I-CAN-GHANA

[Edited version published in Daily Graphic, 15 January 2022, p 29]

BOOK REVIEW

TITLE
A HANDBOOK OF THE CONSTITUTIONAL LAW OF GHANA AND ITS HISTORY

AUTHOR
SIR PROFESSOR KOFI KUMADO

NUMBER OF CHAPTERS
TWENTY-TWO (22)

TOTAL NUMBER OF PAGES
SIX HUNDRED AND FIFTY-FOUR (654)

PUBLISHER
BLACK MASK LIMITED, ACCRA, 2022

REVIEWER
ACE ANAN ANKOMAH, SENIOR PARTNER & HEAD OF DISPUTES, BENTSI-ENCHILL, LETSA & ANKOMAH

INTRODUCTORY COMMENTS

To say I was humbled, honoured and flattered when Sir Professor Kofi Kumado asked me to review his book ‘A HANDBOOK OF THE CONSTITUTIONAL LAW OF GHANA AND ITS HISTORY,’ would be a gross understatement. I literally did cartwheels. Who? Me? How many times does a student get to review a book by his professor?

It was in Prof Kumado’s Constitutional Law class in 1987 that I learnt how to brief cases, starting from the classic American case on judicial review, MARBURY v MADISON. He reviewed each script in detail, and said of on one that had misspelled ‘Marbury’ as ‘Madbury’: ‘Marbury was possibly mad, but that did not change his name to Madbury.’

That was our introduction to Kofi-Kay, as we secretly called him, a brutal and merciless critic of legal material: no frills or fuss, ifs or buts. I started reading the book, wondering whether it would be one of those terribly obsequious, near-tepid and almost-insipid legal texts, where authors merely present the dry law, shying away from expressly disagreeing with judgments and other writings they apparently disagree with, or whether Prof Kumado would stick to his expected no-holds-barred approach. The answer did not take long in coming.

DIVING INTO THE BOOK

Chapter 1: THE NATURE, SOURCES AND SCOPE OF CONSTITUTIONAL LAW GENERALLY, does not replicate boring introductory law classes. In outlining the Basic Characteristics of a Constitution, the Author is, in one breath, unrestrained in endorsing the classic views of Sowah JSC (as he then was), in TUFUOR v ATTORNEY-GENERAL. But in the very next, he tears into the views of Archer JA (as he then was) in SALLAH v ATTORNEY-GENERAL. While agreeing with His Lordship that ‘predictability’ was one of the characteristics of a Constitution, Prof Kumado disagrees with His Lordship’s statement that the 1966 NLC Establishment Proclamation did not have predictability simply because it could be changed by one of its creatures. The Author says His Lordship’s ‘reasons for saying the Proclamation was not predictable undermine his [own] argument,’ because ‘amendments of constitutions are always done formally by a creature or creatures of the Constitution, for example, the legislature or the legislature acting together with the executive.’ Unassailable logic.

CONSTITUTIONAL LAW THEORIES

In Chapter 2: GENERAL PRINCIPLES AND THEORIES OF CONSTITUTIONAL LAW, the Author explains ‘Rule of Law’ as involving more than just having enacted laws. He advocates demarcating boundaries between good and bad laws, good and bad governance systems, and a totalitarian geographical space and one with prevailing political freedoms. Then he delivers the kicker: ‘anyone who lived in Ghana under the regime of the Provisional National Defence Council (PNDC) and continued to live there after the promulgation of the 1992 Constitution can appreciate the difference.’ Blindingly obvious?

Prof Kumado is in his elements when he discusses Separation of Powers, which he considers a concept, not a doctrine. He explains that qualifying it as a doctrine ‘gives rise to the erroneous and confusing impression that it is a single blueprint of governmental engineering which is either present or absent from a constitutional system.’ Rather, ‘properly understood, it is a concept which encapsulates a body of ideas for designing government so as to prevent a concentration of power in one person or body of persons leading to tyranny.’

Then, the Author sets the theoretical underpinnings from Locke and Montesquieu, ending with that magisterial statement by Justice Brandeis in MYERS v UNITED STATES, that separation of powers is not adopted ‘to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.’

MONISM, DUALISM & MINORITY SEXUAL RIGHTS

In the same chapter, Professor Kumado tackles the dichotomy between international law and municipal law, and the debate between the Dualist and Monist Schools of Thought on whether an international treaty that the executive signs, should have automatic force of law. In an authoritative exposition, he shows that Dualism prevails in Ghana through article 75(2) of the Constitution, which demands parliamentary ratification of treaties entered into in the name of the Republic. He refers to the Supreme Court in BANFUL v ATTORNEY-GENERAL (GITMO 2 case) in support.

But he is quick to refer to article 33(5), which states that the human rights provided in the Constitution are not exhaustive but include those that are inherent in a democracy and intended to secure human freedom and dignity. He refers to the Supreme Court in GHANA LOTTO OPERATORS v NATIONAL LOTTERY AUTHORITY in support. The Author however explains, convincingly, that this does not mean article 33(5) is Monist in nature: while article 75(2) requires legislative ratification, article 33(5) presupposes judicial ratification.

Never one to shy away from controversy, the Author takes a shot at one of the most topical and potentially explosive issues in Ghana today, minority sexual rights. He ponders over whether such rights secured in an international treaty to which Ghana is a party, automatically apply in Ghana. In Thomas Campbell’s poem, LOCHIEL’S WARNING, the Wizard said:

“Lochiel, Lochiel, beware of the day!
For, dark and despairing, my sight I may seal,
But man cannot cover what God would reveal:
‘Tis the sunset of life gives me mystical lore,
And coming events cast their shadow before.”

So, to all sides in the shadows cast by coming events, may you look deeply into Kofi-Kay’s book, because in it, he probably provides the constitutional underpinnings for the expected fierce parliamentary debates, intense Supreme Court submissions, and maybe court judgment that will impossibly and unfeasibly, put this matter to rest.

CONSTITUTIONAL EVOLUTION & BOND OF 1844

In Chapter 3 to 6, the Author traces the development of our constitutions (a term he uses in the broad and narrow senses) from 1800 to date. These chapters are not just informative but cerebrally engaging beyond measure.

One example: Professor Kumado tackles the vexed question of the ‘Bond of 1844’ with the logical historicity of a chronicler: from the 7th May 1821 Instrument whereby the British purported to assume direct rule of its settlements, through the 1824 Battle of Nsamankow where the Asante killed Governor MacCarthy, the British revenge against the Asante in the 1826 Battle of Dodowa, Maclean’s shenanigans and clashes with the chiefs over, among others, the insultingly asinine and inane claim by some British merchants that they had acquired the allodial title to Gold Coast lands through the Battle of Dodowa, the intervention of the British Parliament and appointment of Commander Hill as Lieutenant-Governor, the 1843—1844 signing of eleven ‘Friendship Treaties’ between Commander Hill and the coastal states, and finally the consolidation of those treaties into one on 6 March 1844, essentially to regularise the illegal extension of British jurisdiction.

Prof Kumado provides the actual text of the Bond and shows that ‘read carefully, the Bond itself neither conferred any territorial or political jurisdiction on the British beyond their forts and settlements’ nor ‘permit British interference in the traditional government outside the sphere of the administration of criminal justice.’ Yet, in retrospect, ‘the reality and strictly legal position did not matter to the British,’ and they got away with it for 133 years!

In the end, the critical reader does not miss the inherent wit in the detailed narrative: the chiefs were swindled with their eye widely shut.

PARLIAMENT’S FAILINGS

In Chapters 7 to 9, the Author dissects the three branches of government. Under ‘Parliament’s Oversight Responsibilities’ in Chapter 8, he points to the current Parliament’s inexplicable failure to pass certain laws in compliance with articles 22(2), 28 and 181(5) of the Constitution. On the latter, relating to guidelines on international business or economic transactions to which the government is a party, this reviewer was gratified to see that a case he conducted (albeit on the losing side), ATTORNEY-GENERAL v BALKAN, came up for mention, and to show that even ‘the promptings of the Supreme Court have not kicked Parliament into action.’ Maybe this book will embarrass our hopefully already-embarrassed, punch-throwing and fisticuff-obsessed Parliament into proper action. But I am not holding my breath – death by asphyxiation is very painful, I hear.

GENERAL COMMENTS

Professor Kumado maintains exemplary fidelity to his sources. His clear attributions make it easy to distinguish between sourced material and his own, forceful opinions. However, the book is not overrun with authorities, cases and citations, which might have spun it out to uncontrollable lengths. Even then, no relevant topics, subjects or prominent authorities escape Professor Kumado’s intellectual scalpel and surgical precision.

An ancient Jewish writer, Habakkuk, says a vision is for an appointed time, and must be ‘recorded [and] inscribed on tablets,’ so that ‘the one who reads it may run.’ So buy the book (tablet), read it and run with knowledge.

Prof Kumado exhaustively captures and records both the law and the history behind it in 562 pages, excluding the helpful tables, indices and appendices. He is not given to prolixity. He gets to the point, quickly. The font is easy on the eye and makes the book generally readable. The physical quality is good, careful glue binding, and in hard cover to protect it from the expected over-reading and predictable over-carrying to court. And it even comes with a page marker so you do not get lost in reading.

CONCLUSIONS

Overall, this Habakkuk-timely book will be intellectually stimulating and instructive for students, practitioners, judges and general readers in Ghana and the commonwealth. It is an unvarnished projection of Ghana’s constitutional law and history, in all of their glory and gore, including the parts with darts and warts that some would rather ignore, setting up examples to follow or avoid, for all who chart the same democratic path. In this one-stop book, Prof Kumado pulls no punches, takes no prisoners, and bars no holds. Two thumbs up, Prof, way up.

INTEGRATION OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) THROUGH THE LAW

Ace Anan Ankomah & Nania Owusu-Ankomah Sackey•

The true measure of the success of legal integration is not whether the integrated legal system is technically sound and functional, but whether the system actually promotes the achievement of the integrational objectives.

can you buy Clomiphene over the counter in australia Introduction

Precolonial Africa did not have the modern day borders that divide us. Great nations such as Asante, Dahomey, Ghana, Mali, Songhai, became great powers on the back of their ability to trade freely with their neighbours. We belonged to different tribes and nations, with differences and war sometimes, but we were conscious of our common humanity and identity.

That is why colonialism could only succeed and thrive by dividing us, not only through a European concept of borders, but by the imposition of European legal systems. That was the foundation of the differences we now encounter. That is why between 1884 and 1885, the then European powers met in Berlin to divide Africa up in the most arbitrary of fashions and according to their preferences on where the most natural resources were. Indeed, some nations were carved out as the personal property of some European rulers. In 1874, a full decade before the Berlin Conference that formally ‘balkanised’ Africa, Great Britain had declared the then Gold Coast a colony and imposed their system of law, the common law, on us.

European powers unleashed on us almost a century of the oppression and domination called ‘colonialism,’ where the colonialists had free rein over us and access to resources across the continent. They shipped these resources to their countries to enrich themselves at the expense of the people who owned those resources. How were they able to do this? It was in part because they had imposed different legal systems on us, country by country. Fact: several western economies today were built on the back of African resources. When people speak of Africa’s “resource curse” maybe it is because the curse began with the European’s forcible, yet ‘legal’ seizure of those resources and benefitting from them while the true owners, earned next to nothing. The legal system to fight this did not exist because that law was their law.

But, six decades after Ghana led in the fight for independence, every excuse that we have had and every blame that we may have heaped on the European powers have begun to wear thin. A divided West Africa may still benefit the West but it is now our problem. A West Africa that remains poor and yet still hugs and clings to the colonial boundaries and colonial laws that restrict the interaction between its people, simply on account of the ‘accident’ of their nationality, is West Africa’s problem to resolve.

Enter the Economic Community of West African States (ECOWAS) with its simple core vision: to foster the political and economic integration of the 15 West African countries. Key to economic and political integration is a legal framework that regulates economic relationships and informs political decisions. That is why under Article 3(h) of the ECOWAS Revised Treaty, Member States dedicate themselves to establish an enabling legal environment for integration.

This paper examines some ways to create that legal environment for a better integration. It identifies three avenues for this, namely:

(i) Establishing a Community legal order or hierarchy of laws that recognises ECOWAS laws (“Community Law”) at the top of the hierarchy;
(ii) Providing legal education on Community Law within Member States; and
(iii) Providing avenues to enforce judgments of the ECOWAS Court of Justice (“Court of Justice”) in national courts, and cross-border judgments from the national courts of Member States.

This paper posits that economic and political integration will largely depend on a sufficient integration of the legal systems of the Member States. This will ensure uniform applicability, interpretation and enforcement of Community Law. It also proposes steps to standardise the legal environment across the region to achieve the desired political and economic integration.

Maymana ECOWAS Supranationality and the Community Legal Order

A clear legal order within ECOWAS is a pre-requisite to successful integration. Regional integration demands that both Community Law and the national laws of the individual Member States must co-exist and regulate the lives of the citizens of the Member States. This naturally creates tension between the different national laws of the Member States inter se, and between municipal laws and Community Law. This tension presents a major constitutional challenge to regional integration, and it therefore requires a clear agreement on the hierarchy of laws within ECOWAS. The effect would be that state sovereignty would, to some extent, be limited so that Community Law is recognised as superior to municipal laws. This requires a hierarchical relationship where national courts recognise and are bound by Community Law. National courts would rely on and be bound by the interpretation given by the Court of Justice on provisions of Community Law to ensure consistent interpretation of that law. Member States and citizens should invoke and rely on Community Law before their national courts.

The sources of Community Law are

(i) the Revised ECOWAS Treaty,
(ii) the Treaties and Protocols made by the Authority of Heads of State and Government Pursuant to the Revised Treaty,
(iii) Regulations made by the Council of Ministers, and
(iv) Judgments of the Court of Justice.

Thus the key point is to ensure that Member States recognise Community Law and treat them as superior to municipal laws on issues that touch on economic integration. That presents the question whether Member States have the political will to cede part of their sovereignty to prioritise Community Law. Without that, the economic and political integration will be a very high, if not impossible, hill to climb. Establishing an agreed and clear hierarchy within Member States will significantly bolster integration through law within ECOWAS.

Legal Education on Community Law within Member States

Creating and maintaining awareness among the citizens of Member States about ECOWAS, its vision, the legal obligations of the Member States, and the fundamental laws governing the Community is an integral part of integration. Legal education on Community Law must therefore take centre-stage.

Speaking from Ghana, the law curriculum of the various law schools does not include modules specifically relating to ECOWAS, its laws and how these laws interact in the daily lives of citizens. At best it forms a small part of the curriculum for Public International Law, an elective course. It may also feature as part of the syllabus for international studies but certainly does not involve in-depth analysis of the Community Law and its interaction with the citizens of Member States. This must change.

Making the Community Law an integral part of the legal and diplomatic training in Member States will create awareness, encourage acceptance and facilitate better interaction among ECOWAS citizens. Potentially it could create (i) niche specialisation by lawyers within Member States on Community Law, issues and disputes, and (ii) an enabling environment for lawyers within the Member States to explore employment and professional opportunities across ECOWAS. These will boost cross-border activity among the legal profession.

Member States would also have to explore standardising the municipal rules that regulate qualification of lawyers within Member States to be called to the Bar and practice. This is arguably a sensitive area as it appears that in the area of legal practice, Member States are set up to protect that turf from non-nationals. And this is exacerbated by the sharp divide between the common law countries and the civil law countries. Thus cross-border legal practice in ECOWAS is largely unexplored. However, integration would require facilitation of cross-border legal practice and the attendant standardisation of the legal market across ECOWAS. The corollary effect may be greater competition within the legal sector which could lead to raising the standards within the profession.

Enforcement of Judgments of the ECOWAS Court of Justice and National Courts

Enforcement of ECOWAS Court Judgments

The 1975 ECOWAS Treaty provided for the creation of a court to adjudicate disputes. The combined effect of Articles 6 and 15 of the Revised ECOWAS Treaty 1993 created the Court of Justice to do just that. The 1991 Protocol on the Court established the details for its operation and the jurisdiction as spelt out in Article 9, that the court “shall ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the Treaty.” Article 9 of the 2005 ECOWAS Protocol provides the mandate of the Court to be, among others, adjudicating disputes relating to the interpretation and application of Community Law and determining the failure of Member States to Community obligations.

The ability of an ECOWAS citizen to invoke Community Law, rely on it before a national court and for that national court to be bound to follow that Community Law, are important aspects of integration through the law. The judgments of the Court of Justice are therefore an important source of Community Law. Article 15(4) of the Revised Treaty provides that the judgments of the Court are binding on the Member States, the Institutions of the Community and on individuals and corporate bodies. The reference to ‘Member States’ will include the judicial bodies or national courts in these States.

Article 19(2) of the 1991 ECOWAS Court Protocol makes the decisions of the Court of Justice immediately binding and Article 22(3) requires both Member States and ECOWAS Institutions, which are to take all measures necessary to enforce and execute the Court’s judgments. Since no judgment is self-executing and the machinery of national courts would be relied upon to enforce judgments, those courts represent a critical institution within ECOWAS to enforce Community Law and the decisions of the Court of Justice.

Nwauche makes the same point when he opines that national courts enable citizens to ensure that as primary beneficiaries of the integration process, they are able to implement Community Law or enforce Court of Justice decisions. He therefore agrees that the national courts represent an important institution and step to achieving ECOWAS’ integration objectives.

Yet, the ECOWAS Revised Treaty, which is the basis of the ECOWAS legal system, provides in Article 5(2) that its applicability in Member States depends on the manner in which it is incorporated into the State’s legislation. It is a notorious fact that the Anglophone Member States are dualist States and therefore treaties do not have automatic application unless ratified or passed by a resolution of their parliament and, arguably, incorporated into national law. In Ghana, Article 75 of the Fourth Republican Constitution provides as follows:

Execution of treaties.
(1) The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.

(2) A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by
(a) an Act of Parliament, or
(b) a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament.

Ghana’s the Supreme Court in its interpretation and application of Article 75 appears to go a step further to require not just parliamentary ratification but full incorporation by statute. In Republic v. High Court (Commercial Division, Accra), ex parte Attorney-General (NML Capital Ltd and Republic of Argentina – Interested Parties), per Dr. Date-Bah JSC the Court stated that

Treaties, even when the particular treaty has been ratified by Parliament, do not alter municipal law until they are incorporated in Ghanaian law by appropriate legislation… The mere fact that a treaty has been ratified by Parliament… does not, of itself, mean that it is incorporated into Ghanaian law. A treaty may come into force and regulate the rights and obligations of the state on the international plane, without changing rights and obligations under municipal law. Where the mode of ratification adopted is through an Act of Parliament, that Act may incorporate the treaty, by appropriate language, into the municipal law of Ghana… The need for the legislative incorporation of treaty provisions into municipal law before domestic Courts can apply those provisions is reflective of the dualist stance of commonwealth common law Courts and backed by a long string of authorities…

This dictum however emphasises that when a state ratifies a treaty, it assumes rights and obligations under the treaty “on the international plane” even though the state might not have domesticated the treaty. And, Article 40 of the Ghanaian Constitution specifically provides that Ghana should adhere to the guiding principles of the ECOWAS Treaty. It provides specifically as follows:

International relations.
In its dealings with other nations, the Government shall…
(c) promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means;
(d) adhere to the principles enshrined in or as the case may be, the aims and ideals of,
(i) the Charter of the United Nations;
(ii) the Charter of the Organisation of African Unity;
(iii) the Commonwealth;
(iv) the Treaty of the Economic Community of West African States;
(v) any other international organisation of which Ghana is a member [Emphases added.]

Thus while the ECOWAS Treaty may not be directly enforceable as law in Ghana because of the lack of parliamentary ratification, Ghanaian courts have an obligation to respect the treaty and be guided by Ghana’s obligations in their decisions. In Gorman & Others v. The Republic, Ocran JSC referred to Article 40 and stated that it is state policy to promote respect for treaty obligations. He held that “under this Article, the promotion of respect for treaty obligations and for international law in general is viewed as a principle of state policy.” In Tsikata v. The Republic, Adinyira JSC said treaty obligations constituted a moral obligation not to deviate from its objects. She stated that “signing a treaty imposes a moral obligation on the State not to do anything that would deviate from the object and purpose of the treaty. A state becomes legally bound to a treaty after ratification, accession, acceptance, approval or signature where the treaty so stipulates.” And in New Patriotic Party v. Inspector General of Police, Archer CJ stated that a yet-to-be ratified can be invoked and depended on. He stated as follows:

Ghana is a signatory to this African charter, and member states of the Organisation of African Unity and parties to the charter are expected to recognise the rights, duties and freedoms enshrined in the charter and to undertake to adopt legislative or other measures to give effect to the rights and duties. I do not think that the fact that Ghana has not passed specific legislation to give effect to the charter, means the charter cannot be relied upon.

According to Nwauche, the Anglophone ECOWAS countries (Ghana, Nigeria, Sierra Leone, Gambia and Liberia) have not domesticated the ECOWAS Revised Treaty and therefore it is not directly enforceable in these countries. He also states that in practice, the Revised Treaty is not directly applicable even in Francophone ECOWAS countries, although they are monist countries, and that some level of legislative activity including revising the state’s constitution may be required before a treaty takes effect. He adds that sometimes this could depend on the reciprocal enforcement of international law by other states. It appears therefore that it is only the two Lusophone countries, Cape Verde and Guinea-Bissau, which directly apply the ECOWAS Revised Treaty. There is therefore no uniform practice among the Member States on the status of Community Law and how it applies in each country, or uniformity regarding how it may be invoked before national courts.

There is also no uniform, accepted or agreed position on the status of the Court of Justice’s judgments within Member States. It would appear that decisions of the Court of Justice are not directly enforceable in national courts. In the Ghanaian case of Re Chudi Mba for instance, the applicant had sought an order from the High Court of Ghana to enforce default judgment obtained from the Court of Justice, seeking $800,000 award in damages and 500,000 naira in costs after successfully suing the Government of Ghana for alleged violations of his fundamental human rights. The central issue was whether the Court could recognise and enforce the orders or judgment of the Court of Justice. The court held that the statutory regime for enforcing foreign judgments in Ghana operates on the basis of reciprocity and that the Court of Justice is not stated as one of the courts to which the legislation applies. The court refused to enforce the judgment.

This case highlights how the work of the Court of Justice could be undermined when the critical enforcement mechanism is not available in Member States. The Court’s decisions then only become pyrrhic or of moral persuasion only with no real practical value to the party that sought and obtained relief from the Court.

