I-CAN-GHANA

The Visit
When I heard that Obama would be visiting Ghana, I was over the moon. This was THE cool man, coming to THE cool country and visiting THE cool city. I hurried home from a trip to his country, just to be here and feel his presence. To me, the trip was all that I expected it to be, except in one material particular. Obama denied us the opportunity to pull the biggest crowd that he would ever have seen in his life, when post-9/11 security concerns did not permit a Clinton-style outdoor event. I am told that in 1998, Clinton pulled about 500,000 people to the Black Star Square (which by the way, received a significant poetic mention by no mean a person than Maya Angelou, and at no mean event than Michael Jackson’s funeral service). Obama could have pulled 10 times that crowd, easily, to confound the noise that was made when he pulled 700,000 in Oregon and 200,000 in Germany, during the campaign. Somehow the Sadam Hussein/Osama bin Laden combi denied both Obama and Ghanaians such a history-making and record-shattering event.

Those security concerns meant that majority of Ghanaians, including my humble self, could only watch Obama on home TVs. Having only to watch him on TV, Obama could have been anywhere in the world. But we knew that he was HERE, for three main reasons. First, traffic movement in Accra was restricted on account of blocked roads, making it wiser to stay at home and expect that there would be no power cuts. Second, we had witnessed roads being fixed at midnight with floodlights, and a hospital and a King’s palace were refurbished and repainted with great speed. I hear, and it is probably not true, that a world leader once said: “all Third World countries have the same smell – the smell of fresh paint.”

The third reason (and how could we ever forget that he was in Ghana?) was the pathetically poor picture and sound quality that GTV and MetroTV conspired to inflict on us. There was absolutely no excuse for that shambolic performance. Those TV stations humiliated Ghana, and it was painful watching major networks like CNN, BBC and Sky, carrying the awful live pool feed with a disclaimer: that the poor quality was from the “source”. It hurts to think that people were paid to transmit that picture and sound quality, which did not even sync. I am convinced that even my mobile phone could have done a better job. Being as smart as they are, those more serious news networks did their own filming and immediately threw whatever they recorded from our feed into the trash bin, so that their playbacks of the event were crystal clear.

I will not go too much into what Obama had to say to us. Let’s just say that only a black man could have said that to Africa. Neither Bill Clinton nor George Bush (nor any American President before them) summoned enough guts (or maybe even cojones) to say what Obama said to us, to us in our face. And, if this had been John McCain, we would have jumped up and down on his bare back and screamed “don’t you dare patronize us.” Why? Those past American Presidents might look like each other on dollar notes, but they don’t have enough melanin! But this was one of our own, a son of the African soil with African blood running through his veins, telling us the painful home truth, from his heart, and his famous Teleprompters, that we are responsible for our own fate. Oh, and some even felt that he delivered the speech ex tempore. That is Barack Obama. And whilst at it, can someone buy Teleprompters for our Presidents, for now and the future? Teleprompters are cool, just like Cape Coast.

Then Obama went to Cape Coast, where he was given a tour of the Cape Coast Castle by Comedian-Turned-MP-Turned-Castle-Tour-Guide, Fritz Baffour. Obama was also interviewed by Anderson Cooper for CNN and Adam Boulton for Sky News. It was great seeing Cape Coast’s name on TV when the most important person on earth, Obama, was being interviewed. My Fante-ness was in full flow. I felt warm and cold at the same time. This was it – Obama was marketing Cape Coast (and Ghana) for us, for free. Every news organisation on earth, worth its salt (even FoxNews and Wall Street Journal, even if reluctantly), was focusing on us. I went into a romantic overdrive. My head was a tad reluctant to get involved, but my heart was busy telling my head to “stay at home and stop interfering,” as Edward Monkton would have put it. This was our opportunity to milk the event and sustain the attention on Ghana, particularly our tourism potential. I thought that it was time to brand Ghana the way Malaysia is ‘Truly Asia’ and India is ‘!ncredible’. “Get on CNN the way Angola is marketing CAN 2010!” I screamed.

