom would gladly leave the ‘profession’ but for the morbid fear that they have of such criminals. I am yet to hear of a pimp who would be so depraved that he will allow his/her child to become a prostitute. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” Surely, the campaigners cannot be arguing that we should amend the law and unleashing such criminals on society.

Soliciting or Importuning
The third related crime is committed by a person who publicly, persistently solicits or importunes to obtain clients for a prostitute or for any other immoral purpose. Soliciting connotes begging and pleading for clientele, whilst importuning denotes a more aggressive pestering and harassment of prospective patrons. In one decided case, a person who stood at street corners, made faces and smiled at people, made suggestive gestures with the mouth, and paid several visits to public toilets, was held to be guilty of this offence even if he did not speak with or touch anyone; and even the absence of evidence that his acts had any impact on anyone was not considered a sufficient defence.

I am not certain if any of the ‘Legalize Prostitution’ campaigners has been solicited or importuned by a prostitute, which can be a most revolting experience. If this is removed from our statute books as an offence, it will expose all of us to blatant, shameless and barefaced approaches and harassment by prostitutes who are ‘marketing their wares’. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” The campaigners will have to show us what society will stand to gain if by freeing up prostitutes to bang on our cars (pun unintended) and accost law-abiding people on the streets.

Keeping Brothels
The fourth related crime is committed by a person who keeps a brothel. A person is guilty of this crime if he/she (i) keeps, manages or assists in managing a brothel, (ii) as a tenant, knowingly permits premises to be used as a brothel or for habitual prostitution, or (iii) as a landlord, rents out premises with the knowledge that it will be used as a brothel. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” The campaigners have to show how the establishment up huge brothels in Ghana, and probably advertising the services provided in our newspapers and on radio and television will help the society.

Other ‘Related’ Crimes
The other crimes provided for under Chapter 7 of the Criminal Code are not directly related to prostitution. These are:
1. Publicly and wilfully committing grossly indecent acts (such as having sex in a public place);
2. Compelling a person to undergo immoral or indecent widowhood rites;
3. Publishing or selling books, objects or matters of an obscene nature (such as pornography);
4. Making indecent inscriptions at any public place; and
5. Advertising material relating to venereal diseases, sexual infirmity and aphrodisiacs without the authority of the Minister of Health.

Conclusion
In conclusion, prostitution is said to exist when (i) a person offers his/her body, (ii) for lewd acts, and (iii) for payment. The act of prostitution per se is not an offence, but certain specified related acts are criminal. Since prostitution itself is not an offence, it stands to reason that it cannot be legalized, and calls for its legalization are respectfully, uninformed. What the law says is that although prostitution is not an offence, it is an offence to (i) publicly solicit for clients, (ii) expose children to brothels, (iii) work as a pimp, and/or (iv) keep brothels. These are the acts that are criminalized by our law, ought to remains prohibited by our law, and I would not want to believe that this is what the campaign is really about.

WHO IS A SHADOW DIRECTOR?

2009-07-09T18:59:00.000Z

In the times following the judgment in the case of Republic v. Ibrahim Adam & Others (FT/MISC 2/2000, 28/4/03), also known as the Quality Grain Case, the issue as to who is a shadow director of a company came up for discussion with some considerable difference of opinion. The judge had referred to Professor Mills, then the immediate past Vice-President of Ghana, and Ghana’s current President, as a shadow director of the Quality Grain company. The Professor was not amused. At the time, it appeared that prior to this decision, the term ‘shadow director’ had not been discussed in any relevant Ghanaian statute, decided case or legal literature, save a brief mention in an article by one Dr. Mweda Kenneth Kaoma on Zambian law but published in [1996-1999] Vol. XX University of Ghana Law Journal. The humble purpose of this piece when I first had it published in the Ghanaian Times was to attempt to shed some light on the concept of ‘shadow directors’ with the view of informing that debate.

Directors
In law, a company is known as an artificial entity, the persona ficta. As an artificial person (as opposed to a natural person) the company can only act by agents. Usually, the persons by whom a company acts and by whom the company’s business is carried on and superintended are called “directors”. Section 179 of Ghana’s Companies Code therefore defines a director as any person who is “appointed to direct and administer the business of the company.” This section constitutes the Board of Directors into the supreme and original authority in matters of regular business management. Directors are the chief administrators, and have invested in them, by law, the power and duty to manage and superintend the ordinary business of the company. Under section 137(4) of the Companies Code, the directors are not servants to obey directions and orders given to them by the shareholders, although the management and control of the company are entrusted to the directors for the benefit and protection of all the shareholders.

Definition & Scope
By virtue of having such wide powers entrusted in them, section 179 of the Companies Code imposes on directors a duty not to act on the directions or instructions of any other person. However, the reality is that in some situations directors are subject, or allow themselves to be subjected, to the exercise by another people of considerable control and authority over the company and its business and affairs. The effect of this is that while the law holds directors personally liable for their acts and decisions, those acts or decisions may in fact be dictated, imposed or controlled by some other person who has not been appointed as a director but who, through some means (e.g. a controlling shareholder or even the government) is the driving force behind the company and the acts of the directors. Directors who allow such a state of affairs are in breach of their duties as directors.

But the law, not being blind to the existence of such a state of affairs and frowning upon the existence of shadow directors, provides under section 179 that a person “on whose directions or instructions the duly appointed directors are accustomed to act” is subject to the same duties and liabilities as a duly appointed director. Note that the law does not say that the person also has the same rights of a director. What it does is to impose on him a director’s “duties and liabilities”.

Further, the Companies Code does not expressly call such a person by the name “shadow director;” but that is the name by which such persons are generally called in Company Law. A shadow director is therefore not a director properly so-called. He does not have the rights of a director, and is an interloper in the affairs of the company. But the law recognises his existence and imposes upon him the duties and liabilities of a director by virtue of his control over or domination of the directors of the company.

The fact is that a shadow director does not claim or purport to act as a director, and the company does not hold him out as a director. He rather lurks in the shadows and shelters behind others who are the duly appointed directors. The generally accepted test in ascertaining whether a person is a shadow director is as follows:(1) Who are the directors of the company?(2) Did the ‘third party’ direct those directors how to act in relation to the company?(3) Did the duly appointed directors act in accordance with such directions?(4) Were the duly appointed directors accustomed so to act?

Accordingly, central to a determination as to whether a person is a shadow director is, first, there is a board of directors claiming and purporting to act as such; and, second, there is a “discernible pattern of behaviour” in which the board did not exercise any discretion or judgment of its own, but acted in accordance with the directions of the third party. If these are answered in the affirmative, then that third party is a shadow director. Accordingly the definition of shadow director presupposes that there is a board of directors who act in accordance with instructions from someone else, the èminence grise (literally the “wise old man.”) Another appropriate illustration of a shadow director is that he is, in effect, the puppet master who controls the actions of the board, and the directors are his ‘cat’s paw’.

“Accustomed to act”
The use of the phrase “accustomed to act” in section 179 would also suggest that the directors must be people who act on the directions or instructions of the shadow director as a matter of regular practice. It therefore applies to instances where the third party is shown to issue instructions and directions, and the directors are shown to comply with such, as a regular course of conduct over a period of time. Reference must therefore be made, not to acts on an individual occasion, but over a period of time and as a regular course of conduct. Simply put, a one-off instruction and compliance will not satisfy the “accustomed to act” criterion.

However, it is not necessarily required that there be directions or instructions embracing all matters involving the board, or extend over all or most of the corporate activities of the company. It is also not necessary to demonstrate a degree of compulsion in excess of that implicit in the fact that the board was accustomed to act in accordance with them. Rather it only required that as and when the directors are directed or instructed, they habitually and regularly obey and act accordingly. The idea is that the third party ‘calls the tune’ and the directors ‘dance’ in their capacity as directors. It is therefore sufficient to show that the duly appointed directors had cast themselves in a subservient role or surrendered their discretions in the face of the directions or instructions. What is important is that the third party is shown to have exercised real influence in the corporate governance of the company, and the key question is: Where, for some or all purposes, is the locus or place of effective decision-making? If the answer to this question is a person other than the board of directors, then it is open to find that that person is a shadow director.