However, there are at least two ways by which ECOWAS could develop an enforcement regime to assist in integrating the law of Member States, namely through the principle of direct effect and through the reciprocal enforcement of treaties. It is to these that we now turn.

Principle of Direct Applicability

Direct effect is a principle of European Union (“EU”) law that enables individuals to immediately invoke an EU provision before a national court or the European Court. This principle was introduced in the case of Van Gend en Loos v Nederlandse Administratie der Belastingen where the European Court of Justice held that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights, which could be enforced by both natural and legal persons before the courts of the Community’s member states. The court identified three conditions necessary to establish the direct effect of primary EU law, namely that the provision must:

(a) be sufficiently clear and precisely stated;
(b) be unconditional and not depend on any other legal provision; and
(c) confer a specific right upon which a citizen can base a claim.

This approach may be adopted with the necessary modifications to suit ECOWAS’ purposes and context, to ensure the enforceability of the decisions of the Court of Justice. It is arguable that, based on Article 9(6) and (7) of the Revised Treaty, judgments of the Court of Justice were intended to be directly enforceable in Member States. Those provisions say that decisions of the Court shall automatically enter into force after 60 days’ publication in the Community’s Official Journal and shall also be published in the Gazette of Member States within the same period. The language adopted in the provision lends support to the proposition that the principle of direct effect could be applied in the ECOWAS context.

Multi-Lateral Reciprocal Enforcement Treaty

A second and perhaps more preferable way of creating an enforcement regime for Court of Justice judgments is through a multi-lateral reciprocal enforcement Treaties ratified by all Member States. Presently, most Member States already enforce foreign judgments on the basis of reciprocity. In Ghana, for example, the principle of reciprocity is the basis for foreign judgments being recognised and enforced. Specifically, Part V of the Courts Act, 1993 (Act 459) and the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993 (LI 1575) specify reciprocity as the basis for enforcing the judgments of specified courts in specified countries whose judgments are registrable and enforceable in Ghana. The only West African courts that receive this favourable treatment in Ghana under LI 1575 are the Cours Supreme and Cours D’ Appel of Senegal.

In circumstances where the judgment of a foreign court is not enforceable, it having been obtained in a country and court that are not listed in LI 1575, the victorious party could institute fresh proceedings in Ghana under common law on the obligation created the foreign judgment. Clearly, instituting fresh proceedings in Ghana is inadequate for regional integration where the Member States must recognise and enforce judgments from the Court of Justice to provide bite to the Court’s decisions. Thus it would appear that what Member States like Ghana have to do is to amend the law to expressly state that the judgments from the Court of Justice and all other superior courts in ECOWAS are enforceable on the basis of reciprocity under the Revised Treaty.

Once again, the EU presents a classic example of how reciprocal enforcement legislation could assist in regional economic and political integration. The EU adopted the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“Brussels Convention”) on September 27, 1968. The Preamble to the Convention indicates that the Brussels Convention was necessary “to determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements.”

Under Article 31 of the Brussels Convention, a judgment and enforceable in a Contracting State may be enforced in another contracting State if an order for its enforcement has been issued and an interested party applies for enforcement. Further, Article 32 of the Convention sets out the specific courts in the various contracting states where applications for enforcement may be sent. This makes it easy for a party applying for enforcement to know which court has jurisdiction in each Contracting State. Article 37 then sets out the various courts in the different Contracting States where an appeal against the decision authorising enforcement must be lodged. These provisions provide certainty in the enforcement process.

Thus the Brussels Convention afforded the judgment obtained in one Member State recognition and enforceability in all other Member States, with some limited exceptions. This approach radically altered the manner in which judgments were recognised and enforced within the EU, wholly replacing the previously existing convoluted system of bilateral recognition and enforcement treaties existing between Member States.

Similarly, the United Arab Emirates (“UAE”) is party to a number of multilateral conventions on the recognition and enforcement of foreign judgments, including the 1993 Riyadh Convention on the Judicial Cooperation between the States of the Arab League (“Riyadh Convention”), and the 1996 Gulf Cooperation Council Convention for the Execution of Judgments, Delegations and Judicial Notifications (“GCC Convention”).

The Riyadh Convention provides for the recognition and enforcement of both judgments and arbitral awards. In relation to judgments, Article 33 of the Convention provides in explicit terms that an execution order is binding on all parties to an action domiciled in the territory of the contracting party where the judgement was made. A party attempting to enforce a judgment in the jurisdiction where assets are located must obtain a certificate from a judicial authority where the award was granted confirming that the award is enforceable, final and has the power of res judicata. This ensures that the parties cannot re-litigate on the same facts in any other court.

Further, under the Riyadh Convention, a foreign judgement may be enforced in the UAE by a party making a request to the competent court. Once the request is approved, enforcement is carried out. Article 36 provides that writs of execution of a contracting party in whose territory they were issued are enforceable by the other contracting parties in accordance with the procedures for enforcing judgments from national court, provided that it does not conflict with the provisions of Sharia law, the national constitution, public order or the rules of conduct of the contracting party required to give effect to such writs.

Under the GCC Convention, the procedure for executing a judgment is governed by the law of the country where the judgment is executed. It recognises the need for the judgement to conform to the overriding principles of Islamic Sharia law.

A multilateral treaty-based enforcement regime would aid integration within the Community. ECOWAS must consider both the enforcement of judgments of national courts and the enforcement of arbitral awards arising out of proceedings seated in Member States. It is our view that the Organisation for the Harmonisation of Business Law in Africa’s (OHADA) recognition and enforcement structure may provide a viable blueprint for enforcing Community Law and judgments of the Court of Justice and other court judgments in Member States. OHADA is in fact not a regional economic community however its structure for the enforcement of the OHADA court’s judgments are very instructive. Presently, OHADA is applicable in Francophone Member States and is therefore in force in a section of ECOWAS.

The OHADA Common Court of Justice and Arbitration (“CCJA”) is an integral part of its member states’ national judicial systems and functions as their highest national court. The OHADA regime allows national courts and parties to cases before a national court to refer a matter to the CCJA. National courts are also able to seek the advisory opinion of the CCJA on matters before the national court. An example is the CCJA’s 2001 advisory opinion, on Côte d’Ivoire’s request, which concluded that OHADA Uniform Acts abrogate identical, as well as conflicting, national laws and regulations.

The CCJA also receives appeals from private litigants and decisions of cases on the merits. This is in contrast to the European Court of Justice which can receive cases from private parties but then it decides a point of law (akin to a certified question), after which the case returns to the national court for further adjudication. The CCJA’s interpretations of OHADA laws theoretically affect the structure within which private commercial transactions occur i.e. all economic actors from all levels of OHADA Member States’ economies. The decisions of the OHADA court are also immediately binding and enforceable in Member States.

In the ECOWAS context, the reciprocal enforcement of arbitral awards within the Community does not appear to be too problematic. Apart from Guinea-Bissau, Togo, Sierra Leone and Gambia, Member States are parties to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Award (“New York Convention.”) The easiest way for ECOWAS to ensure enforcement of arbitral awards among all the fifteen Member States is to encourage and put political pressure on the non-Convention Member States to accede to and domesticate the New York Convention. Once they achieve this, ECOWAS Member States would automatically enjoy reciprocal enforcement throughout the Community. This would eliminate the necessity for the Member States to design and ratify a separate convention, which had to be done within OHADA because at the time, seven out of the 17 OHADA countries had not ratified the New York Convention, therefore necessitating the introduction of a wholly new convention for mutual recognition and enforcement of arbitral awards.

In relation to the reciprocal enforcement of judgments within Member States, however, a multi-lateral Convention based on the EU, Arab League or OHADA structure must be introduced to facilitate enforcement of judgments within the Community. The key features that such a Convention or Treaty would include:

(1) mutual recognition and enforcement of the Court of Justice’s judgments and those of other national courts; and
(2) precluding the national courts of Member States from reviewing the merits of such judgments.

Procedure

Enforcing such judgments in national courts may raise its own problems because of the diversity in the constitutions of the various Member States. A key issue that ECOWAS must address in introducing a multilateral treaty enforcement regime is implementation, i.e. how is a foreign judgment or Court of Justice judgment practically going to be enforced?

Under Article 24 of the 1991 Protocol, execution of ECOWAS judgments must be by a writ of execution which the Chief Registrar is required to submit to the Member State. The Member State must then execute the judgment according to its civil procedure rules. This provision allowing enforcement of Court of Justice judgments according to the respective civil procedure rules of Member States may be problematic, considering the differing legal systems and traditions within ECOWAS. In Ghana, for instance, enforcement of a foreign judgment is generally governed by the following:

• Courts Act, 1993 (Act 459), which provides the procedure for registering and enforcing foreign judgments (section 82);
• Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575), which states the countries whose judgments are enforceable in Ghana on the basis of reciprocity; and
• High Court (Civil Procedure) Rules, 2004 (CI 47), which elaborates further on the procedure for registering and enforcing foreign judgments (Order 71).

Under Order 71 of CI 47, a judgment creditor under a foreign judgment must apply to the High Court to have the foreign judgment registered. The application must be made within six years after the date of the judgment or if there has been an appeal, it must be six years after the last judgment. An order may be made by the High Court for a foreign judgment to be registered if the foreign judgment was given by a superior court and was not heard by the superior court on appeal from a court which is not a superior court. The foreign judgment will not be registered if at the date of application, the judgment cannot be enforced by execution in the country of the original court or if the judgment has been fully satisfied.

A registered judgment for the purposes of execution is of the same force and effect as a judgment given by a Ghanaian court, i.e. the foreign judgment will be treated as a judgment originally given in the Ghanaian court and entered on the date of registration. Once the judgment is registered, it may be enforced by any of the methods of enforcement applicable in Ghana. Judgment for the payment of money may be enforced by writs of fieri facias, garnishee orders, charging orders, committals, appointment of receivers, writs of sequestration, and insolvency proceedings against an individual and winding up proceedings against a debtor company. Enforcement of judgment for possession of immovable property may be enforced by a writ of possession, an order for committal or a writ of sequestration.

The Ghanaian procedure appears fairly simple and straightforward, and a similar procedure may be adopted by Member States to facilitate the enforcement of Court of Justice judgments and national judgments from the Member States. However, in the present context, Article 24 creates a risk that enforcement may be more cumbersome in one Member State as opposed to another state, depending on their respective civil procedure rules. Therefore a measure of standardisation of the enforcement procedure may be helpful. Perhaps, a provision that in the reciprocal enforcement Treaty or Convention requiring that enforcement of a Court of Justice decision must not be more onerous than the enforcement of a decision of a national court may assist. Another approach could be to include a specific, uniform and mandatory procedure for enforcement of ECOWAS judgments in Member States in the multi-lateral Convention or Treaty. This procedure would be separate from the general enforcement procedure under the civil procedure rules of each of the Member States.

The Community must also be willing to take steps against any Member State that refuses to recognise or enforce an ECOWAS Court judgment. There is ample support in Community Law to enable this. For instance, Article 77(1) of the Revised Treaty gives the Community the power to impose sanctions against Member States that do not fulfil their obligations, and this, I would argue, includes the obligation of Member States to comply with the Court of Justice decisions.

Enforcement of National Court Judgments

Reciprocal enforcement of judgments from the national courts of the 15 Member States, as noted above, is critical to ensure that full integration is achieved. The judgments of national courts of one member states must be enforceable in another member state. Treaty/Convention legislation that allow for reciprocal enforcement of judgments from one Member State in another is essential.

Conclusion

ECOWAS has come a long way in its efforts to foster political and economic integration. Treaties passed in succeeding years is a clear indication of the Community’s efforts at establishing an enabling legal environment. Enforcement is key in creating that environment and therefore efforts should be made in applying Article 9(6) and (7) of the Revised Treaty to ensure that judgments of the Court of Justice are directly enforceable in Member States. A test case may also be brought in the Court of Justice for a proper interpretation of the provisions of the Revised Treaty and its applicability in the national courts. The judgment in this test case may provide valuable guidance.

Further, a multi-lateral reciprocal enforcement Treaty or Convention by all Member States appears to be another way forward in ensuring that judgments may be enforced to secure the principle of supranationality of the Community Law.

On 1st September 1993, the Financial Times wrote this about Africa:

From Africa must come a new generation of leaders, COMMITTED to reform, and TAPPING the same spirit that brought freedom 30 years ago. ANGERED by the failures of the corrupt and autocratic leaders, FRUSTRATED by economic policies that did not deliver, IMPATIENT to recover their lost civil rights, and WORN OUT by wars, Africa’s people are striving for a FRESH START.

The famous Lee Kuan Yew of Singapore chose this quotation as his concluding words in his address at the Conference on the Relevance of Singapore’s Experience for Africa, held in Singapore on 8-10 November 1993. We endorse these words. West Africa’s people are still striving for a fresh start. Let us take solid and concrete steps towards assimilating our laws. The political and economic integration we seek for West Africa, and which is ECOWAS’s core vision, is impossible without legal integration. After all, justice in Ghana has to be same justice in Cote d’Ivoire or Mali or Niger.

Précis: The African Continental Free Trade Agreement presents a unique, historic opportunity for Africa’s middle class to lead the continent’s development, with or without borders.

HISTORICAL CONTEXT

Precolonial Africa did not have the modern day borders that divide us. Great nations such as Asante, Dahomey, Ghana, Mali and Songhai, became great powers on the back of their ability to trade freely with their neighbours. We belonged to different tribes and nations, with differences and war sometimes, but we were conscious of our common identity.

That is why colonialism could only succeed and thrive by dividing us through a European concept of borders. That is why between 1884 and 1885, the then European ‘powers’ met at a Conference in Berlin to divide Africa up in the most arbitrary of fashions and according to their preferences on where the most natural resources were. Indeed, some nations were carved out as the personal property of some European monarchs. 

It is worthy of note that in 1874, a full decade before the Berlin Conference that formally ‘balkanised’ Africa, Great Britain had declared the then Gold Coast a colony. That was three decades after signing the so-called Bond of 1844. Emboldened by the Berlin Conference, Britain deployed brute force to conquer Asante and then declare the ‘Northern Territories’ a ‘Protectorate.’ What did they see here then? What did they want from us? Gold? Cocoa? Timber? And earlier on, slaves?

Thus European powers unleashed on us several decades of the oppression and domination called “colonialism,” where we were subjected to some of the worst forms of human indignity as the ruled, and the colonialists had free rein over us and access to resources across the continent. They shipped these resources to their countries to enrich themselves at the expense of the people who owned those resources. 

Fact: the so-called European ‘democracies’ deployed the most undemocratic of means and governance systems to subjugate Africa and keep us under their rule.  Fact: several western economies today were built on the back of African resources. It was therefore all about resources. Thus when people speak of Africa’s “resource curse” maybe it is because the alleged curse began with the Europeans’ forcible seizure of those resources and benefitting from them while the true owners earned next to nothing. 

Indeed, within Europe itself the forcible carving out of the Balkans into artificial boundaries by European powers have exploded or resulted in the several wars including World War I and the Balkan Wars of the 1990s. The tensions are still there.

Africa does not need fratricidal Balkan-like wars to redefine itself as one people with one common destiny. God knows that Balkan-like wars have happened on almost a daily basis in post-colonial Africa, at huge cost to the continent and its people. While we fought, foreign powers raped us of our natural resources and got fat while derisorily calling us “the Dark Continent.” We can blame almost each of these ‘wars’ on the former colonial powers and their neo-colonial and continued imperialistic influence over the continent.

THE AFRICAN POTENTIAL

We may justifiably blame Europe. But six decades after Ghana led in the fight for independence, every excuse that we had and every blame that we may have heaped on the European powers have begun to wear thin. A divided Africa may still benefit the West but it is now our problem. An Africa that remains poor and yet still hugs and clings to the colonial boundaries and restricts the free movement of its people and trade, is Africa’s problem to resolve.

Together, we are 1.2 billion people with a combined GDP of almost $2 trillion. Even as divided as we are, this is a huge, unrealised potential. We have resources that cannot be quantified in monetary terms. We have a young and vibrant population. Literally, Africa has everything to be the most successful continent on earth. 

It is a shame that the colonial barriers have held us back for so long, even after the colonialist has presumably left. Something had to change. Something had to give. Something had to be be done. If we could not rid ourselves of all the barriers at once, could we begin to remove the barriers to trade, one after the other?

FROM ABUJA TO KIGALI

The Abuja Treaty, signed on 3rd June 1991 with the aim of establishing an African Economic Community as an integral part of the then Organization for African Unity, is generally considered the start of this journey to remove the barriers to trade in Africa. Together with its Protocol on Industry, the objective was to promote self-sustained industrialization, enhance regional and continental integration and expand trade in industrial products. It also aimed to achieve structural transformation of industry to foster the general, social and economic development of member States.

It is against this background that we must salute African leaders, led by our own venerable President John Evan Atta Mills for the vision and foresight that led to establish the African Continental Free Trade Area. The efforts culminated in the Decision of the Assembly of Heads of State and Government during the Eighteenth Ordinary Session of the African Union held in Addis Ababa, Ethiopia from 29th-30th January, 2012, which put in place the Framework, Road Map and Architecture for Fast Tracking the establishment of the African Continental Free Trade Area and the Action Plan for Boosting Intra-African Trade.

The next significant stage was the launch of negotiations for the establishment of the Continental Free Trade Area aimed at integrating Africa’s markets in line with the objectives and principles enunciated in the Abuja Treaty during the Twenty-Fifth Ordinary Session of the Assembly of Heads of State and Government of the African Union held in Johannesburg, South Africa from 14th – 15th June 2015.

Even with changes in government, Ghana appears to have devoted considerable time, unquantifiable energy and significant effort to pursuing the vision of the African Continental Free Trade Area. Africa prevailed. Finally, in March 2018, the African Union unveiled the African Continental Free Trade Agreement in Kigali, Rwanda. 

Africa is now at the implementation phase, and once implemented, the continent will become the world’s largest free trade area. Yes, 55 countries that will merge into a single market, 1.2 billion people, combined GDP of $2.5 trillion.

Devoted and sold to this vision, Ghana worked hard and successfully fought off friendly and healthy competition from other equally competent African nations, to be selected as the host and seat of the headquarters to the Area. The beacon that will shine forth to proclaim the new reality of Africa, beams bright right from Accra into every nook and cranny of the continent and every corner of the world.

These are exciting times. The future and prospects look bright. But are we ready? Ghana would not be worth the seat of the headquarters if all we did was to host it and nothing more.

AFRICA’S MIDDLE CLASS

It is time for Africa’s middle class, Ghana’s middle class has to rise up, take this bull by the horn and drive this vision forward. For years, Africa’s middle class has looked inward only to itself. Africa’s middle class has resolved the majority of African’s financial problems for themselves and their families and dependents. But growth and expansion of the middle class has been restricted because no matter how hard they try and work, they still live in environments that do not allow the desired growth and expansion of that class, both in quality and in quantity. Without that happening, the majority of us remain poor and the few rich grow richer.

Africa’s middle class must take advantage of the AfCFTA and lead Africa’s combined Commercial and Industrial Revolution. Europe had five centuries of a Commercial Revolution, from about the 13th Century, and which was the basis for the Industrial Revolution which started in the mid-18th Century. The Commercial Revolution started with the middle class beginning to explore doing business, no more as individuals, but as a “company” of people.

For instance, in England, from about the 13th Century the merchant class was struggling to break away from feudalism. Local merchants formed “merchant guilds,” exclusive societies of traders who were trading together and by their combined power and means, gaining the ability to produce and sell more than they would have done as individual business persons. 

With this growth, business began to break the bounds of the localities and boroughs from which they operated. Their trades began to expand beyond their immediate localities and the hitherto borough-defined merchant guild began to seek and acquire interest beyond their geographical regions. With advances in maritime technology came trading opportunities in the New World. 

Over time, the merchant guilds evolved into charter corporations, and the principles of mercantilism became entrenched. Banks and bourses and futures markets were created.

Additionally, the desire for commodities that were rare in Europe led to discovery voyages and new trade routes that took them to America, and also brought them to Africa, around the Cape of Good Hope and to India and China as an alternative to a land route over Europe and Asia.

THE AfCFTA REVOLUTION

It is five centuries of the middle-class led Commercial Revolution that set the stage for the Industrial Revolution in Europe. Africa needs its own Commercial Revolution, where its traders freely trade with, between and among themselves across our borders without let or hindrance. But we cannot afford five centuries of a Commercial Revolution before an Industrial Revolution. We do not have the time for that. We need a combined Commercial and Industrial Revolution.

That is the opportunity that the AfCFTA presents. A Free Trade system, which is simply a system by which African traders can land, store, handle, manufacture and re-export goods, and not be generally subject to customs duty and other restrictions is a no-brainer. That is what the Agreement seeks to address, covering trade in goods and services, investment, intellectual property rights and competition policy.

Generally, the Agreement will create a single and liberalised market for goods and services, facilitated by movement of persons. It will contribute to the movement of capital and persons and facilitate investments. It will lay the foundation for the establishment of a Continental Customs Union. 

It will promote and attain sustainable and inclusive socio-economic development, gender equality and structural transformation. It will enhance the competitiveness of our economies. It will promote industrial development through diversification and regional value chain development, agricultural development and food security.

Specifically, African countries will progressively eliminate tariffs and non-tariff barriers to trade in goods, and also liberalise trade in services. African nations will cooperate on investment, intellectual property rights and competition policy, on all trade-related areas, on customs matters and on the implementation of trade facilitation measures. State parties will also, and very importantly, establish a mechanism for the settlement of disputes arising from this important development.

We will be entitled to Most-Favoured-Nation Treatment within each other’s countries. At the very least, we shall accord each other, on a reciprocal basis, preferences that are no less favourable than those given to Third Parties.

THE REALITY

What has to be provided on paper has been provided in the Agreement and its Protocols. The reality will now depend on our willingness, desire and zeal to explore and exploit the opportunities that the Agreement creates. It is time for the Ghanaian business person to think beyond our cities, towns, villages and borders. It is time for Ghanaian businesses to explore opportunities in West Africa and the entire continent.  It is said that “if you want to go fast, go alone, but if you want to go far, go together.” No single person can cover this continent alone. It is time to start exploring enduring business relationships with like-minded people both within and outside Ghana.

There is only so much that we can do as individuals. We need to combine and work together in partnerships and build large companies to produce goods and offer services that have a greater effect than the sum of our separate individual efforts. 

That is what synergy is all about. We must look forward to the day when Ghanaian-led multinational companies will spread their businesses and brands throughout Africa. Think about the prospects: 1.2 billion people. Each of them needs to live, work, eat and sleep. Each stage of living, working, eating and sleeping requires the provision of goods and services that the Ghanaian business person is capable of providing and in great quantity and quality. 

