I-CAN-GHANA

http://wendykeithdesigns.co.uk/heritage-collection/mittens/ Originally written on 26 January 2009

Dear Editor:

RE: ‘EX-GRATIA AWARDS FUSS – RANGE CAN BE REVIEWED DOWNWARDS’

I have had the privilege of reading the above-entitled article by your Apostle Kwamena Ahinful in his Controversy Column. The beauty of democracy is that we can disagree; and so I truly appreciate the Apostle’s position on my expressed views.

Permit me, however, to re-state and possibly flesh out my position on this matter, and then encourage all concerned Ghanaians to read the Constitution for themselves, to ascertain whether or not Parliament (or any other body) has the power to do the downward review that the Apostle recommends, and which some Member of the august House have been postulating.

Some have argued that Parliament has the power to review everything that it does. That may be true. But the source of Parliament’s powers is not Parliament itself, but the Constitution. So that whatever powers Parliament might have, are subject to such bounds and limitations contained in the Constitution. For example, Article 3(1) of the Constitution states expressly that “Parliament shall have no power to enact a law establishing a one-party State.” That means that whatever powers Parliament might have, it can NEVER pass a law that seeks to turn Ghana into a one-party state. Parliament under our Constitution, is not sovereign, and is supreme only to the extent that that ‘supremacy’ is given and, in some instances, circumscribed by the Constitution.

Article 3(1) is just one example of how Parliament’s powers are limited by the Constitution. My humble view is that the same principle applies to Article 68(9). The article simply states that “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime.”

I am fortified by the reference by Professor AKP Kludze JSC in the Supreme Court case of Asare v. Attorney-General, that “express enactment shuts the door to further implication and speculation.” The words in Article 68(9) are clear and express. The issue is captured in the simple questions: Has the pension become payable? Have the facilities become available? If so, can they be varied, and what would amount to a disadvantage?

Under Article 68(3), the ex-Presidents‘ “pension… and other allowances and facilities [are] prescribed by Parliament.” Article 71(2) then provides that “The salaries and allowances payable, and the facilities available, to the President…, shall be determined by Parliament on the recommendations of the Committee…” And Article 71(3) says that “For the purposes of this article, and except as otherwise provided in this Constitution, “salaries” includes allowances, facilities and privileges and retiring benefits or awards”

I must point out that these provisions are not novel. Article 71 is a near-verbatim reproduction of Article 58 of the 1979 Republican Constitution, which in itself had its roots in Article 52 of the 1969 Constitution. And, while the first two clauses of Article 68 are reproduced from Article 55 of the 1979 Constitution, the remaining clauses of Article 68 can be largely found in Article 44 of the 1979 Constitution. Specifically, clauses (8) and (9) of Article 68 of the current Constitution are exact reproductions of clauses (7) and (8) respectively of Article 44 of the 1979 Constitution.

On 19th July 1994, the Supreme Court delivered 4 judgments, namely, Yakubu v. Attorney-General [1993-94] 1 GLR 307, Wuaku v. Attorney-General [1993-94] 2 GLR 393, Abakah v. Attorney-General [1993-94] 1 GLR 325 and Osei-Hwere v. Attorney General, Supreme Court, Accra, 19 July 1994 unreported. Each of these cases discussed the meaning of the word “salaries” in Article 71 of the current Constitution, Article 58 of the 1979 Constitution and Article 52 of the 1969 Constitution, as the case may be. In all of the cases, the court held that the definition of the word “salaries” (particularly in the 1979 Constitution and the current Constitution) was specific only to the relevant article, on account of the use of the qualifying words “for the purposes of this article, and except as otherwise provided in this Constitution…” Accordingly that definition was not of general application throughout the Constitution.

However, among the 4 cases, the decision that I find immediately helpful and instructful is Yakubu v. Attorney-General, where the court found that the once President had not appointed to committee required to make recommendations under Article 71(1), the use of a car or the occupation of a bungalow by a judge were “only a facility accorded a serving superior court judge on his appointment to enable him perform the functions of his office effectively.” But these were the key words of the court: “Until there is a determination that these facilities should form part of a retiring justice of the superior court’s benefits or awards, such a claim cannot be made as of right. When a recommendation has been made and the President has determined the retiring benefits and awards of the justices of the superior court of judicature the plaintiff may put up a claim since he has retired under the Constitution.”