Illustrations
Directors of Parent Companies: Flowing from the above discussion, it has been held that the directors of a parent company per se would not make themselves shadow directors of the subsidiary if they act in their capacity as the board of the parent so as to give instructions to the directors of the subsidiary. However, individual and personal instructions from a director of the parent to the directors of the subsidiary could bring that director within the definition of a shadow director.

Creditors: In one English authority, the activities of the company were financed by a loan. The security for the loan was a 125-year lease of the company’s premises, which the creditor then leased back to the company. The rent payable was to be used to amortise the loan. Subsequently the company became insolvent and could not pay the rent. Thereupon, weekly management meetings were held between the managing director of the company and officers of the creditor with a view to rescuing what the creditor could out of the company (e.g. making terms for the continuation of the credit in the light of the threatened default). It was held that the officers of the creditor were merely defending the creditor’s interests and imposing terms for the protection of those interests. That did not constitute them into shadow directors, especially when it was clear that the directors of the company were quite free to take the offer or leave it.

Conclusion
Section 179 of the Companies Code constitutes statutory recognition that effective legal control over the central management of companies requires restrictions that may extend beyond the regulation of those formally appointed by the company as its directors. The law disapproves of the existence of such a person, who, not having been appointed as a director, yet becomes one on whose instructions and directions the directors are accustomed to act. It therefore provides that directors have a duty not to obey such third parties, and imposes the duties and liabilities of a director such third parties.

To be able to make a conclusive finding that a person is a shadow director of a company it may be ascertained that there is a discernible pattern of behaviour or a relevant regular course of conduct over a period of time that supports the conclusion. It may also be shown that the directors have cast themselves in a submissive and compliant role or given up their discretions in the face of the directions or instructions.

In sum, the answer to the question, “who is a shadow director?” lies in yet another question, to wit, “who is the effective corporate decision-maker?” There are no problems if the answer to this question points to the Board of Directors. However, if the answer directs us to a person other than the Board, i.e. a third party, that third party is a shadow director – the èminence grise, (in normal Ghanaian parlance the “BIG MAN”); and that person is subject to all the duties and liabilities (but not the rights) of the duly appointed directors.

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

2009-06-11T19:44:00.000Z

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

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

2009-06-11T08:27:00.000Z

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.

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

2009-06-10T18:06:00.002Z

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.

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

2009-06-09T12:32:00.000Z

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.

DE-FANGING A MONSTER – WHEN RULES OF CIVIL PROCEDURE BECOME UNRULY

2009-06-08T09:26:00.001Z

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.

AVIAN INFLUENZA CONTROL IN GHANA - A LEGAL PERSPECTIVE

2009-06-08T08:48:00.000Z

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.

THE CHALLENGES, PROSPECTS AND FUTURE OF THE MODERN LAWYER

2009-06-08T08:44:00.000Z

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?

EX-GRATIA AWARDS FUSS - Letter to Daily Guide Newspaper

2009-06-08T08:38:00.001Z

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.

ANANE WALKS ON PROCEDURE – THE EXTENT OF AN OCTOPUS’ ROAMING TENTACLES

2009-06-08T08:33:00.002Z

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.

Wanted for Urgent Employment: Independent Presidential Counsel

2009-06-07T23:41:00.000Z

Originally written on 31 January 2009

Over the past couple of weeks, I have had several opportunities to point out blatant breaches of our laws and the Constitution by either the President or members of his team. Other people have also made similar observations.

These breaches of the law make his government a sitting duck, exposed to embarrassing legal challenges in our law courts. I am bold enough to say that anyone who takes the President to court on some of his actions will become a hero overnight, a 21st Century Amoako Tuffuor.

I do not think that all of these breaches are deliberate. I have identified something that the President urgently requires: an independent counsel. Yes, I am aware of the Constitutional role given to the Attorney-General as the chief legal adviser of the government. But I am not talking about counsel for the entire government. I am talking counsel for the President. The Attorney-General, when appointed, will be a very busy person. It might be impracticable to get the Attorney-General to give the president legal counsel on every decision that he is about to make. Requests for memos from the Attorney-General’s Department might take weeks to be met. But what the President appears to need is a quick, sharp legal brain with mastery over the Constitution and Ghana’s laws, whose key role is to give the President advice on all his decisions. This President needs one, and very quickly.

A similar role exists in the US White House, known officially as the Office of the Counsel to the President, aka White House Counsel. I recommend that we call the Ghana equivalent the Independent Presidential Counsel. But just like the US, Independent Presidential Counsel in Ghana should be responsible for advising on all legal aspects of policy questions, legal issues arising in connection with the President's work, constitutional and legal compliance, ethical questions, financial disclosures, and conflicts of interest during employment and post employment, etc. The Independent Presidential Counsel will also help define the line between official and political activities, advice on executive appointments and judicial selection, presidential pardons, review legislation and Presidential statements.

As I have stated, this will not be a duplication of the work of the Attorney-General. The Independent Presidential Counsel will advise the office of the President alone. What about disagreements with the Attorney-General? That, in my view would be good, because it would give the President contrasting views and a balance, which will only enrich his decision-making, and not expose him to making some of the mistakes he is making right now. If the roles are well-defined, we should not have any problems, and the country will be the ultimate beneficiary.Right now, the President appears to be groping in the dark, hunting and pecking, and looking all goofy.

Caught Between Unconstitutional Acts and Political Lawyering

2009-06-07T23:35:00.000Z

Originally written on 2 February 2009

I have listened with some degree of trepidation to colleague lawyers claim that although they agree, somewhat reluctantly and grudgingly, with my position on the constitutionality or otherwise of the appointment of the Acting IGP and Acting CDS, they do not think that those provisions apply to appointments in an “acting capacity.” Indeed, some move this argument forward by claiming that I am wrong in saying that the provisions of the Interpretation Act, 1960 (CA 4), particularly section 12 apply(ies) to the interpretation of the Constitution. They say that we cannot use the Interpretation Act to inteprete the Constitution. One lawyer was so bold as to state on Joy FM's Newsfile that the Interpretation Act, on account of it having been passed in 1960, has been "overtaken by events" because plans are afoot to amend it. I almost burst an artery.

I am shocked. Let me restate my argument. First, the combined effect of Article 70 and Article 202 is that although the President has the power to appoint an IGP, that power is only exercisable upon consultation with the Council of State. Second, the combined effect of Article 70 and Article 212 is that although the President has the power to appoint the CDS and the service commanders, that power is only exercisable upon consultation with the Council of State. These are pretty unassailable.

With respect to appointment to an “acting capacity”, Article 195(1) provides that with respect to the same appointments, there is the additional requirement, whether the appointment is “to hold or to act in an office in the public services”, of obtaining the advice of the relevant governing council upon consultation with the Public Services Commission. This is expressly and particularly reinforced in Article 202(3) with respect to the IGP, as an office within the Police Service.

I will respectfully refer every reader to Article 295(2)(a) as follows:

“In this Constitution and in any other law… (a) a reference to the holder of an office by the term designating his office, shall, unless the context otherwise requires, be construed as including a reference to a person for the time being lawfully acting in or performing the functions of that office…”

Further Article 297(a) states that:

“In this Constitution and in any other law… (a) the power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove the persons from office…”

That is why I wonder how anyone can advance the argument that the conditions imposed upon the president in making the appointments in question, does not apply if the persons are only appointed to “acting positions”. Really? Can a president simply avoid compliance with those conditions by simply appoint persons to offices in perpetual “acting capacities”?

