Archive for the ‘Politics’ Category


Saturday, July 8th, 2017

(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;
(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.


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.


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 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.


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.


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.


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.


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.


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.


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.


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.


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.


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.








A Stroll in the Park on Republic Day! – REJOINDER

Saturday, July 5th, 2014

[Edited version published in the July 7 2014 edition of the Daily Graphic newspaper at page 42]

The Editor

Daily Graphic newspaper


Dear Sir:

I read with some amusement, the Opinion of my friend and senior Mfantsipim old boy, Colin Essamuah in his Abura Epistle column, and titled ‘A Stroll in the Park on Republic Day!’ I could not help but notice that although the Opinion was published in the July 4 2014 edition of the Daily Graphic, the page on which the Opinion is published bore the date “June 4”! The printer’s devil has a cruel sense of humour!

I participated in, and was very vocal at, what Mr. Essamuah derisorily called “A Stroll in the Park,” a particularly remarkable description of an event that involved braving a heavy rainfall, facing police blockades and risking arrests.

Middle Class?
Who cares? Tags don’t matter, and Mr. Essamuah knows that more than I do. I recall (faintly) that many years ago when his membership of the New Patriotic Party was challenged on the fatuous ground that he didn’t have a party card, he famously and rightly retorted that the NPP was not the Communist Party for which a party card was a be-all-and-end-all, or words to that effect. I am a Ghanaian. That is all that matters. Until July 1 2014, I had never participated in any demonstration. But that morning, I looked at my circumstances and that of the country, and concluded that the 4-year wait to “speak” only through a vote, is cowardice. The constitutionally guaranteed democratic space permits us to continuously give flesh and voice to what we think and feel about how this country is ruled.

Just like Mr. Essamuah, I had public secondary and university education in Ghana. That meant that both he and I, enjoyed government subsidies funded by the sacrifices of the Ghanaians, many of whom, and whose children, did not have the same opportunities. We owe to them what we have become, at least in part. I don’t know which class I belong to; I don’t care. The privilege of education imposes a duty upon me to fully occupy my democratic space when I see or feel that things are going off beam.

Have Things Gone Off Beam?
Of course they have. Mr. Essamuah doesn’t deny that. He only wants us to remain incurable optimists. But Electricity. Water. Fuel. Roads. Education. Basic needs. The lack of them. Under my ‘social contract’ with the government, I work (or starve), pay taxes and obey the law (or go to jail). The government has to provide all of the above, and more. But name it, and the government is unable to provide it; yet it gets antsy and the kittens when we demand that it should fulfil its side of the bargain?

Yes, for me, one other immediate cause was BRAZIL! Mr. Essamuah is right and wrong. It was not the elimination of the Black Stars (I didn’t think that they would get far anyway), but the embarrassment caused by that “money-on-plane” saga. This is against the background of our government and central bank restricting access to our legitimately acquired foreign currency in the banks. Fair, that’s the law. We live with it. Then our government (with our central bank’s approval or connivance), turns around, puts millions of foreign currency on our presidential jet and flies it into Brazil to live TV coverage and soap-opera rivaling ‘bling,’ exposing us to worldwide derision. A twitter handle purporting to be that of Steven Gerrard, England and Liverpool captain, cryptically said: “Pride and passion with commitment can’t be bought with a private jet carrying $3m.” And as if to prove him right, within days, we, who showed such sickening opulence in Brazil, announced that we are going to borrow foreign money to provide basic needs, such as sanitary pads to school girls. Mr. Essamuah might not see anything wrong with this picture. That is his democratic right. I see everything wrong with it; my democratic right.

And so I am tickled when Mr. Essamuah calls our views “preaching hopelessness.” Optimism is good. Baseless optimism is unwise. If the situation is pretty much hopeless, we must say it. It is the government’s duty to fix it!

Private Schools?
Mr. Essamuah has a problem with people whose children are in private schools, claiming that “most of the protesters” pay “fees in dollars and are ready to ship them out to foreign schools to become taxpaying citizens of other countries, as they look down upon our public schools.” That is intriguing. Mr. Essamuah, from which statistical bases did you arrive at or settle on your word “most”? What was your sample space and margin of error? And, by the way, it is illegal to pay fees in dollars in Ghana. If you know anyone who is still doing that, call the Bank of Ghana! But what takes the biscuit is your claim that the ability to send one’s children to foreign schools means one cannot love Ghana. Mr. Essamuah, can we ask the President which schools HIS children attend in Ghana and elsewhere? And, you and I, at some point, lived and studied in other countries. What does your conclusion say about you?

Mr. Essamuah massages the refusal of the demonstrators to allow his good friend and one-time political ally, Asamoah Boateng to address them, and concludes that an unnamed “main rival” in the NPP was linked to this. That is funny. Obviously, Mr. Essamuah was not there. The chant was “no politician!” Need I say more?

The 1/7/14 #OccupyFlagStaffHouse demonstration was spontaneous. Unlike political parties, no one was bused there or paid money or given T-Shirts to appear. People got up from their homes, found their own way there, made their point, and went back home. Some government actors have desperately and laboriously sought to diminish what happened in many ways. But they have failed. The more they speak and write, the more they give traction to #OccupyFlagStaffHouse, and the more it becomes obvious that those “few” people drove a strong point home. The political establishment (howsoever constituted) has been forced to take notice. Even if the petition found its way into the nearest trash bin or shredder at the Flagstaff House, government has been put on notice that it doesn’t take a crowd to force a change. Sometimes all it takes is a few good men and women and children, prepared to take a “Stroll in the Park,” brave the elements and show no fear for fully-attired riot police!

