I-CAN-GHANA

I have, in a couple of radio interviews and on Facebook, expressed my views, based on my understanding of Ghana’s copyright laws, on the heated debate relating to what may be called ‘the Otabil Tapes’ where the respected Pastor Mensa Otabil has expressed strong reservations at the unauthorised used of his voice and sermons by a group called Education Watch as part of the current political campaign. I received a call from Kweku Baako, Managing Editor of the ‘New Crusading Guide’ newspaper, requesting that I put my thoughts in writing. This is what I have produced for him and his paper.

Yes, sermons are protected by our laws on copyright, and may only be used with the consent of the author consents or under circumstances expressly permitted by law. However ‘legalistic’ or ‘religiously objectionable’ this may sound to some, particularly those who hold the view that the ‘Word of God’ should not be subjected to such ‘earthly’ laws, the fact remains that sermons are copyright protected.

The copyright law of Ghana is generally captured in the provisions of the Copyright Act, 2005 (Act 690), which repealed and replaced the long-standing Copyright Law, 1985 (PNDCL 110).

A Sermon is a protected Literary Work
Section 1(1) of Act 690 provides a list of “work eligible for copyright” and states that authors, co-authors or joint authors of those works are entitled to copyright protection. The first on that list is “(a) literary work,” which term is defined by section 76 to include “(f) lectures, addresses or sermons” [Emphasis added.] There is therefore no doubt that Act 690 protects the rights of an author of a sermon, as literary work.

Authors’ Economic and Moral Rights
The rights of authors of copyright protected material are generally expressed as “economic” and “moral”. Section 5 of Act 690 protects authors’ “exclusive economic rights” to reproduction, translation, adaptation, arrangement or any other transformation, public performance, broadcasting or communication to the public, distribution, and commercial rental of their work.

Section 6 states that in addition to economic rights, an author has “the sole moral right” to claim authorship and demand that his name or pseudonym be mentioned when any of the acts referred to in section 5 are done in relation to the work, and to object to and seek relief where there has been “a distortion, mutilation or any other modification of the work, where that act would be or is prejudicial to his reputation or where the work is discredited by the act” [Emphases added.]

These provisions capture the basic statutory rights of authors, including authors of sermons. For example, and with particular reference to “moral rights” where the author of the sermon is a proclaimed apolitical or politically neutral person, the reproduction of his sermon(s), designed in such a way as to cast him in a political light is clearly prejudicial to his reputation and amounts to a violation of his moral rights over the sermon.

Permitted Uses
However, that does not mean that copyright protected sermons cannot be used by other persons at all. As pointed out, under section 5, the author may authorise the use of his material, and that use would not be a breach of the copyright. Further, Act 690 contains, in section 19, certain “permitted uses” of copyright protected material. Of particular relevance is section 19(1)(g)(iii), which states specifically as follows:

“(1) The use of a literary or artistic work …is not an infringement of the right of the author in that work and does not require the consent of the owner of the copyright where the use involves…(g) subject to subsection (4), the reproduction in the media or the communication to the public of… (iii) lecture, address, sermon or any other work of a similar nature delivered in public, where the use by reproduction or communication to the public is exclusively for the purpose of reporting fresh events or new information.” [Emphases added.]

The effect of this section is that if the conditions (emphasised by me) are met, then the otherwise protected material may be used, even without the author’s consent. The first relevant and critical condition is that the reproduction is wholly and absolutely to give an account of “fresh events or new information.” That is where the current debate on the copyright status of sermons runs into the law. The persons seeking to rely on those sermons, today, have a huge burden of showing that those sermons delivered in the past, somehow report fresh events or new information. It is however clear to me that if the sermon(s) being used was/were delivered in the past, it cannot be claimed as “reporting fresh events or new information.” Such a use is not permitted by law.

The next relevant condition is contained in section 19(4), which provides as follows:

“Paragraph (c) of subsection (1) does not apply in respect of a particular work unless the use referred to in that paragraph is compatible with fair practice and the source of the work used and the name of the author are indicated in the relevant publication, broadcast or recording.” [Emphasis added.]