But, by far the most shocking position is the claim that the Interpretation Act cannot be used to interpret the Constitution. I do not want to think that people are being forced to clutch at straws by taking what is, respectfully, a dangerous and novel position of law that flies in the face of our laws. This might be because they are unable to find answers to the provision in section 12 of the Interpretation Act that if an enactment gives a person the power to make an appointment and subjects the exercise of that power to certain limitations and conditions, those limitations and conditions also apply to the appointment of a person to serve in an acting position. It is in a rather desperate attempt to find an answer to this provision that we now hear of this strange and unsupportable proposition that we cannot use the provisions of the Interpretation Act to interpret the Constitution.

This position clearly ignores, or is probably not aware of, the plethora of legal decision in Ghana to the contrary. But I will just refer to a few of them, and invite my learned friends, particularly those close enough to the Presidency to give legal advice to the occupant of the highest office in this land, to consider these.

First, in Kuenyehia v. Abban, the Supreme Court, per Hayfron-Benjamin JSC, stated clearly as follows:

“Interpretations of statutes and, indeed of this Constitution, within our municipality are governed by the Interpretation Act, 1960 (CA 4) as from time to time amended. If indeed footnotes in a statute are to be read as part of a section of a statute or schedule, then the Act must say so. If it is not to be a part to be used in aid of construction the Act must also say so.”

Second, in Asare v. Attorney-General, where the Supreme Court was called upon to interpret Article 60 of the current Constitution, Dr. Date-Bah JSC, in the leading speech, states as follows:

“… section 19 of the Interpretation Act, 1960 excludes debates in Parliament from being used as an aid to construction and, by analogy, I consider that the actual debates in the Consultative Assembly should be excluded.”

Third, in Republic v. Tommy Thompson & Others, Kpegah JSC said “…by section 19(1) of our Interpretation Act, 1960 (CA 4), we are entitled to use the above to aid us in interpreting the Constitution, 1992.”

Fourth, in NPP v. Attorney-General, where the Supreme Court was requested to determine whether the NPP, as a political party was a “person” who could sue to enforce provisions of the Constitution, the court held, rightly, that the proper role of the Interpretation Act, 1960 (CA 4) was that unless the contrary intention appeared in any enactment, the interpretation of words provided in CA 4 should be applied, except where the context in which the word was used would not permit such an interpretation or where the enactment itself provided an interpretation of any particular words used therein. A “person” was defined in section 32 of CA 4 to include a body corporate. Since that meaning fitted the context in which “person” was used in article 2(1) of the Constitution, 1992 there was no necessity for applying the canons of statutory interpretation to determine its meaning. Moreover, the word “person” had been defined in article 297 of the Constitution, 1992 to include a natural as well as a legal person or a corporate person such as the plaintiff. Accordingly, the plaintiff had locus in the case.Atuguba JSC said specifically as follows:“The purview of article 2(1) of the Constitution, 1992 however plainly comprehends their enforcement. I therefore hold that since article 2(1) relates to actions by a person and since a person under section 32 of the Interpretation Act, 1960 (CA 4) includes corporate and unincorporated persons and the context of the Constitution, 1992, referred to supra, taken as a whole, contemplates enforceability of its provisions by and against such persons, they can sue and be sued under article 2(1) of the Constitution, 1992.

Fifth, in NPP v. GBC, Joyce Bamford-Addo JSC (now Speaker of Parliament) said as follows:

“The Attorney-General, appearing for the defendant, in his submissions argued that the word "fair" in article 163 of the Constitution, 1992 should be interpreted to mean "reasonable" and that what is reasonable depends on what the Ghana Broadcasting Corporation thinks is reasonable. This argument is not only untenable for the reasons given above, but also for this reason, namely that since the word "shall" used in article 163 of the Constitution, 1992 imposes a mandatory, not permissive duty on the Ghana Broadcasting Corporation, the Ghana Broadcasting Corporation has no discretion in the performance of its constitutional duty of mandatorily affording equal opportunities to all parties to present divergent and dissenting opinions to the public on the state-owned news media: see section 27 of the Interpretation Act, 1960 (CA 4) where it is stated that the word "shall" is mandatory and therefore excludes any question of discretion.”

These are clear decisions of the highest court of the land. I could refer to many more from 1963 to date, but time and space will not permit me to. How then can anyone seek to argue that we cannot use section 12 of the Interpretation Act to support and interpret otherwise clear provisions of the Constitution? Beats me. But that is probably the result of what I call ‘political lawyering’. Maybe law and politics do not really mix, because under those circumstances, the lawyering takes a back seat to the politicking... sadly.

Presidential Directive Dissolving Boards: Ifs and Buts Arising…

2009-06-07T23:27:00.001Z

Originally written on 3 February 2009

The President has given a directive “dissolving” all boards of some specified organisations. One cannot quarrel with that ‘directive’ with respect to state corporations, commissions and other public bodies, subject, of course, to the clear terms of the relevant statutes. That is not the focus of my attention today. The newspapers have reported that the Chairman of the National Media Commission has stated that the ‘dissolution’ directive does not apply to the Boards of state media organisations. Good call. If the NMC does nothing at all, it defends its turf.

But, the matter goes further because if the directive was intended to affect companies incorporated under the Companies Code, in which the government holds shares and so might appoint directors or nominate directors for appointment, then it raises some legal questions that we might have to consider.

In 1993, Ghana’s then young Parliament passed the Statutory Corporations (Conversion to Companies) Act, 1993 (Act 461). Section 1 of that Act provided that companies were to be formed to take over specified statutory corporations. The section provided specifically as follows: “a company under the Companies Code, 1963 (Act 179) shall be formed and registered after the coming into force of this Act, for the purpose of vesting in the company the assets, properties, rights, liabilities and obligations to which any of the statutory corporations specified in the Schedule to this Act was entitled or subject to immediately before the registration.”

By section 2(1), all “the assets, properties, rights, liabilities and obligations of that statutory corporation” were to vest in the “successor company.” By section 3 the successor companies were to issue shares either to the Republic or any other person as the Finance Minister, acting in consultation with the State Enterprises Commission, would direct. Further shares to be held by the Republic were to be allotted to and held in the name of the Finance Minister. Under section 7 the statutory corporation and its incorporating statute would cease to exist on the date of registration of the relevant successor company.

The Schedule to the Act listed 32 entities that were to undergo this conversion. They were the following: Agricultural Development Bank, Bank for Housing and Construction, Ghana Commercial Bank, National Investments Bank, National Savings and Credit Bank, Architectural and Engineering Services Corporation, Electricity Corporation of Ghana, Football Pools Authority, Ghana Airways Corporation, Ghana Cocoa Board, Ghana Film Industry Corporation, Ghana Food Distribution Corporation, Ghana National Manganese Corporation, Ghana National Petroleum Corporation, Ghana National Procurement Agency, Ghana National Trading Corporation, Ghana Oil Palm Development Corporation, Ghana Publishing Corporation, Ghana Reinsurance Organization, Ghana Trade Fair Authority, Irrigation Development Authority, Omnibus Services Authority, Telecommunications Division of the P & T Corporation, Precious Minerals Marketing Corporation, State Construction Corporation, State Gold Mining Corporation, State Housing Corporation, State Insurance Corporation, State Shipping Corporation, State Transport Corporation, Tema Food Complex Corporation and Tema Shipyard and Drydock Corporation.

As we might be aware these entities have undergone various metamorphoses. Many were duly converted into limited liability companies with 100%, majority or minority government shareholding. Some converted companies are now listed on the stock exchange and others have undergone divestiture. The status of some of them, like ADB is still unclear, as it appears it never underwent the conversion.

Once the entities were converted into limited liability companies, they were no longer governed by their respective statutes, but by the provisions of the Companies Code. The question then is, “does the government have the power to ‘dissolve’ boards of companies incorporated under the Code?”