In other words, the Supreme Court held that the judge, who was the plaintiff, in the matter would acquire an immediate right to those facilities once the President makes the required determination, after receiving the Committee’s recommendation. By parity of reasoning, the President himself would acquire the right to the pension once Parliament makes the prescription or determination after the Committee’s recommendation.

An examination of the provisions of the various Constitutions reveals the same flow of logic and reasoning in the provisions under reference. The Committee makes recommendations for presidential salaries (defined to include pensions), and those recommendations are sent to Parliament for ‘determination’ with respect to the sitting President or ‘prescription’ with respect to the ex-Presidents. Once Parliament ‘determines’ or ‘prescribes’ what has been so determined or prescribed they become immediately payable and available, and consequently, cannot be varied to the disadvantage of the intended beneficiaries. I add the sitting President because the package as prescribed by Parliament is now part of his “salary” as defined by Article 71(3). They cannot be varied to his disadvantage in his lifetime. I will return to this point later.

Clearly, from the foregoing the pension became ‘payable’ or otherwise owed, due, or to be paid to the ex-Presidents and the current President when Parliament voted on 6th January 2009. Also, the facilities became ‘available’ or obtainable by or offered to the ex-Presidents and the current President upon the same vote. Accordingly, on the same date, Article 68(9) came into full force and effect with respect to what was so prescribed or determined. The ex-Presidents and the current President, now have respective accrued rights to that package. Consequently, the now-payable pension and now-available facilities cannot be varied to the disadvantage of either the ex-Presidents during their respective lives or the current President whilst he is in office, and upon his leaving office, during his lifetime.

What then does the phrase “varied to his disadvantage”, mean? That phrase occurs 5 other times in the Constitution. First, Article 68(8) provides that “The salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office.” Second, Article 89(8) provides that “The allowances and privileges of the Chairman and other members of the Council of State shall be charged on the Consolidated Fund and shall not be varied to their disadvantage while they hold office.” Third, Article 95(7) provides that “The salary and other allowances payable to the Speaker shall not be varied to his disadvantage during his tenure of office.” Fourth, Article 127(5) provides that “The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of the Superior Court or any judicial officer or other person exercising judicial power, shall not be varied to his disadvantage.” And, Fifth, Article 187(12) provides that “The salary and allowances payable to the Auditor-General, his rights in respect of leave of absence, retiring award or retiring age shall not be varied to his disadvantage during his tenure of office.”

Clearly, and contrary to Apostle Ahinful’s posit, these Articles of the Constitution are not referring to what disadvantage that those salaries or amenities might bring upon the national purse. They clearly refer to drawing back, reducing, decreasing, lessening, diminution or scaling down the amenities that are guaranteed to the respective recipients. Thus, although the said amenities may be varied, they can only be varied if the variation does not result in any reduction or diminution relative to the conditions stated in the said Articles of the Constitution. And one can appreciate the possible reasoning of the framers of the Constitution in making the payable pension and available facilities to ex-Presidents immutable and irreversible – so that a succeeding government cannot seek to punish or impoverish an ex-President by taking away his/her Parliament-determined and Parliament-prescribed payable pension and available facilities.

Lets look at some brass tacks. If Parliament has prescribed or determined a payable pension of ¢3,200 a month for an ex-President, reducing this to ¢3,199.99 would mean that the ex-President would be disadvantaged by ¢0.01. That would be unconstitutional because it would breach Article 68(9). If Parliament had prescribed or otherwise determined that ex-Presidents should use the Presidential lounge at the Kotoka International Airport in their travels, any change which compels them to use, say, the VIP lounge (when the Presidential lounge still exists), would be to their disadvantage, to the extent that the VIP lounge facility is of less comfort than what is offered by the Presidential lounge. That also would be unconstitutional.