Barack Obama
I am also one of those Ghanaians who believe that the Obama visit to Ghana has given us a rare opportunity to market this country. The mix of Cape Coast and Obama is unbeatable. On the eve of the Obama visit, Bono the musician said wrote in the New York Times that Ghana is the ‘Birthplace of Cool”. He was right generally; but wrong on specifics. “Cape Coast IS the Birthplace of Cool.” You see, I like Barack Hussein Obama, the most unlikely American president with the most ‘un-American name’ possible and who does not look like the rest of the Presidents on the dollar notes. This man makes it cool to be black, and has even stopped using the rather ridiculously anglicized version of his name “Barry,” which he bore when he played basketball in High School. If he had been from Cape Coast, he still would be “Barry”. Just check out the name my Fante dad gave to me…, and I say this with a smile. Good beads don’t bling… I like that.

I first read about Obama when he became the first black President of the Harvard Law Review. I knew then that this guy was in for big and great things, and probably would become the first black President of the United States. Years later when I watched clips of his ‘audacity of hope’ speech at the 2004 Democratic Convention, I was moved to tears. I downloaded that speech from the internet, memorized substantial portions of it, unashamedly plagiarized other portions for my own speeches and writings to the unsuspecting public, and, of course, did not acknowledge my source! What is worse, I smuggled portions of the speech into those of a couple of Ghanaian CEOs who asked me to read over and edit some of their speeches. Guilty as charged. Copying Obama is cool. Cape Coast defines cool… whatever you do to Cape Coast, expect retaliation.

When Obama announced his candidacy for President, I had some doubts as to whether he could make it. It seemed a very long journey. For a while, and although I have no vote in the United States, I put my emotional ‘weight’ behind John Edwards. My friend and classmate, Kofi Dom, could not believe that I was backing Edwards when I was the first person he knew, who owned and had read all of Obama’s two books. My other friend, mate and self-proclaimed ‘son in law’ Abieku Neizer-Ashun in faraway Washington State also felt a tad betrayed because he had bought and brought to me, Obama’s ‘Audacity of Hope’. But my initial lack of confidence in Obama winning the race to the White House was a lack of confidence in my own mind, thus: how on earth would a predominantly white America, vote for a black person as President? After all, it was in North America that I discovered that I was black. For all of the one year that I lived and schooled there, their dogs would sometimes barked at me. I must have looked strange to the canines. When OJ Simpson was engaging in that live, slow car chase with the LAPD in the aftermath of his wife’s murder, drunk Caucasian boys and girls made silly noises and pointed at me, and two other black school mates (one from Barbados and the other from Tanzania), as we made our way to and from the eat-all-you-can-for-four-dollars Chinese food eatery, Buffet Uncle Tong, in downtown Kingston, Ontario.

So I thought I had sufficient basis to mask and cushion what I considered the impending, obvious disappointment of an Obama loss by supporting Edwards. But the watershed and defining moment was when Obama won the Iowa caucuses, because on that night, I swung my voteless, meaningless support behind him. If any black man could win a caucus in the almost lily-white land of corn, beans and steel, otherwise known as Iowa, that person was going to be the next President of America. I stayed up on every primary night to watch him whip Hillary Clinton silly, and then make that beeline for the White House, trampling on a hapless John McCain and a clueless, winking Sarah Palin in the process. I reckon McCain is still wondering what hit him. Palin has never recovered – she just announced a confused resignation as Governor of Alaska. To McCain’s credit, he pulled the highest number of votes for any losing candidate in American electoral history, I hear. But he was up, not against a person; he was up against a movement. Obama’s time had come, and history could not afford to wait for Obama a day longer.