Where the government has power to appoint the minority or majority of a board (either by virtue of shareholding or otherwise), it definitely has no power to dissolve that board. The only possible effect of the ‘dissolution’ directive then would be that the government has purported to remove directors that it appointed to serve on the respective boards. However, absent any provisions in the relevant company regulations or shareholders agreements that provide that the absence a government-appointed director makes the board inquorate, and especially where the company is left with at least 2 directors, that company can continue to operate with its board until such time that the government deems it fit to appoint new members to join the existing board. Under those circumstances, the ‘dissolution’ directive is of no legal effect or moment where the company is concerned. All that the ‘dissolution’ directive would have succeeded in doing is to leave the company in the hands of the directors that the government did not appoint, to administer and direct the affairs of the company for as long as it takes the government to appoint new board members.

Where the government appoints all the members of a company’s board, and if we agree then that the effect of the ‘dissolution’ directive is to remove all the members of the board, or where by virtue of the ‘dissolution’ directive the company is left with less than 2 directors, the company can only carry on business for a period of not more than 4 weeks. If the company engages in any business after the 4-week period (with zero or 1 director), that company, every director (if any remains) and members (including the government) in default will be liable to a fine for each day during which the company carries on business. Further, every director and member who is cognisant of the default will be jointly and severally liable for all the debts and liabilities of the company incurred during that time.

I guess the question, still, is whether the government has the power to ‘dissolve’ boards of companies? My response is that if the effect of the order would be to incapacitate the board in the manner described above, then it is arguable that the board is deemed dissolved, until it is duly reconstituted. But if the board retains at least 2 members who are able to form a quorum, then the ‘dissolution’ order is of no legal consequence.

Further, is the ‘dissolution’ directive legal, with respect to companies? Does it really remove directors from a Board?

First, a director may be removed from office by an ordinary resolution of the members at a general meeting, notwithstanding any provision to the contrary in the Regulations or any agreement. Thus if the members desire to remove a director, that action should take place at a general meeting (with the director having the right to be heard); and so a director cannot be removed by written resolution. The Court of Appeal has held that this procedure for removing directors is “mandatory.”

Second, a director who has validly been appointed by the company, but who is subsequently caught by the relevant disqualification provisions under the Code is deemed to have been removed from office.

Third, a director who fails to meet share qualification requirements, where any exist, is deemed to have vacated his office as a director.

Fourth, a director may be removed where the Regulations, shareholders agreement or other contractual agreement lawfully provide additional grounds for the termination of office of directors. For example, the relevant document may empower the directors to remove some of their number. It may also contain provisions for the ‘deemed termination’ of office where other directors request a director’s resignation, retirement of directors by rotation, that directorship is contingent on the nomination of a particular shareholder or upon the director holding some other office. The removal of a director under any of such provisions in the company’s Regulations, shareholders agreement or other contractual agreement is legal, valid and enforceable.

It would therefore appear that this ‘dissolution’ directive would have the effect of removing directors if it was expressly provided in the respective companies’ regulations, shareholders agreement or in some terms upon which the directors were appointed, that they would lose their office if the nominating shareholder (the government, in this case) withdraws their appointments.

I do not know if such an express provision exists with respect to any of the companies in which the government appoints directors. In any event, such an instruction can only affect directors appointed by the government, so that other directors appointed by other shareholders can continue to run the company, and absent any quorum restrictions in the relevant regulations, those directors can and will continue to run the companies, until the government gets around to nominating or appointing new directors.

But in thinking over this matter my attention was drawn to section 72 of the Financial Administration Act, 2003 (Act 654). That section imposed on directors of companies appointed by the government, a duty to submit reports on the operations of the company to the Minister for Finance at the end of June and December of each year. It also requires such directors to forward to the Minister, a copy of the company’s audited financial statement within one month of publication of that statement. Then it provides that “subject to any other provision for the removal of directors from a board” directors in default of these reporting requirements “shall be removed from the Board.” This becomes a further ground, but I am certain that these directors are not being “removed” on this ground.

Am I nitpicking? Maybe. But surely, the new NDC government is filled with 'nits' to pick on an almost daily basis.

To Whom It May Concern - Presidential Press Release

2009-06-07T23:18:00.001Z

Originally written on 13 February 2009

As usual, it was members of the press who first alerted me to a press release from the office of the President on the vexed issue of the ex-gratia awards. Within minutes of its release, I had received no less than 10 phone calls from radio and newspaper houses in Ghana, seeking my views on the development. I politely declined each invite to speak until I had had the opportunity to see the press release for myself and considered the law on the matter.

First, let us remind ourselves again, of what the constitution says. Article 71(1)(a) provides that “the salaries and allowances payable, and the facilities and privileges available, to (a) ... members of Parliament,... shall be determined by the President on the recommendations of a committee of not more than five persons appointed by the President, acting in accordance with the advice of the Council of State.”

Article 71(2) says that “the salaries and allowances payable, and the facilities available, to the President, the Vice-President, the Chairman and the other members of the Council of State, Ministers of State and Deputy Ministers, ... shall be determined by Parliament on the recommendations of the Committee referred to in clause (1) of this article.”

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.”

From the above, there are 2 different packages, although it is the same Committee which recommends both packages. But the Committee makes the recommendation of the package for MPs to the President for him to “determine” what it will actually be, acting with the advice of the Council of State. The Committee then makes the recommendation with respect to the package for the President, to Parliament for it to “determine” what the actually package will entail. But what is clear is that both the President and Parliament have the power to interfere in each other’s business where these are concerned. Parliament cannot seek to review the package that the President determines, although it affects them. In the same way, the President has absolutely no power to seek to review the package that Parliament determines, although he is a beneficiary under it. And that makes sense because the framers of the Constitution did not want any ‘cross-pollination’ in these matters. It surely makes sense to have and maiintain the processes separately and distinctly.

The package for MPs when they leave Parliament is further guaranteed by Article 114, which provides that persons, who serve in Parliament for any period of time, shall upon ceasing to be an MP be eligible for gratuity prorated to the period of service, as “shall be determined by the President, acting in consultation with the Committee.” Please note that the current phrasing of Article 114, particularly the pro rata phrasing, is an amendment from the original, and that that amendment was passed by the first Parliament under 1996 Republic of Ghana (Amendment) Act. Trust me, Parliament KNOWS how to take care of itself, even if it involves constitutional amendments!!

The obvious, next question is how is a thing “determined”, legally? In the 1978 case of Asor II v. Amegboe, the Court of Appeal interpreted the word “determine” to mean “no more than to decide.” I agree with that simple definition. So, what the President and Parliament are required to do under Article 71(1) and Article 71(2), respectively, is to simply decide, settle on or fix the packages for each other, not forgetting that the President is required to seek and obtain the Council of State’s advice on the matter.

So, how do the President and Parliament ‘determine’? For the President, this will be an act in the exercise of his executive authority, and for Parliament, it will be a legislative action.

Article 58 vests all executive authority of Ghana in the President, exercisable in accordance with the Constitution; and that authority extends to executing and maintaining the Constitution. The President may exercise this power directly or through his subordinates. Executive actions of government are expected to be expressed or taken in the name of the President, except as otherwise provided in the Constitution or by any other law. Thus the President exercises his function or power to ‘determine’ under Article 71, simply by taking any executive action in that regard. It stands to reason that there should be a document with the President’s signature or that of a duly designated ‘subordinate’, subject of course, to evidence of having sought and obtained the advice of the Council of State. Thus if no such document exists, and/or there if proof that the advice of the Council of State had not been obtained, then there has been no ‘determination’.

With Parliament, Article 102 requires a quorum of one-third of all the members, meaning 77 members out of the current 230. Under Article 104(1), generally, matters are “determined by the votes of the majority of the members present and voting, with at least half of all the members present.” There are also instances when Parliament acts by ‘resolution’. The votes required to pass a resolution vary, between a simple majority (e.g. ratification of treaties), through two-thirds majority (e.g. vote of censure of a Minister of State) to three-quarters majority (e.g. removal of the Speaker). It is my respectful view that the ‘determination’ required by Article 71 falls within Articles 102 and 104, so that all was required was a simple majority vote “with at least half of all the members present.”

