I-CAN-GHANA

Why was Fauster Atta Mensah able to pull off and get away with one of the most hare-brained scams of our times?

The answer lies in ourselves, as Ghanaians. We are a people so enamoured with titles and positions of honour that even where none exist, we create them. Fauster knew this very well and laid out a deliberate scam to milk it to the fullest, for as long as it lasted.

Some two decades ago, as a poor, broke scholarship graduate student, my pastor invited me to dinner in his home. Over the dinner table, his wife of Jamaican origin stated that “every Ghanaian I have met is from a royal family. Are you also from a royal family?” Right there was my opportunity to claim undeserved gravitas. I could say that I was the great grandnephew of Yaa Asantewa, that I am of royal warrior blood, that… My fertile mind went into overdrive. But at the same time, in those same split seconds, I said to myself that I ought to be accepted and appreciated for who I was, even if that “who” was nothing. And so my answer was a simple, mousy, little “no.” And that was the truth. I am not from the Akyem Achiase royal family. In fact, I don’t think that the current chief even knows my name. Ah, yes, I have heard that my late dad was from the Biriwa royal family, but as an Akan, I know that no one in my family has any claims to that or any stool. We are just who we are, ordinary Ghanaians, working hard to put food on our tables, clothes on our backs, roofs over our heads and money in our pockets so that we can pay taxes for the government to misuse. We do not need any empty titles or fake claims to any positions of honour to be worth who we are.

Take a look around you. Listen to our radio stations. You give an interview to a radio station, and when it is being played back, you are described as a “legal luminary,” when you have not illuminated anything in your life. I once spoke at a seminar on the legal aspects of bird flu. The next day I was a “legal expert in medical law.” A man arrived in Accra from his village and decides that he needs access to the top end of society. And so he renames himself “Prince”. He returns home, brings all his brothers and sisters to Accra, and names them “Prince” and “Princess”, as the case may be. All his children will bear the title. The next thing, one of these “Princesses” will show up in America claiming to be “Queen.”

Our Parliamentarians, Ministers, Deputy Ministers, and even Assembly Members carry the title “Honourable.” Meanwhile, in Britain, from where we claim to have borrowed it, it is not a title. It is a description, as in “Paul Boateng, the Honourable Member of Parliament for…” Only the Speaker of Parliament bears the title “The Right Honourable…” But here, the “Honourable” has left the description end and has become a much-cherished title. If you like, don’t call the man “Honourable” and see. Empty and vacuous.

Look at our pastors, especially those of the Charismatic ilk. As soon as their churches begin to grow, someone will pop up at their doors “selling” doctorate titles from some corner of the US. In a couple of weeks “Pastor so-an-so” becomes “Reverend Doctor so-and-so,” arrives in church wearing an academic gown and hat, with the 3 stripes of a “Doctor”, to loud shouts of glee and acclamation. And it is really laughable. The man has no bachelors or masters degree. But here he is, rocking an academic gown with 3 bands, and the ignorant church members are beside themselves with joy and ecstasy. Ah, people who have not written a dissertation, let alone a thesis in their lives, who do not know what a thesis defence or viva looks like, are demanding that us lesser mortals should address them with the title “Doctor.” What is worse, in academia properly so-called, honorary degrees do not become part of one’s title. But not in Ghana. We love them.

Look at our chieftaincy institution. It was used to be just “Na” or “Nana” or “Togbe” or “Nene” etc. Then we started adding further honorific, descriptive titles, which I will not mention here, but they mostly begin with “O”. Notice how we are moving from the description “chief” to the title “King”? But what what takes the biscuit now is “His Royal Majesty.” So that a man who has absolutely no natural claim a even a kitchen stool, now, on account of being made some insignificant developmental sub-chief, struts around the world holding himself out as “King so-and-so” bearing the further, comical description “His Royal Majesty.” Similarly, a caucasian appears in some rural community and shells out $2,000 to dig a borehole, he is quickly wrapped in a kente cloth, and place on a wooden stool. He returns home proclaiming to be King of Ghana. And, oh, did we not read about and see pictures of some Ghanaian ‘king’, driving a taxi in some western country, in full regalia?