I wept on the dawn when Obama was declared President. I was ashamed that in some way, I had allowed some of the not-too-pleasant aspects of my rather short stay in school in North America to define who I was and what I had become. But my resolve, after watching him deliver that speech in Chicago, was that the mere fact that God gave me more melanin than others, hence my darker skin colour, was no longer an excuse to carry a chip on my shoulder that was the size of Africa – with Madagascar added on for good measure. Not that I have ever sought to make that an excuse, but deep in the recesses of my mind, I still felt quite looked down upon and sometimes patronised by some Caucasians, even friends… sometimes. Often, when you are almost the only black face in a class, meeting, course, seminar or conference, you either shut up and hope to leave unnoticed or feel you have to work or think twice as hard to earn your place. To date, when I enter some shops in some countries, I still feel the eyes of the security personnel trained on me, with some actually following me to ensure that I don’t nick a pen from the shop. I appreciate that maybe some of this is more of my own perception than reality, but that was how I felt. But with Obama’s victory, I would be ashamed of myself to ever feel that way again. The Thousand could not defeat the Thirty… that is the spirit of Cape Coast.

Cry A Beloved City

Being a Ghanaian and living in Ghana has its own dynamics and is often like a roller-coaster ride – one minute you are up, the next minute you are down, and the very next minute, you are somewhere in between up and down. Often, I feel like the schizophrenic ghost in Ama Ata Aidoo’s Dilemma of a Ghost, wondering whether I should go to Cape Coast or Elmina. When President Barack Obama’s trip planners were faced with this choice, they chose Cape Coast, much to the angst of the good people of Edina: the land where in 1471, the Portuguese Don Diego d’Azambuja met wise King Kwamena Ansah, and learnt about the sea’s impossible dream of living in the houses of men. Things happen in Ghana that literally send your mind to the Elmina-Cape Coast junction and make you wonder whether we can turn this wheel on which we turn.

There was this sinking feeling when Joy FM carried the news item from Cape Coast of a threatened brawl between the Metropolitan Chief Executive some members of the local NDC over the control of public toilets. Public toilets? In the 21st Century? As the story has it, in many parts of Ghana, the immediately past NPP government gave control over public toilets to its ‘people’. Thus, come the change of government, members of the NDC in those parts of the country believe that it is their time to also assume control of such toilets and the ‘riches’ that are derived from the desire to ‘answer nature’s call.’ Has anyone listened to the latest political satire of a song by the always irreverent Hiplife artist called A-Plus, where he belts out the question: ‘dem tsi-efi yi, whana ne tse-ifi aa…?”

THIS is the country and the very proud city of Cape Coast that Barack Obama just visited!

I like to say that this is the country of “beautiful nonsense” and that I will never exchange my Ghanaian passport for any other. If anyone tries to take away my Ghanaian-ness, we will be headed to court for a brutal fight, and I assure you, there will be blood all over the floor – not mine. And it will take quite a bit…, quite a bit…, ok, really a whole lot, to get me to live permanently outside Ghana.

I am also one of those ‘local mixed breed’ and ‘proudly, ethnically impure’ Ghanaians, who claim lineage to quite a few tribes in Ghana. Of all the tribes that I have blood connections with, I think that I am most in love with my Akyem and Fante sides. The Akyem is from Achiase, from where my mother (when all the other tribal connections are discounted) hails, where my late father was born and grew up, the home of the Jungle Warfare School, the only city with a railway junction in Ghana, known and dearly called ‘Russia’ by ‘Achiaseans’ in the diaspora, which includes even those residing in Accra. My claim to being associated with Fante-ness is because my late father really came from and is buried in the beautiful, serene beach city of Biriwa. But there are other reasons why I love my Fante links. I lived and schooled in Fanteland, and somehow, there is something about being associated with Fante that never leaves you. And, the Fante language is the smoothest language on earth. For instance, almost every language I know of has a monosyllable for the word ‘Yes’. But not Fante – we have the dual-syllabic ‘ee-nyo’.

