I-CAN-GHANA

Originally written on 3 February 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Originally written on 13 February 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours in the service of God and Country

Kojo Anan

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

Originally Written on 2 March 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Best Regards.

Originally written on 30 January 2009

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

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

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

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

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

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

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

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

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

Originally Written on 27 May 2009

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

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

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

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

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

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

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

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

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

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

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

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

But ingredient (ii)? Dishonesty?

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

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

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

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

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

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

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

Originally written on 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.

Originally written on 31 January 2009

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

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

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

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

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