Fauster is smart. He knows his people very well. He taps into who we are, and has a huge laugh at our expense. It may be that ordinarily, all his achievements, if written 10 times over, will fill a quarter of a sheet of paper, with space to spare. But he looks at us and says to himself that if he can but learn photoshopping, he would go very far with us, and enjoy the ride till it ends. And so he spends about a year or two building a false myth about himself. But it is full of holes, so many huge and gaping holes that any ordinarily diligent person could, would, should see the joke from a mile away. I mean, since when did the UN award Nobel Prizes? Read the stuff the guy has written about himself. The English he uses is extremely poor. His claims do not make sense. What did he say he studied at Adisadel? The story is so patently false that one would have thought that only a dunderhead would fall for it. But guess what? We love titles. And so he pops up in Ghana. I am not sure of the exact sequence but he succeeds in conning the title-loving church into giving him some honour. He also gains some recognition from the Government, acting by no other ministry but the Ministry SCIENCE & TECHNOLOGY, supposed to be our science and technology gatekeepers!! He appears on national TV, GTV, with aplomb, where the hapless, clueless host showers him with accolades. It was only after these that he was found out.

And so we may laugh at Fauster as much as we may want to. He is trending on social media. But whenever you see his photoshopped pictures, including the rather incredulous one where he is wearing eyeglasses while in a spacesuit, you should see ourselves in him. Actually, I think Fauster has the last laugh… at our expense.

My friend Professor J. Atsu Amegashie said to me, on a listserve that we write on that:

“If parliamentary approval was not obtained [for those transactions in respect of which arbitral awards have been issued against Ghana], then those who failed to do so broke the law. In any well-governed country, it is these governments officials, not the contractors, who will bear the cost of breaking the law (fines, jail terms, etc). Straightforward and simple. But in Ghana, we like doing things in a convoluted manner. This perpetuates a system of perverse incentives.”

MY RESPONSE:

Atsu, maybe. BUT:

There is a problem with holding officials responsible for not obtaining parliamentary approval, and it is a VERY LONG story.

The ‘problem’ of article 181(5)
You see, article 181(5) didn’t say that “all international contracts to which the government is a party must be submitted to parliament for prior approval.” If it had, then there would be a case for sanction for officials who failed or refused to seek and obtain the approval.

But this is what 181(5) says:

“This article shall, with the necessary modifications by Parliament, apply to an international business or economic transaction to which the Government is a party as it applies to a loan.“

WHAT THE HECK DOES THAT MEAN? Now, the first sub-articles of article 181 basically state that the government cannot take or grant loans without parliamentary approval, and then lays down a procedure for obtaining the approval for giving a loan and a different procedure for granting a loan.

Thus, the questions after 1992 were: what was the exact meaning of “shall, with the necessary modifications by Parliament, apply…”? Does it mean that parliament is given the power to amend the constitution by making mutatis mutandis “modifications”? And, does the article apply at all, if parliament has failed to make the “necessary modifications”? Are those “modifications” conditions precedent to the application of the article? And how far can the “modifications” go? Can parliament, for example, say that some agreements do not require its approval at all? Would that be a modification? Indeed can parliament “modify” this article to say that its approval isn’t required at all?

Other questions: What is the meaning of “international?” What is a “business… transaction”, and what is an “economic transaction”? What is a “transaction”? Is it synonymous with a contract or agreement or does it involve more. Is a contract a series of transactions or vice versa? What is the meaning of “Government” and when is the government a party to a transaction? etc. etc.

I remember at least one seminar organised by the IEA to try to understand this provision. And I have read a couple of papers where some academic suggested that we should remove article 181(5) from the constitution. Note that this provision did not appear in any of our previous constitutions and so we didn’t have the benefit of any previous application if it or guidelines for it. What is worse, the 1992 Constitutional Experts Commission itself said very little about this new provision to shed any light on how it is to be interpreted. We were left groping in the dark.

The result was that both the Executive and Legislature simply ignored article 181(5). Yes, some Mining Agreements and Petroleum Agreements were sent to parliament, but those were because of specific constitutional and statutory provisions to that effect. But generally no one bothered with contracts. Yes, loans went to Parliament under the 1970 Loans Act, but Parliament itself only has a terse provision on international contracts in its new Standing Orders, which provided no guidance on the matter at all.