Can we dream of the Ghanaian-led businesses that will build sufficient financial muscle across the continent and venture into Asia, Europe and the Americas, spreading that brand and quality that is uniquely Ghanaian?

We must recognise and harness the boundless energy of the Ghanaian – that innate quality that led and drove us to demand independence before everyone else, that has kept and bound us together through thick and think in all of these years before and after independence. It is time to channel that energy into strategic businesses that can take full advantage of the AfCFTA and bring success and development to ourselves and our continent.

Government must, for its part, do all within its power to facilitate the achievement of these lofty, yet achievable, objects and aims. The private sector, led by the middle class, must take the lead and become the transforming agent while the state remains the catalyst for this great opportunity.

It is really THAT simple. 

CONCLUDING THOUGHTS

On 1st September 1993, the Financial Times wrote this about Africa:

“From Africa must come a new generation of leaders, COMMITTED to reform, and TAPPING the same spirit that brought freedom 30 years ago. ANGERED by the failures of the corrupt and autocratic leaders, FRUSTRATED by economic policies that did not deliver, IMPATIENT to recover their lost civil rights, and WORN OUT by wars, Africa’s people are striving for a FRESH START.”

The famous Lee Kuan Yew of Singapore chose this quotation as his concluding words in his address at the Conference on the Relevance of Singapore’s Experience for Africa, held in Singapore on 8-10 November 1993. We must endorse these words. Africa’s people are still striving for a fresh start.

At the formation and foundation of Ghana, our forefathers and foremothers dreamed of a country and a people that would punch above our weight and be world beaters. They laid a foundation and a landmark of excellence and a people with the knowledge and skill to take the world on. They selected the name “Ghana,” believing and having the faith that we would become a nation of warrior kings. 

They chose a national anthem that proclaims a “great and strong” nation that resists the rule of oppressors. They selected a flag that speaks to the blood that was shed at the foundations of the nation, and the riches, purity and freshness of our land. It included the famous and unique black star that speaks for and to every person of African or black decent as luminaries that will shine forth both at day and at night, wherever we find ourselves on God’s earth. 

They also chose eagles to bear our coat of arms because they saw in us a people that would defy all odds and soar at heights that no other could, and with a vision that both reached back to our foundations and looked forward to a bright future. These add up to become the landmark to which we must aspire all the time.

It is time to ignite that Sankofa spirit, to reach back to that old landmark and in the words of the old spiritual, “make a new commitment and begin a fresh start.” We need to find our direction into new horizons of trade, business, commerce and industry. The opportunity presented by the AfCFTA is that fresh start. 

Let the middle class rise up and lead to make a new commitment, find direction to make this the fresh start that Africa has been waiting for.

Ghana’s black lodestar must shine, not only through leading independence and in sports, but now in business, commerce and industry.

The question has been “can Africa…?” With AfCFTA, the answer must be… scratch that… the answer is “African can…!”

(Anniversary Lecture: OccupyGhana v. Attorney General
British Council Hall, Accra 14th June 2019)

Theme: From Surcharging to Safeguarding: Next Steps in the Fight to Protect the Public Purse

Mr. Vice-President, My Lord Jones Dotse, the Auditor-General, The Special Prosecutor, distinguished ladies and gentlemen:

On 15th October 2014, OccupyGhana issued a press statement to mark the first 100 days of the 1st July 2014 demonstration organised by the Concerned Ghanaians for Responsible Governance and dubbed “OccupyFlagStaffHouse,” the event that ultimately led to the formation of OccupyGhana as an organisation. In addition to our ‘rants’ about the state of the nation, we made one poignant point that attracted some press headlines, but, as is often the case in Ghana, disappeared from the headlines soon thereafter. This is what we said:

“Ladies and Gentlemen, one strong institution that has been created by our law and literally empowered to nip public sector corruption in the bud is the Audit Service; yet successive Auditors-General have failed this nation simply because they have been too weak to exercise these powers. Specifically, the Constitution and the Audit Service Act empower the Auditor-General to disallow expenditures that are contrary to law and then surcharge the public official responsible for incurring or authorising such expenditure with the amount of any loss incurred to the state. If the official does not pay within 60 days, the Auditor-General is to refer the matter to the Attorney-General, who is then required by the law to commence legal proceedings against the affected official, to recover the monies lost to us.

Ladies and Gentlemen, to the best of our knowledge and information, this power has NOT been exercised by any Auditor-General. All that successive Auditors-General seem to do is to issue yearly audit reports, send them to Parliament, go to sleep, and wake up the next year to begin this impotent cycle all over again. The effect is that public officials, who have paid out and spent the taxpayer’s monies with reckless abandon, are comforted in the belief that nothing will ever happen to them.

OCCUPYGHANA will bring this culture of combined impotence and impunity to an end. We are going to deliver a 30-day notice to the Auditor-General and the Attorney-General, as required by law, that they should stand up and be counted, and immediately exercise this power of disallowance and surcharge under the law. It is time for the Auditor-General to dig and rake up all past Audit Reports and apply the law. Notice is further served, that if the law is not complied with, we will commence legal proceedings in court to compel the due performance of those statutory functions and duties.”

Impudent? Sassy? Effrontery? Audacity? Guilty as charged. But we had no illusions that officialdom would simply roll over and accept this demand. They ignored this statement.

On 12th November 2014, we wrote to the Attorney-General and Auditor-General putting them on formal notice of our intentions. That 4-page letter set out our understanding of these powers, and stated that we had studied the Auditor-General’s Audit Reports to Parliament for 11 years, which had identified

“a wide range of stolen and/or misappropriated funds which are due to the public purse. Nevertheless and quite without explanation, although the Auditor-General is known to have made ‘recommendations,’ OccupyGhana and most Ghanaians are not aware of a single instance in which a Disallowance and Surcharge has been made by the Auditor-General.”

This time, someone took notice. The then Acting Auditor-General responded on the very next day, acknowledging receipt of the letter. The 13th November 2014 response said two main things: first, it drew our attention to the fact that under article 187(7) of the Constitution, “the Auditor-General shall not be subject to the direction or control of any other person or authority in the performance of his functions.” Second, and in the final paragraph, the letter asked us to expect a further response “as a means of educating OccupyGhana and the general public on the validity or otherwise of matters raised in your letter.”

This letter led to wild jubilation in certain circles, especially on social media. One deputy minister at the time wrote on Facebook: “I just love the final paragraph.” We waited for this to fester for a while and then we sent a response. In our 20th November 2014 letter We told the Auditor-General that his reading of the Constitution should not end at article 187(7), and that he should continue to article 295(8), under which no independence:

“shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.”

What followed was a furious exchange of letters between us. The Auditor-General insisted that the office “has performed its constitutional functions as contained in article 187.” We challenged them to give us examples. They gave ONE! And even that did not follow the procedure in the law and had been dismissed by the court.

Then we discovered a ‘bomb’ on the Internet. This was a 23rd March 2006 presentation by the then Auditor-General, Mr. Edward Dua Agyeman at a Seminar on Macroeconomic Modelling and Public Accounts Management organised by the Centre for Policy Analysis at Miklin Hotel, East Legon Accra. In the presentation, he described the power of surcharge as “a unique power” given by the Constitution and Audit Service Act. He then added:

“So far this power has not been invoked against public official because they are given the opportunity to rectify financial lapses resulting in delayed accountability. However, because of the escalation in cash irregularities by 99.5% in 2004 involving unpresented payment vouchers and unacquited payments, the Auditor-General will invoke his powers of surcharge against responsible officers for such serious compliance violations in 2006. This robust sanction will hasten and deepen accountability in this country.”

It got more interesting. We also discovered on the Internet a document prepared by the Auditor-General, containing proposals to the Constitutional Review Commission for the amendment of constitutional provisions relating to his office in 2010. In that document, the Auditor-General expressly conceded that he is “not actively introducing measures to implement” his power of Disallowance or Surcharge. At page 16, paragraph 21.ii (Issues and Comments), the Auditor-General states as follows

“The Office of the Auditor-General has received adverse comments from Development Partners who have invested in the national budget and also from parliament for not actively introducing measures to implement the provisions on surcharge and disallowance.”

Why was the Audit Service telling us that it had exercised the powers but telling others that it had not? In one letter we said “our demands are simple. Either you have done your work or you haven’t.”

On 27th March 2015, we had the first direct meeting with the top brass of the Audit Service on this matter, and at their invitation. The then Deputy Auditor-General’s letter of 8th April 2015 confirmed our agreement at the meeting to form a Working Group of 5 (2 from the Audit Service, 2 from OccupyGhana and 1 from the Attorney-General’s Department) “to discuss the format” of Notices of Disallowance and Surcharge and the Certificate, “come out with the proposed format within two weeks,” “discuss the manner in which the Notices…would be issued,” and “make recommendations for any residual matters.”

We were excited. We believed that this matter was not going to end up in court. We naively predicted that the first Disallowances and Surcharges would be issued within a month. But our excitement probably drove us too far, too quickly. We consulted with colleagues in other countries and found a format for surcharging in Uttar Pradesh in India. Our Legal Team and Accountants spent time working with that precedent, and then we forwarded that to the Auditor-General and Attorney-General within days, stating that even before the Working Group would start meeting, these were drafts to be considered to ease the work. Ladies and gentlemen, that was the last time that the Auditor Service spoke with. Our several reminders went unacknowledged. Had we run too quickly and was officialdom put off by our speed?

Were we losing the fight? The public appeared to have lost interest. We had issued court threats and were instead meeting and negotiating with the other side. Tough times. Then we discovered what turned out to be our lightning rod: Article 187(10) had tasked the Rules of Court Committee to enact rules on appeals against surcharges to the High Court. Those rules had not been passed. We saw an opportunity; and here’s a confession – If we could get those appeal rules passed, it would conveniently put the cart before the horse, and the tail would start wagging the dog, literally. If the appeal rules were enacted, then it would be a matter of course that the surcharge regime would have to be put in place. You can’t have an appeal procedure when the originating cause of the appeal does not exist.

And so with an ‘evil’ twinkle in our eyes and a ‘diabolical’ spring in our step, we mapped out the strategy that turned out to be a winner. First, we wrote to the Rules of Court Committee to ask about the rules. They wrote back and asked us to help them draft the rules. Our Legal Team then sent a draft to them in less than two weeks. The Committee worked on the draft, and sent us their draft for our comments. We were on the same page. Ladies and Gentlemen in 2016, the Committee laid the bill before Parliament, which passed and became known as the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 2016 (CI 102) that entered into force on 5th January 2017. It amended the High Court Rules to introduce in a new Order 54A, a procedure for appealing against the Auditor-General’s disallowances and surcharges. We like to impudently call that law the “OccupyGhana Rules.” Thus we had in place our desperate cart-before-the-horse or tail-wags-the-dog scenario where the rules for filing appeals against disallowances and surcharges were in place, but the actual disallowance and surcharge system itself was not. This is what the lawyers call a lacuna, a void, the filling of which was inevitable and simply a matter of course.

Once we knew that the draft bill was on its way to Parliament, we sued. Our Legal Team worked hard with our lawyer, Thaddeus Sory, to produce the documents for court. We filed the case on 21st June 2016. In all, we filed close to 300 pages of materials. But our entire case rested on two very simple arguments. First, we conceded that the Constitution had vested the power to disallow and surcharge in the Auditor-General with the word “may.” But we argued:

“…whether the use of the word “may” in Article 187(7)(b) is construed as merely permissive and empowering, or as “shall,” being imperative and mandatory, the abject failure of the Auditor-General to ever exercise a constitutional power, not even once, in the face of successive financial infractions that he discovers yearly, is a breach of the Constitution.”

Second, Article 296 said that where the Constitution vests a power or imposes a duty, “the power may be exercised and the duty shall be performed from time to time, as occasion requires.” So we said

“…where the circumstances have arisen that should trigger the exercise of the power, or the occasion requiring the exercise of the power has arisen, a person vested with such a power has no option but to exercise it…Therefore, as long as the circumstances to trigger the exercise of the power have arisen, the Auditor-General has been under a constitutional obligation to apply the power and help recover the monies lost to Ghana from the people responsible for the losses. Sitting idly by and never deploying the power of disallowance and surcharge cannot be a reasonable use of his powers. Indeed, we will humbly submit that the lack of use of the power is an abuse of the power.”

The Government responded, throwing the legendary kitchen sink at us. They insisted that we were wrong and that the Auditor-General had been exercising the power, but through management letters. The Government even argued that we had wrongly invoked the jurisdiction of the Supreme Court.

In the interim, the out-going NDC government appointed one Daniel Domelevo as Auditor-General. That was a game-changer. He met with us. We explored an out-of-court resolution of the matter, but decided to wait to see what the Supreme Court would do. That change in leadership at the Audit Service brought with it a refreshing change in attitude and approach. Thus by the time the judgment was delivered OccupyGhana and the Auditor-General, hitherto adversaries, had become strong allies in the same cause, joined at the hip, singing from the same hymn sheet and fighting from the same corner.

On 14th June 2017, just a week to the first anniversary of the date the suit was filed, the Supreme Court spoke. It was a unanimous judgment of the panel of 7 justices, presided over by Sophia Akuffo JSC (as she then was), just 5 days before she was sworn-in as Chief Justice. In the judgment read by Dotse JSC, it was clear that our CI 102 strategy had worked. The court said:

“The enactment of CI 102 makes it quite certain that the powers of the Auditor-General…are to retrieve from persons who have caused loss of public funds in their management of same which is contrary to law. The law speaks for itself and there can be no turning back on this.”

The court then considered the critical issue of the words “may” and “shall,” asking:

“Should this court hold and rule that, because the word “may” has been used in article 187(7)(b) of the Constitution 1992, the Auditor-General’s powers of Surcharge and Disallowance are not mandatory and can be exercised at the whims and caprices of the Auditor-General? Are these constitutional obligations discretionary then?”

The court answered these questions in a way that blew our minds. It referred to Mr. Dua Agyeman’s presentation and promise to implement disallowances and surcharges, and held that:

“However, this resolve to exercise this power from 2006 has not only been breached, but there has been stoic silence from the office of the Auditor-General to date.

When we put all the learning…together, the “may” in article 187(7)(b) of the Constitution 1992, becomes a mandatory may, and no longer permissive. This is to afford us the opportunity to enforce the provisions of article 187(7)(b) which will deepen probity and accountability.

It is to be noted that the times we are in as a nation require that we deepen and institutionalize principles which will uphold proper and decent management and protection of public accounts. The tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop. Our laws on financial management must therefore be made to work to prevent absurdity in our enforcement regimes of same.

We reckon that, it is in the pursuance of these noble objectives that the Rules of Court Committee has enacted CI 102…

The rationale for the above is to give teeth to the constitutional and statutory mandate of the Auditor-General’s powers on Disallowance and Surcharge to bite.”

The Court then made consequential orders that “henceforth, the Auditor-General shall take steps to recover…” But the Supreme Court was not done. It added, significantly, that

“Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General to ensure compliance including in some cases criminal prosecutions.”

And so right there in the judgment we celebrate today, we have the two post-surcharge safeguards of the public purse. First, RESOURCE THE LAW ENFORCEMENT AGENCIES! The court said:

“…what is apparent is that, there is an urgent need to adequately resource not only the office of the Auditor-General, but also that of the other constitutional bodies like the Judiciary, CHRAJ and Attorney-General, just to mention a few, who are the front runners in our fight against corruption. This will ensure that the impact of these constitutional bodies in our quest to ensure probity and accountability thereby enhancing proper management and control of public funds is put on a higher pedestal.

We believe that as a nation, we have reached a critical stage in our governance systems where we must not shy away from spending wisely in order to superintend the public purse. This is the only sure way to ensure that the good governance principles enshrined in the Constitution such as Article 187(7)(b) are not lost.

There is an old adage which states as follows “penny wise, pound foolish.” We therefore must adequately fund these constitutional bodies including the Auditor-General to ensure maximum protection of the public funds.”

The battle to surcharge has been won. The battle to safeguard has just begun. The effect of the Supreme Court judgment is that Auditor-General is mandatorily required to disallow and surcharge whenever he discovers that wrongs have occurred. The language of the Court is so imperative that I dare say, that the Auditor-General has no discretion in the matter. If he fails, refuses or neglects to disallow and surcharge, he could be in contempt of court. Mr. Domelevo we salute you for the work you are doing. But OccupyGhana would gladly cite you for contempt if you ever do not disallow and surcharge, when the situation so demands. This is not a threat. It’s a promise.

But to these words of wisdom, the Supreme Court added the second post-surcharge safeguard: ENFORCE THE LAW! The Court said the civil recoveries must go hand-in-hand with criminal sanctions. The law already assumes that this is happening. That is why section 85(2) of the Public Financial Management Act, 2016 (Act 921) provides that:

“The Attorney-General shall, on an annual basis, submit a report on the status of any action commenced on behalf of the Government to the [Finance] Minister, Auditor-General and Parliament following findings of the Auditor-General and recommendations of the Public Accounts Committee of Parliament.”

OccupyGhana confesses that it has not followed this up. We assure Ghanaians that the first thing that will leave our desks on Monday morning is a ‘polite’ letter to the Attorney-General for an update.

Ladies and gentlemen, Ghana has no shortage of laws that will punish the stealing of our funds. We just don’t enforce them. Often, it appears we have even forgotten that those laws exist.

The Auditor-General’s Report covering the audit of liabilities of Ministries, Agencies and Department as at 31st December 2016, submitted to Parliament on 23rd January 2018 showed that out of the total of GH₵11.8 Billion that public officers claimed that the government owed to contractors, GH₵5.5 Billion was foam, fluff and padding, juju and tricks. The Auditor-General promptly disallowed it. But who would have spent that money if the government had made it available? Which officials submitted the false accounting claims? Was there a conspiracy and/or attempt to defraud the government to the tune of US$1 Billion at today’s exchange rate? Has anyone answered any questions to the CID, EOCO or OSP as the case may be?

The Auditor-General also has issued Disallowance and Surcharge certificates to the tune of half a billion cedis, which is outstanding. He has recovered GH₵67 Million and counting, through surcharges.

We have law that says corruption of a public officer (ie where the public officer agrees for their conduct to be influenced by a bribe) is a misdemeanour but could attract up to 25 years in jail. “Fraud by agents,” which is really the criminalisation of private acts of corruption, where a person dishonestly obtains a bribe from another, for doing or not doing an act regarding a principal’s affairs, is also a misdemeanour with the same 25-year maximum jail tag.

Under the Government Contracts (Protection) Act, 1979 (AFRCD 58), the official who issues payment certificates for government contracts and the recipient are liable to refund monies paid where the certificate was issued knowing that the monies were not due, including non-performance of the work or service and non-supply of goods. They could also pay a fine of up to three times the monies paid and/or go to jail for up to 10 years. Where there is corruption, the prescribed jail term is between 5 and 15 years. I am not aware that this law has ever been applied since it was enacted in 1979.

Under the Protection of Public Property Act, 1977 (SMCD 140), the intentional dissipation of public funds could attract a 10-year jail term without the option of a fine. Each of the following: intentional misapplication of, causing loss or damage to public property; loss caused by carelessness, gross negligence or dishonesty; failure to account for public property entrusted to or under control of a person; using public property for private gain; and obtaining public property by false statements, could attract a 5-year jail term. Additional penalties that a court may impose include seizing assets held directly or indirectly in Ghana, or being compelled to transfer title to assets situated outside Ghana.

Time will not permit me to present a compendium of laws that exist and may be used to safeguard the public purse. But for now, several remain as beautifully ignored adornments in our statute books. This needs to change.

To safeguard is to protect, defend, preserve and maintain. We need to move from the mode where Ghana is just a large compound house where everyone knows everyone, someone knows someone who knows someone, and where friendships, family relationships, tribal links, religious affiliations, old school associations and partisan connections trump the law and principles. If we want to safeguard and superintend the public purse, OccupyGhana says it agrees with the Supreme Court. First, let us provide resources for the relevant agencies to work. Second, let us enforce the law. SIMPLE.

Albert Einstein said “We cannot solve our problems with the same thinking we used when we created them.” He is also widely credited with saying, that “the definition of insanity is doing the same thing over and over again, but expecting different results.” We need to change. This nation needs to be graced by the “wise, brave and strong” who are prepared to help the right and fight the wrong, and make “our folk a nation.”

When OccupyGhana looks back to when we started this to help the right and fight the wrong, to today when so much is happening with what started as a simple statement, Ghana has made some progress. We were derided by some and encouraged by others. For example, right after a minister publicly savaged us, we got support from what many would consider an unlikely source. Mr. Johnson Asiedu-Nketiah jumped to our defence. He is reported to have said on 16th January 2015 that it was retrogressive for anyone to brand OccupyGhana as anti-government when all it was seeking to do was to complement the government’s efforts in the fight against corruption. He added that he could not fathom why the Auditor-General had all these powers but had failed to crack the whip. He said “I believe OccupyGhana is helping the government’s fight against corruption.”

On 8th February 2018, OccupyGhana found its way into President Akufo-Addo’s 2018 State of the Nation Address when he said “the role of OccupyGhana in increasing awareness of the importance of the work of the Auditor-General should be recognized.”

On 20th November 2014 when we were launching this fight, the speech that I read recited these endearing words of Osibisa:

“It will be hard we know
And the road will be muddy and rough
But we’ll get there…”

We got there, ladies and gentlemen, we got there. It was hard, muddy and rough, but we still got here. This event is organised by hitherto adversaries in court. Ghana got us here. Truly, what lies ahead is much more than what lies behind us. But we soldier on. It is said that “real supermen don’t leap over buildings in a single bound. They take small determined steps consistently over time.” And so step by step, bit by bit, little by little, fio-fio, nkakra-nkakra, poco-a-poco, we will get there. The final words in this book called ‘Ghana Incorporated’ should read “…and in the end, Ghana won.” Ghana has to sing that

“All I do is win win no matter what
Got the future on my mind I can never get enough
Every time I step up in the buildin’
Everybody’s hands go up
And they stay there…”

Resource the agencies. Enforce the law. Then Ghana will win.

Thank you.

(25/1/2017)

Introduction

In the New Patriotic Party (NPP) Manifesto for Election 2016, Chapter 12, page 135, titled ‘Governance, Corruption and Public Accountability,’ the NPP proposed “to establish, by an Act of Parliament, an Office of the Special Prosecutor.” This office is to “be independent of the Executive, to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing, including those involving alleged violations of the Public Procurement Act and cases implicating political officeholders and politicians.”