I like to think that I have roots in Cape Coast, the capital of the Central Region, and easily Ghana’s education capital. I did one term of primary education at ‘Master Sam’, where we sang the same song at each Friday worship service: Captain of Israel’s Host and Guide. The two verses of that Methodist hymn are literally etched in my brain! Then I spent seven years of secondary school at the only School on earth, Mfantsipim, the birth place of secondary education in Ghana. How do you say Dwen Hwe Kan in English? Impossible! Yes, yes, there are other institutions of learning scattered all over God’s earth, but there is only one School! Although I have spent more years living and working in Accra, my Ga has never been as good as my Fante. Cape Coast holds many good memories for me, as it was the city in which I really grew up. The city whose biggest football clubs are called DWARFS and VIPERS. It was in Cape Coast that I first heard the phrase “ahwen pa nkasa” to wit “good beads don’t bling.” But it was in the same city that I heard the proud statement:

Oguaa akoto, akoto dwrodwroba aa ogu won tu ano
Aduasa nye apem koo ee, aa apem antum won
Eyee Oguaa den na Oguaa aanye wo bi?

(*Tomorrow, I will post Part II of this writing, to introduce Barack Obama into this mix.*)

I presented a paper at a Property Seminar organised by Legacy&Legacy at the La Palm Royal Hotel on 28th April 2007. These are my notes; probably a rough-and-ready checklist for land transactions in Ghana.

Freehold
o Highest interest in land
o Indefinite period
o Devolution ad infinitum, except upon a failure of successors
o Constitutional bar on granting freehold over stool lands
o Constitutional bar on granting freehold to non-Ghanaians
o Overall gradual shift from freehold to leasehold, especially in urban areas

Leasehold
o Interest granted for a specified period
o Especially in the case of Government lands
o Constitutional bar on granting leasehold exceeding 50 years to non-Ghanaians
o Most leases are renewable

Procedure for purchase
o Identify the land
o Preliminary physical inspection
o Take copies of vendor’s title deed and filed site plan
o Searches at relevant land registries
o Other inquiries as to ownership/availability, e.g. make inquiries in the area, if property owned by company – registered encumbrances (with Registrar-General’s department)
o Consents
o Drafting of transfer document
o Payment of final purchase price and execution of transfer document
o Stamping and registration
o Additional inquiries in respect of buildings:
 Proper building permits
 Compliance with zoning and planning regulations
 Structural defects

Closing & Thereafter
o Possession/occupation
o Complete the contract (signing, witnessing, oath of proof and oath of execution)
o Pay the balance of the agreed consideration, if any
o Pay stamp duty (within 2 months or you pay a penalty)
o Registration with Land Title Registry (registrable areas) or Deeds Registry (yet-to-be-declared registrable areas). Might involve the re-drawing of the site plan as part of plotting.
o Capital Gains Tax – Vendor
o Gift Tax by the beneficiary, if the land was gifted
o Annual property rates (levied on buildings)
o Annual ground rent, subject to the contractual terms (levied on land generally)
o Note renewal terms, if any, with respect to leaseholds.

CHECKLIST
(1) Visual inspection
(2) Title documents: title deed, site plan, land title certificate, etc.: a. Does the grantor have capacity? (i. Government – acts by Lands Commission ii. Stool – Head of Stool with concurrence of elders, Lands Commission and the Office of Stool Lands Administrator iii. Family – Head of Family acting with consent of principal members); b. Signatures/Thumbprints (i. Grantor/Lessor, ii. Grantee/Lessee , iii. Concurring signatories); c. Consideration (How much? Mode of payment?)
(3) Description: a. Street name and number, b. Plot number, c. Particular description/designation, e.g. Joey Villa
(4) Type of Use: a. Residential, b. Commercial, c. Mixed Use, d. Compliance with planning and zoning permission, and e. Home Improvement – have the necessary permits been secured?
(5) Type of Interest: a. Freehold, b. Leasehold, c. Others (e.g. licence)
(6) Searches: a. Land Title Registry, b. Deeds Registry/Lands Commission
(7) Stamping: a. LVB number, b. Adequacy of stamping,
(8) Registration: a. Presentation & Plotting, b. Deeds Registry number, c. Land Title Registry number
(9) Covenants in Leases: a. User and other restrictive covenants, b. Overriding interests – rights of way, natural rights of water, easements
(10) Consents: a. Lands Commission – Government and stool lands, b. Minister for Lands & Forestry via Administrator of Stool Lands
(11) Litigation status: a. Courts, b. Traditional authorities
(12) Property tax payments: check with the relevant Metropolitan/Muncipal/District Assembly
(13) Home Improvements: a. Construction/alteration permits, b. Approved site plans – approval letter and date, c. Compliance with zoning and planning laws – Town & Country Planning Departments, d. Compliance with regulations of central and local government authorities, e. Structural report by Building Inspector/Engineer