Thanks, Mr. Essamuah for your “June 4 Opinion.” It reminds me of the statement ascribed to the murdered Thomas-a-Becket in T. S. Eliot’s “Murder in the Cathedral,” that:

We do not know very much of the future
Except that from generation to generation
The same things happen again and again.
Men learn little from others’ experience.
But in the life of one man, never
The same time returns. Sever
The cord, shed the scale. Only
The fool, fixed in his folly, may think
He can turn the wheel on which he turns.

In Tunisia, it took just one man!


Yours faithfully,

Ace Anan Ankomah


Friday, June 14th, 2013

The NDC government’s dismissal of Martin Amidu was Ghana’s gain. When the government thought that it had gotten rid of the irritating pain in its backside by firing Martin as Attorney-General, it only gave to Ghana, a reluctant hero and champion.

I do not agree with all of Martin’s positions, which is natural. But I must applaud his dogged, fighting spirit. In the face of the blatant stealing of this nations’ monies by a cabal with obvious official participation and complicity, the shameful and reprehensible cheering and defence of the stealing (notably by persons working in the office of the then President, at least one of whom has now been rewarded with a Ministerial appointment), the appalling and inexcusable ‘interim’ non-investigation by EOCO, and the shocking and scandalous lack of interest in prosecuting the civil recovery and the crime (until recently, and I must commend the current AG for this), many of us could only speak and write. NOTE: To date, the government had taken absolutely no step to recover the monies paid to Waterville!!

But Martin would not take all of that that rubbish lying down. He took it a step further. He went to court against Waterville, Woyome and the Attorney-General, at his own expense. Today, I sat in court when the judgment was delivered. I left in awe of the man. Some of his claims were upheld and others were dismissed. Yet the court, without any equivocation or prevarication, was unanimous and undivided in its high praise and commendation of Martin and his vigilante role.

I now turn to my summary of what I heard the court say.

The Unanimous Decision (9-0), by Dr. Date-Bah JSC

Waterville: the contracts entered into between the Government and Waterville, were unconstitutional since parliamentary approval was not obtained, in breach of article 181(5) of the Constitution for the international business transaction to which the Republic was a party. All payments made to Waterville (both after the consultants’ appraisal and after the alleged mediation) were therefore unconstitutional. They did not fall properly under the sparing circumstances under which a person whose contract is declared void for being in breach of the Constitution would be entitled to restitution. Waterville was ordered to refund all monies paid to if by the government, including the Euro 25 million paid to it by the government after mediation.

Woyome: the court dismissed the claims/reliefs sought against him on the ground that they did not raise any constitutional interpretation/enforcement issues under article 181(5), which would have properly trigger its exclusive and special jurisdiction. The key question affecting Woyome, is whether or not there was a contract between the Government and Woyome at all. Indeed, in Woyome’s own Statement of Claim in his action at the High Court, he does not show any contractual basis for his claim. Thus a determination as to whether or not there was a contract or a cause of action at all, is one that should be determined by the High Court, as it did not involve any constitutional issue for interpretation or enforcement.

Attorney-General: The court took note of the claims against the state’s legal representatives for their actions in the matter and stated that those claims, also, did not involve any constitutional issue for interpretation or enforcement, and as such dismissed them and advised the Plaintiff to pursue those claims before a High Court.

Conduct of named lawyers (particularly for Waterville and Woyome): The court referred Martin’s claims against the lawyers in the matter to the Disciplinary Committee of the General Legal Council and stated that the Plaintiff may continue his complaint in that forum. It ordered the SC Registry to serve a copy of its judgment on the GLC for further action.

Obiter, by Jones Dotse JSC:
This was the more dramatic and striking opinion. He concurred with the unanimous decision, but decided to read what he termed a “commentary.”

His Lordship pulled no punches, barred no holds and took no prisoners when he excoriated the lawyers who acted in the matter, particularly for Waterville and Woyome. He stated that there was sufficient evidence (particularly the now famous Tetteh & Co. letter) that there was no contract to be enforced, but that Waterville and Woyome had an “alliance to create, loot and share” Ghana’s resources. He noted how Waterville and Woyome (using different lawyers) were first opposed to each other, then started acting together using the same lawyer (Waterville’s lawyer) to recover the monies they received, and then before the Supreme Court, that same lawyer now only appeared as Waterville’s lawyer. He stated that there was no sound legal basis for their claims, and that the lawyers should have known this and advised their clients, instead of leading them in the matter.

Both Dr. Date-Bah and Dotse JJSC highly recommended Martin Amidu for his work. Dotse JSC pointed out that that Martin has had to fight alone without any help, especially from civil society.

My Conclusion: Martin has won; not for himself, but for Ghana. In the process, he has put us all to shame.

The Judicial Service MUST respect our Article 126(3) Rights: We demand live TV Coverage of The Presidential Election Petition Proceedings

Saturday, March 30th, 2013

Précis: The limitations that have been placed on physical access by the public to the Presidential Election Petition proceedings in Ghana, without providing real time electronic access by way of Radio, TV and YouTube, are unconstitutional.

Although I have wished to follow the Presidential Election Petition closely, I have only been able to make it to the court room once, the day the NDC joinder application was heard. Try as I can, I just have not found the time to attend. On the day that the application by 100s of potential intervenors was to be heard, I completed my court work early and had about an hour to kill before returning to the office. When I inquired, the Supreme Court had not started sitting yet and so I thought that I would spend that hour listening to some of the arguments.

To my surprise, a policeman at the foot of the stairs informed me, very politely, that I would not be allowed to enter the Supreme Court because I did not have “accreditation.” I could not believe it. Just the previous day, I had spent about 4 hours in the same court room before my case was heard, and I was not required to produce the now all-important “accreditation”! But now I was told that as a citizen of this country and an officer of the Court, I did not have the right to observe those proceedings without something called an “accreditation.” I was therefore not surprised when a lawyer for the proposed intervenors, Stephen Ahor, Esq., was reported to have later informed the court that his clients were not allowed into the court room. That had to be true. In effect, even people who had an application before the Supreme Court in the same Election Petition, required the hitherto unknown “accreditation” to be able to participate in the proceedings of the day. Also lawyers, technically officers of the court, now require this “accreditation.” What is worse, the people of Ghana, whose monies are funding the proceedings, are denied access to the court room without this “accreditation.”