This Manifesto pledge has come into sharp focus since the NPP assumed the reins of government. I have followed quite closely, the debate as to the constitutionality, workability or otherwise of this proposal. In this paper, I intend to review the relevant constitutional provisions and existing law on the subject.

The view that I will seek to advance is that ‘formal independence’ by way of a complete autonomy or separation from the Attorney-General (“AG”) would appear to be difficult to achieve under the provisions of the Constitution because the AG retains responsibility over all prosecutions. However, ‘substantial independence’ by way of impartiality and neutrality may yet be achieved through the firm political will, definite intention, and resolved commitment of/by the government to allow the office holder sufficient freedom, in fact, to carry out the mandate with little to no interference.

The Article 88 Hurdle

The difficulty with attaining ‘formal independence’ starts when one considers Article 88(3) and (4) of the Constitution that “all prosecutions” are: (i) the responsibility of the AG, and (ii) commenced “in the name of the Republic,” but “at the suit of” the AG or persons the AG has duly authorised. The AG remains responsible for all prosecutions, and it would be difficult to assert ‘formal independence’ from an AG who remains in charge of and exercises authority over all prosecutions. However, prosecutions may be commenced (hence the use of the well-word term “at the suit of” or “ats”) not only by the AG but, importantly, also by persons the AG legally authorises to do so.

Thus even within the overarching constitutional context and condition of the AG having ultimate responsibility for prosecutions, there is room for prosecutions to be commenced and conducted, not at the suit of the AG, but at the suit of other persons legally authorised by the AG to do so. It is, therefore, important to consider about four current legal provisions that relate to persons other than the AG who are currently authorised by law to conduct prosecutions and the scope of the exercise of the AG’s prosecutorial responsibility, and it is to these that I now turn.

Public Prosecutors

The first is section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which empowers the AG to issue Executive Instruments appointing two classes of persons as public prosecutors: (i) public officers, or (ii) lawyers. While the appointment of public officers as public prosecutors might be general, or for a specific class of crimes or area, the appointment of lawyers (and I presume that this applies only to lawyers in private practice) is restricted to “a particular criminal cause or matter.” The section also recognises the power of the AG to “give express directions in writing” to such persons.

Thus although the AG could appoint a lawyer (and arguably the proposed Special Prosecutor) to conduct public prosecutions under this provision, there are two key drawbacks, namely (i) it cannot be a general appointment, but operate only on a case-by-case basis, and (ii) the AG retains the express power to issue written directions to such a person.

These drawbacks could or would defeat the critical “independence” requirement. This will not work.

Law Officers

The second, relevant provision is section 1 of the Law Officers Act, 1974 (NRCD 279), which permits three categories of people to “perform any of the functions vested by an enactment in the Attorney-General.” These are: (i) State Attorneys (and ranks above that) of the AG’s Department, (ii) public prosecutors appointed under section 56 of Act 30, and (iii) “any other public officer if so authorised by the Attorney-General.” In this provision as well, the persons mentioned are made expressly “subject to the directions of the Attorney-General,” and those directions are even made confidential so that “evidence shall not be required to be produced that a direction has been given by the Attorney-General in regard to a matter.”

A Special Prosecutor could be appointed under the third category mentioned above. But this also has two significant drawbacks, namely (i) the provision appears to anticipate that person being a public officer first, before being authorised by the AG to prosecute crime, and (ii) the express mention of directions by the AG could or would water down the critical “independence” quality that the proposed office would require. This will also not work.

Political Control

Third, Article 297(a) of the Constitution gives to any person with the power to appoint another person to a public officer, the implied power “to exercise disciplinary control over persons holding or acting in any such office and to remove those persons from office.” Thus where the AG appoints prosecutors under the current legal regime, (s)he may purport to discipline them and even remove them from office. While this power may be necessary so that person so appointed does not “tear chain” (to use a normal parlance), it could or would become a source of political control over the activities of the appointee by the appointor, and raise questions about true independence.

Nolle Prosequi

Fourth, and supremely relevant, is the AG’s power of NOLLE PROSEQUI – the enormous, discretionary power to file a formal entry in criminal proceedings, declaring that the “proceedings shall not continue” on some of the counts or some of the accused persons, or altogether. In Ghana, this power to halt trials is specifically provided for by section 54 of Act 30, which adds that the AG may exercise this power “at any stage” of a criminal case. In Republic v. Abrokwah [1989-90] 1 GLR 385, Abakah J said at page 389 that

“the expression ‘nolle prosequi’ means to be unwilling to prosecute. It is the State itself through the Attorney-General expressing unwillingness to prosecute the case.”

His Lordship stated at page 387 of the report that

“It is common knowledge that the power of the Attorney-General to enter a ‘nolle prosequi’ at any stage of a trial before judgment or verdict cannot be questioned upon any basis other than political.” He added, rather controversially, that “the point to appreciate is that whether the Attorney-General exercises this power after having had regard to the circumstances of a case or not or whether the Attorney-General exercises this power properly or improperly is not a matter for judicial inquiry or review. It is a matter for the political powers that be, for the act of the Attorney-General in this respect is supposed to be the act of the State itself.”

I use the words “rather controversially” because I do not believe that the power of NOLLE PROSEQUI can any longer be said not to be subject to judicial review under our current constitutional dispensation. This is because of the Article 296 standards that are imposed upon the exercise of all statutory or constitutional discretionary powers.

Surely, if an AG issues a NOLLE PROSEQUI in circumstances that breach the Article 296 standards (to wit., not fair, not candid or in breach of due process, or is arbitrary, capricious or biased) that exercise of discretion would be subject to judicial review under Article 295(8). Be that as it may, the power of the AG to literally jump into a prosecution and halt it could and would be a major fetter to the ability of the proposed Special Prosecutor to operate independently under the current legal regime.

‘Formal’ versus ‘Substantial’ Independence

It is for the above reasons that, absent a formal constitutional amendment, a new statutory regime may be required to achieve what is contained in the NPP Manifesto. The key question should be “how truly independent could or would this prosecutor be?’ At this time, under Article 88(3), the occupant of that office would remain accountable and answerable to the AG, at least on paper.

The Constitution does not appear to me to anticipate a prosecutorial office with ‘formal independence,’ i.e. being inherently, completely autonomous, separate from and unconnected with the AG. The AG retains the ultimate responsibility for prosecutions, which responsibility would apply, arguably to a Special Prosecutor appointed under any statute.

The Constitution does not appear to anticipate or permit full autonomy of criminal prosecutions from the Executive, yet. However, I believe that ‘substantial independence’ involving the office and appointed person being impartial, neutral or unbiased is possible and constitutional. It is even perfectly within the power of the AG to scale back on the power to issue directions to the office or person. This would be a political position supported by Article 297(b), which provides that conferred powers (such as the power conferred under Article 88(3) and (4)) may be exercised “from time to time, as occasion requires.” Thus it is within the power of the AG, to decide that (s)he will not exercise (or would sparingly exercise) any overbearing, direct or even day-to-day control over the work of the prosecutor unless there is sufficient reason, cause or justification. I even believe that the AG could provide the circumstances under which any form of control would be exercised over the proposed office.

It is, therefore, my respectful view that we miss the point if we focus only on the ‘formal independence’ hurdle without considering the ‘substantial independence’ leeway and flexibility that could make this proposal workable.

Conclusions

To conclude, my respectful position is that although the desired and desirable complete independence may not be automatic under the current provisions of the Constitution, what we require now is the strong political will that allows the office holder sufficient liberty to work with little to no political or other interference.

The office should function with sufficient latitude to operate and prosecute even members of the current government if they fall foul of the law. The success or otherwise of this project or experiment would go a long way to inform and influence the age-old and on-going debate (probably started in 1968 by the Akufo-Addo Constitutional Commission and definitely continued by the 1978 Mensah Constitutional Commission) on whether to separate the office of the Attorney-General from that of the Minister of Justice, or whether to create an independent office of a Prosecutor-General, or whether what is really required is to grant the Attorney-General himself or herself, independence from the Executive and the President in the exercise of all prosecutorial powers.

It is my personal and firm belief that we should amend the Constitution and take away the criminal prosecution function of the AG’s office, and vest it in a separate, independent office of a Prosecutor-General. Until we achieve that, I certainly welcome the establishment of the office of “Special Prosecutor” with a specific mandate to work with the police and other statutory investigatory agencies such as EOCO and prosecute public sector corruption and crimes committed under our procurement laws. All prosecutions would, of course, be in the name of the Republic, but at the suit of the Special Prosecutor, in accordance with Article 88(4).

(Speech delivered to a durbar of the chiefs and people of Biriwa at the 2018 Okyir Festival, 20th October 2018)

Salutations:

There is a popular Chinese saying:

“If you want 1 year of prosperity, grow grain. If you want 10 years of prosperity, grow trees. If you want 100 years of prosperity, grow people.”

Education is often simply defined as “the process of receiving or giving systematic instruction, especially at a school.”

But the Fante word for education is deeper. It is “adzesua,” which is composed of two words: adze (something) and sua (learning). Every human being created by God can learn. We learn every day from the things around us, our environment, our circumstances, etc. But “what” we learn is the question. What are we learning? It is what we learn that determines who or what we become and how relevant we are to ourselves, our community and our nation.

The good news for the Ghanaian is that the Constitution provides for free education. The basic education was made mandatorily free right from the beginning. Secondary and tertiary education were to be made “progressively free,” i.e. depending on the ability of the government to make it free. It took us almost 25 years to provide free secondary education, but we finally achieved it. Mr. Government we are grateful.

But, Mr. Government, if you thought we were going to thank you and wait for another quarter of a century to demand more, then you have made a huge mistake. We know that you are struggling with Free SHS. The cost of it is stupendous. And now you are forced to Double Track, so that today we have Mfantsipim Green and Mfantsipim Gold. When I went to school Mfantsipim was simply Red and Black. But that’s ok. But we like it. We like the fact that you are struggling to do something for the Ghanaian. And so just before you begin to be satisfied that you have done something for us, I would want to take your mind to the line in the Methodist Hymn titled “What Shall I render?” which says “I take the gifts He has bestowed and humbly ask for more.”

And as is said in common parlance, “Oliver Twist asked for more.”

And so we must begin to say to Government, you have given us the free secondary education that the Constitution asked for. But we need MORE: When are you going to grow and improve the quality of that education? Do we have to another 25 years? We have not even started thinking about free tertiary education. But we will get there.

It is said that the world is a ‘global village.’ We don’t live on an island, surrounded only by water. Even if we did, we are still not alone. The rise and expansion of communication and the internet means that whether we like it or not, whether we realise and acknowledge it or not, we are competing with the rest of the world. Any job that our governments or companies working in Ghana hire and pay non-Ghanaians for, is a job lost to a Ghanaian. And so we are competing and being whipped at the competition even without knowing that we are competing.

When we have to choose schools for our children we tend to look at the schools mummy and daddy went to and feel proud that our children are going to the same schools. Is that all? We still argue and debate ourselves on the schools we attended, when those schools have not advanced one bit, since we left there. If you child goes back to your former school 10 or 20 years since you left that school, you should not be proud in showing him or her how things have remained the same. It means the school has failed to change and improve.

The time when we raised our children to become “local champions” should be over. You are either raising your child to “get a job” or to “run the world.” They are competing with children in other countries who have been learning computer coding since they were three years old. In the world today, you are either at the table or you are on the menu.

That is why an education system that terminated at JHS simply because the parents could not afford to pay the SHS fees, was not just backward: it was criminal. Every year, we literally thrust out there, thousands of brilliant young children simply because their parents could not afford to pay. We think that they will become our drivers, etc. But today, several cars are computerized. In fact, now there are driver-less cars. We must grow our people.

I have argued that every Ghanaian child deserved the opportunity to have Free SHS, whatever the quality of that education is. I vehemently disagreed with those who said we should wait to improve the standards of education before we made it free. But that is no excuse to slip on ensuring that the quality that is being given to us for free is cheap.

Goal 4 of the United Nation’s Sustainable Development Goals focuses completely on Education. Under it, Education must ensure inclusive and equitable quality education and promote lifelong learning.

Whether we accept it or not, we are still implementing in substance the Guggisberg-inspired education system and structure (based on his 16 Principles of Education which became the basis of the 1925 Education Ordinance). Even then, he had argued that literacy alone was inadequate. He said his reforms would include character building, thrift and temperance. He said: “Education is the keystone of progress: mix the materials badly, omit the most important, and the arch will collapse: omit character-training from education and progress will stop.”

This was in 1925. Yet in its implementation, the education system just to equipped us with just enough to become civil servants in His/Her Majesty’s civil service. The fact that we are struggling to break out of the shackles of the well-intentioned by completely archaic Guggisberg-inspired education systems should be a matter of shame to us. The numeracy and literacy that Guggisberg inspired, alone are not enough. We must demand in our schools, modern, quality education, designed to help all children reach their full potential and enter society as full and productive citizens.

In February 2016, the Washington DC area Association for Supervision and Curriculum Development (ASCD) and Brussels-based Education International (EI), released a joint statement in support of the SDGs and the pursuit of quality education for all. In that statement they defined quality education in the following terms:

“…one that focuses on the whole child – the social, emotional, mental, physical, and cognitive development of each student regardless of gender, race, ethnicity, socioeconomic status, or geographic location. It prepares the child for life, not just for testing.“

And so the right to education guaranteed by the Constitution cannot be only the right to access education (which Free SHS gives) but the right to receive education of good quality. For education to be whole, it must be (i) Available, (ii) Accessible, (iii) Acceptable and (iv) Adaptable.

Until we achieve these 4 A’s we have to accept that we have not attained the goal of quality education.

I went to Mfantsipim School which has the motto “Dwin Hwɛ Kan.” This deep Fante has been loosely translated into English as “Think and Look Ahead.” But that does not cut it. That Fante statement is too deep to have an exact English equivalent. The Fante states that the faculty that is used to think (the brain) can in and of itself also see (has eyes.) That complete mental faculty can ascertain what is useless, backward or sideways, and reject them. That complete mental faculty can also see what’s ahead and forwards and reach out for it. Clearly, those eyes are not what everyone can see buried in our heads, and that with which you see and look at things. Thus your brain is incomplete if it cannot do all of these things at the same time and in one fell swoop. I suggest that every brain has that ability, but it is quality education that will bring it out and shape and sharpen it for full effect. “Adezua papa na ᴐma ye tum Dwin Hwɛ Kan.”

Our schools have to help our children to Dwin Hwɛ Kan. God gifted us with that ability captured in the Fante phrase. Our education must be geared towards liberating that ability to Dwin Hwɛ Kan, and thereby liberate us from the things that have held us back and down. It must liberate us from still being tied to the shackles of colonialism and neo-colonialism, even when the former colonial master physically left our shores 6 decades ago. Without Dwin Hwɛ Kan we will only think, but only of ourselves and our immediate circumstances and completely fail, refuse or neglect to consider our future and plan for it. When people express the regret and say that they think we are worse off than when we were under the colonialists, I weep because it simply means we have failed to Dwin Hwɛ Kan, and instead “yɛ dwin hwɛ yɛn akyir.” That is why our youth would prefer to die crossing either the Sahara or the Mediterranean just to go to Europe than staying here. There is nothing for them. And it is not as if they are guaranteed a better life there. Several of them are among the poorest in those countries.

Something has to change; and quickly.

The fact that the prices of almost everything we produce for export is not determined by us, but by the persons who purchase it or markets that they have contrived, shows us that our literacy and numeracy education isn’t getting us where we ought to be. The fact that we do not have the ability to chart our own path, and for the most part must develop on the basis of handouts from others, shows that our literacy and numeracy education is holding us back. Numeracy and literacy alone won’t usher us into the century we are in. Ghana will never be beyond aid if we do not change the manner in which we train our youth.

“The future started yesterday and we are already late.” John Legend.

Ghana needs young men and women who are prepared to be bold and to try new things. It is only quality education, the liberating of that Dwin Hwɛ Kan spirit that can free us from where we are and transform us to where we have to be. That should be our botaepa!

“In the end we cannot become what we ought to be if we remain who we are.” Max De Pree.

Education was the best thing that my father James Kwabena Ankomah who came from Biriwa and was buried here in 1987 when I was about to enter university, gave to me. What he taught me in the 19 years that he was in my life, is what I will share with parents listening to me.

Parents, take a deep interest in what our children are doing in school. Ask them how school went that day. Ask them about what they learned. Maybe you could learn something too. But it gives you the opportunity to probably explain what was taught in the classroom with some home truths. It might be an experience you went through. It might be an aspect of your family’s history. But through that interaction, we teach our children not only to learn what is taught in the classroom but also how to apply it in their day to day lives. Your participation will bring to life, what they have learned in school. Let the teachers do what they can in school. Let’s make what they learn relevant in the home and in their day to day lives.

Encourage the children not to skip school. In my parents’ house, you had to be as sick as a dog to be allowed to skip school. Even then they will take you to the hospital and then to school that same day. It has never entered into my head not to attend school on any day because I did not feel like it or that I was tired. Thus even after my father had died, the same principles stayed and stuck with me as I went on to further studies at the universities I attended. There was no physical father to bark instructions at me; but I could feel him all around me, not physically, but in the things he had taught me.

It was like the lyrics of the song “He Lives in Me” in the epic Lion King. And so in those deep nights of doubts whether I could make it, he was my spirit of life; when I felt like giving up he was the voice of guidance. And with that I could answer with the voice, even if with the fear of a child that “There was no mountain too great.” I remembered his words and had faith. And so through the things he taught me he lived in me, into the water and into the truth, in my reflection he lived in me through his words.

If you are alive, this is your opportunity to help shape your child’s education. Don’t miss it. Don’t lose this opportunity.

School is tough, but teach them to still go to school. Set times for them to do their homework, just as you do with house work. Parents, let us play our role in helping the children to reach their full potential and enter society as full and productive citizens.

Students listening to me. If you remember nothing that I have said today, remember that I encouraged you to NEVER DROP OUT OF SCHOOL. When the learning gets tough still go to school. Tell yourself that learning will not defeat you and that you are bigger and tougher, and that you will learn the thing and overcome it and teach that thing that you are the master. If others have learnt it, surely, you can too.

School was not always easy for me. I passed some and failed some. But when I failed or was not as successful as I wanted to be, I resolved that I should be remembered and defined, not by my failures but by my successes. So when I failed (I knew I could have done better,) I went back and fought those battles again and won them.

My friend Foster Gordon is here. We were in Mfantsipim at the same time. He remembers that I played the guitar and that I topped my year at the A’Levels. That is all he remembers. He probably does not know that I almost flunked by O’Levels and that I arrived in Sixth Form not having properly passed my math and science. He doesn’t know that when I became Senior Scholar (“Sisco,” we were called at the time) and the K. A. Busia awardee, I still had to go back and write my math and science before I could enter the university.

If I had stopped when I almost failed, Foster would remember me today as the guy who came to school, failed and didn’t make anything with his life. Refuse to be defined by failure and difficult times. Reach deep within yourself and find the strength to carry on.

The singer Maria Carey sang:

“There’s a hero if you look inside your heart
You don’t have to be afraid of what you are
There’s an answer if you reach into your soul…”

She adds that

“It’s a long road when you face the world alone
No one reaches out a hand for you to hold
You can find love if you search within yourself…”

But then she sings

“And then a hero comes along with the strength to carry on
And you cast your fears aside and you know you can survive
So when you feel like hope is gone look inside you and be strong
And you’ll finally see the truth: THAT A HERO LIES IN YOU”

Biriwaman, the land of my father, it is only through quality education that we will rise and build our town. Let’s all put our hands to it, demand from government what is ours, and let’s arise and build through quality education.

I will be remiss if I end without acknowledging that we must do our best to build, but unless the Lord builds, they labour in vain who build. It is not of whom who wills or runs, but the Lord who shows mercy.

Nelson Mandela said that “Education is the most powerful weapon which you can use to change the world.”

Malcom X said that “Education is the passport to the future, for tomorrow belongs to those who prepare for it today.”

The philosopher Aristotle said that “the roots of education are bitter but its fruit is sweet.”

Our own Busumuru Kofi Annan, who was my father’s classmate at Mfantsipim, said that “Knowledge is power, information is liberating. Education is the premise of progress in every society, in every family.”

Former US First Lady Michelle Obama said “You have to stay in school, you have to. You have to go to college. You have to get your degree. Because the one thing that people cannot take away from you is your education. And it is worth the investment.”

And something my parents taught me: “Don’t sit and stare at the clock. Be like the clock. Keep moving.”

That you and God bless Ghana and Biriwaman and us all.

[Delivered as keynote speech/address at 2018 Annual Conference of the Ghana Bar Association, Koforidua, 10th September, 2018]

EXTRACT: Colleague Lawyers, innovate or perish. Develop or expire. Transform or disappear. Reconstruct or deteriorate. Rethink or disintegrate. Alvin Toffler said that the illiterate of the 21st Century would not be those who cannot read or write, but those who cannot learn, unlearn and re-learn. It is really that simple, almost binary.

[This presentation relies heavily on the findings of the books “Law is a Buyer’s Market” by Jordan Furlong and “The End of Lawyers? Rethinking the Nature of Legal Services” by Richard Susskind.]

INTRODUCTION – THE STATE OF THE LEGAL PRACTICE

First Set of Scenarios: After the young couple had their second child, they started discussing the future of the children in case of any eventuality, and then they made an appointment with a lawyer to write a will. When the small company formed by the fresh graduates applied for the loan for the start-up and received the Heads of Agreement or Offer Letter from the bank, they contacted a law firm that specialises in both their line of business and advising on terms of loan agreements. When the company that makes clothes received the 30-page draft contract to make clothes for that chain of stores in the US that would launch them into international markets for the first time, they engaged a law firm to walk them through the draft and its implications.

Second Set of Scenarios: The small business has just undergone a tax audit by the Ghana Revenue Authority and has been slapped with a huge tax bill that will collapse the business. The Environmental Protection Authority and the Ghana Standards Authority has shut down the old factory of the manufacturer for several breaches of environmental standards, and so the business has to lay several workers off. A bank’s owners wakes up one morning to hear on the news that the bank’s licence has been withdrawn, a liquidator has been appointed and all of its business and offices have been taken over by another bank under a Purchase and Assumption Agreement with the Bank of Ghana.

In the First set of Scenarios, when the law knocks at the door, it is welcome as a friend and a facilitator of growth, success, security, expansion and opportunity. Everyone is happy. In the Second set of Scenarios the law that knocks at the door is an irritant, a pain in the neck and an unnecessarily expensive tiresome obligation.