Once again, where a sermon was preached in the past and was not directed at any current issue, but is subsequently reproduced in a manner that suggest that it does, then certainly, that use is not compatible with fair practice. A practice is “fair” if it is reasonable or unbiased and done properly according to the applicable rules. My views are three-fold. First, the use of work via deliberate distortion, intentional mutilation or wrongful modification, and which therefore violate the “moral rights” of an author, cannot be “compatible with fair practice” by any stretch of any legal principles or any person’s fertile imagination. Second, the use of a previous sermon under circumstances that suggest that it either relates or is related to a current issue, is plainly dishonest. Third, the “splicing and dicing” and “cutting and pasting” of different parts of different sermons, to present them as one sermon, is devious and does violence to notions of fair practice. These fall squarely within the prohibition contained in section 19(4) of Act 690.

Yet another relevant permitted use of copyright protected material is contained in section 19(1)(d)(ii), with respect to “a broadcast on current economic, political or religious topics,” where “the broadcast or any other communication to the public where a statement of the source is provided unless the article or broadcast when first published or made was accompanied by an express condition prohibiting its use without consent.” Note, first, that this provision relates only to a “broadcast” by an author; thus so if the matter has not been the subject of a broadcast, this permitted use does not apply. Second, the use of the word “current” shows that the broadcast must be on a recent or present matter. In the context of the sermons in question, (even if they were broadcasts, which is not the case) they have been explained to have been preached at times when the relevant “current” matters (to which they are being massaged to apply) had not arisen, and/or did not relate to them in any way. Further, once the author had reserved his copyright even to that sermon, then that use is not permitted. I have noted the words “all rights reserved” on the relevant CDs and tapes. It would appear that this permitted use does not apply to the matter at hand.

Are Sermons in the Public Domain?
Finally, I have also heard it claimed that sermons do not enjoy copyright protection because they are in “the public domain.” That is clearly and respectfully untrue or uninformed. The term “public domain” has a strict definition within the context of copyright law. Section 38(1) of Act 690 provides only 3 categories of works that “belong to the public domain.” These are

“(a) works with expired terms of protection,
(b) works by authors who have renounced their rights, and
(c) foreign works that do not enjoy protection in the Republic.“

Clearly, the sermon(s) in question do not fit under any of the above categories, and accordingly the phrase “public domain” does not apply to the sermons. Further section 38 contains regulations for the use of “public domain” work. It does not appear that those regulations have been followed at all.

Sanctions
The law provides both criminal and civil sanctions for the breach of a person’s copyright. Under section 43, copyright violation is an offence and a person who is convicted is liable to a fine between GH¢6,000 and GH¢12,000 and/or to imprisonment not exceeding three years. Where the offence is continuing (as appears to be the case presently), there may be a further fine between GH¢300 and GH¢1,200 for each day during which the offence continues. Note that this offence is committed, not only by the person who put the plagiarized work together, but anyone who continues to disseminate the material.

Where the offender is a corporate body, every director or secretary shall be deemed to have committed the offence, unless the person can satisfy the court that some other person committed the offence without his consent or connivance, and that he “exercised due diligence to prevent the commission of that offence having regard to the circumstances.” Thus, and for instance, it would be very difficult for a director of a radio station that gleefully continues to disseminate such work, in the face of clear objections by an author, to set up the defence of “due diligence.”

In the exercise of its criminal jurisdiction, and under section 46, the court may seize the offending material and may direct that monies arising out of the offence be paid to the author. Again, for instance, a radio station may be compelled to pay to an author, all monies it has earned from airing a commercial advert that wrongfully contains copyright material.

With respect to civil sanctions, section 48 provides that a wronged author may obtain injunctions to restrain the further dissemination of the word and damages for the breach of his copyright. The law specifically allows for what lawyers call ‘Anton Piller-type injunction’ applications to be moved ex parte (i.e. when the application is taken or granted at the instance and for the benefit of one party only, and without notice to, or contest by, any person adversely interested) and in a judge’s chambers, for the inspection or removal from a defendant’s premises of copyright infringing materials which constitute evidence of infringement by the defendant.