I may understand why there is restricted access to the Supreme Court. But in my view, this is by heads and shoulders, leaps and bounds, the most important case in Ghana’s history. The people of Ghana are, rightfully, interested in knowing what is happening. They have a right to follow the proceedings, minute-by-minute. But the court room cannot accommodate more than 100 people in the public gallery, I think. Thus the restricted access may make sense.

As an “officer of the court”, I could have resolved my personal restriction very easily by simply obtaining the “accreditation”. But I don’t want it. I believe that every Ghanaian who wants to see those proceedings in real time has a constitutional right to it. It would be extremely selfish on my part to exploit my position as a lawyer to obtain the “accreditation” while the vast majority of Ghanaians who own the court building and whose tax monies fund the operation of the court are denied that access. I therefore decided, there and then, that I would not and will not apply for the “accreditation”. I will stay outside the court room and instead, do my little to ensure that every Ghanaian who wants to see what is happening, and is not satisfied with having to depend on the notes of reporters from the media, is given that access by the simplest and most sensible means of access – live radio and television and internet (YouTube).

A combination of factors renders, in my respectful view, the current “accredited entry” policy unconstitutional, unless it is combined with, easily, the simplest way of allowing Ghanaians to exercise their constitutional right to follow the proceedings in real time. Ghanaians have a right to hear the testimony and arguments without having to rely on press reports. Indeed, one is not even allowed to enter the Supreme Court with even a telephone or other electronic device. That means that we are compelled to rely on the handwritten court room notes of reporters, many of whom are not lawyers. With utmost respect to the Judicial Service, it is wrong to compel all and sundry, including lawyers, to depend on press reports, in a matter of this significance and magnitude.

Article 126(3) of the Constitution states:

Except as otherwise provided in this Constitution or as may otherwise be ordered by a court in the interest of public morality, public safety or public order, the proceedings of every court shall be held in public.

This provision is repeated in section 102 of the Courts Act. For very good reasons, section 39 of the Matrimonial Causes Act provides that “the court may direct that any proceedings under this Act be heard in private and may exclude all persons except officers of the court, the parties and their witnesses and lawyers where the court is satisfied that the interests of the parties or the children of the household so require.” (See also Order 65 Rule 20(1) of the High Court (Civil Procedure) Rules). In Order 50 Rule 3, specific provision is made for the hearing of some contempt applications in chambers.

These are some of the know exceptions to the rule. But the meaning of the constitutional phrase “every court shall be held in public” is too trite to admit a trifling debate on definitions. Suffice it to say that it requires trial in open court where all parties and witnesses testify in a public courtroom, and lawyers publicly present their arguments to the court. It is the opposite of “in camera proceedings” where the public is not admitted to hear a case, or portions of cases.

But the key right created by article 126(3) is the right of litigants and the public to trial in open court. In other words, the public must have access to all court proceedings, except the Constitution states, or court itself decides, otherwise, on the grounds specifically stated in article 126(3). Further, the constitution says it is only the court that is hearing the matter that can impose restrictions on those grounds.

To the best of my knowledge and information, the Supreme Court itself has not decided to restrict access to the Presidential Election Petition proceedings. In this case, there is a restriction of access to the court room imposed, not by a judicial decision (as required by article 126(3)), but by the administrative fiat of the Judicial Service. As stated, that may make sense, considering the limited seating capacity of the court room. We cannot move the court to sit at the Accra Sports Stadium or the National Theatre. That is why basic, yet creative re-thinking is required, so that the public will still have access to the proceedings, even if it is not physical access, and so that the letter and spirit of article 126(3) may still be complied with and achieved. That, in my view, is achieved by giving us the opportunity to have that access by way of live radio and TV, and in the 21st century, by YouTube.

If that does not happen, my respectful view is that the current proceedings are being conducted in flagrant breach of article 126(3). The ban on physical access by the public to the proceedings, without a concomitant provision of electronic access to the proceedings is clearly unconstitutional.


Saturday, February 20th, 2010

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

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

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

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

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

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

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

The test whether the offence is committed, the courts have held, is not even the actual result, but whether the false statement was likely to cause fear or a breach of the peace.

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

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

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


Tuesday, August 25th, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court stated further as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Concluding Comments
The BNI does not appear to appreciate that the right to counsel is a fundamental rule of law that has roots in common law and our statutes, and can only be taken away by express legislation. In the ‘dark’ past, SMCD 3 was that legislation. That is not the case any more. I therefore wonder why the BNI would want such a matter to end up in court for a pretty obvious judgment to be delivered against it. The BNI’s aversion to legal counsel for people it arrests or ‘invites’ made the institution risk a public slap on the wrist by the court, rather than uphold a basic principle of human rights.
Their position is even more disturbing because the judgments in the Okorie and Akosah cases and the provision in section 9(2) of the Criminal and Other Offences (Procedure) Act, have been reinforced as good law by article 14(2). Thus, any evidence that the BNI might obtain (and this applies even to confessions) in breach of the right to counsel stands the risk of being thrown out by the court as inadmissible evidence. Further, the denial or refusal of the right to counsel renders any arrest, restriction or detention of such a person unlawful and an actionable infringement of that person’s rights; and as article 14(5) says, such persons are entitled to compensation from the State!