Now the President’s Press Release. It is one of the most hilarious that I have read. Talk about clutching at straws!! As usual, l think that we appear to have missed the really critical portion of it. Let us hear the President: “...the Presidency has not seen any approval for the payment for Members of Parliament by the previous Government, while there is controversy over the approval of recommendations in respect of the Executive.”

Wait a second. Once the President 'determines' the package after the Article 71 Committee's recommendation, and the advice of the Council of State, there is no requirement of any subsequent "approval for payment".

Ladies and gentlemen, the President clearly and rightly identifies the two genres of packages in issue here: (i) the packages that require approval by the President (with Council of State advice), and (ii) the packages that require approval by Parliament. Having identified these, the President then grounds his current decision on two different factors: (i) with respect to the packages that require Presidential approval, he “has not seen not having seen any approval” by the previous government; (ii) with respect to the package that required Presidential approval, “there is controversy.”

Let us deal with the latter situation first. What controvery? The contrived and 'sexed up' claims involving people leaving the chamber to go and take a pee? What do politicians take us for? Look, absent any 'ghosted up' evidence about Parliament being inquorate on 6th January 2009, so that the vote was in breach of Articles 102 and 104, there is no controversy about Parliament determining the package for the President. And the President has no power to review Parliament’s decision on that day or cause it to be reviewed. This is a pointless exercise.

We might resolve the situation with the MPs’ package by asking the following questions: Did President Kufuor decide on the MP’s package under Articles 71 and 114 at all, and if so where is the evidence of it? Did President Kufuor obtain the advice of the Council of State, and if so where is the evidence of it? Is President Mills hinting that President Kufuor misled Parliament by sending them a package that he had not ‘determined’? What is the meaning of the President “has not seen [the] approval”? Were records not kept? Has the current Office of the President asked the past Office of the President whether or not the approval was given? Was this not a part of the torturous transition process that we went through? Would a simple phone call or demand for documents not resolve the matter as to whether or not the MPs package was duly ‘determined’? Are we saying that Asaga ‘authorised’ the payments in vacuo, when he had not seen any documentary evidence of the Presidential ‘determination’? And anyone wants us to believe that Asaga was acting alone?

It is important to obtain responses to the above questions because if there is no valid ‘determination’, and then President Mills can pretty much vary the MPs’ package without being in breach of either the Constitution or any contract between the State and the MPs.

The reality is that unlike the package of the Presidents, which has constitutionally-guaranteed immunity from reduction, there is no such express constitutional protection for the MPs’ package. That might be because unlike the Presidents who enjoy a continuing pension, the MPs package is a one-bullet payment, and the Constitution did not anticipate a situation where between ‘determination’ and payment, another President would seek to vary the package. So, the MPs might have a cause of action, alleging that upon the valid determination of their package by President Kufuor, their right to it accrued, i.e. it accumulated to their credit. Thus the fact that they have not actually received and drawn on their cheques does not change the fact of the accrual of their right to it. The effect then is that the President cannot unilaterally seek to alter that accrued right.

So, do we want a fight in court over this matter? The President says he is setting up another Article 71 Committee to review the package, but has offered something in the interim. Is that what should happen? Let me reiterate my humble view that the President has absolutely no right to seek a review of the packages that Parliament is required to approve by the Constitution, to wit, the respective packages of the President, Vice President, Chairman and members of the Council of State, and Ministers and Deputy Ministers. Thus whatever review he seeks only applies to the packages that require Presidential ‘determination’, particularly, that of the MPs.

But we need to ask more questions of the President: Sir, have you received anything under Chinery-Hesse, for instance the new salary? This is because the President will be in a very difficult situation if he is shown to be drawing the new conditions whilst seeking to review that of others. But I trust that President Mills will not make that mistake.

I do not think that the MPs deserve a whole lot of money on account of their having gone to sleep on the job 6th January 2009, high on the opium of just the sight of what President Kufuor had determined for them; as they have now admitted. I think the way forward is for all sides to be prepared to compromise and to enter into negotiations to amicably resolve this matter so that the nation can move forward. The unilateral actions by the President will not work. It will simply defer the inevitable. Or, the President is just tempting a court action so that he can say that it was the court that forced him to pay. POLITICS!! We have all learnt lessons? Will a reasonable compromise will serve us all, in the hope that we do not repeat such mistakes in future? The answers, my friends, are cying in the wind. If we sow the wind, we will reap the whirlwind.

Yours in the service of God and Country

Kojo Anan

ps. pardon my typos. I have been typing since 2am, Colorado time.

Did The President Just Appoint An Acting IGP?

2009-06-07T22:53:00.001Z

Originally written on 30 January 2009

Did I read that Prez-Prof JAM has appointed an acting IGP?

I generally find that this government is a tad slow on some issues, and I have assumed that it is because this President is a more deliberative person than some past leaders. But I expect that in that deliberative process, more attention will be paid to the law.

Section 10(2) of the Police Service Act says that “The Inspector-General shall be appointed by the President acting in consultation with the Council of State by virtue of paragraph (e) of clause (1) of Article 70 of the Constitution.”

The President’s power of appointment, is subject to the mandatory condition precedent of consultation with the Council of State. That is what Article 70(1)(e) says, as confirmed by section 10(2) of the Police Service Act.Is there a Council of State in place? If not, whom did the President consult with?

Yes, yes, I can see the response that "this is only an acting position." Yeah, right. So a President can simply avoid the condition precedent by keeping the person in an acting position forever? Thankfully, this does not have to remain in the realm of arguments. Section 12 of the Interpretation Act states as follows “(1) Where an enactment confers a power to appoint a person to an office, whether for a specified period or not, the power includes… (b) power, exercisable in the manner and subject to the limitations and conditions applicable to the power to appoint,… (ii) to appoint a person to act in that office, generally or in regard to specified functions, during the time that the authority in whom the power of appointment to the office is vested considers expedient. (2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in that office as respects the functions of the office generally or the functions in regard to which the appointment is made.”

So, heads or tails or in-between, the President cannot, by law, appoint any person to be substantive or acting IGP without consultation with the Council of State.

This position becomes even more serious if one considers article 195(1) of the Constitution, which provides as follows “Subject to the provisions of this Constitution, the power to appoint persons to hold or to act in an office in the public services shall vest in the President, acting in accordance with the advice of the Governing Council of the service concerned given in consultation with the Public Services Commission.” The Police Service is a public service under the Constitution.

So if we read article 70 together with article 195, the mandatory conditions precedent increase. He must also seek the advice of the Police Council, which is the governing council of the police service. The last time I checked, that council is not in place. That advice must itself be given in consultation with the PSC.

Mr. Prez-Prof, can we just read the law before we act? That is what you taught me in school, and so I am only humbly bringing this to your remembrance, just in case you have forgotten...

To Mumuni from Society’s Right Thinking Members: “Please Spare the President any more Blushes”

2009-06-07T22:37:00.000Z

Originally Written on 2 March 2009

So it happened that Alhaji Mohammed Mumuni went to court and lost. So what? We all lose in court. He sued a newspaper, the Daily Guide, which had carried a story that had quoted and relied upon an Interim Audit Report that had made adverse findings against him, for defamation. It was not as if the Audit Report was a farce. But it was “interim”, meaning that it was not final or conclusive.

Interim v. Final Audit Reports
I generally have a problem with journalists, news media organisations and trade unionists, publishing and running near-rabid commentaries on the basis of interim audit reports, as if they are either written in indelible ink or cast in stone. I think that any publication of or commentary on an interim audit report must contain the necessary caveat that every line item and ‘finding’ can be reversed when persons affected by the interim report are able to provide answers to questions or queries contained in the report. Such reports are therefore unreliable ‘works in progress’ and we must all exercise great caution in publishing and commenting on them.