Conclusion
In conclusion, and on the bases of the above (the law and all the exceptions and conditions discussed), my respectful view is that sermons are indeed protected under our copyright laws, subject only to (1) the consent of the author or (2) applicable statutorily permitted uses. And, the law prescribes some severe punishment upon the breach of a person’s copyright.

Presented by Ace Anan Ankomah as Guest Speaker at the 6th Moderatorial Luncheon, organised by the Presbyterian Church on 28th October 2012

DEFINITION OF KEY/RELEVANT TERMS:

Judgment – The official and authentic decision of a court of justice upon the respective rights and claims of parties to an action or suit, litigated in the court and submitted to the court’s determination. Conclusion of law upon facts found or admitted by the parties or upon their default in the course of the suit. Onslow v. IRC (1890) 25 QBD 465 per Lord Esher MR: “A judgment is a decision obtained in an action…”

Final Judgment – disposes of the subject matter of the controversy or determines the litigation as to all the parties on its merits.

Interlocutory Judgment – merely establishes the right of a party to recover in general terms, determines some preliminary or subordinate point or plea, settles some step, question or default arising in the process of the action, but does not adjudicate the ultimate rights of the parties or finally put the case out of court.

Default Judgment: A judgment obtained on account of the Defendant failing to either enter appearance or file a Statement of Defence.

Summary Judgment: a judgment obtained by a plaintiff who is able show that there is no answer to his case, without having to go through a full trial, where the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried. This provides early judgment in cases where the defendant has no hope of success and any defence raised will merely have the effect of delaying judgment. The court then grants judgment SUMMARILY, i.e. without the delay and expense of a full trial, because it is satisfied that no trial is necessary.

Judgment on Admissions: Judgment entered on account of an admission made by a party in his pleading, an affidavit, in discovery or under any examination under oath or affirmation in and out of court.

Consent Judgment: A judgment, the terms of which are settled and agreed by the parties, and filed in and entered by the court. In effect, they are merely contracts acknowledged in open court and ordered to be recorded, but bind the parties as fully as other judgments.

Arbitral Award: The decision or determination rendered by arbitrators upon a dispute submitted to them. Upon obtaining the leave of the High Court (after an application) it will be enforced as if it is a judgment of the court.

Mediation Agreement: A mediator intervenes between two contending parties to help reconcile them or persuade them to adjust or settle their dispute. The mediator does not make an award or pass a judgment. He helps the parties to enter into a “Settlement Agreement.” When the parties sign the Settlement Agreement, it becomes binding between them, and has the same effect as an Arbitral Award.

Debt – a sum of money due by certain and express agreement, arising upon an express or implied contract.

Judgment Debt – a debt, for the recovery of which a judgment has been entered.

HOW JUDGMENT DEBTS ARISE:

1. Negotiation Stage
   a. Negotiation skills
   b. Knowledge (technical) of the subject area
   c. Contractual “give and take”
   d. Preliminary “heads of agreement”
   e. Memoranda of Understanding
   f. Involvement of the AG’s Office/Legal Departments of the various Ministries
2. Drafting Stage
   a. Legal advice (from the AG)
   b. Reducing all heads of agreement into writing
   c. Choice of Law Clauses
   d. Dispute Resolution Clauses
3. Performance/Execution Stage
   a. Fulfilling our side of contractual obligations
   b. Technical expertise
   c. Parliamentary approval? Loans/International Business & Economic Transactions
4. Dispute Resolution Stage
   a. When breaches occur (causes – arrogance, lack of understanding, change of government)
   b. Litigation/Arbitration/Mediation/Negotiation
   c. Filing times and difficulty in obtaining responses from the relevant ministries (who is the client?)
   d. Lack of expertise in civil trials and international arbitration (technicalities – substantive and procedural)
   e. Legal costs (foreign lawyers)
5. Execution of Money Judgments
   a. Enforcement against the State – Certificate of Particulars
   b. Any role for auditing at this stage?
   c. Enforcement of foreign judgments – Registration v. Commencement of fresh proceedings
   d. Enforcement of arbitral awards – Leave to enforce
   e. Enforcement Methods
   i. Writ of fieri facias (fi.fa.) – authorises the Registrar to seize and sell the execution debtor’s property, sufficient to satisfy the judgment debt, post-judgment interest (if any) and execution costs, and directs the Registrar to pay the plaintiff the amount levied in execution
   ii. Garnishee proceedings – proceedings by which a judgment is satisfied by reaching the credit or property of the judgment debtor in the hands of another person (usually a bank).
   iii. Charging Orders – provides the judgment creditor with the equivalent of a mortgage over land specified in the order or on a judgment debtor’s beneficial interest in securities