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

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

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

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

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

Yours in the service of God and Country,
Kojo Anan

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

Thursday, June 11th, 2009

Final Part of a 4-Part Series

Too Many Holidays

I am also of the view also that already Ghana has too many public holidays, and that there is virtually no space to add even one more. Instead of adding on holidays, we should be exploring the prospect of reducing the number of public holidays on our calendar.

I would commend to us all, the observations of the late Archer CJ, captured in his concluding words even in his dissenting opinion in the NPP v. A-G case as follows:

“Before this action was instituted, Ghana had ten public holidays throughout the year and second only to Northern Ireland, throughout the whole world, which has eleven public holidays… Ghana has more holidays than England and Wales and Scotland, each with nine holidays. Can a developing country like Ghana afford a string of holidays which at times can be boring? I leave the answer to Parliament and the executive. The British colonial administration introduced six public holidays in this country in 1899. We have ten and I wonder what the number would be by the year 2000.”

His Lordship the Chief Justice’s words were prophetic, and his worries were not unfounded. Currently we have 12 statutory holidays, 2 more than we had when Justice Archer penned these words. We are debating adding even more days. What we should be debating, I think, is how to reduce the number of holidays. These 12 paid working days that are observed as public holidays are in addition to the paid leave days guaranteed to all workers under article 24(2) of the Constitution and numerous provisions of the Labour Act.

Let us do some rough calculation. Year 2009 has 365 days, out of which 104 fall on weekends, leaving 261 working days. Out of the 261 working days, there are 12 public holidays (assuming there are no Additional Holidays), which increases the number of non-working days to 116 and reduces the number of working days to 249. Then if we assume that the average number of leave days is a conservative 20, that further increases the non-working days to 136 and reduces the total working days to 229. In other words, all things being equal, the average Ghanaian worker will spend roughly 40% (actually 37.26%) of his or her time on a vacation, holiday or weekend this year. If you consider that the actual work-time covers between 8 and 10 hours of the day, the percentage of non-work time increases exponentially.

It is in the light of the above that I hold the humble view that some of the dates that are currently marked as holidays should be simply commemorated without subjecting the entire workforce of the nation to punishment-based and statutorily enforced rest days. For instance, we always commemorate Armistice Day. It is not a holiday, and that has no devalued that date in any way. For example, I do not see why Africa Day should be marked by rest, when work, and not more rest, is what Africa needs right now. Likewise, it is time to debate amongst ourselves whether Easter Monday, May Day, Farmers Day, Boxing Day etc. can also be commemorated without being made public holidays. Similarly, the proposed Founder’s Day or Founders’ Day, should simply be commemorated. We respect our founders, but I am pretty certain they would want us to roll up our sleeves and get to work harder to build a better Ghana, and not simply add another lazy day to sit at home and twiddle our thumbs. Further, I would suggest that we consider returning to the days when Saturdays were half-working days. If we have 40-hour working weeks now, increasing that by even 10% (i.e. an additional 4 hours on Saturday) might be a step in the right direction.


I conclude by commending President Mills for making quite a definite break from the past by not declaring June 4th a public holiday when he had the power to do so. Further, his non-appearance at the public commemorative events cannot pass without comment. We however cannot ignore the suggestions that the date was still commemorated with direct and indirect state support. We might never be able to quantify the cost to the nation when a major road is blocked so wreaths are laid, when our police and other security personnel are deployed to provide security for these events, when government functionaries attend these events on our time, and in government cars fuelled by our taxes, etc. etc. But I think that we ought to be grateful for small mercies. My guess is that with time, even this state support (if true) will wane, and one day, very soon, we will finally consign June 4th to its proper place, the dustbin of history, where its historically ignominious Section 34(2) cousins, namely February 24th, January 13th and December 31st currently lie.

And, this country does not need a single more holiday; we simply cannot afford it.

Your in the service of God and Country,

Kojo Anan

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

Thursday, June 11th, 2009

Part III of a 4-Part Series

Current Holiday Legislation

From the above account of our history where governments played politics with national holidays, I now turn to discuss the relevant provisions of the 2001 Public Holidays Act, which is the statute that is currently in force. Under the Act, there are three kinds of statutory holidays, namely, (i) Public Holidays (properly so-called), (ii) Additional Holidays and (iii) Substituted Holidays.

Public Holidays: There are currently as many as 12 Public Holidays, and these are specifically listed in the Act, as amended, as follows: New Year’s Day (1st January), Independence Day (6th March), Good Friday, Easter Monday, Eid-al Adha Festival (Hajj), Eid-al Fitr (Ramadan), Worker’s Day (1st May), Africa Day (25th May), Republic Day (1st July), Farmers Day (1st Friday in December), Christmas Day (25th December), Boxing Day (26th December).

These Public Holidays have been laid down by statute and will be celebrated every year, with or without announcements from the Interior Minister. Such announcements, when made, only remind the citizenry of what already exists in the law. It is not the announcement that creates the public holiday. That holiday is statutorily provided for, and therefore cannot be changed or added to without amending the Act; and only Parliament can do this. For instance, when it was decided to make Africa Day (25th May) a Public Holiday, the 2001 Act was amended by the passage of the 2002 Public Holidays (Amendment) Act.

Obviously, June 4th is not one of the Public Holidays specifically provided in the Act. To be marked as a Public Holiday in future, and thereby somewhat elevated to the status of the existing 12 (as is the daydream of a certain Moses Mabengba), Parliament will have to specifically amend the 2001 Act. That, in my humble view, would be a rather tough sell to Ghanaians. Note that even the current NDC government did not have the appetite to do this and therefore did not introduce an amendment bill to parliament (as currently constituted), seeking to elevate 4th June to the status of the 12 Public Holidays. I do not see this happening under President Mills.