Can we just wait for Final Audit Reports? Can auditors stop leaking interim audit reports? The words ‘audio’, ‘aud’, ‘audit’ and ‘audi’, have the same root and mean hearing or listening. It is from these words that the principle of ‘audi alteram partem’ is derived, namely “hear the other side” and that "there are two [and probably more] sides to every question.” This is a plea for reason and fairness in discussions and inquiries, whether judicial in nature or not. Audits can therefore not be complete unless the auditors have afforded affected persons the full opportunity to answer or respond to any queries raised; and have taken those answers into consideration in arriving at final conclusions.

I think that Mumuni would still have had a cause of action against Daily Guide if the paper had presented an interim report as a final report. I believe that a person who seeks to publish ‘findings’ of interim reports has a concomitant legal duty to state the caveat mentioned above. I believe that a failure to state the caveat in any publication of an interim report, and/or any attempt that pass interim ‘findings’ off as final, would be actionable as defamatory.

But as things turned out, after Mumuni had sued the Daily Guide, he submitted written response to the queries raised by the auditors in the interim report that was published by Daily Guide. However, the auditors were not satisfied with his answers and subsequently issued a final report that endorsed the findings contained in the interim report. I can only imagine the glee with which Daily Guide’s lawyers tendered the final report in evidence.

Defamation
Once Mumuni sued, Daily Guide raised every possible defence to the action in defamation, and it is important to understand what is defamation, what those defences are and why they succeeded.There is no statutory or rigidly accepted definition of ‘defamation’ and our courts have generally accepted the test of Lord Atkin in the 1936 case of Sim v. Stretch as follows: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”

But who are “right thinking members of society”? By this phrase the court seeks to identify those people who can take a balanced view of what they hear and read, do not always think the worst but are quite capable of seeing a derogatory implication in the words. Thus even though a statement is false and even if it is likely to harm reputation, if "right thinking members of society" do not believe that the statement is true, then there has been no harm done to a Plaintiff’s reputation.

Thus even if the words damage a person’s reputation in the eyes of a section of society, they are not defamatory unless they lower that person’s reputation in the eyes of the society’s “right thinking members.” The standard here is objective, i.e. what would right-thinking members of society think?

It is for this reason that a statement that is an insult or mere vulgar abuse is not defamatory. In the same light, words uttered in the heat of anger are not considered defamatory at common law. This is because such words do not convey a defamatory meaning to right thinking members of society who may hear them: simple abuse is unlikely to cause real injury to reputation. Many lawyers and students of the law will remember the famously naughty Ghanaian case of Wankyiwaa v. Wereduwaa, where the court took slight umbrage at the lawyers for being shy of reading out the alleged defamatory statement, and stated emphatically that “no court is contaminated by bad language”. The court held that words spoken which constitute mere vituperation are not redressible at common law, although at customary law, abuse or vituperation per se is a civil wrong, redressible by a pecuniary award.

But I digress. A defamation action is an appeal to the opinion of society’s right thinking members. A plaintiff in effect says that he is in tune or in touch with right thinking members of society and knows that he has lost his reputation among that class of people on account of a defendant’s publication. That is a plaintiff’s test or standard to meet in a defamation action. Thus a first line of ‘defence’ for any defendant in a defamation action would be to argue that the matter published is not defamatory at all. If a defendant is able to establish that, then the action must fail.

Common Law Defences
But there are the common law defences to a defamation action, so that although a plaintiff may be able to meet the Sim v. Stretch standard, he would still not succeed if any of the defences are available to a defendant. These defences are (i) absolute privilege, (ii) qualified privilege, (iii) fair comment, and (iv) justification.

A matter is absolutely privileged if it was communicated in the course of some executive, legislative or judicial process, among others that may be provided by statute. That was clearly not in issue in the Mumuni case and so we will not address it.

But we speak of qualified privilege where the person who makes the communication complained of, has a legal, social, or moral interest or duty, to make it to the person to whom it is made; and the person to whom it is so made has a corresponding interest or duty to receive it. It is my respectful view that with particular reference to the media, this defence, must be read together with Chapter 12 of the Constitution, particularly Article 162 which enjoins the media to “uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.”

The defence of fair comment must show that the matter published was (i) a comment, (ii) fair, and (iii) based on facts that are true. Thus if the facts upon which the comment purports to be made do not exist or are untrue, the foundation of the plea fails.

The last defence is called the plea of justification, where the defendant must prove the correctness or truthfulness of the communication or be able to justify the precise imputation complained of.

In the Mumuni case, Daily Guide raised all of the last 3 defences mentioned above, and succeeded on each of them. The judge was of the view that one word run through each of the defences: ‘truth’. What was required, then, was for Daily Guide to establish in its defence that what it had published was the ‘truth’. And that would not have been difficult because by the time the trial was over, the final audit report was ready, and it did not have to have the caveats that had to go with the interim report. Thus ‘truth’ won the day, in that what the court had before it was an unchallenged final audit report, which confirmed the findings contained in the interim report, after Mumuni had been afforded the opportunity to respond to the contents of the interim report. The AUDIT was complete.

Foreign Minister, still?
So, here we have a foreign minister who went to court to say a publication had lowered him (and his reputation) in the estimation of “right thinking members of society.” He was right. The audit reports (both interim and final) did not have a lot of nice things to say about Mumuni. Every right thinking member of society who reads the reports might not think very highly of Mumuni. But the court had an answer for him, i.e. “even if you have been lowered in the estimation of right thinking members of society, you cannot cry foul because what was published was true.” In other words Mumuni appealed to “right thinking members of society” and lost. Should he continue to serve as chief foreign diplomat over the same society? I think not.

Even if Mumuni intends to contest the judgment, which is what I think he will, it does not change the fact that even as the case undergoes slow regurgitation in the ‘belly’ of the judicial process, Mumuni will remain a person who has gone to court to say that a paper had lowered his reputation, and the court has agreed with him but said “Alas, it is true.” Should he continue to serve as our chief foreign diplomat? I think not.

Conclusion
Sir, it is my respectful view that a person caught in such a quagmire should not continue to serve in the high office of Foreign Minister. You continued stay in that office is no longer tenable. You must save the President the painful duty of asking you to leave the office. Please resign to fight his appeal or appeals, as the case may be. If you ever obtain vindication in the Court of Appeal and/or the Supreme Court, I think that the President who once chose you as his runnin gmate, will consider you for some high appointment, if not to the same position. But as things stand now, the right thinking members of society to whom you appealed by going to court, do not think very much of you. Sir, jump now. Don’t push the President to push you. Right now you have just two chances of having a dignified stay in office: fat chance and no chance. Tsk, tsk, not good, not good.

Best Regards,

Stealing? Wait a Minute!!

2009-06-07T22:31:00.000Z

Originally Written on 27 May 2009

I have followed with some interest the debate over the actions of the immediate past speaker of Parliament, the Right Honourable Sekyi-Hughes, with particular reference to his taking away, and threatened return of “soft furnishings and other amenities” from and to his former official residence. I hear people calling him all sorts of names and asking him to be prosecuted for stealing. Let me place on record that I think R. H. Sekyi-Hughes was wrong in taking the items without ensuring that all the bases were covered. But I doubt whether he can be successfully prosecuted for stealing. And, I definitely do not think that it is fair to call him a thief.

Déjà Vu
These are highly charged political times. Thus I must confess that I relate to this saga with some personal déjà vu because I cannot pretend to be completely innocent. Many years ago, I was a beneficiary-by-default of "soft furnishings and other amenities". So let me make the relevant contextual disclosures. Circa 1978: I was in class 6 and my late father was in a major crisis at his work place. Virtually the entire workforce was in near-revolt, threatening a complete shutdown of a critical part of the nation's transportation system if he was made the overall boss. The complaint? He was too strict, arrogant and a “small boy”: he was a mere 38 year old boy. Featuring prominently on his Sin List was that he suspended a worker for reading newspapers on the job. Soon the call changed to “remove him”. We would receive threatening phone calls, many of which informed a trembling mother mine that we were no longer safe in that town. One caller asked her to remind hubby hers that “aban edwuma, wo twe n’adze, wonfa nsoa” to wit, “you must drag government work its sorry behind on the floor and not carry it on your head, dummy!”