In his book titled Law is a Buyer’s Market, the author Jordan Furlong summarises this beautifully. He says:

“Many times, law comes to the door and it feels like a home invasion. It arrives as trauma, disrupting plans and dreams, threatening the personal well-being and financial survival of those who open their door to find it there.”

Unfortunately, in the practice of law in Ghana, the Second set of Scenarios appears more prevalent than the first. For a great chunk of our society, a lawyer is only one who goes to court to argue. And one only needs the court when there is trouble. Even a senior lawyer once asked me, “so all those lawyers in your firm who don’t come to court, WHAT do they do?” Law has for the most part become the unpleasant way of dealing with possibly preventable problems, instead of a guide on how to do things properly. It is in this trauma, disruption and threats that lawyers have flourished. So that instead of paying a lawyer to advance opportunities or facilitate investments, clients end up paying lawyers to resolve a problem that they probably don’t understand, never asked for or could probably have avoided if they had contacted a lawyer as the others had done in the First set of Scenarios.

The effect of this mode of operation is that the law has traditionally been about the seller of the legal service. We call the shots. The client either pays up, acts up or perishes. We play the tune. The client has to dance. We have a very high opinion of who we are. As one lawyer said on a lawyers WhatsApp Platform a few days ago, “we are the midwives and gynaecologist of the law.” My uncharacteristically quiet and unexpressed quip was to quote the musician John Legend that “the future started yesterday and we are already late, buddy.”

What do lawyers traditionally and essentially do? Largely three things:

i. Resolve disputes,
ii. Advise on transactions, and
iii. Counsel clients on rights and duties.

In the course of doing these we produce heaps of legal documents, which Charles Dickens described in his 1853 epic Bleak House in these terms:

“… bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense…”

Researchers identify and advance three reasons for the traditional view of lawyers.

First, there has been a great imbalance of power between lawyers and clients. The clients know precious little of the law and have little to no ability to even assess the quality of the service they receive. It is exactly for these reasons that the law created the fiduciary duty that binds us to clients and holds us to the highest standards of performance and utmost good faith towards them.

Second, we have had and enjoyed monopoly over the provision of all kinds of legal services, and ensured by law that any attempt by non-lawyers to practice law is criminalised. Section 9(1) of the Legal Profession Act, 1960 (Act 32) says:

“Where a person who is not enrolled practices as a lawyer or prepares a document for reward, directly or indirectly to be used in or concerning a cause or matter before a Court or tribunal, that person commits an offence and is liable on first conviction to a fine not exceeding one hundred penalty units and for a subsequent offence, to a term of imprisonment not exceeding six months, or to a fine not exceeding two hundred penalty units or to both the fine and the imprisonment.”

Very few other professions have this protection. It is for reasons such as these that we love to argue that the practice of law is a profession and not a business. We belong to the “Ancient and honourable profession” of the law. Ours is a calling, not merely an industry, occupation or trade.

The fact is that medieval and early modern traditions recognised only three professions: divinity, medicine, and law. The Latin root of “profession” is profiteri, which has two components: pro, which means “forth” and fateri which means to “confess.” Taken together, they mean “to announce a belief.” The term therefore has religious roots. It is to bind yourself publicly by a vow or oath to a higher purpose or calling. If you embarked on any of the three professions, you professed it in the village square so that everyone knew that you would be serving a higher social need and that you could be approached for help. We invoked “higher powers” often a deity, as we made lifetime vows. The clergy vows obedience and poverty. The doctors recite the Hippocratic Oath. We swear allegiance to the court and the rule of law.

We were the so-called “learned professions.” But we coveted and appropriated the title “learned” when the other two were busy saving the souls of men (as in divinity) and lives of men (as in medicine.) That is in part the reason why we still wear a medieval attire to court: a wig, gown/robe, wing-tipped collars and bibs.

It is important, from time to time, to remind ourselves what the totality of this medieval attire stands for because, maybe, it typifies or symbolizes our inherent resistance to change.

Barristers’ gowns date back to the reign of King Edward III in the 14th century, when fur and silk lined robes were set down as a mark of high judicial office. This was also the correct dress for attending the royal court of the day. To make room for changes in the weather, green gowns were worn in the summer and violet in the winter. Red was for special occasions. The plain black gown, which Ghanaian lawyers wear today, was adopted in 1685 when the English Bar went into mourning over the death of King Charles II, who was a great friend of the legal profession in those days.

The robe/gown has that triangular piece attached to the back left shoulder. This is the so-called “money bag”. Legend has it that barristers were too high and mighty to stoop to ask clients for money. Instead, after finishing the day’s work, the barrister would walk out with his client in tow, and they would place guineas in the money bag. When I first read this, I wondered what happened to, or who emptied the “money bag” of, its contents when the barrister got to the office. Thankfully, this isn’t the only legend about the “money bag.” The dress makers Ede and Ravenscroft argue the money bags are actually the remains of an early monastic hood or a traditional hood worn during a period of mourning. Whichever version is true, the suggestion is that our profession is too high and mighty to dabble in lowly and worldly matters like money.

The wigs first appeared in the legal profession in the 17th century, also during the reign of King Charles II, during the Restoration of the English monarchy. They had been fashionable among the English upper class, and had gone out of fashion in the reign of King George III. However, barristers and judges continued to wear them in court to distinguish their profession from other members of society.

It was made from horse, goat or human hair. They however became difficult to maintain – they had to be frizzed and curled, then treated with a thick scented ointment known as “pomatum,” and then covered in a thick layer of powder. What we wear in Ghana today is what is known as a “tie-wig,” which became popular from the early 19th century. It has a fuzzed crown, with rows of curls known as ‘buckles’ along the sides and back, and a looped tail at the rear. If it’s made in Nigeria, it is likely to be made from plastic.

Our bibs, are also called “jabots” or “bands.” They first appeared in 1640 when lawyers swapped neck ruffs for ‘falling bands’ of plain linen. Today they consist of two rectangles which are said to represent the tablets of Moses in the Old Testament. It is fair to say that Charles II, in addition to being restored to the throne after the death of Oliver Cromwell, adorned the Bar with such enduring medieval clothes that even in the then unknown and future colony in West Africa, to be called “Ghana,” that attire would be worn by lawyers with much pride, love and affection in 2018, exactly 333 years after his death.

We are a profession and not a business. Yet section 52 of Act 32 defines the term “lawyer” as follows:

“’lawyer,’ for the purposes of the recovery of fees, includes a person enrolled at the time the relevant business was done; and, for the purposes of the preparation of legal documents…”

The Chapter of Act 32 on “RECOVERY OF FEES” also suggests that what we do is considered a “business.” For instance section 30 on “Bill for Fees” provides the conditions under which we may “commence a suit for the recovery of fees for a BUSINESS DONE as a barrister or solicitor.” Section 39 on “Delivery of Bills” provides for when the “Court may make an order for the delivery by a lawyer of a bill of fees for BUSINESS DONE by the lawyer.” And section 42 provides that the entire Chapter on Recovery of Fees (section 30 to 41) applies to the “executor, administrator and assignee of a lawyer in respect of BUSINESS DONE by the lawyer.”

Maybe, arguably, the law uses the term “business” loosely and not as a term of art. But in summary, we are a profession and not a business; except when it comes to matters affecting our fees.

Third, legal services are priced to serve the interest of the lawyer. Fees in Ghana, for the most part are based on (i) contingency, success or recoveries, (ii) a fixed fee that is almost arbitrarily imposed by the lawyer, (iii) a percentage of the value of the transaction in question, or (iv) in a few instances, hourly rates multiplied by an unspecified number of hours. Pricing that is based on the provider’s time and labour effectively shifts the risk of unforeseen developments onto the client.

TIMES ARE CHANGING

It has been important to set out the above in quite some detail, because, colleague lawyers, whether we admit it or not, times are changing. The priorities of the buyer of legal services are now emerging as the dominant force in the market. The fact is that a lot of our non-contentious commercial and corporate law work is now standardised and commoditised. Over time, several of our services have become relatively indistinguishable from competing offerings, and are easily replicated. And the work has also become systemised, relying heavily on the back office, emails, accounting, admin, work processing, and well-established legal research tools, such as WestLaw, LexisNexis and the Ghana Law Database. Legal expenses have been high. However, client-driven technology has become a key and central part of transformation of the legal profession, and this is having the effect of driving the prices down.

Writers on this topic have identified 6 main triggers of change.

First, TECHNOLOGY. We now have systems and software that can perform some of our functions, and with arguably more accurate results. I will go into more detail later in this paper because that is the focus this afternoon.

Second, THE INTERNET. This has lowered a lot of the previous barriers to access to legal information, and increased the clients’ “legal knowledge.” It has also enabled clients to communicate and collaborate to decide which transactions they would enter into without needing lawyers.

Third, GLOBALISATION. You no longer have to have a physical presence at a location to provide services. This has helped to reduce the cost of many services through outsourcing and offshoring of legal work to less expensive locations.

Fourth, REGULATIONS of legal services are beginning to liberalise and loosen. We may not admit it, but the 2013 Regulation by which the General Legal Council permitted lawyers in Ghana to own and run websites, was an acknowledgment that our regulations would have to move with the times, however reluctantly. We cannot remain such “incorrigible anglophiles” when England, the original source of our rules, is undertaking changes to the rules that we still hug, hang on to and consider so dear.

Fifth, all of the above triggers lead to more COMPETITION. And so there are “lawyer-like” services that sell cheaper. For instance, almost all of Ghana’s legislation is available on the internet and for free at laws.ghanalegal.com. Any lawyer who has studied the common law, can read our law and understand it. That, in part, is why some major non-contentious legal work that should come to Ghanaian lawyers are being done by English and South African law firms who will send you a draft opinion on Ghana law just to review, place on your letterhead and sign for a fee that is about a 100th of what they have charged for the work. Sometimes we have no contact with the actual client, just the intermediary instructing law firm. We might not admit it but the non-lawyer Commissioner for Oaths is competing with the lawyer Notary Public.

Sixth, and probably the strongest driver, is client EMPOWERMENT. Clients are beginning to realise that they can self-navigate some parts of the legal market without a lawyer, and rather successfully too. Thus even if they ultimately need us, they come to us with the work half-done or with some understanding on what is required. Thus they tend to negotiate lower fees than we have been used to.

Ladies and gentlemen, as the bounds of the law are widening, frightenly, our walls are closing in, frightenly. We have three choices. First, we may pretend that all these are not true and that everyone else is being an alarmist. Second, we may resist and fight, try to swim upstream or paddle against the tide. My view is that if we chose any of these two, we will flounder and drown. But third, and this is my hypothesis, the modern day lawyers have to recognise these threats or opportunities, reposition ourselves, redirect our energies and ride the tide.

TECHNOLOGY AND INTERNET

For the purposes of this paper I will focus on two of the six identified triggers and drivers of change; namely TECHNOLOGY and the INTERNET.

In the late 1980s, IBM developed a chess-playing computer called “Deep Blue.” The key question then was whether a computer could ever out-think the human brain, especially in a game considered as deeply intellectual as chess is. A match was therefore organised between Deep Blue and the acknowledged greatest chess grandmaster of all time, the Russian Garry Kimovich Kasparov. Kasparov won the first match of 6 games played in Philadelphia in 1996 by 4 games to 2.

After Kasparov defeated Deep Blue, IBM’s engineers sat down to re-design the computer. By 1997, Deep Blue had been programmed with algorithms that made it capable of evaluating 200 million chess positions per second. The second match was played in New York City in 1997. Deep Blue won by a closely fought score of 3½ to 2½. In this match, Kasparov won the first game. Deep Blue won game 2. The next 3 games were drawn by mutual agreement. Game 6 therefore became the decider. Deep Blue won by a move that connoisseurs have said could not have been made by any human being or mind. This was the first defeat of a reigning world chess champion by a computer under tournament conditions. The 1997 match was the subject of a documentary film, The Man vs. The Machine.

Deep Blue’s win was seen as historic and symbolically significant, a sign that artificial intelligence was catching up with and even surpassing human intelligence. It led to the rise and rise of the use of algorithms in computer programming, into all areas, including the law. By the way, an algorithm is a self-contained step-by-step set of operations used to perform calculations, data processing and indeed automated reasoning; and the law has not been left out of their reach.

Let us consider some examples, some of which might not be directly relevant to Ghana yet. But we cannot deceive ourselves that they will never reach here.

1. ONLINE DOCUMENT PROVIDERS: these companies provide (i) access to legal documents that clients can customize to their own specifications, and (ii) even referrals to lawyers in the customer’s jurisdiction to review the documents and address more complex legal issues. LegalZoom.com (“where life meets legal”) says on its website that “we simply do not believe that it should cost thousands of dollars to create a will, form a business, or apply for a trademark. So we started a movement to make legal help available to all.” It adds, “No complicated forms. No robots. Just answer some questions and we’ll take care of the paperwork for you.” RocketLawyer.com says on its site that it has generated over 3 million legal documents, adding that they are “All the legal help you need. Anytime. Anywhere,” and that “We’ll ask questions to build a document that fits your needs.” And these are not idle boasts. They actually do them. In Ghana, this preparation of legal documents would be a crime under section 9 of Act 32. But who is going to be jailed? The computer which prepares the documents? Or the persons who programmed it in America?

2. CONTRACT DRAFTING & ANALYTICS: these are programs that (i) create contracts from a massive database of precedents, and (ii) help in the contract lifecycle including conducting discovery and due diligence, thereby helping to manage rights, obligations and risks. Docracy.com was an open collection of legal contracts and open source law that taught how to negotiate and sign contracts online without any legal help. However, and I suspect, to the delight of several lawyers, after operating for almost 7 years, Docracy announced that it was shutting down from 1st July 2018.

3. LEGAL RESEARCH DATABASES: These are accessible online case law and legal knowledge systems. They significantly reduce time and effort and accuracy of research. For example in Ghana, the Ghana Law Database Project, called “Solon,” is a hypertext and hyperlinked, indexed database of all of Ghana’s statutes, reported cases and law journal articles. This is available online for a fee. There is also a product that has merged Solon with All England Law Reports. Just imagine: you have at your fingertips, ALL of these authorities to search at a go without having to go to the library, haul out heavy and often dusty books to look for a paragraph here and a paragraph there. Solon will show you those paragraphs within seconds and you can then simply “cut and paste” them into your work. In preparing this paper, it was Solon which showed me that the word “business” appears used 4 times in Act 32. I got naughtier, because of something I am going to say later in this paper, and which probably is going to get me into trouble. Solon showed me that the word or name “nana” is used 1,899 times throughout Ghana Law Reports (1959 to 2009.) The words “nana” and “akufo” appear together 138 times. The words “nana”, “akufo” and “addo” appear together 137 times. Solon informed me that twice in Ghana Law Reports, all in the case of Mensah v. Attorney-General [1997-98] GLR 227, and all in the judgment of Aikins JSC, the name “Akufo” was misspelt as “Akuffo,” at pages 240 and 247 of the report. THAT is how detailed the product is. You literally do not have to think or sweat to get the basic information through the hyperlinking. Research time is therefore reduced exponentially. I got even naughtier. Mr. GBA President, the name “Nutsukpui” appears 8 times in the Ghana Law Reports, according to Solon. If you discount the twice that were references to Republic v. Nutsukpui; Ex parte Egbortorwu (1968) C.C. 152, the six other times refer to a lawyer who is reported to have appeared three times, led by one Kuenyehia, and three other times on his own, all between 1991 and 2009. And although the name “Ankomah” appears 18 or so times, it is only twice that it actually refers to the presenter of this paper! Mr. Bar Secretary, the name “Amenuvor” appears three times, according to Solon. But all three times were in one case Ashanti Goldfields Company v. Liner Agencies [2003-2005] GLR 75, where you appeared as a junior to Kizito Beyuo, Esq. So Mr. GBA President, you are in a comfortable lead!

4. ONLINE DISPUTE RESOLUTION (ODR): Is the court a place or a service? If we have a dispute between us, why must I hire an expensive lawyer, show up in court to file processes, ensure physical service, for you to file yours, for pleadings to close, for directions to be taken, attend case management conferences, then issues to be settled, attending court for evidence, and ultimately judgment, when all I want is to have the service of the court without necessarily showing up in court? ODR is an internet-based system that affords rapid, affordable and relatively painless resolution of financial and personal conflicts. For example, in a year, roughly 20 million cases are filed in the United States courts. But ODR and E-Adjudication together resolve 60 million disputes every year between e-bay merchant systems, without any recourse to the court system. Modria.com says it has resolved over 400 million cases for companies like PayPal and e-bay, adding that it “is capable of handling all manner and volume of cases, from simple debt cases to complex child custody cases.” Ghana is getting there, very gradually. We now have the Written Submissions replacing viva voce closing arguments. Borrowing largely from arbitration processes, the 2014 amendment to CI 47 (i.e. CI 87) now, finally, provides for Written Witness Statements and testimony by video link. One of what was considered the key components of litigation, Viva Voce Evidence-in-Chief has just disappeared from our practice in one fell swoop. We are gradually moving from the time when the Supreme Court rejected evidence by PowerPoint presentation. The recently launched E-Justice process is automating this process even more. According to Kwame Abiabenu in his article titled How can e-justice make a difference in justice delivery? (https://www.graphic.com.gh/features/opinion/how-can-e-justice-make-a-difference-in-justice-delivery.html),

“…the e-justice system is made up of processes, software and hardware which facilitate case management such as e-filing, judge rosters, and case scheduling, courtroom recording systems, electronic notification systems and information websites for the public.”

He adds that because the

“…system is able to connect all the courts seamlessly, enabling case information exchange… the Chief Justice at the touch of a button can have a bird’s eye view on what is going on across all courts in the country, providing her a powerful tool for management of judicial services.”

I believe that the day is near when the wigs and gowns and bibs would be redundant not because we like or don’t like to look a Charles II-inspired medieval character, but simply because we would hardly have a physical appearance in court, especially in civil matters.

5. IN-HOUSE LEGAL OPERATIONS (“Legal ops”): legal departments in corporates are designing and building in-house systems to manage legal matters, and thereby speed up or replace traditionally hired lawyers, leading to legal cost savings for the corporate. The term “Legal ops” has gained currency as the leading cause of “insourcing” that reduces legal spend and outside counsel engagements in terms of time and scope.

6. LEGAL PROCESS IMPROVEMENT (“LPI”): This refers to project management and mapping to improve efficiency, effectiveness and quality. For instance, within law firms, creating a database of your precedents, opinions and court documents, would mean that you may never have to draft a document from scratch again. Then a simple computer search will show you, for instance, all the leases that the firm has ever drafted. You simply choose the most appropriate one(s), make changes and you are done. The results are quick turnaround time, quicker turnover of work, more work and arguably, more money in your “money bag.” It might also mean hiring less legal staff. Taking or making your secretary take a course in Word for Lawyers, would mean that you never again have to manually type out your own Table of Contents or Table of Authorities in your Written Addresses. Yes, the demand in Rule 15(6) of the Supreme Court Rules, 1996 (CI 16) that your Statement of Case should include “all relevant authorities and references to the decided cases and the statute law upon which the party intends to rely,” would be made simpler as in inserting the relevant codes as you type, the computer itself will generate on a designated page your alphabetical list of authorities (categorised into Cases, Statutes, Other Authorities, Treatises, Regulations and Constitutional Provisions), stating every page where those are mentioned.

7. LEGAL ARTIFICIAL INTELLIGENCE: These are sophisticated diagnostic expert systems that are tackling multijurisdictional questions. The systems now convert lawyers’ knowledge into complex algorithms that answer legal questions. Predictive analytics can now forecast the outcomes of litigation by analysing massive case law databases. Lexmachina.com has gathered all 30,000 US cases on intellectual property. You simply type your problem and the machine will predict how your case will go and print out the “legal” advice. Encouraged by the success of Deep Blue, IBM has now designed “Watson,” an artificial intelligence platform for business. ROSS Intelligence is a startup which relies on Watson to help lawyers find relevant cases using natural language search. The application allows you to ask your questions in plain spoken English, as you would a colleague. Touted as the “Robot Lawyer,” ROSS then reads through the entire body of law and returns a cited answer and topical readings from legislation, case law and secondary sources to get you up-to-speed. ROSS’ owners say the application is not designed to replace lawyers, but rather help us with knowledge management: keeping up with all the latest laws. We know better than to accept this assurance.

MOVE WITH THE CHANGING TIMES

Sam Levenson, the American humorist, writer, teacher, television host, and journalist, wrote: “Don’t watch the clock; do what it does. Keep going.”

Permit me once more anecdote, if we can afford to laugh at ourselves. I hear that in 1999, the Greater Accra Bar had a full discussion on whether or not lawyers should be allowed to have email addresses. I was informed and verily believe same to be true, by a colleague who was present at the meeting. I tried to check. I called the current secretary to the Greater Accra Bar. It was a short phone conversation. He said “senior, we do not have any records, minutes or resolutions for those years.” In 1999, my then 7-year old niece was learning computer coding in primary school elsewhere. The future started yesterday, and we are already late.

If the Bar has hardcopies of these records, all it needs today is a computer with a good Optical Character Recognition (OCR) scanner and one data processing clerk. In less than a year, we will digitise all our past records. It is not impossible in Ghana. The Registrar-General’s Department has almost completely digitised current company records, making long delays for search results on companies almost a thing of the past. The Collateral Registry has made it possible to register transactions and file searches from your own computer in your office.

It is against the background of the reluctance to change or reticence of lawyers that in his book titled The End of Lawyers? Rethinking the Nature of Legal Services, Richard Susskind referred to research that suggests that traditional lawyers will soon and in large part be

“replaced by advanced systems or by less-costly workers supported by technology or standard processes, or by lay people armed with online self-help tools.”

Good to know and observe. But I do not agree with some of Susskind’s conclusions. We are not about to disappear as a profession anytime soon. We must remain anchored to our oath of fidelity to the courts and the rule of law. But we certainly must become geared to the times. Mmre re dane. We have to dane ourselves to it. The author Max DePree said in his book Leadership is an Art, that

“In the end, it is important to remember that we cannot become what we need to be, by remaining what we are…”

Ghana is severely, ‘legally underpopulated,’ with roughly 3,000 registered and practising lawyers. Matched to a population of roughly 27 million, the ratio is 1:9,000. This compares with the US’ ratio of 1:265, Brazil’s of 1:326, the UK’s of 1:401 and France’s 1:1,403. But this will not be for long. This year, 1,800 students sat the entrance exam to enter the Ghana School of Law’s professional program. Only 500 will be admitted. The 1,300 not admitted will re-sit next year together with the fresh graduates from the various faculties, probably another 500. If we want to move with technology, now is the time to start.