Additional Holidays: Additional Holidays are holidays other than the 12 specifically mentioned in the Act, but which are declared “in addition to the public holidays” by the President, if he considers it to be “in the public interest” so to do. The President must do so by Executive Instrument, if he so decides.

Thus the only other way, apart from going through parliament, that June 4th could have been restored as a holiday, would have been by the President simply invoking his powers and exercising his discretion under the Act to declare it as an Additional Holiday. We cannot fail to recognise President Mills’ choice or decision NOT to exercise this discretion with regard to June 4th 2009. If the President subsequently changes his mind (which he is entitled to do, but I not believe he will) and decides that we should all mark a day of rest to celebrate June 4th on the pain of punishment, he can ignore parliament and pass the required Executive Instrument, and repeat that action every year that he is in power. But President Mills did not do that in 2009, and looking into the future, we might be safe in assuming that the current government under President Mills, has no interest in formally reinstating June 4th as a public holiday.

Substituted Holidays: As the name suggests, Substituted Holidays are alternative or replacement holidays. These will come about where “the President is satisfied that it would be inexpedient” (i.e. not convenient) for any reason, for a Public Holiday to be so observed. Under those circumstances the President is given the statutory discretion to declare by Executive Instrument that any other day would be observed “as a public holiday instead of that day.” It is under a somewhat stretched or expanded application of this provision that sometimes, when the Public Holiday falls on a weekend, the President would declare the following working day, usually a Monday, as a Public Holiday.

Marking June 4th

As noted above, absent a formal legislative amendment of the 2001 Act, the only way that June 4th 2009 could have been marked as a statutory holiday was if the President had exercised his powers under the Act to declare that date as an Additional Holiday. But should he do that in future or introduce a bill to parliament for make that date a Public Holiday again? I do not think that we need to go too far or engage in any political grandstanding or abstract polemics to obtain an answer to that question. It is my considered opinion that the answer to that question exists in Section 34(2) of the Transitional Provisions to the Constitution.

This section of the transitional provision mentions the four very significant but violent, notorious and bloody dates in Ghana’s history, namely February 24th 1966, January 13th 1972, June 4th 1979 and December 31st 1981 (“Section 34(2) Dates”). As we have seen in the above discussion, each of these dates was, at some point in our history, a Public Holiday. Thankfully they are not now. Hopefully they will never be again.

Section 34(2) then informs Ghanaians (just in case we ever forget) that these notorious dates respectively relate to the violent overthrow of (i) the Convention Peoples Party (CPP) by the National Liberation Council (NLC), (ii) the Progress Party (PP) by the National Redemption Council (NRC) and the replacement of the latter by the Supreme Military Council (SMC I), (ii) the second Supreme Military Council (SMC II) by the Armed Forces Revolutionary Council (AFRC), and Peoples National Party (PNP) by the Provisional National Defence Council PNDC). Section 34(2) also reminds Ghanaians of the suspension or abrogation of the First Republican Constitution (1960), Second Republican Constitution (1969) and the Third Republican Constitution (1979) that occurred on some of these dates.

After Section 34(2) has taken us through a short and sour journey through Ghana’s violent political history where these ill-fated dates are concerned, it provides an indemnity to the government and it operatives by forbidding any judicial inquiry into any of the government’s actions with respect to the Section 34(2) Dates. In other words, Ghana’s courts have no power to entertain any legal action related to those dates. By necessary extension the courts of this land cannot take any decision or make any order or grant any remedy and relief against the government, if the legal action or proceeding arises from the activities and incidents associated with the infamous Section 34(2) Dates. Section 34(2) specifically provides as follows:

“It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after the coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in Government which took place on the twenty-fourth day of February 1966, on the thirteenth day of January 1972, on the fourth day of June 1979 and on the thirty-first day of December 1981 in respect of any act or omission relating to, or consequent upon—
(a) the overthrow of the government in power before the formation of the National Liberation Council, the National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and the Provisional National Defence Council; or
(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or
(c) the establishment of the National Liberation Council, the National Redemption Council, the Supreme Military Council which took office on the ninth day of October 1975, the Supreme Military Council established on the fifth day of July 1978, the Armed Forces Revolutionary Council, or the Provisional National Defence Council…”

Clearly, the government (and by this I refer to that continuous, constant and unbroken entity called “government”, howsoever constituted) has something to hide with respect to these dates. There are things that were done on the basis of the Section 34(2) Dates that the government is not proud of and is not keen to discuss or open to judicial scrutiny. Those dates are so similar in character, nature and status to each other, that Section 34(2) paints them with the same brush: indemnity. You do not seek an indemnity if you are not liable for something. The reputation of the Section 34(2) Dates is certainly contrary to and the opposite of the reputation of the 12 Public Holidays mentioned in the Public Holidays Act. Why would the government take the full benefit of the indemnities and protections provided by Section 34(2) if the government has nothing to hide with respect to those dates? Why then would Ghanaians, whose constitutional right to seek redress with respect to any matter in our courts has been clawed-back, muzzled or otherwise restrained by Section 34(2)’s constitutionally-imposed indemnities, be compelled and obliged to celebrate any of those dates by taking a mandatory rest, on the pain of possible imprisonment?

Section 34(2) was added to the draft Constitution, just before it was submitted to the PNDC on March 31st 1992. That section was contained in said draft Constitution when it was submitted to a national referendum held throughout Ghana on April 28th 1992. When the people of Ghana approved the said Constitution for the administration of Ghana to come into force on January 7th 1993, we agreed that the government and the perpetrators of those awful wrongs were forgiven. But we also voted, by virtue of the same Constitution, never to forget those days, not as dates for celebration, but as dates of indemnified ignominy. The indemnified deeds and misdeeds of the government, its military adventurists and civilian collaborators, which commenced on the Section 34(2) Dates, are a painful reminder thus: we should never allow this country to slip back to the rule of such persons.