I presented a paper as the Guest Lecturer at the Ghana Institute of Journalism Sam Arthur Memorial Lecture on 25th April 2006. It focused on what I termed, “Journalistic Pitfalls and Minefields in the Post-Criminal Libel Era.” The main theme was that agenda-setting by journalists and the constitutional protection given to journalists and the media come with a price. Journalists must therefore know what these potential pitfalls and minefields are. These are my notes from that lecture.

STATUTORY OFFENCES
 Threats of libel or slander
 Extorting property from another person by means of threats
 Failure to register a newspaper or publication: a maximum of 12 months imprisonment and/or a fine
 Failure to publish a rejoinder: a fine
 Failure to comply with the laid down broadcasting standards: a penalty including a pecuniary penalty determined by the National Media Commission

CONTEMPT OF COURT
Criminal Contempt
Words or acts that obstruct or tend to obstruct or interfere with the due administration of justice. It is in the nature of public injury and seeks to protect the public interest.

Contempt in facie curiae
Contempt in the face of the Court, i.e. any word spoken or act done in or in the precinct of the court, which obstructs or interferes with the due administration of justice or is calculated to do so, for example:
 assaults in court
 insults to the court
 interruption of court proceedings
 recording, filming, photographing or sketching in court without the court’s permission.

Contempt outside the Court
Words spoken/published, or acts done outside the court, intended or likely to interfere with/obstruct the fair administration of justice, for example:
 publications intended or likely to prejudice the fair trial or conduct of proceedings
 publications which prejudge issues in pending proceedings
 publications which scandalize or otherwise lower the authority of the court
 acts that interfere with or obstruct persons having duties to discharge in a court
 acts in abuse of the processes of the court.

Civil Contempt
Disobedience to a judgment, order or other process of the court, for example:
 refusal or neglect to do an act required by a judgment order of the court generally or within a time specified
 disobedience of a judgment or order requiring a person to abstain from doing a specified act
 breach of an undertaking given to the court

CIVIL DEFAMATION
 Publication of words that tend to lower a person in the estimation of right thinking members of the society
 Note the relevant defences:
      o Justification: You must be able to justify the precise imputation complained of, and the onus to justify the imputation complained of is on you
      o Fair Comment: (a) that each and every statement of fact in the words complained of are true; and (b) that the comment on the facts so proved was bona fide and fair on a matter of public interest
      o Qualified Privilege: You have a legal, social or moral interest and duty to make or publish the matter complained of (without malice), to the person to whom it is made, and that the person to whom it is made, has a corresponding interest or duty to receive it.
 Damages: Societal/Judicial response to the quality of stories? New reach of media (radio and TV reviews, internet, etc.)?