It is definitely because of the irreversible nature of the payable pension and available facilities that the framers of the Constitution, in their wisdom, provided that Parliament must make the determination or prescription. Parliament was therefore expected, before it voted on any pension/facilities, to carefully deliberate and debate the matter. The last Parliament did not. Whenever a Parliament rushes to do a determination/prescription, they expose the good people of this country to this situation where our hands are tied and we cannot reverse something that, probably, the majority of us think is too extravagant. But for will or for woe, our Parliament has set down, laid down, fixed and imposed this, without any deliberation on the floor of the House (by their own admission). We are bound.

I have noted other arguments in opposition to my humble position, which suggest that once the ex-President has not been paid any pension yet, Article 68(9) is inapplicable, and that the package can be reviewed. I respectfully disagree. The specific wording of Article 68(9) does not support this contention. The words, once again, are as follows: “The pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime” [Emphasis added.] Read carefully, this provision clearly anticipates that the pension will become payable even whilst the beneficiary is still President. This is because Article 71(3) states considers the President’s “retiring benefits or awards”, i.e. “pension” as part of his salary, which is then absolutely guaranteed against reduction or diminution generally under Article 68(8) (whilst he is in office) and specifically under Article 68(9) (when he is out of office). If the pension becomes payable (i.e. the right to it accrues) even whilst the President is still in office, and is then guaranteed or protected against reduction or diminution even before the President leaves office and is yet to even make his first drawing of the pension, the argument that a variation can be lawfully made simply because payment of the first pension has not been made is, with utmost respect, not backed by the Constitution. I concede that the argument might sound attractive, because many are thinking of ways to reverse this package and to provide for a less pension package. But the answer to this argument lies in the wisdom of Professor AKP Kludze JSC’s already-quoted words that “express enactment shuts the door to further implication and speculation.” The words in the Articles quoted are clear and unambiguous, with absolutely no equivocation or vagueness. I respectfully do not see how any further inferences, propositions, assumptions, conjectures and suppositions can be made with respect to those words, so as to justify a review on the grounds advocated.

I also note that some MPs appear to have seen the error of their ways, after the fact, and now I hear and see MPs scrambling to find some procedural irregularity in the 6th January vote so as to provide a ground to void that vote. We truly live in interesting times. What has emerged, from where I stand, is that the only things that are alleged to have been ‘wrong’ with that vote was that the Parliamentarians did not discuss and debate the matter on the floor of the House or that it was not on the Order Paper for the day. May we ask the Honourable ladies and gentlemen of the House, whether matters that are to be discussed in closed-sessions are required to appear on the Order Paper? May we ask the same persons whether there is a rule of law or parliamentary practice that says that if a Parliament knowingly shirks its responsibility to deliberate a matter before voting on it, that vote can be voided on the ground of the non-deliberation?

So, what is the way forward? I can foresee three possible developments. First, Parliament will conjure up a ‘ghost’ procedural defect in the proceedings leading to the 6th January vote (e.g. that Parliament was inquorate), and therefore vote to void the 6th January vote. Second, we will leave the package as it is for it to be a painful reminder of what a Parliament can do to a nation when it is lulled or lured into a catnap and thereby abandons its responsibilities to the good people of the nation. Third, the ex-Presidents and the current President will refuse to take full advantage of the package and opt for less. Question: What do you call ex-Presidents and a current President rejecting or accepting a less-than-juicy package? Answer: A good start. We can then use the value of the remainder of the package to, for instance, provide classroom desks to public schools nationwide.

I end, still mindful of the good Apostle’s view that I all I might have succeeded in doing is to confuse the confusion. Maybe. But that is just my two-pesewa view, and I really do not expect everyone to agree with me. That would not be democratic.

Originally written on 3 February 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Originally written on 13 February 2009

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

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

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

Article 71(3) says that “for the purposes of this article, and except as otherwise provided in this Constitution, “salaries” includes allowances, facilities and privileges and retiring benefits or awards.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours in the service of God and Country

Kojo Anan

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

Originally Written on 2 March 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Best Regards.

Originally written on 30 January 2009

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

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

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

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

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

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

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

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

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

Originally Written on 27 May 2009

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

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

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

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

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

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

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

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

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

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

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

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

But ingredient (ii)? Dishonesty?

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

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

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

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

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

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

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

Originally written on 31 January 2009

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

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

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

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

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