If the government does not want us to inquire into what happened with respect to the Section 34(2) Dates, that same government cannot and should not attempt to compel us to accord those dates any reverence, respect or value whatsoever by taking a mandatory rest from work. Let the government keep and enjoy its Section 34(2) indemnities. But the government should not add insult to injury by compelling us to celebrate any of those dates, and thereby exposing us to jail terms for not resting on those anniversaries. Let the Section 34(2) Dates retain their constitutionally-defined infamy, but leave the rest of us in peace. That is the price we elected to pay and the compromise we elected to make, so as to purchase the current constitutional disposition; and the matter should rest there.

It is my respectful view that June 4th should continue to be known by the company it keeps under Section 34(2), and never accorded the status of a holiday, whether Public, Additional or Substituted. It is indeed sad that governments may choose to mark any of the Section 34(2) Dates in whatever manner they deem fit. And who are we to complain, since it is the government which holds the strings to our national purse and, as we have seen, it can jolly well swing that purse in whichever way it deems fit? So governments may marshal our security forces at our expense, block streets at our inconvenience and allow government officials to make speeches to our annoyance and on our work time, on any anniversary of any of the Section 34(2) Dates. Any of these that occurred on June 4th 2009 was truly unfortunate. But I have faith in President Mills’ publicly declared personal abhorrence of and repugnance to violent military takeovers, strongly signified by his absence from the public commemorative events and the very loud silence from him. That clearly repudiates the fantasies of Mr. Mabengba and all who think like him. June 4th and its Section 34(2) cousins were violent military takeovers and its actors enjoy immunity from our courts. They are not the hyped up, over-eulogised dates that their proponents and believers (to the extent that any proponents and believers still exist with respect to the three other dates) would have the rest of us believe. No citizen of Ghana ought to be compelled to take a day of rest at the pain of punishment, on account of those dates.

If, 16 years ago, the Supreme Court judged the celebration of and use of state resources to mark December 31st as unconstitutional, there appears to me to be no reason on earth why June 4th should be treated differently. I rely on and completely endorse the wise words of the current Honourable Minister for Foreign Affairs, Mohammed Mumuni in the Consultative Assembly Debates, January 15th 1992, col. 1417, which found its way into the judgment of Adade JSC in the NPP v. A-G case as follows:

“I believe that we are dealing with a principle, and when we are dealing with a principle you either wholly keep it or wholly reject it. You cannot compromise over a principle. We are saying that at this stage of our political development, we must come out positively and assuredly against any form of political adventurism.”

I agree. This could not have been expressed better. But I must add that one sure way to come out “positively and assuredly against any form of political adventurism” is to refuse to spend public funds or employ public resources to mark any of the Section 34(2) Dates, including June 4th.

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

Wednesday, June 10th, 2009

Part II of a 4-Part Series

History of Ghana’s Holidays Politics

We cannot have a discussion of public holidays in Ghana without taking a look at the history of public holidays, and it is to this that I now turn.

When Ghana became a republic in 1960, its first public holidays legislation was the Public Holidays Act, 1960 (Act 23) which listed 9 public holidays as follows: (i) New Year’s Day (1st January), (ii) Ghana’s Independence Day (6th March), (iii) Good Friday, (iv) The Saturday next following Good Friday, (v) Easter Monday, (vi) Republic Day (1st July), (vii) National Founders’ Day (21st September), (viii) Christmas Day and (ix) Boxing Day.

I make two observations from this list of holidays. First, a holiday was observed on the Saturday after Good Friday because, as I am informed, in those days, Saturday was a ‘half-working day’, where workers were expected to work till 12 noon. ‘Holy Saturday’ remained a statutory public holiday until it was removed by the PNDC government in 1989 because by that time Saturday had long ceased to be a working day, and its continuous presence on the list was considered superfluous. I think that it is time to take another look at the country’s working week which currently starts on Monday and ends on Friday. It is time to ask whether or not an additional 4 hours of work per week on a Saturday will impact positively on our plans to grow this nation into a middle income status.

Second, the National Founder’s Day was a public holiday to celebrate the birthday of the then President of Ghana, Kwame Nkrumah. I have heard rumblings of an imminent campaign to reinstate this date as a public holiday. The question I ask is whether this date, if it is ever made a public holiday or is merely commemorated, should be observed as a “Founder’s Day”, which would once again effectively crown Nkrumah as the sole ‘founder’ this nation (a very debatable and potentially divisive position), or as “Founders’ Day” which would recognise the work of all the founding fathers? I would opt for the latter position, and even then argue that the date should not be declared a public holiday; it should have a simple commemoration. The English Law Lord Diplock once observed in the 1978 case of Town Investments Limited v. Department of the Environment, that “My Lords, it has been said that Roger Casement was hanged by a comma.” The upcoming debate over the “Founder’s Day” or “Founders’ Day” in Ghana might be resolved by the thorny position of an apostrophe.

Almost as a footnote, I must point out that on January 5th 1966, about a month to its overthrow, Nkrumah’s CPP, by LI 496, declared January 8th a public holiday under the name ‘Positive Action Day.’ That holiday was probably celebrated only once (i.e. in 1966) and then consigned to history’s dustbin.

On May 6th 1966, After the Convention Peoples Party (CPP) was violently overthrown on February 24th 1966, the military government of the National Liberation Council (NLC) by LI 509, deleted ‘Republic Day,’ ‘Founder’s Day’ and ‘Positive Action Day’ as public holidays and introduced in their stead, two new holidays: February 24th, called ‘Liberation Day’ and the first Monday in August, which I understand was popularly referred to as ‘Bank Holiday.’ In my research, I have found no reason behind or explanation for this ‘bank holiday’.