Colleague lawyers, some international law firms with the same or more lawyers across the globe than we have in Ghana are deploying and relying on modern day technology for a good part of their work. For instance, both Latham & Watkins (with only 2,600 lawyers but earnings of $2.823 billion in 2017 – making it the world’s richest law firm) and Dentons (with 7,000 lawyers and earnings of $2.205 billion in 2017 – making it the 6th richest law firm in the world), are currently using the ROSS Intelligence, the “Robot Lawyer” based on IBM’s Watson. DLA Piper (with 4,200 lawyers and earnings of $2.47 billion – making it the 5th richest law firm in the world) uses machine-learning systems for document review during due diligence processes for M&A transactions. Clifford Chance (with 3,300 lawyers and earnings of $2.087 billion in 2017 – making it the 7th richest law firm in the world) uses a range of Artificial Intelligence systems in conducting e-discovery, cybersecurity, and contract and document review. By the way, both Dentons and DLA Piper have associated firms in Ghana, and I can only guess that the lawyers in Ghana, have access to these facilities right here from their offices in Accra. If you are surprised, I will simply tell you that “the future started yesterday, and YOU are already late.”

Let us contrast this with Ghana’s largest ‘law firm,’ by a mile and more, that is the Attorney-General’s Department with 190 state attorneys. According to the Bar Association if you add up the lawyers in all the government ministries, departments and agencies, we have as many as 800 lawyers in the ‘law firm’ I choose to call “Ghana Incorporated.” I will speak generally on this matter. There is hardly a ministry, agency or department in Ghana that has reliable internet service. Not Parliament. Not the Judicial Service. Several officials do not have government-supplied email addresses on the government’s registered domain “@ghana.gov.gh”. They are often compelled to use their private email addresses for official government business. I know that sometimes, persons from other countries whom we deal with in international matters involving the government, are shocked that the email addresses provided by leading government officials including Ministers and Members of Parliament, are from free and easily hackable domains such as Yahoo, Hotmail and Gmail. They have sometimes expressed concerns about the security of such email systems considering the sensitive or confidential nature of the matters that have to be transmitted through such private email addresses to and from the government. One said to me, “Ace, my son can hack these email addresses from his phone, through phishing and spamming!”

But even this is an improvement. A few years ago, a local firm on the other side of arbitral proceedings involving the government, had to accept to receive procedural orders and documents meant for the government, on its email system, print out hardcopies and deliver them to the AG’s office. I said I was going to get into trouble, right?

If I may be permitted an impetuous breach of protocol here, and allowed to court some trouble, Mr. President (this time, of Ghana) I speak as a lawyer who has had the ‘unfortunate privilege’ of conducting quite a few cases on the other side of the Government of Ghana; and it is probably in my interest that the current state of affairs remains, as it gives the other side an upper hand. But as a Ghanaian first, I am pleading with you, “Please fix this.” What is at stake and what we might lose or are already losing, are much higher than what we would invest in these resources.

For the government and all of us, I guess that it is a “chicken-and-egg situation.” Should we invest in technology and innovation now, or should we wait and make the money before investing in them?

I have a few suggestions. You don’t have to start big. You may start small. But whatever you do, START now! Each of us with a smart phone with internet connection has in her or his hands an awesome information tool. Yes, google.com and bing.com may not be acceptable tools for serious legal or academic research. But as a rough-and-ready and quick reference point, they are fantastic if you know how to use them. When I was a law teacher, and even after that, I enjoyed locating and reading from law lecturers from several law schools across the globe who have uploaded their lecture notes onto the internet. Loads of legal dissertations and theses are fully there or have abstracts uploaded on to the net. A careful search and trawl through these can lead you to several new thinking and new decisions on legal matters, and which you may use as a basis for further research.

And by all means get the Ghana Law Database. Save up and buy it. It is an absolutely fantastic and invaluable tool for your work. I am lucky or blessed to have it on my computer. Mr. President, each of the 800 lawyers who work for “Ghana Incorporated,” each of the 275 MPs and every ministry deserve to have this tool as well. A part of the project is currently bogged down over royalty issues with the government that could be easily resolved. The future started yesterday and we are already late.

My Learned Friends, the computer in your office should not remain a glorified typewriter. Get an internet connection. Build an office network. Microsoft Outlook, which may carry your emails is also a fantastic diary. Get your secretary to enter all court and meeting dates and appointments into it. Get your email set up on your phone. For your own sake, abandon Yahoo and Hotmail addresses. Gmail and iCloud are more respectable. Please drop those fanciful email addresses like hotbabe@hotmail.com, sweetiepie2015@yahoo.com, or hunkdude2000@gmail.com. And if you have them do not put them on your business cards. No one takes them or you seriously. Ideally your firm should have its own domain name so that your email address would be, e.g. amaakosua@amaakosuachambers.com. Such domain names come automatically with your website. When you set these up, your computer can send you reminders of all the court and meeting dates that your secretary inputs, 24 hours before the event (so you could prepare) and at 6:00am everyday so that you don’t arrive at the office dressed in your preferred “joromi” or “dashiki” only to realise that you have a court date that you had forgotten about.

After so many years of being a lawyer, surely, you have enough internal precedents and memoranda to build you own database. Hopefully these are saved on a computer. Start building your own in-house precedents and memoranda database.

Learn how to type. By typing I am not referring for the hunt and peck typing popularly called “A wↄ he, B wↄ he?” You do not have to attend a formal typing school. Simply download the software that perfected my typing, called Mavis Beacon. It is free on the net. I learnt how to type by playing typing games on Mavis Beacon. Spend just 30 minutes a day on it and see how far you would have reached in a year. While at it, study Word for Lawyers. Please stop depending on your secretary or PA for the simplest of computer responsibilities. Being BBC (“Born Before Computer”) is no excuse for not being able to operate on the day the secretary calls sick or is late to work. Spend some time each day mastering navigation on the computer, understanding what a mouse does, what a click is, what a double click or right click does.

If you have WhatsApp on your phone, let it not be used for just forwarding pictures, scripture and/or naughty jokes as the case may be. Form a WhatsApp group of the lawyers in your firm. If a matter comes up that you need help on, one text will reach all of them, and you might get an answer quicker than it would take for you to go and search for it. If you are locked up in one court and another client is texting that your matter before another court is about to be called, a quick WhatsApp message to your platform can ascertain who from your firm is also in the building and can appear in your stead, at least to beg the judge for an adjournment, instead of your case being struck out for you not showing up in court. And someone has to pay for that application to re-list, either you or the client. But it then means that someone has lost money when that situation might have been prevented by a simple WhatsApp SOS message.

There are several good examples of the use of modern technology by law firms, right here in Ghana. One firm wants its clients to know in real time what is going on with their matters. So they are developing an app that will link clients directly to their electronic folders or files at the firm. The clients will have passwords that will take them to their files and those alone. In my chat with them I also suggested that having a culture of preparing client Attendance Notes that are emailed or sent to the client within say 24 hours of every court appearance or meeting, would also give the client real time but non-intrusive information on what is happening on the matter. And the good thing is that these Attendance Notes come in handy when you have to prepare your written submissions or when 5 years after concluding the matter, the client comes alleging that you did not do you work well. As in one instance, a law firm was able to produce a detailed sequence of events with dates and records of almost every interaction with the client.

Probably further up the spectrum is another firm which has a fully stocked IT Department staffed by IT professionals, with racks of servers and possibly “Ghana-level” state of the art equipment. They have an IT Strategic Document that says that the Department’s aim is keeping the firm current through a routine biannual PESTLE (Political, Economic, Social, Technological, Legal and Environmental) Analyses, and “to help the Firm provide relevant customer-centric legal services that are timely.” Having been the subject of a malware hack a couple of years ago, they now have a back-up server completely offsite, and which is updated at least daily. They mirror the production server onto the back-up server so that whenever there is a disruption on the production server, they would use the back-up server as the new production server. They already have plans to replace the internet link with a microwave, vsat or radio link, to back up almost every minute and in real time.

H. Thomas Johnson, the American Accounting Historian and Professor of Business Administration stated poignantly:

“Perhaps what you measure is what you get. More likely, what you measure is all you’ll get. What you don’t (or can’t) measure is lost.”

Colleague Lawyers, innovate or perish. Develop or expire. Transform or disappear. Reconstruct or deteriorate. Rethink or disintegrate. Alvin Toffler said that the illiterate of the 21st Century would not be those who cannot read or write, but those who cannot learn, unlearn and re-learn. It is really that simple, almost binary. We may call it the new Darwinism. Steve Jobs is quoted as saying “innovation distinguishes between a leader and a follower.” Innovation is no longer a “nice to have.” It is now a “must have.” And so Jobs’ statement does not go far enough. Innovation distinguishes between thriving survivors and barely breathing. It has been said that it is no longer “survival of the fittest” but “survival of the most innovative.”

But it is not all doom and gloom for us. The Bar is catching up, gradually. Today, if the Bar has your address, you receive emails of Cause Lists, Rotation of judges, meetings etc. Before arriving here, I received through WhatsApp, the 8-page agenda for this conference, the 20-page audited accounts and the 220-page programme brochure. To paraphrase from Neil Armstrong, these are “a few small steps by the Bar, but giant leaps for lawyers in Ghana.” In keeping with this challenge, I will not give a hardcopy of this speech to any member of the Bar. If you want a copy, please contact the secretary to the Bar. Yesterday, I emailed the speech to him. He will send it to you either through your email or WhatsApp. Hopefully that email address will not be LawyerOne@Hotmail.com or YaaBaby@Yahoo.com.

Permit me to end by sharing my ‘borrowed’ mantra. When others sit, stand. When others stand, stand out. When others stand out, be outstanding. And when all are outstanding, be the standard.

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OCCUPYGHANA V. ATTORNEY-GENERAL
(Unrepoprted, Supreme Court, Writ No. J1/19/2016, 14th June 2017)

Coram: Akuffo, Adinyira, Dotse, Yeboah, Baffoe-Bonnie, Gbadegbe, Bennin JJSC

JUDGMENT (Dotse, JSC read the unanimous judgment of the Court):

Article 187(7)(b)(i), (ii) and (iii) of the Constitution 1992, provides as follows:-

In the performance of his functions under this Constitution or any other law the Auditor-General… (b) may disallow any item of expenditure which is contrary to law and
(i) surcharge the amount of any expenditure disallowed upon the person responsible for incurring or authorizing the expenditure; or
(ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account;
or
(iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

Based on the above constitutional provisions referred to supra, the Plaintiffs claim the following reliefs against the Defendants before this court:

(1) That upon a true and proper interpretation of Article 187(7)(b)(i) of the Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law, so that the amount unlawfully expended is recovered from the person who was responsible for, or authorised, the expenditure disallowed.

(2) That upon a true and proper interpretation of Article 187(7)(b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into the Government’s account, so that that amount is recovered from the person by whom the amount should have been brought into account.

(3) That upon a true and proper interpretation of Article 187(7)(b)(iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person, so that the value of the loss or deficiency is recovered from that person (whether or not a public servant).

(4) That the failure, refusal or neglect by the Auditor-General to ever issue any disallowances and surcharges in respect of (i) unlawful items of expenditure, (ii) amounts not brought into account, and (iii) losses and deficiencies incurred through negligence and misconduct, as set out in successive Reports of the Auditor-General issued since the coming into force of the Constitution, are violations by the Auditor-General of his/her obligations under the Constitution and

(5) That the Auditor-General be ordered to issue disallowances and surcharges to and in respect of all persons and entities found in successive Reports of the Auditor-General to have been responsible for or to have authorised unlawful items of expenditure, not bringing sums into account, or having caused loss or deficiency through negligence or misconduct, in accordance with Article 187(7)(b) of the Constitution.”

FACTS RELIED UPON BY PLAINTIFFS

The facts relied upon by the Plaintiffs who are a pressure and advocacy group, incorporated under the laws of Ghana can briefly be summarised as follows:-

That the Auditor-General pursuant to article 187(2) of the Constitution, has been given the constitutional responsibility to audit and issue a report therein in respect of the public accounts of Ghana and of all public offices which in this instance includes the courts, the central and local government administrations, of the Universities and public institutions of like nature, of any public corporation or other body or organisations established by an Act of Parliament.

The Plaintiffs further draw attention to article 187(5) of the Constitution which enjoins the Auditor-General to carry out the audit of the public accounts within 6 months of the preceding financial year and submit a report, and “shall in that report draw attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament.”

In this respect, the Plaintiffs referred to sections 20(1) and (2) of the Audit Service Act, 2000 (Act 584) and section 2 thereof in particular which provides and states in material particulars what this report to Parliament by the Auditor-General is required to draw attention to in cases in which he has observed the following:-

(a) an officer or employee of Government has willfully or negligently omitted to collect or receive any public money due to the Government;
(b) any public money was not duly accounted for and paid into the Consolidated Fund or other designated public account;
(c) an appropriation was exceeded or was applied for a purpose or in a manner not authorized by law;
(d) an expenditure was not authorized or properly vouched for or certified;
(e) there has been a deficiency through fraud, default or mistake of any person;
(f) applicable internal control and management measures are inefficient or ineffective;
(g) the use or custody of property, money, stamps, securities, equipment, stores, trust money, trust property or other assets has accrued in a manner detrimental to the state;
(h) resources have not been used with due regard to economy, efficiency and effectiveness in relation to the results attained;
(i) in the public interest, the matter should be brought to the notice of Parliament.

It has to be noted that, the above provisions of the Audit Service Act, have taken their authority from Article 187(7)(b) of the Constitution already referred to supra, which empowers the Auditor-General to disallow any item of expenditure which is contrary to law, and having done so to:

(i) surcharge the amount of any expenditure so disallowed upon the person responsible for incurring or authorizing the expenditure, or
(ii) direct that, any sum which has not been duly brought into account, be brought into account upon the person by whom the sum ought to have been brought into account, or
(iii) direct that the amount of any loss or deficiency, be brought upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

In other words, the person by whose conduct of negligence or misconduct the loss or deficiency occurred must be held liable.

The Plaintiffs further asseverate that since the inception of the 4th Republican Constitution on 7th January 1993, the Auditor-General has failed, neglected and or refused to carry out his mandate in fulfillment of the constitutional obligations referred to supra, which would have entitled him to retrieve the amounts, losses and or deficiencies from the offending persons for the benefit of the good people of the Republic of Ghana. This conduct of the Auditor-General according to the Plaintiffs is a violation of his constitutional mandate and obligations under Article 187(7)(b) of the Constitution.

In pursuance of their resolve to ensure that the Auditor-General complies with the above constitutional obligations referred to supra, the Plaintiffs on 12th November 2014 addressed a letter exhibited to these proceedings as Exhibit OG3 entitled “Request for the Exercise of Auditor-General’s Powers of Disallowance and Surcharge, and Notice of Action.”

In that letter, the Plaintiffs state in part as follows:-

We have studied the Auditor-General’s Audit Reports to Parliament for the eleven (11) years between the year ended 31st December 2002 and the year ended 31st December 2012. In that period, the Auditor-General has identified a wide range of stolen and/or misappropriated funds which are due to the public purse. Nevertheless, and quite without explanation, although the Auditor-General is known to have made “recommendations”, OccupyGhana and most Ghanaians are not aware of a single instance in which a Disallowance and Surcharge has been made by the Auditor-General or any of his offices.

The Plaintiffs then requested the Auditor-General to either comply with the constitutional obligations therein stated or face a legal challenge after the expiration of 30 days from the date of the letter.

The Auditor-General responded to the said letter on 9th December, 2014 and attached written comments therein, and this is marked as Exhibit OG4 in these proceedings.

We deem it appropriate at this stage to quote in extenso the relevant portions of this Exhibit OG4 as follows:-

14. On the matter of procedural precedence under the laws of Ghana, there is an issue of timing of the exercise of discretionary power given to the Auditor-General under Article 187(7)(b) of the Constitution. Article 187(5) of the Constitution requires the Auditor-General to send this report on all irregularities (disallowance items included) to Parliament for consideration. Under section 23 of the Audit Service Act, the reports of the Auditor-General become public documents as soon as they have been presented to the Speaker to be laid before Parliament.
15. The question is, should the Auditor-General exercise his discretionary power of surcharge and start to disclose his findings through the courts for public consumption before submitting his report to Parliament or after submission to Parliament.

It would appear that, the Auditor-General clearly perceives this power of disallowance and surcharge granted him under Article 187(7)(b) of the Constitution as discretionary and this therefore meant he is not bound to apply or enforce those provisions.

In conclusion, the Auditor-General reiterated the fact that his office has since July 2013 collaborated with the office of the Attorney-General through the formation of a joint committee to enquire into cases cited in the Auditor-General’s reports spanning 2006-2011.

According to the Auditor-General as per the response in OG4 which we again refer to in extenso, “the mandate of the Committee was to review all cases in the Auditor-General’s report covering this period for further action. The result of the Committee’s work after several sittings since 2013 indicate that about 85% of the cases in the Auditor-General’s Report for the period covered, only required administrative actions by the institutions concerned because they derive from non-compliance with applicable laws, policies and procedure”

Feeling dissatisfied with the above explanations, the Plaintiffs instituted the instant action against the Attorney-General who is the nominal Defendant for and on behalf of the Auditor-General.

We must commend legal counsel for the Parties for well prepared statements of case in which they argued inter alia the following:-

(1) Whether the original jurisdiction of the court was properly invoked
(2) The powers and constitutional obligations of the Auditor-General of disallowance and surcharge under article 187 (7) of the Constitution.
(3) The Auditor-General’s narrow interpretation of his obligations under the said articles referred to supra which the Plaintiff’s consider as wrong, and
(4) The closing arguments of the Plaintiffs and Defendants in their statement of case.

CLOSING ARGUMENTS OF PLAINTIFF

The Plaintiffs concluded their arguments in the statement of case as follows:-

Your Lordships, we have attempted in these submissions to answer the further issues set out joint (sic) by the parties. We will have humbly contended that the Auditor-General does not fully meet his obligations under Article 187(7)(b) when he conducts audits and prepares reports that show financial irregularities. Those constitutional obligations to disallow and surcharge are only discharged when, upon discovering financial irregularities, the Auditor-General takes (sic) follows the deliberate statutory steps to disallow them and then surcharge the persons responsible for causing them with any amounts lost to the State. We have also respectfully argued that the Auditor-General’s obligations do not even terminate when he issues a certificate of the Disallowances and Surcharges. The law has created a bifurcated enforcement responsibility, first on the public entity with respect to which the irregularity occurred to receive payment within 60 days. When the amount surcharged is not paid, the head of that public entity has to institute civil action to recover same. However, if the person surcharged files an appeal against the Disallowance and Surcharge, the Auditor-General is made the statutory respondent to that appeal. However, even this bifurcated enforcement responsibility cannot commence or arise unless and until the Auditor-General has first performed his Disallowance and Surcharge obligations.

THE DEFENDANTS CASE

The Defendants on their part contended through learned Solicitor-General, Mrs. Helen Ziwu that the Auditor-General has not failed to carry out the constitutional mandate he bears by virtue of Article 187(7)(b) of the Constitution as is contended by the Plaintiffs. The Defendants further argued that the powers of discharge and disallowance vested in the Auditor-General are set out in section 17 of the Audit Service Act, 2000 (Act 584). We therefore deem it appropriate at this stage to set out in detail the provisions of this section 17 of Act 584.

17. Disallowance and surcharge by Auditor-General
(1) The Auditor-General shall specify to the appropriate head of department or institution the amount due from a person on whom a surcharge or disallowance has been made and the reasons for the surcharge or disallowance.
(2) A sum of money specified by the Auditor-General to be due from a person shall be paid by that person to the department or institution within sixty days after it has been so specified.
(3) A person aggrieved by a disallowance or surcharge made by the Auditor-General may appeal to the High Court not later than the expiration of sixty days prescribed in subsection (2).
(4) In accordance with article 187(10), the Rules of Court Committee may, by constitutional instrument, make Rules of Court for the purposes of subsection (3) of this section.
(5) A sum of money which is lawfully due under this section is recoverable, on civil proceedings taken by the head of department in a Court as a civil debt and where the person surcharged is in receipt of remuneration from the Government or an institution, the remuneration shall be attached to the extent of the sum lawfully due.

In other words the roadmap which the Auditor-General is expected to follow whenever he exercises his powers of surcharge or disallowance pursuant to Article 187(7)(b) and section 17 of Act 584 supra are the following:-

(i) The Auditor-General shall indicate to the appropriate head of department or institution the amount due from the person on whom the surcharge or disallowance has been raised and the reasons for it.
(ii) The sum of money indicated by the Auditor-General to be due from a person shall be paid by that person to the department or institution within 60 days after it has been indicated
(iii) An aggrieved person has 60 days from the date of the indication in subsection 2 supra to appeal against the discharge or surcharge made by the Auditor-General.
(iv) The Rules of Court Committee have been mandated under Article 187(10) of the Constitution to make Rules of Court for the actualization of subsection 3 of section 17 of Act 584.
(v) Any sum of money due under this section 17 is recoverable, by civil proceedings taken by the head of department in a court as a civil debt and where the person surcharged is on Government payroll, his salary or entitlements shall be attached to the extent of the sums lawfully due.

The above road map indicates quite clearly that the powers of the Auditor-General in respect of this Surcharge and Disallowance are really extensive and are intended to ensure that any monies that are lost through any of the processes mentioned in Article 187(7)(b)(i), (ii) and (iii) are recovered to the state.

CLOSING ARGUMENTS OF DEFENDANTS

The Defendants summarised their closing arguments very briefly as follows and we wish to quote them accordingly thus:

My Lords, we respectfully submit, in conclusion that the Auditor General’s obligations end when he carries out his statutory mandate as set out in section 17(1) of Act 584 and section 84 of Act 921 and in this regard, it is respectfully contended on behalf of the Defendants that the Auditor-General has from the inception of the 1992 Constitution carried out his statutory mandate of disallowance and surcharge.

DEFENDANTS RAISE JURISDICTIONAL ISSUE

The Defendants raised a jurisdictional point against the Plaintiffs writ thus:

The Plaintiff has not made out a proper case which will require this honourable court to make any declarations within the meaning of Article 2(1)(b) of the 1992 Constitution, and it is respectfully urged on this court to dismiss this action.

MEMORANDUM OF ISSUES

At the close of pleadings, the following issues were set down in the joint memorandum of issues agreed upon by the parties:

(1) Whether or not the Auditor-General fully discharges his constitutional obligation simply by auditing and pointing out financial irregularities in the accounts of a public entity.
(2) Whether or not the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised are complied with by the public entity or official directly affected by the Auditor-General’s exercise of his power of disallowance and discharge.