RECOMMENDATIONS:

1. Judgment Debt Czar?
   • In current political parlance, a ‘czar’ is somebody given authority, especially for dealing with a particular issue or problem
   • Short-term solution only
   • Duplicity? Public Accounts Committee of Parliament?
2. Training, Due Diligence
   Continuous, rigorous External Training, Internal training, Cross-pollination, re relevant officials.
3. Wake the Auditor-General up from Slumber!!
   Auditor-General has constitutional powers of “Surcharge” and “Disallowance.”

Constitution, Article 187(7)(b):
“In the performance of his functions under this Constitution or any other law the Auditor-General… may disallow any item of expenditure which is contrary to law and surcharge, (i) the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure; (ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account; or (iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.”

These powers are reiterated and fleshed out in sections 17, 18 and 20 of the Audit Service Act, 2000 (Act 584). Under section 17 the debt created by the surcharge will be recovered as a debt by way of civil proceedings. The person surcharged also has a right of appeal to the High Court. And, the Auditor-General CANNOT revoke a surcharge except with prior parliamentary approval. Under section 20, the Auditor-General must report to Parliament (and effectively to the people of Ghana), where
• an appropriation was exceeded or was applied for a purpose or in a manner not authorised by law;
• an expenditure was not authorised or properly vouched for or certified;
• there has been a deficiency through fraud, default or mistake of any person;
• applicable internal control and management measures are inefficient or ineffective;
• the use or custody of property, money, stamps, securities, equipment, stores, trust money, trust property or any other assets has occurred in a manner detrimental to the Republic;
• resources have not been used with due regard to economy, efficiency and effectiveness in relation to the results attained; and
• any matter, which in the public interest, should be brought to the notice of Parliament.

4. Crack the Whip/Enforce the Laws!
‘Revolutionary’ False Certification:
Government Contracts (Protection) Act, 1979 (AFRCD 58)
— A person who is responsible for issuing certificates for the payment of money out of public funds to contractors or any other person in respect of Government contracts, is jointly and severally liable with that contractor or that other person for the refund of the money so paid where he issues the certificate for payment

• knowing that
  ◦ the work/service has not been performed,
  ◦ the goods have not been supplied, or
  ◦ the money was not otherwise due under the contract; or
• recklessly careless whether
  ◦ the work had been done or not,
  ◦ the goods have been supplied or not, or
  ◦ the money is otherwise due under the contract or not; or
• where in the issue of the certificate that person was grossly negligent.

Without prejudice to the civil liability, (i) that person, (ii) the contractor, and (iii) any other person who knowingly accepted a payment made in any of the above circumstances is liable to a fine of up to three times the amount of money of the improper payment or to imprisonment of up to 10 years, or to both.

— Where it is proved
• that the person responsible for the certificate was bribed into issuing the certificate, or
• that the issue of the certificate was otherwise attended by a corrupt practice,
Both the ‘bribor’ and the ‘bribee’, and any other person who knowingly participated in the bribery/corrupt practice commits an offence and is liable to imprisonment (between 5 and 15 years), and a penalty equal to three times the amount of money of the improper payment.

CONCLUDING COMMENTS
 Do we care?
 Do we mind?
 Do we simply shrug?
 Does it hurt?
 What keeps you up and tossing at night?
 What keeps you burning during the day?
 What is our stake in the enterprise, Ghana inc.?
 Should the last Ghanaian leaving the realm remember to turn out the lights?
 Or do we see, by faith a storm, birthed out of nothing but a cloud, no larger than the size of a man’s fist?