When the Progress Party (PP) took over power from the NLC on October 1st 1969, it revised the holidays list on December 1st 1969. LI 649, which was signed by “Brigadier A. A. Afrifa, Chairman of the Presidential Commission,” did the following: (i) it introduced October 1st as a holiday called ‘Second Republic Day,’ (ii) it retained ‘Liberation Day’ as a public holiday, and (iii) it removed the August ‘Bank Holiday.’ I note that ‘Republic Day’ was not restored to the list of public holidays, which meant that Ghana celebrated a ‘Second Republic Day’ and pretended that there was no ‘First Republic Day.’

A significant footnote is that this retention of ‘Liberation Day’ as a holiday during the reign of the PP, was to play out in a most dramatic fashion, many years later in the ‘Page 28’ Supreme Court cases of New Patriotic Party v. Attorney-General and Republic v. Mensa Bonsu, ex parte Attorney-General. A full discussion of these cases is outside the scope of this writing. But I must point to the admittedly forceful arguments of critics of the PP government, that the PP should have mustered the courage to delete ‘Liberation Day’ as a public holiday. I agree. But I also think that it was the relevant constitutional arrangements at the time, which threw up the Brigadier Afrifa, the main architect of the 1966 coup, as the Chairman of the Presidential Commission (effectively the acting President of Ghana until the election of the late Edward Akufo-Addo as President), that made it politically difficult, if not impossible, to do this. And, considering that the PP was only in government for a little over 2 years, it is difficult to judge them too harshly on this.

After the PP was itself violently overthrown on 13th January 1972, the military government of the National Redemption Council (NRC) engaged in what is easily the most bizarre and mind-boggling politics of holidays in our history. First, on February 4th 1972, less than a month after the coup, the NRC passed NRCD 18, which removed ‘Liberation Day’ as a public holiday but introduced in its stead 13th January as ‘National Redemption Day.’ The NRC did not, at this point, deem it fit or necessary to restore either the Republic Day or Nkrumah’s Founder’s Day to the list of public holidays.

When Kwame Nkrumah died on April 27th 1972, there was reported to be some considerable disagreement amongst members of the NRC on whether he should be buried in Ghana, and if so whether he should be given a state burial. Whilst Ghana’s government dithered, the government of Guinea (where he reportedly served as co-president), went ahead and buried him. It was only on July 7th 1972 that Nkrumah’s mortal remains (exhumed from Guinea) arrived in Ghana for a state burial at Nkroful, his hometown.

I recount this story because something very strange happened on February 12th 1973, i.e. only seven months after Nkrumah’s burial: the NRC government passed NRCD 154 to restore ‘Liberation Day,’ the day that marked the violent overthrow of Nkrumah (the national hero who had just been given the honour of a state burial), as a public holiday. Some have claimed that this move was to pacify and assuage the feelings of the anti-Nkrumah elements in the NRC who lost the argument over the burial. Be that as it may, this history tells us the sad story that on February 24th 1973, not long after Nkrumah had been given a state burial in Ghana, Ghanaians were given a mandatory rest from work, to celebrate again, the 1966 overthrow of Nkrumah (or else face a jail term).

This clearly anomalous situation was duly rectified a year later when on 20th February 1974 the NRC passed NRCD 244 to finally remove ‘Liberation Day’ from the list of public holidays. On April 3rd 1974, the NRC passed NRCD 253 to restore ‘Republic Day’ as a public holiday and declare that August 6th 1974 would be the last celebration of ‘bank holiday’. On June 13th 1974, the NRC passed NRCD 262 to clear up its confused and confusing holidays politics by consolidating all the holidays under one statute, as follows (i) New Year’s Day, National Redemption Day, (iii) Independence Day, (iv) Good Friday, (v) Holy Saturday, (vi) Republic Day, (vii) Christmas Day and (ix) Boxing Day.

NRCD 262 remained in force for exactly 15 years, surviving the regimes of the NRC, both SMCs, AFRC, PNP and 7 years of the PNDC. It would appear that no one really took a close look at that statute in all of those years. This is because that statute still had January 13th, ‘National Redemption Day’, as statutory public holiday, required to be mandatorily observed by rest, but no one appeared to pay any heed to that holiday after the palace coup that overthrew Acheampong’s SMC I on July 5th 1978. In effect, in all of those years that National Redemption Day was not observed as a public holiday, the Ghana’s citizens acted in collective breach of the law, and were liable to imprisonment for failing to rest on each January 13th, in celebration of our ‘redemption’ by the NRC.

When the PNP took over power, September 24th (the anniversary of the transfer of power from the AFRC to the PNP) was observed as a public holiday by virtue of executive fiats contained Executive Instruments presumably issued under NRCD 262. That date does not appear to have been formally legislated as a public holiday, and it is noteworthy that the PNP (just like the PP before it) did not deem it necessary to remove ‘Redemption Day’ as a holiday from our statute books, even if it was not celebrated. After the PNP was overthrown on December 31st 1981, the PNDC government also declared that date and June 4th as public holidays by the same yearly ritual of executive fiats.

In one of history’s amazing twists and turns, it was exactly on its fifteenth anniversary (on June 13th 1989) that NRCD 262 was repealed and replaced by PNDCL 220. PNDCL 220 finally removed the obsolete and otiose ‘National Redemption Day’ from the statute books as a national holiday. However, this did not reduce the number of public holidays, as PNDC 220 formally legislated the two similarly controversial holidays that had hitherto been celebrated by executive fiat: June 4th (to mark violent overthrow of SMCD II by the AFRC) and December 31st (to mark the violent overthrow of the PNP by the PNDC). PNDCL 220 spared us the indignity of being forced to refer to those dates by pompous, pretentious, and empty titles similar to those if its older cousins: Liberation and Redemption. But as pointed out, these two dates had been marked as public holidays soon after the PNDC came to power, i.e. even before they were formally legislated.