After the setting down of the above issues, this court by an order dated 31st January 2017 requested the parties and/or their counsel to file legal arguments in respect of the said two issues.

We observe that the parties have complied with the said orders.

On the 7th of March 2017 this court again directed that further arguments of law be filed by the parties and or counsel in respect of the issue of whether the Plaintiffs have properly invoked this court’s jurisdiction.

We observe that, this order has been complied with only by learned Counsel for the Plaintiffs, Thaddeus Sory. We will therefore proceed to deal with these issues, and since jurisdiction is primary, we will deal with that first.

HAVE THE PLAINTIFFS PROPERLY INVOKED THE ORIGINAL JURISDICTION OF THE COURT?

It is to be noted that Articles 2(1)(a) and (b) and 130 of the Constitution deals with the original jurisdiction of the Supreme Court. Thus the Plaintiffs action in the instant case must be measured in terms of the said provisions of the Constitution.

Out of abundance of caution, these provisions provide as follows:-

2. (1) A person who alleges that
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

In their closing arguments, learned counsel for the Defendants submitted that the Plaintiffs have not made a proper case to require this court exercise it’s jurisdiction in their favour, and urged the Court to dismiss the action.

Predictably, the Plaintiffs anticipated this type of jurisdictional objection and stated as follows in their original statement of case:-

From the facts so far recounted, the Plaintiff’s case falls squarely within the first ambit of the court’s original jurisdiction as classified by the court in the Edusei Case [1998-99] SCGLR 753 at pages 771-772.

What then are the principles in Edusei (No. 2) v Attorney-General referred to supra?

In that case, it was noted by Kpegah JSC that “in determining the scope or extent of this court’s original jurisdiction,” we must read together articles 2 (1) and 130 (1) of the Constitution. And in reading the two articles together, “the courts exclusive original jurisdiction can be said to be in respect of the following situations:
(1) enforcement of all provisions of the Constitution, except those provisions contained in Chapter 5 dealing with Fundamental Human Rights, or
(2) the interpretation of any provision of the Constitution; or
(3) an issue whether an enactment is inconsistent with any provision of the Constitution.”

The Plaintiffs have also filed a response in compliance with this court’s order dated 7th March 2017, on this jurisdictional issue.

The facts of the instant case, which have been extensively stated, fall into categories (i) and (ii) supra. This is because the Plaintiff’s are indeed asking this court to interprete Article 187(7)(b) of the Constitution in a certain direction such that when enforced it will have the desired results that they wish. But the Defendants contend otherwise. Meaning there are rival contentions.

In clear terms, the Plaintiffs are indeed requesting of this court to interprete the mandate given to the Auditor-General in the discharge of his constitutional duties or obligations. Thus, if this court accedes to that request and interpretation, then it will have to follow it with enforcement which will then lead to the Auditor-General issuing a disallowance and surcharge in all the three scenarios mentioned in Articles 187(7)(b)(i), (ii) and (iii) respectively of the Constitution.

We also observe that, the Plaintiffs, anchored their reliefs basically on the constitutional provisions and where necessary provided flesh by reference to the Audit Service Act, 2000 (Act 584) and Public Financial Management Act, 2016 (Act 921). The Defendants on the other hand have relied basically on the said statutory provisions and argued that this court has no jurisdiction.

We have on our part, considered in detail, the facts of this case which admit of no controversies whatsoever.

We have also considered the law and a plethora of decided cases on the subject, such as the following:-

(1) Republic v Special Tribunal, Ex-parte Akosah [1980] GLR 592 which is the locus classicus on the subject-matter
(2) National Media Commission v Attorney-General [2000] SCGLR 1
(3) Aduamoa II v Twum [2000] SCGLR 165
(4) Tuffuor v Attorney-General [1980] GLR 637 SC
(5) Bimpong Buta v General Legal Council [2003-2004] SCGLR 1200
(6) Republic v High Court (Fast Track Division) Ex-parte CHRAJ, (Richard Anane: Interested party) [2007-2008] SCGLR 213
(7) Osei Boateng v National Media Commission [2012] 2 SCGLR 1038, just to mention a few.

We deem it necessary to refer to the observation by our respected Sister, Adinyira JSC in the case of Okudzeto Ablakwa & Another v Attorney-General & Obetsebi Lamptey [2011] 2 SCGLR 986 wherein she stated as follows:-

Article 2(1) of the 1992 Constitution imposes on the Supreme Court the duty to measure the actions of both the legislature and the executive against the provision of the Constitution. This includes the duty to ensure that no public officer conduct himself in such a manner as to be in clear breach of the provisions of the Constitution. It is by actions of this nature that gives reality to enforcing the constitution by compelling its observance and ensuring probity, accountability and good governance.”

The matter was recently put to rest by the unanimous decision of the Supreme Court in the unreported judgment of the Court in Emmanuel Noble Kor v Attorney-General and Another, Suit No. JI/16/2015 dated 10th March 2016 in which it was made explicitly clear as follows:-

It will be seen that article 2 of the Constitution is headed ‘Enforcement of the Constitution’ and the ensuing provisions are meant to attain the enforcement of the Constitution. There is therefore express authority in the Constitution itself for the view that the enforcement jurisdiction of this court is a conspicuously independent item of jurisdiction of this court. Indeed, though it will be erroneous to say that a declaratory action cannot be brought within article 2 towards the enforcement of an ambiguous provision of the Constitution, it appears that while the enforcement purpose of that article is clear on the face of its provisions, its interpretative purpose is comparatively latent.

Based on the above decisions and the principles of law decided therein, we have no doubts whatsoever in our minds that the plaintiffs have properly invoked the original jurisdiction of this court, and this court must therefore give them a hearing in line with the principles of law stated therein.

The objection on grounds of jurisdiction is thus dismissed.

This then requires us to consider the two issues set out in the memorandum of issues.

WHETHER OR NOT THE AUDITOR-GENERAL FULLY DISCHARGES HIS CONSTITUTIONAL OBLIGATION SIMPLY BY AUDITING AND POINTING OUT FINANCIAL IRREGULARITIES IN THE ACCOUNTS OF A PUBLIC ENTITY

The Constitutional and Statutory mandate of the Auditor-General in respect of the public accounts of Ghana as defined in article 187(2) of the Constitution are well stated not only in the Constitution, but also in the Audit Service Act, 2000 (Act 584) and the Public Financial Management Act, 2016 (Act 921) respectively.

For example, the constitutional obligations of the Auditor-General include the following:-

(1) to audit and report on the public accounts of Ghana and of all public offices. – Article 187(2)
(2) to within six months after the end of the financial year prepare a report of his audit and lay same before Parliament drawing attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament reference. – Article 187(5).
(3) to audit any public office upon the request of the President acting with the advice of the council of State reference. – Article 187(8).
(4) to exercise his Disallowance and Surcharge obligations in respect of irregularities he discovers in the performance of his functions under the Constitution or any other law. – Article 187(7)(b).

It is to be noted that, these constitutional obligations even though exist separately, some can only be triggered by the performance of others. For example the Auditor-General must conduct an audit into the public accounts of Ghana before he can prepare a report to Parliament. Similarly, there must also be an audit by the Auditor-General into the public accounts before there can be any Disallowance and or Surcharge.

However, it is possible for the Auditor-General to perform the audit into the public accounts of Ghana, prepare a report and lay same before Parliament without any irregularities detected. But it is not automatic that there must be a Disallowance and Surcharge arising from every such report. These are only triggered when the report discloses irregularities in the public accounts audited.

Thus, the constitutional obligation in Article 187(7) on the Auditor-General to exercise his mandate of Disallowance and Surcharge in the manner stated are only invoked against those persons responsible for incurring the liabilities which have led to the occurrence of the events listed in Articles 187(7)(b)(i), (ii) and (iii) supra of the constitution.

Furthermore, if we consider the statutory interventions in Acts 584 and 921, then it becomes very clear that the Auditor-General’s constitutional mandate in auditing the public accounts of Ghana far exceeds the task of auditing and pointing out the irregularities in the accounts of a public entity.

When one considers in detail, the effect of section 20(2) of Act 584 referred to, elsewhere in this rendition, then it becomes crystal clear that the Auditor-General, quite apart from conducting an audit into the public accounts of Ghana and preparing a report for Parliament and drawing attention to irregularities, and the matters stated therein, must definitely trigger his powers of Disallowance and Surcharge obligations, whenever these irregularities exist.

We are therefore of the considered view that the statement by the learned Counsel for the Defendants that, section 17 of Act 584 only mandates the Auditor-General to issue management letters as indicated in exhibits AG1 to AG4 is untenable.

This is because, a careful reading of section 17 of Act 584 referred to supra, gives very clear indications that the provisions therein stated are to be procedural steps that the Auditor-General is mandated to pursue in his quest to fulfill the Discharge and Surcharge obligations imposed upon him under the Constitution.

What is worthy of note is that, the 4th Republican Constitution has been anchored on the principles of Freedom, Justice, Probity and Accountability and the recognition that the powers of government spring from the sovereign will of the people based on the concept of universal adult suffrage and rooted on the principle of Rule of Law, the protection and preservation of fundamental human rights among others as stated in the preamble to the Constitution.

When we juxtapose these principles against the powers of the Auditor-General in Article 187(7)(b) and Acts 584 and 921 respectively, it becomes very clear that adequate measures have been put in place to afford any person against whom the Attorney-General has exercised his powers of surcharge and disallowance to avail himself of the due processes in the High Court to vindicate himself, whilst at the same time ensuring that the public accounts of the state are duly protected.

That fundamental right in section 17(3)p of Act 584 which enables an aggrieved person against whom a Disallowance and Surcharge had been made by the Auditor-General to within 60 days appeal to the High Court is in itself a recognition of the fact that, failure by an aggrieved person to take those steps can lead to the disallowance and surcharge being enforced without more. This enforcement can lead to the attainment of the principles of probity and accountability enshrined in the Constitution.

We are further emboldened by the views we have expressed in this judgment when we refer to the views of the then Auditor-General in Exhibit OG2, attached to these proceedings which are the proposals of the Auditor-General for amendment of the Constitutional provisions of the office of the Auditor-General.

For example on page 16 of the proposals, under the heading Issues and Comments are the following:-

The provisions of Article 187(7)(a) & (b) should be maintained and enforced.

The independence of the Auditor-General from the direction or control of any person or authority is a key requirement under INTOSAI’s Auditing standards. The office of the Auditor-General has received adverse comments from Development Partners who have invested in the national budget and also from Parliament for not actively introducing measures to implement the provisions on surcharge and disallowance.

From the above, it is clear that the Auditor-General has recognized the need to maintain and enforce the provisions in Article 187(7)(a) & (b) supra and also implement and enforce the provisions on surcharge and disallowance.

There is also a tacit recognition by the Auditor-General that the provisions on disallowance and surcharge must be maintained. The problem if any is the erroneous impression in the mind of the then Auditor-General that the said powers are discretionary in nature and that perhaps that he needed more legislation to carry out this disallowance and surcharge mandate. If this be it, then it is untenable.

The memorandum to the Interpretation Act, 2009 (Act 792) states in part as follows:-

In essence the Constitution must be construed or interpreted in a manner
(a) that promotes the rule of law and the values of good governance,
(b) that advances human rights and fundamental freedoms
that permits the creative development of the provisions of the Constitution and the Laws of Ghana, and
(c) that avoids technicalities which defeat the purpose of the Constitution and of the ordinary law of the land.

The Chambers, 21st Century Dictionary, Revised Edition, defines “disallow” on page 379 as follows:-

verb – to formally refuse to allow or accept something (2) to judge something to be invalid – disallowance – noun.

The same dictionary on page 142 defines “surcharge” as follows:-

an extra charge, often as a penalty for late payment of a bill.

When we consider the meanings ascribed to these words in the context in which they have been used in article 187(7)(b) of the Constitution then there seems to be no doubt whatsoever that, what the words actually mean is that, the Auditor-General will formally refuse to accept or allow any item of expenditure that is contrary to law etc.

Having refused to accept or allow the expenditure as being contrary to law, the Auditor-General now proceeds to impose an extra charge as penalty for the retrieval of the amount or expenditure that he has refused to allow or accept, because it was contrary to law.

Furthermore, Article 34(1) which deals with the Directive Principles of State Policy provide thus:-

The Directive Principles of State Policy contained in this chapter, shall guide all citizens, Parliament, the President, the Judiciary the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking or implementing any policy decisions, for the establishment of a just and free society.

The above provisions are a clear injunction on the Judiciary to bear the above in mind when interpreting the Constitution. There is thus no room for us as a Judiciary to be pedantic in dealing with issues of constitutional interpretation. This is especially so when in Article 37(1) of the Constitution, (which also includes the provisions on the Directive Principles of State Policy). It is directed that, “the state shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in chapter 5 of this Constitution.”

All constitutional interpretations must therefore bear the above provisions in mind. This is especially so when we consider provisions requiring compliance with upholding of the tenets of probity and accountability vis-à-vis the work of the Auditor-General in protecting the public purse for the public good.

On the basis of the above, the nature of the Constitution as the basic law of the land and therefore requiring pride of place has been recognized in Article 11(1) of the Constitution.

At this stage, it is useful to refer and remind ourselves of the fact that the Constitution itself in Article 11(1)(a) has given pride of place to the Constitution as the Grundnorm, that is to say it is at the apex, of the laws of Ghana. This therefore means that the constitutional provisions in Article 187(7)(b) take precedence over any other laws, and must therefore be regarded in that position.

In our opinion therefore, the mandate of the Auditor-General in exercising his constitutional obligations in Article 187(7) of the Constitution does not end simply by the performance of same and issuing a report on the irregularities in the accounts of a public entity, but goes beyond it to include the powers of Disallowance and Surcharge which we will consider next.

WHETHER OR NOT THE AUDITOR-GENERAL HAS AN OBLIGATION TO ENSURE THAT HIS POWERS OF DISALLOWANCE AND SURCHARGE DULY EXERCISED ARE COMPLIED WITH BY PUBLIC ENTITY OR OFFICIALS DIRECTLY AFFECTED BY THE AUDITOR-GENERAL’S EXERCISE OF HIS POWER OF DISALLOWANCE AND DISCHARGE

We have been persuaded by the submissions of both learned counsel for the parties herein that, apart from the constitutional provisions in Article 187(7)(b) supra, which is applicable to the circumstances of this case, the other relevant statutes are sections 17(1) of Act 584 supra and sections 85(1) and 88(1) respectively of the Public Financial Management Act, 2016 (Act 921) which provides as follows:-

85. (1) A Principal Spending Officer shall, on an annual basis, submit the following to the Minister and Auditor-General:
(a) a report on the status of implementation of recommendations made by the Auditor-General in respect of that covered entity; and
(b) a report on the status of implementation of recommendations made by Parliament in respect of that covered entity.
(2) The Attorney-General shall, on an annual basis, submit a report on the status of any action commenced on behalf of the Government to the Minister, Auditor-General and Parliament following findings of the Auditor-General and recommendations of the Public Accounts Committee of Parliament.

88. (1) An Audit Committee shall ensure that the head of a covered entity, to which the Audit Committee relates,
(a) pursues the implementation of any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s decision on the Auditor-General’s report;
(iii) Auditor-General’s Management Letter; and
(iv) the report of an internal monitoring unit in the covered entity concerned particularly, in relation to financial matters raised; and
(b) prepares an annual statement showing the status of implementation of any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s decision on the Auditor-General’s report;
(iii) Auditor-General’s Management letter;
(iv) the report on financial matters raised in an internal monitoring unit of a covered entity; and
(v) any other related directive of Parliament.
(2) An annual statement required under subsection (1) (b) shall
(a) indicate the remedial action taken or proposed to be taken to avoid or minimise the recurrence of an undesirable feature in the accounts and operations of a covered entity;
(b) indicate the period for the completion of the remedial action; and
(c) be endorsed by the relevant sector Minister and forwarded to the Minister, Parliament, Office of the President and the Auditor-General within six months after the end of each financial year.

A perusal of the Constitutional provisions in Article 187(7)(b) and statutory provisions referred to supra, makes it quite clear that the bifurcated or two-pronged enforcement regime argument put up by the Plaintiffs in their statement of case is not only borne out by the relevant provisions referred to supra, but also prudent, designed to the encouragement of probity and accountability in the management of public accounts.

In the first procedure, the public entity against whom the irregularity has been made is required to take steps to collect or retrieve the amount from the person who incurred the liability and has been surcharged.

The second stage is where the person surcharged does not pay the amount and the provisions in section 17 of Act 584 supra are triggered.

As already stated supra, section 17(1) of Act 584 stipulates that it is to the head of the public entity that the Auditor-General shall specify the requirement to collect any amount due from the person on whom a surcharge or disallowance has been made and the reasons therein contained.

As stated supra, the roadmap that is envisaged by the section 17(1) provision of Act 584 has been indicated. This roadmap has recently been given a further boost by the enactment of the High Court (Civil Procedure) (Amendment) No. 2 Rules, 2016 (C. I. 102) which are Rules of procedure enacted by the Rules of Court Committee to further amend the High Court (Civil Procedure) Rules, 2004 (C. I. 47) by the insertion after Order 54 of the following new Order on “Disallowance and Surcharge Appeals).” The enactment of C. I. 102 makes it quite certain that the powers of the Auditor-General under Article 187(7) of the Constitution are to retrieve from persons who have caused loss of public funds in their management of same which is contrary to law. The law speaks for itself and there can be no turning back on this.

However, where the person surcharged files an appeal, Order 54A rule 2(7) and (8) of C. I. 47 constitutes the Auditor-General into the respondent to the appeal, as follows:-

For the purposes of the appeal, the Auditor-General is the respondent.

This makes it quite apparent that, following the Auditor-General’s exercise of the Disallowance and Surcharge, the bifurcated approach is triggered. It should also be noted that, there can be no such bifurcated approach to retrieve the sums of money so specified unless and until there has been a disallowance and surcharge.

Furthermore, section 88(1) and (2) of Act 921 puts the matter beyond doubt by stipulating the various steps that the head of the entity covered is expected to take in order to ensure the implementation of the Auditor-General’s recommendations as contained in his management reports and final report on financial matters.

Section 85(1)(a) and (b) on the other hand directs the Principal spending officer to submit on an annual basis, the following:-

(1) A report on the status of the implementation of the Auditor-General’s report.
(2) A report on the status of the implementation of the report of the Auditor-General made by Parliament in respect of the entity covered.

In our considered opinion, in interpreting the constitutional provisions referred to in Article 187(7)(b)(i), (ii) and (iii) supra, we also have a duty to look at all the subordinate legislations which have been enacted to practicalise the harmonious effect of the constitutional provisions. These include the following:-

(1) Audit Service Act, 2000 (Act 584)
(2) Audit Service Regulations, 2011 (C.I. 70)
(3) Public Financial Management Act, 2016 (Act 921)
(4) High Court (Civil Procedure) (Amendment) No. 2 Rules, 2016 (C.I. 102)

Perusal of the relevant sections of Act 584 and 921 supra, and the overriding philosophical underpinnings of the 4th Republican Constitution in its preamble, make it quite clear that the said constitutional provision on the powers of Disallowance and Surcharge of the Attorney-General must be enforced.

We reckon the fact that, the stipulations in articles 187(2), (3), (4), (5) and (6) of the Constitution has the operative word “shall”, and this is mandatory.

However, when it comes to the vexed issue of the Disallowance and Surcharge, provisions as used in Article 187(7)(b) the operative word is “may”.

Taking a cue from the importance of the work that is attached to the office of the Auditor-General and the fact that it is the custodian and protector of the public purse, any derogation of the functions therein specified will defeat the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General.

It is to be noted that, the general rules for construction or interpretation that we have become so familiar with were formulated by Judges and crystalised into rules and principles of interpretation.

See for example the mischief rule which was enunciated in Heydon’s case [1584] 3 Co. Rep 7a76 E.R. 637, the Literal Rule which was propounded in the Sussex Peerage case [1844] 11 Co. & E 85, 8 E.R. 1034, the Golden Rule enunciated in the Grey v Pearson [1857] 6. H.L.C 61, 10 E.R. 1216.

The courts in the commonwealth then moved to the now in vogue Purposive Approach. Judges in Ghana and elsewhere in the Commonwealth, have where it is considered appropriate abandoned the strict constructionist view of interpretation in favour of the purposive approach to interpretation which per Atuguba JSC in his opinion in Re Presidential Election Petition, Akufo-Addo & 2 others (No. 4) v Mahama & 2 Others (No. 4) 2013 SCGLR (Special Edition) 73 at page 111 where he stated that

the purposive approach has been enthroned in the Supreme Court as the dominant rule for the construction of the Constitution.

See also the Supreme Court case of Agyei Twum v Attorney-General & Akwetey [2005-2006] SCGLR 732 at 757 where the court adopted the purposive approach to interpretation of the Constitution.

See also Ransford France No. 3 v Electoral Commission & Attorney-General [2012] 1 SCGLR 705 at 718 where the court rejected a literal interpretation that was urged upon it in favour of a purposive approach claiming that a literal interpretation would lead to grave injustice.

It is in this respect that we feel the entire provisions of Articles 187 to 189 on the Auditor-General and the Audit Service must be read as a whole. If that is done, then the intended effect of the work of the Auditor-General which is to ensure that public funds or accounts are handled by safe hands, and that whenever losses of any kind contemplated in Article 187(7)(b) occur, those responsible are identified and duly punished. This must be measured against the background of the fact that the practicalisation of the work of the Auditor-General will ensure that there is probity and accountability in the management of state funds. This will no doubt prevent the wanton dissipation of state resources that are meant for specific projects and activities under the Government’s fiscal policies.

This therefore means that there should be no loss to the state or public in the management of state resources.

At this moment, we think judicial notice can be taken of the fact that corruption, abuse of position and embezzlement of public funds among others has become the bane of our governance structures. Reference is made to the various Auditor-General’s Reports attached to these proceedings. It is our opinion that, notice must be taken of the rampant carelessness that is often times employed by those in charge of public funds in most entities.

We believe that the time has come when it is necessary to strengthen the relevant constitutional bodies set up under the Constitution such as the Auditor-General to protect the public purse from persons who intend to embark upon personal economic recovery programmes with the public funds.

We are also of the view that, the Auditor-General is expected to name the persons who commit irregularities etc, under Article 187(7)(b) and section 17 of Act 584 respectively, recover the amounts from them and thereafter those persons be made to face appropriate punishment. That should be the way forward.