[CAVEAT: At this point, let me make a personal disclosure: I acted for Balkan and Bankswitch and I am still acting for them. I was also the lawyer for one of the Defendants in the Klomega Case. I ‘lost’ Balkan in the SC – and you will see why I use ‘lost’ very soon. Apaak’s case against Bankswitch is still pending in the SC. AND SO ANY AND EVERY ONE IS ALLOWED TO TAKE WHAT I AM WRITING WITH THE APPROPRIATE DOSE OF SALT]

Faroe Atlantic
Finally in 2005 (13 years after article 181(5) was enacted), the SC had the opportunity to interpret it in the Faroe Atlantic Case. After all the song and dance, the SC held, in substance that:

1. article 181(5) meant that parliamentary approval was required for international business and economic transactions that the government is party to; and without it, the transaction is void, and

2. The transaction in question was “international” because the other party to the transaction was a foreign company.

THIS is where the decision ended. There was no attempt to answer any of the other questions that I had raised above.

Balkan
It was based on the Faroe Atlantic decision that AG Joe Ghartey issued his opinions in Balkan. Indeed he cited Faroe Atlantic in one opinion, stating that once the contractor in the Balkan PPA was a company incorporated in Ghana, then on the strength of Faroe Atlantic, the contract was not international. It is on the basis of this opinion that the government at the time decided not to take the Balkan PPA to parliament for approval, and so Ghartey wrote a second opinion to the effect that all necessary and required approvals for the PPA had been obtained.

When the change in government occurred, the new government dealt with Balkan until Balkan alleged a breach. Government triggered the arbitration clause in the PPA and asked Balkan to go for arbitration. Balkan filed the notice of arbitration. (Days later, its American manager of the Barge was arrested at Effasu for allegedly stealing parts on the barge and detained, in the words of the arbitral tribunal “in his underwear” at BNI in Accra – note: the arbitral tribunal ordered Ghana to pay damages of $50,000 for that arrest!!). Ghana participated in the preliminary ADR (mediation, I think) at The Hague, and then returned to Ghana to file an action in the High Court stating that the arbitral proceedings were wrong, and making allegations against Balkan. Indeed a High Court judge issued an ex parte injunction restraining Balkan from proceeding with the international arbitration that had already commenced! (Some of our judges forget that their orders are limited to the 4 corners of our physical boundaries.)

Our attempts to stay proceedings in Ghana for the arbitration to continue failed. The government then applied to the court to say that the case raised constitutional questions and so the High Court should refer the matter of interpretation to the SC. At the same time the government applied to the arbitral tribunal for an interim award to challenge the jurisdiction of the arbitral tribunal. It failed in both applications. The arbitral tribunal asserted its jurisdiction and the HC in Accra (differently constituted) refused its referral application, on the ground that article 181(5) had already been interpreted in Faroe Atlantic and so all the HC had to do was to apply that interpretation.

Of course there was no further recourse with respect to the arbitral tribunals interim award against Ghana, But dissatisfied with the HC ruling, Ghana then applied for a judicial review of the HC ruling, in the SC. It was successful and the SC ruled that the Balkan matter raised issues that it didn’t address in Faroe Atlantic and so there was a case for interpretation. When the substantive case for interpretation came up, the SC made the following interesting decisions:

1. The word “international” did not only apply where the other party is foreign. One should look at the substance of the agreements themselves so that even if the other party is a Ghanaian, where the contract contains terms that are usually found in international contracts, that contract was “international” and would require parliamentary approval.

2. Parliament should get its act together and pass the Act required under article 181(5). Until Parliament passes the Act, a certification by the AG (although it wouldn’t be binding on the SC), should be sought.

3. A new word, the qualifier “major,” should be read into article 181(5) so that it would only apply to “major international… transactions”, else Parliament would be saddled with approving all kinds of minor transactions. [I had argued that the President required parliamentary approval to buy a British Airways ticket to travel, and that every single purchase of a vehicle by government would also require parliamentary approval since we don’t manufacture any cars in Ghana. Yes, in response, the SC rewrote the constitution!!]