PRODUCT ADVERTISING
News media to ensure that claims made on behalf of a product can be substantiated
Food
 False, misleading or deceptive adverts regarding the character, nature, value, additives, substance, quality, composition, merit or safety of food
 Advertising food in breach of prescribed standards
 Advertising salt that is not fortified with potassium iodate
 Advertise infant formula, any other product marketed as being suitable for feeding infants up to six months of age, follow-up formula, feeding bottles, teats and pacifiers
Beverages
 Alcohol ads are not to:
      o be targeted at children, be played during or in close proximity to children’s programmes or feature children or role models
      o imply success upon consumption, or therapeutic, stimulating, sedative or tranquilizing qualities
      o infer improved performance or preference for high alcohol content, or link consumption to driving or aphrodisiac effects
      o suggest that it is acceptable, helps resolve personal problems, is essential attributes of masculinity of femininity
      o portray favourable aggressiveness or promote anti-social behaviour
      o show alcohol consumption whilst working
Drugs
 False, misleading or deceptive ads regarding a drug’s character, constitution, value, potency, quality, composition, merits or safety
 Advertising drugs in breach of prescribed standards
 Ads of drugs to treat, prevent or cure the following: STD’s and other genito-urinary diseases, AIDS or diseases connected with the human reproductive functions, Amenorrhoea, Arterio-Sclerosis, Bladder Stones, Blindness, Cancer, Deafness, Diabetes, Diphtheria, Dropsy. Epilepsy or fits, Erysipelas, Gallstones, Goitre, Heart disease, Hernia or rupture, Kidney stones, Leprosy, Locomotortazy, Lupus, Nephritis or Bright’s disease, Paralysis, Pleurisy, Pneumonia, Poliomyelitis, Scarlet fever, Septicaemia, Smallpox, Tetanus or lock-jaw, Trachoma, Tuberculosis or consumption.

CONCLUDING COMMENTS
 Individual journalists should join the Ghana Journalists Association (GJA) and be prepared to submit to the powers of the Ethics and Disciplinary Council
 There should be corporate membership of GJA for news media organisations
 Constitutionally protected rights of the media are not absolute (national security, public order and public morality considerations)
 Lack of Adequate Training in legal issues
 Bravery/Investigative Journalism/Sheer Foolhardiness
 Issues of privacy and what constitutes “fair game”

I was intrigued by a campaign for the ‘legalization’ of prostitution in Ghana, particularly when that was coming from the Ghana Aids Commission. I wrote this piece which got published in the Daily Graphic. Please read on:

This campaign pre-supposes that prostitution is illegal, because calling for ‘legalization’ of a thing assumes that the thing is unlawful in the first place. My contention, however, is that prostitution, as defined in our statute books, is not an offence. Accordingly calls for its ‘legalization’ have no bases in the law. Simply, there is nothing to legalize, as far as prostitution as an act is concerned. What the law does is to criminalize certain acts that accompany or are related, supplementary or incidental to the actual act of prostitution. I would not want to believe that what the “Legalize Prostitution” campaigners are asking, is for those related offences to be legalized. I beg to differ. It would appear that the campaigners have not averted their minds to the real impact of their argument in the face of the law. The purpose of this piece to highlight what the law actually says because a debate or campaign that fails to take into consideration the actual state of the law is, respectfully, uninformed and amiss.

Definition
The Criminal Code defines the term “prostitution” to include:

“… the offering by a person of his body commonly for acts of lewdness for payment although there is no act or offer of an act of ordinary sexual connexion.”

The use of the word “include” could mean that the definition is not absolute and all encompassing. It could also mean that the meaning of the word is so well known, accepted and notorious that all that is required is to expand its scope to cover possible gray areas. Whichever way one looks at it, the above definition contains three key ingredients as follows:

(1) Offer by a person of his/her body: The definition is not limited by gender. By this ingredient the person must present or tender his/her body to another person for the purposes stated in the definition. Accordingly, if there is no such offer of a person’s body by that person, the act will not fall within the legal definition.

(2) Acts of lewdness: The definition covers “lewdness” whether or not it involves, results in or leads to actual sexual acts. Although the Criminal Code does not define the word “lewdness,” that word is generally accepted to be synonymous with other terms such as gross indecency, licentiousness, immoral or degenerate conduct, and lustful and lecherous acts.