GHANA’S ANTI-CORRUPTION LEGISLATION: Review & Analysis

Presented by:

Ace Anan Ankomah, Managing Partner, Head, Litigation & Dispute Resolution; BENTSI-ENCHILL, LETSA & ANKOMAH

Constitutional Underpinnings

—  Article 35(8): “The State shall take steps to eradicate corrupt practices…”

—  Article 218(a): Commission on Human Rights and Administrative Justice (“CHRAJ”) to “investigate complaints of… corruption, abuse of power … by a public officer in the exercise of his official duties”

—  Article 218(e): CHRAJ to “investigate all instances of alleged or suspected corruption and the misappropriation of public monies by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations”

◦   “Complaints”? Republic v. High Court (Fast Track Division), Ex parte CHRAJ (Richard Anane Interested Party) [2007-2008] SCGLR 213

◦   “Public Officials”? CHRAJ v. Attorney-General & Baba Kamara (Unreported, 6^th April 2011)

CORRUPTION is only a MISDEMEANOUR!

—  Corruption of or by a public officer is a misdemeanour.

—  Misdemeanour: used in contradistinction to “felony”, and covers offences which do not amount to felony and considered lower than felonies.

◦    Unless otherwise specified by legislation the punishment for a misdemeanour is imprisonment not exceeding 3 years

—  Felony: a crime of a graver or more atrocious nature.

◦    First degree felony (and the punishment is not specified) – life imprisonment or any lesser term.

◦    Second degree felony (and the punishment is not specified) – imprisonment not exceeding 10 years.

◦    Felony (the statue is silent on whether it is a first or second degree felony and the punishment is not specified) – deemed to be a second degree felony.

Corruption BY/OF a Public Officer

—  Elements:

◦    In respect of duties of a public office

◦    Directly or indirectly agreeing or offering to permit his conduct as a public officer to be influenced

◦    By gift, promise or prospect of a valuable consideration

◦    To be received:

– By him, or by any other person

– From any other person.

◦    In respect of the duties of office

◦    A person endeavours, directly or indirectly, to influence the conduct of the public officer in respect of the duties of office

◦    By gift, promise or prospect of a valuable consideration

◦    To be received:

– By the public officer or by any other person

– From any other person.

“Valuable Consideration”

 —  Some right, interest, profit or benefit accruing to one party and some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.

—  Need not be translated into cedis and pesewas, but is sufficient if it consists of performance or promise of performance, which the promissor treats and considers of value to him.

 ‘Pre-Paid’ Bribes/Corrupt Agreement for Lawful Consideration

—  Payment in hope, anticipation, belief, prospect, probability of appointment: It is immaterial that the person in respect of whose conduct the endeavour, agreement or offer is made is not yet a public officer as at the time of the making of it, if the endeavour, agreement, or offer is made in the expectation that that person will or may become or act as a public officer.

—  It is immaterial, whether the act to be done by a person in consideration or in pursuance of the gift, promise, prospect, agreement or offer is criminal or wrongful otherwise than by reason of any other law.

‘Post-Paid’ Bribes

—  Where after a public officer does an act

—  He secretly accepts or agrees or offers to secretly accept for personal gain or for any other person

—  Valuable consideration on account of the act

—  Presumption: until the contrary is shown, he acted corruptly before doing of the act. 

—  Where after a public officer does an act

—  Any other person secretly agrees or offers to give or to procure for that person or any other person

—  Valuable consideration on account of that act

—  Presumption: the person so agreeing or offering, corrupted the public officer before the doing of the act

—  Republic v. Hagan [1968] GLR 607: For the purpose of committing the offence of accepting a bribe to influence a public officer, whatever public office is held by the accused is irrelevant, for no question of the colour of the offender’s office arises, and his position will be the same whether he holds public office or not. The accused must have acted under pretence or under colour of having influenced or being able to influence. One acts “under colour” if he represents or misrepresents that he has influenced or is in a position to influence. Such a representation or misrepresentation may even be made through an intermediary…

EXTORTION is only a MISDEMEANOUR

—  A public officer who: 

◦    Under colour of office

◦    Demands or obtains from a person, whether

– for public purposes,

– for personal gain, or

– for any other person

◦    Money or valuable consideration which he knows is not lawfully authorised to demand or to obtain

—  Commits a misdemeanour

 —  Motayo v. COP (1950) 13 WACA 114: “To constitute an offence under that section there must… not only be a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment. It is immaterial whether he pretends that the money is to be paid into the funds of the public authority that employs him or whether it is a perquisite for himself; it suffices if he conveys the impression to his victim, whether directly or by implication, that by virtue of his employment he is entitled to demand it.”