4. That an arbitration agreement is not an “economic or business transaction” and that parliamentary approval was not required for it. But in a rather shocking paragraph, the SC seemed to argue against the principle of separability, which holds that an arbitration clause in an agreement is treated as a distinct and separate agreement from the ‘mother’ agreement. What was worse, this ‘hallowed’ principle had only just been enacted in Ghana in the 2010 ADR Act (Act 798), but the SC appeared to argue against it. Yet the simply raised a question, did not answer it, but held that the arbitration agreement did not require parliamentary approval since it didn’t amount to a transaction anyway. [THAT is why I said ‘lost’ because that was all I needed to go back to the arbitration].

6. The court DID NOT declare the Balkan PPA void. It directed the parties to return to the HC for the continuation of the trial, on the bases of the decisions/interpretations that the SC had done.

However both Ghana and Balkan ignored the HC and went straight back to international arbitration. We now know the result – Ghana has to pay $12m.

Bankswitch
Note that the Balkan and Bankswitch arbitrations were going on at the same time. As soon as the SC decision in Balkan was delivered, Ghana, which had largely not really participated in the Bankswitch arbitration, suddenly woke up and filed its main defence (raised only after submissions had virtually been completed): that there was no parliamentary approval of the Bankswitch contract, and that on the basis of the SC decision in Balkan, the contract was void. But Ghana seemed not to know or had forgotten that AG Betty Mould-Iddrisu, just like AG Ghartey before her, had issued an opinion that it was a valid contract. Both AG Ghartey and AG Mould-Iddrisu issued their respective opinion with full knowledge of the decision in Faroe Atlantic. Thus in both Balkan and Bankswitch awards, Ghana was clobbered with the AG opinions as to the validity of the contracts, even though there was no parliamentary approval. We know the result in Bankswitch – Ghana has to pay almost $80m.

Klomega
In Klomega, the Plaintiff’s case was that article 181(5) applied to GPHA, and so the contracts signed with Meridian to manage the ports, were void. Note, Klomega’s lawyer when he sued, is the current Deputy AG. Although he didn’t appear again after his appointment, his firm continued with the case. We were successful in convincing the SC that the term “government” in article 181(5) did not apply to statutory corporations such as GPHA. But even with that the court held that if the government is seen to be using such corporations as a facade to enter into contracts and to avoid parliamentary approval (in what the court described as a local application of the alter ego principle), then the SC would hold the contracts void without parliamentary approval. But the other interesting part of Klomega was that the government filed two contradicting submissions: one supporting Klomega (filed by Martin Amidu before he was fired) and another against Klomega (filed by Marietta Brew when she was appointed AG). Ei, things dey happen for this our Ghana oo!!

Waterville and Isofoton
I guess these two ‘Martin Amidu’ cases are sufficiently well known, as a further application of the SC decision in Balkan. But note that in Isofoton, the rather activist SC issued a straight warning to the government that it was monitoring developments in the Chinese $3b loan matter, and that even though parliamentary approval had been obtained for the loan, all subsequent transactions involving Chinese entities would require parliamentary approval.

Government’s Quandry
Yes, it was government that went to the SC for the Balkan decision. The government supported Klomega and later withdrew its support for his case. One isn’t too clear on what the government’s stance was in Waterville and Isofoton. But the net effect of all these decisions is that international business is wary of Ghana. Now they demand parliamentary approval for every whiff of a contract, or no deal. Some are demanding ‘political risk insurance’ with very high premiums to protect themselves from our “coup mentality” when every change of government comes with attacks on contracts entered into by the previous government.

I can say that many major transactions have been stalled on that account. EXACTLY what is Ghana’s position on article 181(5)? We have blown hot, cold and lukewarm at the same time. We have spoken with a forked tongue and from both sides of our mouths. Some contracts, especially PPAs, that existed before the decisions have been quietly sent to parliament for belated approval. I laugh, because the approval required, according to the SC is supposed to be “prior” to the contracts. But here we have “ex post facto” approvals of existing contracts. Indeed, in one instance, the original agreement wasn’t sent to parliament – what parliament approved was the amendment!! Apparently parliamentary approval can now raise the dead. We are in Easter!