The hapless Acheampong government, teetering on the brink of imminent collapse and holding on to power by a shoe string after the farcical Unigov referendum, did not have the spine or stomach to stare down at the workers. They retired him. Yes, retired at the age of 38.

The family had to move on. But having worked for that employer since school, and having lived in ‘bonglos’ all the time, father mine really had very little of his own by way of “soft furnishings and other amenities”. And, as I learnt, succeeding employees, for the most part, did want even to use stuff that the preceding employee has used. The reasons vary from justifiable hygienic considerations to the beyond the pale fears of “juju”. The result was that such stuff, if not successfully foisted on the departing employee for chicken and rice payments, got dumped in some storage facility or warehouse, where it would be ultimately gobbled up by the weather, moth, rust and/or thieves.

Come the day we were to leave the official ‘bonglo’, we carried everything away with us: sitting room furniture, beds, and even forks and spoons. I suspect that father mine paid a song and a dance for them. But the significant part of this was that those items had been offered to him, he had accepted that offer, and the cost was deducted from his pension.

This was 1978; but in varying degrees, this practice has continued between most state-owned establishments and retiring employees. How do I know? Now, this is graphic. 30 years after leaving, I was visiting the same town and found myself driving to see the former house, only to witness our next door neighbour from three decades ago, finally moving from his official, government 'bonglo' to his retirement home. And, he was also taking away to his new abode (no prizes for guessing) the "soft furnishing and other amenities"! I walked up to the wife and introduced myself. We hugged and remembered the old times. I was told about the struggle to evict a tenant from the retirement home somewhere at the outskirts of the town. The departure from the government 'bonglo' had thus been delayed by about 2 years as they trudged the courts and paid lawyers to obtain an eviction order. In those two years they had stayed on in the government 'bonglo', I guess, without paying rent. The son, who was about 5 years old when we left the town, was now a doctor, practising in some western country. As we chatted, the stuff was being loaded into a waiting truck, to adorn the new home. Such memories get etched into your memory.

Stealing?
Circa 2009: R.H. Sekyi-Hughes leaves his official residence with “soft furnishing and other amenities”. Not the first time it has happened and definitely will not be the last time. However the clear distinction between his circumstances and my personal knowledge is that apparently he was not of one mind with his immediate past employers on what he could take and what he could not take. But does that amount to stealing?

Section 125 of the Criminal Offences Act ("COA" formerly known as the Criminal Code) simply provides as follows: “a person steals if he dishonestly appropriates a thing of which he is not the owner.” It is a very simple statement, but involves as many as 4 ‘ingredients’: (i) appropriation, (ii) dishonesty, (iii) a thing, and (iv) lack of ownership. Thus in any trial on the charge of stealing, the prosecution must prove each of these ‘ingredients’ of the offence, beyond reasonable doubt. There is no doubt that what R. H. Sekyi-Hughes took away amounts to “things” that he did not own. Thus ingredients (iii) and (iv) are not in dispute.

Even ingredient (i) is not really in dispute. Section 122 of COA tells us what amounts to ‘appropriation’. It says that generally, an appropriation of a thing means any “moving, taking, obtaining, carrying away or dealing with a thing”, plus the intention that some person would be deprived of the benefit of ownership or of the benefit of his right or interest in the thing, its value or its proceeds.

According to the section, the intention to deprive exists even if there is an intention to appropriate the thing temporarily or for a particular use, as long as the intent is so to use or deal with the thing that it will probably will be destroyed or become useless or greatly injured or depreciated, or restore it to the owner by trying to sell it back to him, or exchange for reward or for some other thing, or is pledged or pawned.

Where the person accused is a trustee with respect to the thing, he is deemed to have appropriated that thing if he deals with it with the intent of depriving the beneficiary of his right or interest in the thing, or in its value or proceeds.

Clearly, by taking away the “soft furnishings and other amenities” R. H. Sekyi-Hughes is deemed to have appropriated them. That deals with ingredient (i).

But ingredient (ii)? Dishonesty?

Section 120 of COA says that appropriation is dishonest if it is made with an intent to defraud or is made by a person who does not have a “claim of right”, and who knows or believes that the appropriation is without the consent of the owner or beneficiary, or that the appropriation, if known by such a person would be without his consent. Section 15 then states that “a claim of right means a claim of right in good faith.”

Let us also note that by virtue of section 13 of the Evidence Act (formerly known as the Evidence Decree), any prosecution will be required to prove each ‘ingredient’ of the offence “beyond reasonable doubt”. As lawyers love to say, the onus of proof lies on the prosecution. In the rather very well-researched and very well-written Commentary on the Act, it is stated that it not define the term “proof beyond reasonable doubt” because it is generally accepted that it is not possible to expand meaningfully on the connotation or denotation of that term. In other words, it means what it means. The section however provides that the burden of persuasion requires the accused only to raise a reasonable doubt. Thus one has to look critically to any fact “the converse of which is essential to guilt”, in other words this only applies to facts which if found against an accused, would either establish guilt or be an element of an offence or negative a defence. It has indeed been said that all a defence counsel has to do is to raise doubts, and that once he raises sufficient doubts about the charge, the accused is entitled to be acquitted.

I have read the letter that R. H. Sekyi-Hughes’ lawyers have written to the Parliamentary Service. Many commentators are pouring scorn on the letter this morning. What they miss the subtle hint in that letter, which to the trained eye raises serious doubt about the allegation that R. H. Sekyi-Hughes has ‘stolen’. In the letter, they refer to a “briefing” that R. H. Sekyi-Hughes received “relating to the provision of soft furnishing and other amenities and the disposal of same to the leadership and senior officers of parliament.” The letter provides no further particulars of this “briefing, but also refers to the “practice” by which “some retiring and exiting leaders and officers of Parliament” have benefitted from this “provision” and “disposal”. If such a “briefing” took place, and R. H. Sekyi-Hughes was led by that briefing to believe that he had a “claim of right” to those items, then any prosecution (real or imagined) will find it very hard to prove the ‘ingredient’ of dishonesty. A “claim of right”, as section 15 of COA provides, does not have to be perfect. It works to raise doubts as long as the claim of right was “in good faith”. If there was a briefing which led R. H. Sekyi-Hughes to believe that he had some claim to the items, then that claim was made “in good faith”, even if the claim was incorrect, wrong or mistaken. Any prosecution is likely to struggle to prove bad faith or that notwithstanding the alleged “briefing” and “practice” there was intent to defraud. Note, in an imagined trial, it will not be for R. H. Sekyi-Hughes to prove good faith. The burden will be on the prosecution to prove the negative, i.e. lack of good faith. That would be a huge, if not impossible mountain to climb.

What Next?
Any prosecution of R. H. Sekyi-Hughes, in my humble view, would be as ill-advised as his taking the items in the first place. Respectfully, R. H. Sekyi-Hughes made a mistake. He should have sought further and better particularisation on the matter before taking the items away. He did not. He took a step, believing that he had a claim to part of the items and that he would only be required to pay for the other part. It turns out that he was wrong, very wrong. The Parliamentary Service, we are told, has asked him to return the items. He should. But absent any evidence of bad faith or intent to defraud, he walks.

In the lawyers’ letter, R. H. Sekyi-Hughes offers to return the items. I think he should. Once the items are returned in as near as possible to the state in which they were taken (and who will be the judge of that?), this matter is over. Then Ghana would have recovered bed sheets, pillow cases and curtains, etc. which I am fairly certain the current speaker will not use. The items will, most probably, find their way to some PWD warehouse or storage facility and/or left to the vagaries of the weather, moth, rust and thieves. And we will all be much happier.