(3) Payment: In a restricted legal sense a payment is the performance of a duty, promise or obligation, or the discharge of a debt or liability by delivering money or something else, where the money or other thing is accepted as extinguishing or reducing the debt or obligation. In effect the “acts of lewdness” must create a debt or obligation in favour of the person who offered his/her body (the “prostitute”). Payment then occurs where the prostitute accepts anything as imbursement or compensation for the said use of his/her body.

Nowhere in the Criminal Code is prostitution, as defined above, made a crime. It is on this basis that I consider the “Legalize Prostitution” campaign as stillborn and fundamentally and incurably flawed. However, Chapter 7 of the Code, which is aptly headed “Offences Against Public Morals”, criminalizes certain acts that are closely related to prostitution, and it is a discussion of these that I now turn.

Exposing Children to Prostitution
The first related crime is committed by a person who has the custody, charge or care of a child under the age of 16, and allows or permits that child to reside in or frequent a brothel. A brothel, according to the Code, is any premises or room used for prostitution purposes. There is persuasive authority to the effect that a prostitute who lives with his/her child in premises that he/she uses for prostitution is guilty of this crime. This provision, seeks to protect children from exposure to prostitution. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” Surely, the campaigners are not saying that the law should be amended to permit children to live in or visit brothels.

‘Pimping’
The second related crime is committed by a person who either (i) “knowingly” lives on the earnings of prostitution, or (ii) for the purposes of gain, exercises control, direction or influence over the movements of a prostitute in a manner that aids, abets or compels prostitution. This covers what is generally referred to as “pimping”. It is arguable that the prostitute also commits this offence because he/she lives on the earnings of prostitution. However, a full reading of the law shows that that provision only applies to a person, other than the prostitute, who knowingly lives on such earnings. The Code shows this by empowering District Magistrates to issue search and arrest warrants where there is evidence on oath that any person residing in or frequenting a brothel “is living wholly or in part on the earnings of any prostitute.” Further, a person who (i) lives with a prostitute, (ii) is habitually in the company of a prostitute or (iii) exercises any control over a prostitute, is deemed to be “knowingly” living on the earnings of prostitution, unless he is able to satisfy the court to the contrary. There is persuasive authority to the effect that a person who allows a prostitute to have the use of his room at specified times at a charge is guilty of this crime.

Pimps are known to be people who control prostitutes and subject them to all forms of maltreatment, thereby keeping the prostitutes in subjection and under their influence. Often this is against the will of the prostitutes themselves, some of whom would gladly leave the ‘profession’ but for the morbid fear that they have of such criminals. I am yet to hear of a pimp who would be so depraved that he will allow his/her child to become a prostitute. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” Surely, the campaigners cannot be arguing that we should amend the law and unleashing such criminals on society.

Soliciting or Importuning
The third related crime is committed by a person who publicly, persistently solicits or importunes to obtain clients for a prostitute or for any other immoral purpose. Soliciting connotes begging and pleading for clientele, whilst importuning denotes a more aggressive pestering and harassment of prospective patrons. In one decided case, a person who stood at street corners, made faces and smiled at people, made suggestive gestures with the mouth, and paid several visits to public toilets, was held to be guilty of this offence even if he did not speak with or touch anyone; and even the absence of evidence that his acts had any impact on anyone was not considered a sufficient defence.

I am not certain if any of the ‘Legalize Prostitution’ campaigners has been solicited or importuned by a prostitute, which can be a most revolting experience. If this is removed from our statute books as an offence, it will expose all of us to blatant, shameless and barefaced approaches and harassment by prostitutes who are ‘marketing their wares’. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” The campaigners will have to show us what society will stand to gain if by freeing up prostitutes to bang on our cars (pun unintended) and accost law-abiding people on the streets.

Keeping Brothels
The fourth related crime is committed by a person who keeps a brothel. A person is guilty of this crime if he/she (i) keeps, manages or assists in managing a brothel, (ii) as a tenant, knowingly permits premises to be used as a brothel or for habitual prostitution, or (iii) as a landlord, rents out premises with the knowledge that it will be used as a brothel. The question to ask of the ‘Legalize Prostitution’ campaigners is this: “Is this what you want to be legalized?” The campaigners have to show how the establishment up huge brothels in Ghana, and probably advertising the services provided in our newspapers and on radio and television will help the society.