And so right now, questions are being asked whether the Gas deals require parliamentary approval. Yes, the deal is between GNPC (or was it the Ghana Gas Company?) and the Chinese. But the question now is that since the money utilised for the Gas project was from the loan that the government had obtained (remember the SC’s warning in Isofoton?), isn’t the government caught by the Klomega alter ego principle, so that the entire transaction would be void? MATTER DEY COME!!

So the AG has a problem. So what have they done? The AG and Finance Minister have gone back to parliament with proposals for the urgent enactment of the article 181(5) “necessary modifications” Act, so that there would be a blanket approval of previous deals, and deals like Ghana Gas, and that all deals flowing from previously approved loans and transactions would not require approval. In short, Ghana is asking parliament to allow it to roll back the effect of the decisions in Balkan (which Ghana took to court), water down the warning in Isofoton, and to kinda neutralise the alter ego part of the decision in Klomega!!

Parliament set up a committee to work on the matter. I am aware of only one meeting where they criticised themselves for not acting on article 181(5). Has the committee been meeting? I don’t know. I suspect it has promptly gone to sleep because I received an informal, verbal ‘invitation’ to appear. No formal letter received, and somehow, parliament is simply not dealing with this issue. Maybe, as Bagbin suggests, they committee needs some “T&T” to facilitate its work.

So, can we really hold government officials responsible for not obtaining parliamentary approval? I dunno, really, I dunno.

a.

PS. I beg it is still dawn and I have been typing for a little over an hour, Pardon my typos.

BRAINS DEVELOP A NATION, NOT RESOURCES

Speech delivered by Ace Anan Ankomah, Guest Speaker, University of Ghana Congregation, Great Hall, Saturday 9 November 2013

Mr Chairman, Professor Vice-Chancellor, Professors Pro-Vice-Chancellors, esteemed members of the University community, graduands, ladies and gentlemen,

26 years ago, as an incoming student, I was going through registration, right in this Great Hall. As we waited in line, I struck a conversation with one Lawrence Mefful (who later became a Major in the Ghana Army, and a lawyer, and unfortunately died in combat working for the United Nations in Afghanistan not too long ago).

Lawrence had been my senior in Mfantsipim, and was working as one of the registration assistants here. As we chatted, he offered a piece of unsolicited, yet life-changing advice that struck a chord, and stuck, with me throughout my stay here. He said: “don’t just go through the school; let the school go through you.”

In Legon, you have had positive and negative experiences. You have also had experiences that fall somewhere between positive and negative. These, and how you dealt with them, will have an impact on what you do in life, from here. One of my favourite writers, who goes by the simple name of Paul, wrote, many years ago about how ALL things must work together for your good. This revelational writing finds its way into the Bible, and the key point is not that all things are good. He says that the good, bad and in-between things, ALL THINGS, must work together to produce good.

Ladies and gentlemen, the way you dealt with that difficult roommate here, will tell on how you deal with that difficult co-worker at your office when you leave here. The lecturer who did not like you, was probably just preparing you for the boss who will give you a tough time on your first job. In what way has Legon prepared you to deal with those situations? If all you take from here is a degree, then I suggest to you that you have short-changed yourself. The big question is whether the school has gone through you, or you have merely gone through the school?

Before I got to Legon, I was fascinated by sayings and mantras. I still am. My best, before I got here was “failure has no breeding grounds where discipline and dedication lie.” That is still true. But discipline towards what? And dedication to what? This is what brings me to my main theme today, which I heard just a couple of days ago from my friend and classmate in Legon, Professor Francis Botchway, now Professor of Law at Qatar University: “BRAINS DEVELOP A NATION, NOT RESOURCES.” And to that, I add something else that I have heard: “RESOURCES ARE NOT…, THEY BECOME…”

One of my most favourite comparisons of countries is between Ghana and Switzerland. I am certain that Switzerland earns more money from chocolate and cocoa products that we earn from selling cocoa. I am also certain that the closest cocoa tree to Geneva is in the Ashanti Region of Ghana, as the crow files. We got the resource, they got the….. [you said it, not me]. The manufacturer in Ghana of easily the most favourite chocolate drink in Ghana, Milo, is a company called Nestlè. Guess what? Nestlè is a Swiss company. We got the resource, they got the… [you said it again!]

