I-CAN-GHANA

Originally written on 2 February 2009

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

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

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

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

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

Further Article 297(a) states that:

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

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

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

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

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

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

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

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

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

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

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

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

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

Originally written on 27 May 2009

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

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

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

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

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

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

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

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

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

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

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

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