 —  Republic v. Hagan (supra.): Where a public officer demands or obtains a bribe, this did not ipso facto amount to extortion, merely because the recipient happens to hold a public office. The demand or obtaining must have some reference to the particular public office held by the accused, and there should be an act or conduct which amounts to the representation or misrepresentation of the duties of his office.

 —  Appiah v. The Republic [1989-88] 2 GLR 377:  The offence of extortion as defined is in the alternative, “demand” or “obtain.” The demand might be either directly or indirectly made. If indirect, proof of the demand might well nigh be impossible without other enabling statutory provisions. “Obtaining” lends itself to readier proof and readier defences. It is the suspicious end result that flows from a representation that must be explained and is capable of explanation if an innocent one existed. Accordingly, a posture of an ability to deliver under colour of office, whether positively or impliedly, might amount to a constructive representation if the other limb of the offence, namely “obtaining” is proved. Consequently, provided there is representation, demand or obtaining, the offence is committed even when the payment secures no returns.

False Certification ‘simpliciter’

—  A public officer, who, being bound or authorised to attest or certify a document or matter, or that an event has or has not happened:

◦    Knowingly does a false attestation or certification in a material particular, or

◦    Attests or certifies that the event has happened or has not happened, without knowing or having reason to believe that it has happened or has not happened.

Commits a misdemeanor

 ‘Revolutionary’ False Certification:
Government Contracts (Protection) Act, 1979 (AFRCD 58)

—  A person who is responsible for issuing certificates for the payment of money out of public funds to contractors or any other person in respect of Government contracts, is jointly and severally liable with that contractor or that other person for the refund of the money so paid where he issues the certificate for payment

– knowing that

◦   the work/service has not been performed,

◦   the goods have not been supplied, or

◦   the money was not otherwise due under the contract; or

– recklessly careless whether

◦   the work had been done or not,

◦   the goods have been supplied or not, or

◦   the money is otherwise due under the contract or not; or

– where in the issue of the certificate that person was grossly negligent.

—  Without prejudice to the civil liability, that person and the contractor, and any other person who knowingly accepted a payment made in any of the above circumstances is liable to a fine of up to three times the amount of money of the improper payment or to imprisonment of up to 10 years, or to both.

—  Where it is proved

◦   that the person responsible for the certificate was bribed into issuing the certificate, or

◦   that the issue of the certificate was otherwise attended by a corrupt practice,

—  Both the ‘bribor’ and the ‘bribee’, and any other person who knowingly participated in the bribery/corrupt practice commits an offence and is liable to imprisonment (between 5 and 15 years), and a penalty equal to three times the amount of money of the improper payment.

Audit Service

—  It is an offence for a member of the Audit Service to

◦    demand or take a bribe, gratuity, recompense or reward for the neglect or non-performance of a duty,

◦    wilfully fail to report to the Auditor-General an abuse or irregularity that comes to his notice in the course of performing a function in relation to any accounts audited by him, or

◦    make a report to the Auditor-General which he knows is false or does not have a reason to believe is true,

Criminal sanction: a fine of up to 500 penalty units (GH¢6,000) or imprisonment of up to 2 years, or to both.

Bribery/Extortion by/of Official of the Customs, Excise and Preventive Service (CEPS)

—  It is an offence for an officer the CEPS to

◦   demand or take a bribe, gratuity, recompense or reward for the neglect or non-performance of duty,

◦   demand or take an unauthorised fee, perquisite or reward, whether pecuniary or otherwise, directly or indirectly, on account of anything relating to this office or employment, or

◦   deliver up or agree to deliver up or not to seize anything liable to forfeiture,

Civil punishment: summary dismissal from office.