I am always reminded of an African proverb, which says that “a man/woman has to hold his/her mouth open for a VERY LONG time before a roasted guinea fowl flies into it.” Often, that is our problem. Life is not waiting for us. “The future started yesterday, and we are already late,” sings John Legend, the musician.

Alvin Toffler writes that “the illiterates of the 21st Century will not be those who cannot read and write, but those who cannot LEARN, UNLEARN AND RE-LEARN.” That is what this institution is supposed to turn you into: not just a degree holder, but a person with the ability to learn, unlearn and learn again. It is all about the mind. That is why the late Robert Nesta Marley (more popularly known as “Bob Marley”) famously sang that “none but ourselves can free our own minds.”

You are what you think you are. If you think that you are a grasshopper, you are a … [now you are giving my speech.] But if you think that you are an achiever and a giant, that is exactly what you are. It is said in the Good Book, again, that “as a man thinks in his heart, so is he.” It is that thinking, the developed brain, that will develop this nation. “Resources are not…, they become…”

I am of the firm belief that the solutions to Ghana’s problems are in Ghana. Many of them are hiding right here in the various faculties and archives of our universities. Why do I say that? Every year, literally hundreds of students engage in supervised project work, theses and dissertations, all of which identify and actually solve, at least on paper, many of the problems that confront us. Loads of research have been conducted in, for instance, our Bio-Chemistry and Engineering faculties. These should feed industry; but there are no linkages. We have to start digging out those archives and bringing to life, for us to learn, unlearn and relearn that vast wealth of solutions that are presently in hiding. It is the mind that develops a nation, not resources.

Paul, my favourite writer also boasts about “one thing” that he does, which he particularises into three – yes, three, wrapped in one. He says that (i) he “forgets the things that he has achieved,” (ii) he “reaches forth towards the things that are ahead”, and (iii) he “presses forward.” Yes, those three constitute just one thing – LIFE. You build on what you have experienced as a basis for aiming, and then moving forward. Your university degree is the foundation. Today, you must be in that “forget” state, and start reaching towards new things, and then pressing towards them. Look, life is not impacted by those who have merely touched or tickled it. Achievers PRESS and PUSH towards the mark.

Ladies and gentlemen, I do not believe in coincidences and so I particularly identify with this graduating class. This is because a few years ago, I was the Chairman of a scholarship scheme run by an organisation called Changing Lives Endowment Fund, which offers scholarships to help some students through second-cycle and tertiary education. It is significant that two of our very first beneficiaries have graduated today as part of your class, and I would want to take this opportunity to salute Miss Paula Duah and Miss Rejoice Okai.

Ladies and gentlemen of the 2013 graduating class, I salute you and welcome you to life. There is no end to this journey. We have to break bounds and expand territories. That journey begins and continues in the mind. The journey is the destination. But you must always remember, that there is a God who rules in the affairs of men, and who says, through the same Paul, that “it is not of him who wills, or of whom who runs, but The Lord who shows mercy.” Yes, be geared to the times, but don’t forget to be anchored to that Rock.

You are who Ghana has been waiting for. We have been waiting, for a long time, for your brains arrive and develop this country. Do not disappoint us. I welcome you to life with another of my mantras:

When others sit, you must stand.
When others stand, you must stand out.
When others stand out, you must be outstanding.
And, when they become outstanding, you must become the standard.

May God bless you and us all.

Introduction
I first heard about Asamani in primary school history, as the man who conquered the Christianburg (Osu) Castle from the Danes in 1673 and served as its Governor for a year. I do not know of any major monument that has been named after him, and he is definitely not as popular in Ghanaian folklore as, for instance, Asante Kings. The writings about him appear fractured and various writers give different accounts of what he achieved. It is from a few of these sources that I have pieced this together.

Who was Asamani?
Asamani was from Akwamu. In one version of the history, he was employed as a cook in the English forts in Accra and spent a lot of time learning the ways of the Europeans. Soon, he became an established trader in Accra, and was a broker for Akwamu traders who came to Accra to trade with the Danes, who owned and operated from the Castle.