The ‘Death’ of June 4th & December 31st
Thankfully, these dates are no longer public holidays. December 31st was the first to be removed when on December 23rd 1994, the Supreme Court, by a majority of 5 to 4 in the case of New Patriotic Party v. Attorney-General, declared the celebration of the December 31st coup as unconstitutional, and stated as follows: “It is hereby ordered that 31 December shall no longer be declared and observed as a public holiday and celebrated as such out of public funds. The defendant is hereby ordered to obey and carry out this order.” This singularly bold decision of the Supreme Court has erased December 31st as a public holiday from our statute books forever – which means as long as this Constitution remains in force. This is because article 107(a) of the Constitution provides that parliament does not have the power to pass any law “to alter the decision or judgment of any court as between the parties subject to that decision or judgment.”

But June 4th, which was not the subject of the decision in NPP v. A-G, remained on the statute books. However, clearly, the appetite to celebrate it as a public holiday was on the decline, and its days were clearly numbered. It therefore came as no surprise when in 2001, the then new parliament dominated by the NPP passed the current Public Holidays Act which repealed and replaced PNDC 220 and removed June 4th as a public holiday from the statute books. With this, every holiday that marked the violent military overthrow of any government in Ghana was finally and rightly removed from our statute books.

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

Tuesday, June 9th, 2009

Part I of a 4-part Series


In the weeks leading to June 4th 2009, I noticed that many lawyers who appeared in court were avoiding that date in taking case adjournments. The reason was that they (and probably most Ghanaians) did not know whether or not that day would be declared a public holiday, and as such did not want to take the chance of fixing a matter on that date. I was also privy to discussions and debates on whether or not that date should be declared a public holiday. Two questions arising from those discussions stuck with me and inspired me to write this piece. The first was whether or June 4th ‘deserved’ to be celebrated as a public holiday? The second was whether Ghana had already too many holidays, and could not afford to add another?

I know many people who waited to hear the ‘traditional’ announcement of a holiday by the Minister of Interior. No announcement was made. On June 3rd, many government ministers appeared at and spoke at a seminar to mark the 30th anniversary of June 4th; the most notable absentee was President Mills. When the 6 o’clock radio news bulletins on June 3rd did not carry the Minister of Interior’s announcement, it became obvious that President Mills was not going to declare a public holiday. Come June 4th there was the wreath laying ceremony at the ‘Revolution Square’ which required the blocking of the major road from 37 Military Hospital to the traffic lights at Afrikiko by the police. This caused heavy traffic to the annoyance and inconvenience of many. President Mills did not show up at the event. There was also the mammoth June 4th rally at Kasoa to mark the day. President Mills was not there. Vice President Mahama was also not present at any of those events, although we were later informed that he had travelled.

However, in the 8th-9th June edition of The Enquirer Newspaper, a junior member of the government, the Deputy Minister for the Northern Region, one Moses Mabengba, is reported to have told the “64 Bench and Daughters and Sons of Atta Mills wings, supporters and sympathizers of the National Democratic Congress” in Tamale that the government will reinstate June 4th as a statutory public holiday “after necessary considerations have been made.” The newspaper report did not clarify what Mr. Mabengba meant by “necessary considerations.”

I think that the President’s decision not to declare the day as a public holiday and his absence from the major commemorative activities surrounding that date is a significant confirmation that the days when June 4th was automatically considered and declared a public holiday are over. President Mills has answered the first question thus: as far as he is concerned, June 4th does not deserve to be observed as a public holiday. Some newspapers have speculated that the state must have spent a lot of money to commemorate this June 4th. If that is true, then it would indeed be very unfortunate and regrettable. But we cannot miss the clear message that President Mills has sent to Ghanaians, first, by not declaring that date a public holiday, and second, by not showing up at any of the public commemorative events. These, to me, are very good signs that cannot and should not be ignored. We should ignore romantics like Mr. Mabengba.

But the second question, i.e. whether Ghana has too many holidays and cannot afford another, remains unanswered. I think that this is a matter that Ghanaians have to debate, and I will try to tackle that as well in this writing. Yes, I think that we have too many public holidays.

The word “holiday” is a contraction of two words, “holy” and “day”. The word originally referred only to special religious days. However, in modern usage, it generally refers to any special day of rest. A public holiday is a day of such magnitude and significance to a country that it is observed with rest across that country. The observance of public holidays is of such importance that under Ghana’s 2001 Public Holidays Act (and it many of its predecessor statutes), it is an offence to engage in work on such a day. The Act expressly forbids the opening of a shop for the purposes of selling or trading or engaging in any business on a public holiday. People who do not observe this bar on work are liable to be arrested and summarily tried, and if convicted, sentenced to a fine, a term of imprisonment not exceeding three months, or to both. My definition of a “public holiday” in Ghana, flowing from the above, is that it is a legally mandatory, compulsory or obligatory day of rest, enforced on the pain of punishment.

Thus observing statutory holidays is not a simple matter or a whimsical fancy. The government, which has the power to impose statutory holidays, must appreciate that the exercise of this power means subjecting the citizenry to the mandatory rest day, and that the citizen who fails, refuses or neglects to observe that day is liable to possible imprisonment. Thus a date on the calendar should only be elevated to the status of a statutory holiday if that date of definite, unquestionable and wide national significance and importance. It is indeed a breach of any government’s obligations to govern fairly, if it announces, declares or imposes a date as a statutory holiday, where that date and its observance only serves the narrow interests of a section of the nation.

Further, and as I have stated above, I believe that it is time to take another look at the issue of the number of national holidays that we observe in Ghana. I firmly believe that we should rationalise and reduce the number of days that we have as national holidays, and consider re-introducing Saturdays as working days.