Criminal sanction: fine of up to 200% of the total loss occasioned or that would have occasioned or up to 300,000 penalty units (GH¢3,600,000), or imprisonment of up to 10 years.

—  It is an offence to

◦    give, offer, or agree to give or procure to be given, a bribe, gratuity, recompense or reward to an officer,

◦    give, offer, or agree to give an unauthorised fee, perquisite or reward to an officer, or

◦    induce or attempt to induce an officer to connive at any evasion of the law or to neglect duty,

Criminal sanction: fine of up to 200% of the total loss that would have been caused, or up to GH¢500,000 (whichever is higher), or imprisonment of up to 10 years, or both the fine and imprisonment.

Additional Points to Note

—  It is an offence

◦    for a person by a gratuity, bribe, promise, or any other inducement prevent, or attempts to prevent, the due execution of the duties of an officer of the Foods & Drugs Board.

—  It is Contempt of Parliament

◦    for a person to endeavour, by means of bribery or fraud to influence an MP in the performance of his functions

◦    for an MP to accept, or procure for personal gain or for any other person, a benefit in return for undertaking to perform any of the functions of an MP in a particular manner or by reason of anything done or omitted to be done by the MP in the performance of functions.

—  Public Procurement Act

◦     “93.   Corrupt practices

          (1)  Entities and participants in a procurement process shall, in undertaking procurement activities, abide by the provisions of article 284 [conflict of interest provisions] of the Constitution.

          (2)  An act amounts to a corrupt practice if so construed within the meaning of corruption as defined in the Criminal Offences Act, 1960 (Act 29).”

—  Whistleblowers Act

◦     Preamble: “to provide for the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of others; to provide for the protection against victimisation of persons who make these disclosures; to provide for a Fund to reward individuals who make the disclosures…”

Concluding Points

—  Make the offences of Corruption, Extortion, etc., more ‘serious’ crimes, i.e. make the punishment sufficiently painful

—  AFRCD 58 is the way forward

—  Extend the offences to cover “private” acts of corruption (no shame in borrowing from the UK)

—  Provide civil remedies to recover ill-gotten gains

—  Consider a consolidated Bribery & Corruption Act

—  Empower/Resource CID, EOCO, etc.

—  Public education/discourse – EXPOSURE!!

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.

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

Open Letter

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

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

“1. Is there any suggestion or evidence that Telecom Operators have been cheating on the “Talk Tax”, which will then require the implementation of the monitoring of communications to “enhance compliance”?

2. What are the legal bases for the demands by ‘National Security’ for ‘registration’, and therefore unrestricted access to citizens’ details, from Telecom Operators?

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

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

Existing Relevant Legal Provisions

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

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

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

Registration: The Way Forward

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

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

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

Monitoring Equipment

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

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

Conclusion

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

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

Yours in the service of God & Ghana,

Kojo Anan

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

14th December 2009

The Honourable Minister
Ministry of Finance & Economic Planning
Accra

AND

The Honourable Minister
Ministry of Communications
Accra

Dear Sirs,

Re: Registration of Mobile Phone Subscribers and Monitoring of Telecommunications

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

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

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

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

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

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

1. Is there any suggestion or evidence that Telecom Operators have been cheating on the “Talk Tax”, which will then require the implementation of the monitoring of communications to “enhance compliance”?

2. What are the legal bases for the demands by ‘National Security’ for ‘registration’, and therefore unrestricted access to citizens’ details, from Telecom Operators?

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

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

Yours in the service of God and Ghana,

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

cc. The Honourable Minister
Ministry of Information
Accra

The Parliamentary Majority Leader
Parliament House
Accra

The Parliamentary Minority Leader
Parliament House
Accra

The Director-General
National Communications Authority
Accra

The Press

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

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

The Story of the Bawku Two

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

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

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

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

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

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

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

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

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

The Story of the Escaped Murder Suspect

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court stated further as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours in the service of God and Country,
Kojo Anan