His rise as a businessman coincided with strife between Akwamu on the one hand and the Gas and the Danes, on the other hand, over who should have control over trading on the coast. In the 1670s, Akwamu attacked Accra, but that was foiled by the Gas with the support of the Danes. The pride of the Akwamu King was irreparably bruised. He could neither forgive nor forget what had happened to him, and therefore sought ways to revenge his defeat. He commissioned the prominent Accra-based Akwamu businessman, Asomani, to put this plot into effect.

In another version of the history, Asomani was a troublesome and fierce general of the Akwamu army, who had led raids against the Ga, the Akyems and the Akwapims.

The Capture of the Castle
What is however clear is that it took Asomani some time to come up with a plan that would bring his King’s wishes to fruition. Asomani kept a keen and close eye on the Castle and in 1693, he determined that it was time to invade and capture the Castle. In that year, the Danish occupants of the Castle had been reduced by death and disease, and were in no position to offer any serious resistance to any invasion. That, to Asomani, was the best time to strike. He put together a fighting force of some 80 men, and disguised them as merchants who wanted to buy in arms. But they had concealed bullets in their cloth, and once they had been allowed entry into the Castle and given access to the armory to inspect the guns, they loaded the guns with the bullets. They turned the guns on the Danes, who quickly surrendered.

The Governor is said to have escaped, wounded to the nearby Dutch fort called Crevecceur. But according to Akwamu accounts, Asamani killed him. The remaining Danes were captured and sent to Akwamu as captives.

He hoisted his personal flag (a white flag with a black warrior insignia) over the Castle, and announced and installed himself as the “Governor of Christiansburg Castle.” He then extended friendship to all traders along the coast, irrespective of their nationality (especially the English and the Dutch). He had a peculiar love for guns and cannons and is said to have welcomed all ships approaching his Castle by firing the cannons. He is said to have entertained captains of trade ships to expensive, elaborate dinners, and he appeared at such dinners in the full dress of a Danish Governor.

The End of the Governorship
There are at least three versions of how his rule as Governor ended in 1694. In one version, he sold the fort back to the Danes for 50 marks of gold (worth about £300,000 today. In a second version, the Danes sent an expedition to capture the Castle, but the obviously scared expedition force could only camp at Fort Crevecceur and negotiate with the Governor from there. In yet another version, he was out-manoeuvred by his King, Basua, who took 100 marks of gold as a ransom for the captives and for the return of the Castle’ and then ordered Asamani to hand the Castle over to the Danes.

Without knowing which version is accurate, what is true is that in 1694, Asomani peacefully ceded the Castle to the Danes.

The New, Improved Asamani
What is significant (and is the key lesson), for me, is that Asamani did not slip into oblivion thereafter. He took full advantage of his newly-acquired status, wealth, friendships and contacts, and re-established himself as a successful business man at Labadi. He had kept all the money he made while as Governor, refused to pay reparations to the Danes, and invested that money in his new, expanding business. He remained a thorn in the side of the Danes by diverting a lot of business from the Danes to himself. The Danes are reported to have made at least one unsuccessful attempt to force him out of Labadi. When that failed, they put pressure on a new Akwamu King, Ado, who succeeded in forcing Asamani to move his business empire to Ningo. He eventually wound up his business, resettled in Akwamu, and in 1703, became a minor chief.

As a chief, he is said to have lived in some colour and style. He built a palace and mounted on it, his favourite cannon. Foreign visitors still came to pay him visits and homage, and with every such visitor, he would fire the cannon as a welcome. He became known for his prodigious use of gun powder. Somehow, after 1704, he disappeared from European records, and that is the last that we read of him, because this part of our history was written by the Europeans, who obviously lost interest in what he had become, a chief of a small town.

The keys to the Castle, which he seized when he invaded, are still in the Akwamu Palace.

http://akwamuman.org/test/index.php?option=com_content&view=article&id=78:asamani&catid=42:history&Itemid=29

http://books.google.com.gh/books?id=8seV5xexFHgC&pg=PA352&dq=asamani+akwamu&hl=en&sa=X&ei=XEe3UaE7geo4y8KBoA8&ved=0CC4Q6AEwAA#v=onepage&q=asamani%20akwamu&f=false

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?

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.