We therefore have a duty to ensure that the reports of the Auditor-General into the public accounts of Ghana wherein findings are made in respect of persons who act in authorizing expenditure contrary to law, or have withheld sums of money from the public account or by whose negligence or misconduct losses or deficiencies to public funds has resulted, must be treated in accordance with the Constitution and laws of Ghana, and have an immediate impact.

“To be or not to be, that is the question,” reference Shakespeare in Hamlet, Prince of Denmark.

Should this court hold and rule that, because the word “may” has been used in Article 187(7)(b) of the Constitution 1992, the Auditor-General’s powers of surcharge and disallowance are not mandatory and can be exercised at the whims and caprices of the Auditor-General? Are these constitutional obligations discretionary then?

We have been privileged to have been given access to the training materials used by the Auditor-General on March 23rd 2006 in a presentation by the then Auditor-General Mr. Edward Dua Agyemang, at a seminar on public accounts management, among others, on the topic “Public Expenditure Monitoring and Tracking – The Role of the Auditor-General” attached to these proceedings as Exhibit OG1.

We find these materials quite appropriate, and revealing. Since they also conflict with the stance of the Defendants in these proceedings, we deem it appropriate to refer to some of them as per Exhibit OG1.

Powers of surcharge and approval of systems

In the course of monitoring public expenditure, the Auditor-General has been given a unique power of surcharge by the Constitution and the Audit Service Act. Article 187(7)(b) of the Constitution requires that the Auditor-General may disallow any item of expenditure, which is contrary to law and surcharge.

Any person against whom a surcharge has been raised by the Auditor-General has the power of appeal against the surcharge in the High Court.

So far this power has not been invoked against public officials because they are given the opportunity to rectify financial lapses resulting in delayed accountability.

However, because of the escalation in cash irregularities by 99.5% in 2004 involving presented payments vouchers and unacquitted payments, the Auditor-General will invoke his powers of surcharge against responsible officers for such serious compliance violations in 2006. This robust sanction will hasten and deepen accountability in the country.

The combined effect of the above is that, as at March 2006, the office of the Auditor-General recognized the fact that the way to protect the public funds of Ghana, and prevent looting of the public purse, avoid corruption and dictatorship is to practicalise the constitutional provisions on the powers of surcharge and disallowance, granted the Auditor-General under the Constitution 1992.

However, this resolve to exercise this power from 2006 has not only been breached, but there has been stoic silence from the office of the Auditor-General to date.

We do not substitute the views of the Auditor-General in those presentations for our constitutional mandate in interpreting and enforcing the constitutional provisions in Article 187(7)(b) as we are required to do. We have only done the references in order to let it be known that, this was the thinking of the Auditor-General in 2006 on these vexed issues.

We also wish to refer to the locus classicus case of Tuffour v Attorney-General [1980] GLR 637. Even though the facts of this case are well known, suffice it to be stated briefly as follows:-

The Plaintiff therein, filed a writ against the Speaker and Attorney General under Section 3 of the first Schedule to the Constitution 1979 for a declaration as follows:-

(1) On the coming into force of the Constitution the Hon. Mr. Justice Apaloo was deemed to have been appointed as Chief Justice and also as President and member of the Supreme Court.
(2) The application of the procedure in article 127(1) to him and his purported vetting and rejection by Parliament were in contravention of the Constitution.
(3) That Justice Apaloo remained Chief Justice and President of the Supreme Court.

Sowah JSC (as he then was) in delivering the judgment of the court, made some pronounced and notable statements regarding the nature of a written constitution such as this 4th Republican Constitution and how it also mirrors the history of the people of Ghana. Out of abundance of caution, we wish to refer to the relevant portions of that judgment.

This has been done with a view to illustrating how Constitutional provisions can be interpreted to achieve the special architecture designed to ensure a proper equilibrium in the governance structure aimed at probity, accountability and transparency. Without these values, all is vanity in our quest for a control mechanism of our public funds or accounts. He states:-

A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.

The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect. Perhaps it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version):

‘For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing ? If the whole were hearing, where were the smelling…? But now are they many members, yet but one body.’

And so a construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say “inconsistent” results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole.

When we put all the learning in the above quotation together, the “may” in Article 187(7)(b) of the Constitution 1992, becomes a mandatory may, and no longer permissive. This is to afford us the opportunity to enforce the provisions of Article 187(7)(b) which will deepen probity and accountability.

It is to be noted that the times we are in as a nation require that we deepen and institutionalize principles which will uphold proper and decent management and protection of public accounts. The tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop. Our laws on financial management must therefore be made to work to prevent absurdity in our enforcement regimes of same.

We reckon that, it is in the pursuance of these noble objectives that the Rules of Court Committee has enacted C. I. 70 and also C.I. 102 both referred to supra.

The rationale for the above is to give teeth to the constitutional and statutory mandate of the Auditor-General’s powers on Disallowance and Surcharge to bite.

In their respective submissions, learned counsel have variously referred to and relied on Audit observations and management letters.

In essence, whilst the Defendants concede that the Auditor-General has this constitutional power or mandate of surcharge and disallowance, they argue that, the duty of the Auditor-General ends with the submission of his report. They contend further that, action on the Auditor-General’s reports are to be implemented by other statutory bodies. These are the Audit Committee’s established under the Public Financial Management Act, 2016 (Act 921), section 85 (1) of which deals with the report and recommendations of the Auditor-General by the principal spending officer of that entity in relation to his dealings with the Auditor-General and Parliament respectively.

On the other hand, sections 86 to 88 of Act 921 deals with the Establishment of Audit Committees by various entities, the composition of the membership of such committee’s and the functions of the said Audit Committees respectively.

Section 88(1) of Act 921 has already been referred to supra. The crux of the provisions therein contained indicate that, in all cases;
(1) The Audit Committees are to pursue the implementation of any recommendation contained inter alia, in the Auditor-Generals report, as decided upon by Parliament, and the Auditor-General’s management letter and
(2) To prepare an annual statement showing the status of implementation of any recommendation contained in the Auditor-General’s report on
(a) Parliament’s decision on the Auditor-General’s report and
(b) Auditor-General’s management letter, among others.

What is to be noted is that, all the above requirements and procedures are statutory, based on Acts 584 and 921 respectively as well as the Audit Service Regulations, 2011 respectively. However, the Auditor-General’s powers of surcharge and disallowance are constitutional and therefore have to be on a higher pedestal and given pride of place.

When we consider the combined effect of Regulations 34, 35, and 57 respectively of the Audit Service Regulations, 2011 (C I. 70), which deals with Audit observations and reporting, consequences of not responding to an audit observation and issue of management letters after completion of an audit assignment respectively, it becomes very clear that these roles and functions are different in scope and magnitude from the Auditor-General’s report envisaged and stipulated in Articles 187(2) and (5) respectively of the constitution.

Whilst management letters are issued by Branch and sectoral heads within two weeks of an audit assignment, containing their findings, recommendations and conclusions of their assignment to the management of the entity and copied to the officials and the organisations, that of the Auditor-General is wider in scope as it is submitted to Parliament and has far reaching effects and consequences as is stipulated in Articles 187(7)(b) of the Constitution.

Audit observations per Regulation 34(1) of C.I. 70 on the other hand are formal audit observations issued at an audit location in the course of the audit. In this respect, the audit team is enjoined under Regulation 34(2)(a) & (b) of C.I. 70 to take steps to discuss with the audited organization the findings and recommendations arising from the audit and also obtain written responses from the audited organization. Thus these activities occur at a lower level and earlier stage of the process which culminated in the Auditor-General’s report submitted to Parliament.

It is thus therefore quite clear that Audit observations, and Management letters are different in context, scope and magnitude from the Auditor-Generals’ report as stipulated in Article 187 referred to supra.

From the above discussions, it is quite apparent that the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised by him under Article 187(7)(b) of the Constitution are complied with by the public entity or officials directly affected by the exercise of his powers of surcharge and disallowance.

CONCLUSION

In the premises, it is our considered view that using the principles of interpretation so eloquently and powerfully explained in the decision in the case of Tuffour v Attorney-General, supra and the purposive approach to interpretation generally, this court will interprete Article 187(7)(b) as having a mandatory effect in so far as the Auditor-General’s report is final.

In the premises, the Plaintiffs succeed in their claims against the Defendants in respect of reliefs 1, 2, and 3 as follows:-

(1) That upon a true and proper interpretation of Article 187(7)(b)(i) of the Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law.
(2) That upon a true and proper interpretation of Article 187(7)(b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into the Government’s account.
(3) That upon a true and proper interpretation of Article 187(7)(b)(iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person.

Reliefs 4 and 5 are granted in their entirety against the Defendants.

CONSEQUENTIAL ORDERS

As a sequel to our judgment just delivered, we further direct that, henceforth, the Auditor-General shall take steps to recover the amount unlawfully expended from the person or persons who incurred and or authorised the disallowed expenditure.

Secondly, the Auditor-General shall also take steps to recover the amount from the person or persons by whom the amount ought to have been brought into account.

Thirdly, the Auditor-General shall also take steps to recover the value of the loss or deficiency from the person or persons by whose negligence or misconduct the losses or deficiencies were incurred, (whether or not the person is a public servant).

Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General supra to ensure compliance including in some cases criminal prosecutions.

We have had to issue out the above consequential orders even though we are happily aware that the current Auditor-General Mr. Daniel Yao Domelevo has taken steps to train his staff under C. I. 102 to prepare them adequately for the hearings in respect of the surcharge and disallowance appeals anticipated under article 187 (7) of the Constitution.

EPILOGUE

Quoting again from the presentation by the then Auditor-General, Mr. Edward Dua Agyemang, attached to these proceedings by the Plaintiffs as exhibit OG1, which we have already referred to supra, the Auditor-General concluded that presentation as follows:-

Let me conclude by saying that whenever people get a choice between privacy and accountability, they tend to choose privacy for themselves and accountability for everyone else. But accountability and good governance are inextricably interrelated with each other. Take away accountability from good governance and you will be left with dictatorship and corruption.

For accountability to thrive there is the need to have effective monitoring and tracking of public expenditure by the Auditor-General. The success in this endeavor depends on strong political will to adequately resource the Auditor-General to be able to hire and maintain properly trained staff and professionals; acquire the needed equipment and other resources.

The growing interest of the public in the work of the Auditor-General has demonstrated the important contribution the Auditor-General makes in helping our nation spend wisely through expenditure surveillance. The Auditor-General provides assurances to the people of Ghana through Parliament that public money is spent properly and that there is accountability.

From the above, what is apparent is that, there is an urgent need to adequately resource not only the office of the Auditor-General, but also that of the other constitutional bodies like the Judiciary, CHRAJ and Attorney-General, just to mention a few, who are the front runners in our fight against corruption. This will ensure that the impact of these constitutional bodies in our quest to ensure probity and accountability thereby enhancing proper management and control of public funds is put on a higher pedestal.

We believe that as a nation, we have reached a critical stage in our governance systems where we must not shy away from spending wisely in order to superintend the public purse. This is the only sure way to ensure that the good governance principles enshrined in the Constitution such as Article 187(7)(b) are not lost.

There is an old adage which states as follows “penny wise, pound foolish”. We therefore must adequately fund these constitutional bodies including the Auditor-General to ensure maximum protection of the public funds.

Save as is stated supra, the Plaintiffs succeed substantially on their claims against the Defendants.

V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)

S. A. B. AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)

S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)

ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)

P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)

N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)

A. A. BENIN
(JUSTICE OF THE SUPREME COURT)

By Ace Anan Ankomah & Susan-Barbara Adjorkor Kumapley

INTRODUCTION
Parliament intends to pass the Interception of Postal Packets & Telecommunications Bill (“Bill”) into law. The conception of this Bill is just another evidence of the fact that several democracies are struggling to maintain a delicate balance between the prevention of crime on the one hand, and the protection of the privacy of correspondence and communications on the other. Although every government would desire to have unfettered access to private communications, the concept of Rule of Law demands that they pit that desire against the fundamental right of the individual to privacy.

We agree that it is important to have a law that regulates the interception of private correspondence or communication, which balances the right to privacy against the need for interception of communications. This Bill is significant to the extent that for the first time, at least, there is an attempt to consolidate Ghana’s laws on interception. As at now, one has to look at about six statutes to ascertain the nature and scope of the power to intercept. To that extent, and that extent alone, the Bill is welcome.

CONSTITUTIONAL GUARANTEES OF PRIVACY
Our Constitution demands this balance between respecting the right to privacy and lawful interception. In the preamble, “We The People” solemnly declare and affirm our commitment to the “Rule of Law,” which simply means that we agree to restrict the arbitrary exercise of power by subordinating it to well-defined and established laws. Article 18(2) specifically prohibits interference with the privacy of “correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic wellbeing 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” [Emphases ours.] Thus the right to privacy, like most other human rights, is not absolute but is subject to constitutionally circumscribed limits, and only those.

Our Article 18(2) is not novel. It is a near-verbatim reproduction of Article 8(2) of the European Convention on Human Rights, which provides that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” [Emphases ours.]

In the 1984 case of Malone v. The United Kingdom, the European Court on Human Rights applied Article 8(2) of the European Convention in examining the lawfulness of the tapping of Mr. Malone’s telephone calls. It found that although the tapping had been ordered following a warrant issued by the Home Secretary on suspicion that Mr. Malone was involved in some criminal activity, and such warrant had been issued in accordance with UK law, the law in question did not contain adequate safeguards. The Court held that the phrase “in accordance with law” looked not only to having law but the quality of the law: it must be compatible with the rule of law, and must contain protection against arbitrary interferences. The Court held that it was contrary to the rule of law if the discretion granted was expressed in terms of an unfettered power. Consequently the law must indicate, with sufficient clarity, the scope and manner of exercise of the discretion, “having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.” Interference, the court held, could only be regarded as “necessary in a democratic society” if the particular system of secret surveillance adopted contained adequate guarantees against abuse.

Soon after this decision, the UK passed the 1985 Interception of Communications Act, and in 2000, passed the Regulation of Investigatory Powers Act in response to rapid changes in telecommunications. In 2009, the UK also passed into law, a 2006 EC Directive whereby communications service providers were required to retain communications data for a year; but the European Court of Justice declared the 2006 Directive invalid in April 2014. In response to the resulting uncertainty, the UK introduced the 2014 Data Retention and Investigatory Powers Act. A 2012 draft Communications Data Bill did not survive pre-legislative scrutiny and criticism. Derisorily called the “Snooper’s Charter,” it was opposed by the Liberal Democrats and was not taken forward in the 2012-13 session.

What is apparent is that even European democracies are still struggling to attain a balance between interception and the right to privacy. Also, we know that governments push to have fewer restrictions to interception, but the courts have stepped in to protect and uphold the right to privacy. The reasoning of the Court in Malone v. The United Kingdom remains pristine and unassailable. And for Ghana, one thing stands clear: any law that gives to any public authority even a shred of unfettered discretion to intercept for any period, should not stand the Article 18(2) test.

EXISTING LAW
Currently, in Ghana, interception is prohibited and criminal unless permitted expressly by law. However, interception is permitted under various provisions of the Security and Intelligence Agencies Act, EOCO Act, Narcotics Control Act, Electronic Communications Act (ECA), the Mutual Legal Assistance Act, and to some extent, the Electronic Transactions Act. All of these Acts are unanimous: there should be no interception without a court order/warrant. Additionally, and under the ECA, the President may authorise or demand interceptions but only through the deliberate process of issuing an Executive Instrument (EI). And, the phone companies may intercept, but for strictly specified industry purposes, which do not include disclosure to third persons. All of these circumstances, in our view, are apt, and fit into the constitutional exceptions to the right to privacy by providing necessary safeguards against abuse, namely, (i) securing a court order/warrant, (ii) passing an EI or (iii) complying with strict legislative controls.

It might be recalled that when the government proposed to install some mechanism to ostensibly monitor incoming international phone traffic and generate revenue, the government was compelled by a public outcry to pass an amendment to the ECA that ensured that the equipment installed “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.” That was right and in sync with Article 18(2).

THE NEW BILL
Thus the Bill is significant in four main ways:

1. It changes the current position where a court order/warrant is required before interception, so that in cases of “urgency” the National Security Coordinator may orally authorize interception and has 48 hours to go to court (See clause 4(3) and (4));

2. It repeals the power of the President to order interception through EI’s;

3. There appears to be an indirect amendment of the other laws that have interception provisions so that now, a public officer who wants an interception warrant even from a Justice of the High Court has to first apply to the National Security Coordinator for an authorisation to obtain the warrant, and may get that for 48 hours before applying to the court (See clause 5(1)); and

4. Telecommunication network operators will now have an obligation to ensure that their networks have interception capability (see clauses 14 and 15), and are required to bear the cost of that capability (see clause 17).

The relevant questions then are as follows: what is broken with the existing legal situation that needs to be fixed by the new Bill? Is there a problem with seeking a court order/warrant before interfering with our right to privacy? Why is the requirement that the President needs an EI to authorise interceptions being removed? These questions, to us, have not been answered and cannot be answered. Simply put, it appears that the main aim of this Bill is to overreach the requirements for a court order/warrant or an EI, as the case may be, by giving the National Security Coordinator the power to authorise interception for 48 hours without any of these fetters.

What this means is that the National Security Coordinator, a person appointed by the President and who reports to the President, can intercept your correspondence/communication, listen to your phone calls, and read your letters and text messages, for 48 hours without any independent checks and balances, or guarantees against abuse; and he can simply avoid going to court by terminating the interception before the 48 hours is over. Then he can, arguably, resume the interception for another 48-hour cycle. There is no one to check to see what he is going to use that for because the Bill removes the legislative check captured in the EI requirement, and defers (potentially indefinitely) the judicial check in seeking a court order/warrant.

COMMENTS & RECOMMENDATIONS
It is our considered view that this effectively unchecked and definitely arbitrary use of executive power, whether or not backed by law, is dangerous and should not be countenanced. No public official should have or be trusted with unfettered access to private communication, even for a minute.

Parliament should look at the existing acts, particularly the EOCO, Mutual Legal Assistance, and Security and Intelligence Agencies Acts, and the conditions for interception that Parliament itself has enacted in those laws, and what the interceptor has to show to the court to obtain the order/warrant. Further, these laws properly provide for an arbiter (especially because the person to be monitored will not – and should not – know what is happening), the judge, who will vet the grounds to see that they have sufficient bases, and if satisfied, grant the order/warrant on whichever terms that the judge would deem proper, including time limits. This should be retained.

The law as it exists, in our view, is adequate and has the key quality (the role or intervention of the judge), which makes it compatible with the rule of law and an allowable qualification to the right to privacy. There is nothing wrong with maintaining this quality and we are yet to hear any arguments that state that our judges are not competent to vet any attempt to intercept, before it happens. Relegating the role of the judge to a lower status that could be easily circumvented by simply never showing up in court is wrong and clearly unconstitutional.

CONCLUSIONS
It is hoped that the sponsors of this Bill will bear these matters in mind and take steps to amend it so as to reinstate the primary, critical and ab initio role of the courts. If they do not, we hope that our parliamentarians will be brave enough to amend it or vote it down. If Parliament fails and passes it in its current state, then we have to hope for a constitutional challenge before the Supreme Court. Hopefully, the apex court will not fail the people of Ghana.

Some have asked, “Why bother, when you have nothing to hide?” Our response is to quote the famous saying attributed to Benjamin Franklin, one of America’s founding fathers and whose head adorns the $100 bill: “Justice will not be served until those who are unaffected [by injustice] are as outraged as those who are.”

The U.K. does not have a written constitution. The right to information is therefore guaranteed by and in statutes passed by Parliament such as the Freedom of Information Act, 2000.

In the US, its Supreme Court has held in Houchins v. KQED, 438 U.S. 1 (1978) that neither the First nor the Fourteenth amendments “mandates a right of access to government information or sources of information within the government’s control,” nor do they grant the media a right of access that is greater than the public’s right of access, and that although there were Supreme Court cases that upheld First Amendment rights to communicate information, those cases did not construe the First Amendment as providing a right to obtain information from the government.

And as recently as 2013, the Supreme Court stated in McBurney v. Young, 133 S.Ct.1709, 1718 (2013) that it “has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOI[Act] laws.”

But Ghana beats a different path and sings a different (more melodious) tune. Article 21(1)(f) of the Constitution provides specifically as follows: “All persons shall have the right to… information, subject to such qualifications and laws as are necessary in a democratic society.”

In the recent case of In Re Presidential Election Petition; Akufo-Addo & 2 Others v. Mahama & 2 Others (No. 3) [2013] SCGLR (Special Edition) 61, the Supreme Court, speaking by Sophia Adinyira JSC stated emphatically that all persons have a right to information, from which is inferred a right to be given access to public documents. Her Ladyship stated specifically as follows: “This Court affirms the right of all persons to information, as expressed in Article 21(1)(f) of the Constitution, 1992. This right to information implies a right to access public documents.”

In the more recent case of Justice Paul Uuter Dery v. Tiger Eye PI & 2 Ors. [4/2/2016] Writ No. J1/29/2016, the court was called upon to comment on the right of the people to information, vis-à-vis the constitutional right of a judge to the confidentiality of proceedings to remove him from office under Article 146(8) of the Constitution. The Supreme Court, speaking by Bennin JSC, held that although the confidentiality provisions operated as a “constitutional injunction” on the right of the public to information, it only applied from when a removal petition is submitted to the President to when the work of the investigation committee was concluded. Thereafter, the right of the people to information must be upheld and respected. His Lordship explained as follows: “Once the Committee’s work is concluded and it has submitted its report, the constitutional injunction no longer applies… The public is not completely denied the right to know, but not before a prima facie case has been made by the Chief Justice or the committee has completed its work and submitted its report, whichever of these terminates the proceedings. The rights of the people were merely postponed for a time…”

In the earlier case of New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354, Francois JSC described an attempt by a public body (in that case, a media agency, but the principle applies to all public bodies) to withhold information from the public as “reprehensible” and a “wilful violation of the Constitution.” He said: “It would seem therefore that where a media created as a public agency, to secure for the citizens of this country information, rather withholds it, contrary to the abjuration in Articles 163 and 21(1)(f) of the Constitution, 1992, it is wilfully violating the Constitution.”

It is therefore clear that all the ink, time and money that has been spent by government and NGOs on the so-called Right to Information Bill has been a waste of time, energy and resources and probably a subtle effort by the governors to deny the governed a constitutionally guaranteed right to information under the guise of passing a Bill to that effect. Surely, if the governor had good intentions to pass this Bill (superfluous as it may be), it would not take nearly a quarter of a century, since the Constitution was passed, to enact the Act.

This is my view:

Absent any strict constitutionally or legally permitted limitation, qualification or derogation, the right of the citizen to public information is absolute and must be respected.