But before I end, permit me to engage in some 'self-righteous' semonising. When persons assume high public office, and are exposed to the perks and luxuries that come with the office, they sometimes forget about how life was really like before assuming office. They begin to think that the perks and luxuries that they are receiving are normal fare. Suddenly they are waited upon hands and feet. There are people to answer to their every call or need. They no longer carry their own bags and briefcases, and are ushered through VIP lounges in airports worldwide, whilst we ordinary citizens only look on, rue on how our taxes are being spent, and maybe wish and hope to be there some day too. Within months, ordinarily plain, simple and sensible persons are transformed into demi-gods who rule over all that they survey. We create them. Or the system that we have created, creates them. When they lose power, there is the sudden shock that life will return its former state. No free petrol. No free electricity. No free water. No free accommodation. No free cars. No free drivers. No free armed security guards who salute you for simply getting in or out of a car. No free access to the VVIP lounge. No free ride to and and from the lounge and planes in the Chryslers that JAK did not want. No free First Class and Business Class tickets. No nothing!! Just the freshly-unemployed you. Under those circumstances, this erstwhile demi-god is forced to clutch at straws, aka curtains, bedsheets, pillow cases, carpets, etc.

R. H. Sekyi-Hughes has been embroiled in a needless and unfortunate muddle and mess that threatens to devalue, diminish and run down whatever his achievements in steering Parliament for 4 years might have been, when he could have simply left office with his head held high. But that was not to be. Let history judge him, maybe harshly, maybe cruelly, maybe for lack of caution; but certainly not for stealing. He is not a thief.

Tinted Glasses and Ghana Police

2009-06-07T22:26:00.000Z

Originally written on 27 May 2009

Is it really the case that Ghana law bans the use of vehicles with tinted glasses? I heard and followed the recent announcements by the Ghana Police Service that sought to remind all motorists of a ‘1974’ legislation that purportedly outlawed the use of tinted glasses in cars.

According to a Daily Graphic article posted on Myjoyonline.com on 30th April 2009, the Kumasi MTTU, over one weekend, arrested and prosecuted car owners who had tinted glasses. 41 drivers were prosecuted and convicted for flouting road traffic regulations. The drivers reportedly pleaded guilty to charges of using tinted glasses against road traffic regulations, were convicted on their own pleas and fined between GH¢240 and GH¢300. The report stated that a total of GH¢7,590.00 was realised from the fines and the convicts were warned to respect road traffic regulations or receive severer fines in future.

Explaining why the exercise was carried out, the acting Ashanti Regional Police Commander of the MTTU, Assistant Superintendent of Police (ASP) Abraham Bansah, is reported to have said that police investigations had revealed that the use of tinted glasses was one of the major causes of fatal road traffic accidents in Ghana. He tinted windscreens and windows impaired visibility anytime there was a rainfall, which created serious danger for the driver and other road users, and sometimes led to fatal accidents and the death of innocent passengers and pedestrians. ASP Bansah also said investigations had revealed that vehicles with tinted glasses had been used to commit armed robbery, abduction, and drug-related crimes, such as transporting stolen and smuggled goods. He lamented that by their nature, it was very difficult to see the occupants of such vehicles when they were committing crimes, and therefore made it easy for them to abscond. He said under the cover of darkness, some of those vehicles were also used to promote immoral activities, stressing that active sex took place in some of these vehicles, hence the action to weed them out from the system to enhance sanity on the road and the environment. ASP Bansah warned that since the MTTU would not hesitate to arrest and prosecute those who used tinted glasses, it was better for owners of such vehicles to remove them before they were arrested.

A Ghanaian Times report posted on Myjoyonline.com on 3rd April 2009 also reported that the MTTU would begin an exercise after the Easter holidays, to arrest and prosecute commercial drivers and private drivers whose vehicles had tinted windscreens. The report quoted one ACP Daniel Julius Avorga, the National MTTU Commander, who said police have evidence that some people use such vehicles to transport Indian hemp and narcotic drugs and for other “nefarious activities such as illicit sex and stealing”. ACP Avorga advised drivers with tint films on their glasses to remove them before the exercise starts and noted that an earlier exercise to check the use of tinted glasses on vehicles in 1974 was abandoned years later, when the police were withdrawn from the roads. He said, however, that vehicles whose window screens were already tinted by the manufacturers, would not be affected by the exercise.

I find it very hard to criticise the police. They do a very difficult and impossible job. When they succeed, they get little plaudits. When they fail, we all jump on their backs and call them names. So, when I read the above stories, (by the way I don’t have tinted glasses on my car), I wanted to read the law that proscribed the use of tinted glasses on cars. I wondered why the law would make an exception with respect to glasses that are already tinted by the manufacturer. Really, if the tint was in and of itself an offence, why would the fact of the tint having been applied by the manufacturer amount to a defence in court or constitute some other extenuating or explanatory circumstance. I wondered if any law in Ghana would dare provide that having tinted glasses was an offence except where the manufacturer did the tinting. I wondered how on earth the police would prove that one tint was done locally and the other by the manufacturer.

That set me thinking some more and so I hit the books. I must confess that after weeks of research, I have not been able to find the law that expressly bans tinted windows. I put that down to, probably, my own inability to find the law. But reading the above-cited news stories, the closest I have come to discovering applicable law on this matter is sub-regulation 33(3) of the Road Traffic Regulations, 1974 (LI 953). That sub-regulation provides that glass fitted on cars should be maintained in such a condition that it does not obscure the driver’s vision. It also provided that all forward facing glass should be manufactured and treated to substantially prevent shattering and flying of splinters if the glass is struck or broken. The sub-regulation provides specifically as follows:

“All glass fitted to motor vehicles shall be maintained in such condition that it does not obscure the vision of the driver while the vehicle is being driven on the road; and all forward facing glass, with the exception of lamp glasses, shall be so composed, manufactured or treated as substantially to prevent shattering and flying of sharp splinters of the glass when struck or broken.”

As I have said, I have not found the statute that specifically mentions the word “tint”, if that statute exists. However, if sub-regulation 33(3) this is the legal provision that the police action and trial and convictions and fines are based on then we have a problem.

What the sub-regulation says is that glass fitted on cars should be maintained so that it does not “obscure the vision of the driver.” In other words the glass must be maintained so that it does not make something difficult to see, e.g. in blocking out, masking or veiling. Thus, unless and until the prosecution in each case is able to establish that having tinted windows blocks out, masks, veils or otherwise interfere with the vision of a driver, I fail to see how any tinting of glass at all would amount to a crime or some breach of the law as it stands. What about the percentage of tinting? What tinting does, in the main, is to provide shade in the car. But a driver can get the same shade from wearing dark glasses as he drives. If any shading would amount to “obscuring the vision of the driver” then we should arrest drivers who wear sun glasses when they drive.

One would note from the above Graphic and Times stories that the police are arresting people not only because having tinted glasses amounts to “obscuring the vision of the driver”. They are arresting people because many offences allegedly take place in vehicles that have tinted glasses. In other words, the police would prefer to be able to have an unobstructed view into vehicles. I agree. So let’s legislate so that all vehicles in Ghana will install glass boots, simple.

To the extent that the arrests, prosecutions, convictions and fines of drivers have been based on regulation 33(3), I respectfully think they are all wrong. It is trite that crime must be specifically defined and that there is no room for assumptions and ambiguity as to what action constitutes a crime. If we want to make having tinted glass an offence, the law should state so expressly, clearly and unambiguously. If regulation 33(3) constitutes the legal basis for what has been happening (and I hope I am wrong), then my respectful view is that it amounts to an unnecessary and unconstitutional extension of the wording of the statute. The only statute that should lead to the conviction of a person for having tinted windows is one that expressly states that it is an offence to have tinted glasses, and not regulation 33(3) as it is presently written.

But, as I have said, that ‘tinting statute’ might exist. Maybe I just have been unable to find it. But I have tried. I have checked. The words “tint” or “tinted” do not appear anywhere in Ghana’s law database.