Other ‘Related’ Crimes
The other crimes provided for under Chapter 7 of the Criminal Code are not directly related to prostitution. These are:

1. Publicly and wilfully committing grossly indecent acts (such as having sex in a public place);
2. Compelling a person to undergo immoral or indecent widowhood rites;
3. Publishing or selling books, objects or matters of an obscene nature (such as pornography);
4. Making indecent inscriptions at any public place; and
5. Advertising material relating to venereal diseases, sexual infirmity and aphrodisiacs without the authority of the Minister of Health.

Conclusion
In conclusion, prostitution is said to exist when (i) a person offers his/her body, (ii) for lewd acts, and (iii) for payment. The act of prostitution per se is not an offence, but certain specified related acts are criminal. Since prostitution itself is not an offence, it stands to reason that it cannot be legalized, and calls for its legalization are respectfully, uninformed. What the law says is that although prostitution is not an offence, it is an offence to (i) publicly solicit for clients, (ii) expose children to brothels, (iii) work as a pimp, and/or (iv) keep brothels. These are the acts that are criminalized by our law, ought to remains prohibited by our law, and I would not want to believe that this is what the campaign is really about.

In the times following the judgment in the case of Republic v. Ibrahim Adam & Others (FT/MISC 2/2000, 28/4/03), also known as the Quality Grain Case, the issue as to who is a shadow director of a company came up for discussion with some considerable difference of opinion. The judge had referred to Professor Mills, then the immediate past Vice-President of Ghana, and Ghana’s current President, as a shadow director of the Quality Grain company. The Professor was not amused. At the time, it appeared that prior to this decision, the term ‘shadow director’ had not been discussed in any relevant Ghanaian statute, decided case or legal literature, save a brief mention in an article by one Dr. Mweda Kenneth Kaoma on Zambian law but published in [1996-1999] Vol. XX University of Ghana Law Journal. The humble purpose of this piece when I first had it published in the Ghanaian Times was to attempt to shed some light on the concept of ‘shadow directors’ with the view of informing that debate.

Directors
In law, a company is known as an artificial entity, the persona ficta. As an artificial person (as opposed to a natural person) the company can only act by agents. Usually, the persons by whom a company acts and by whom the company’s business is carried on and superintended are called “directors”. Section 179 of Ghana’s Companies Code therefore defines a director as any person who is “appointed to direct and administer the business of the company.” This section constitutes the Board of Directors into the supreme and original authority in matters of regular business management. Directors are the chief administrators, and have invested in them, by law, the power and duty to manage and superintend the ordinary business of the company. Under section 137(4) of the Companies Code, the directors are not servants to obey directions and orders given to them by the shareholders, although the management and control of the company are entrusted to the directors for the benefit and protection of all the shareholders.

Definition & Scope
By virtue of having such wide powers entrusted in them, section 179 of the Companies Code imposes on directors a duty not to act on the directions or instructions of any other person. However, the reality is that in some situations directors are subject, or allow themselves to be subjected, to the exercise by another people of considerable control and authority over the company and its business and affairs. The effect of this is that while the law holds directors personally liable for their acts and decisions, those acts or decisions may in fact be dictated, imposed or controlled by some other person who has not been appointed as a director but who, through some means (e.g. a controlling shareholder or even the government) is the driving force behind the company and the acts of the directors. Directors who allow such a state of affairs are in breach of their duties as directors.

But the law, not being blind to the existence of such a state of affairs and frowning upon the existence of shadow directors, provides under section 179 that a person “on whose directions or instructions the duly appointed directors are accustomed to act” is subject to the same duties and liabilities as a duly appointed director. Note that the law does not say that the person also has the same rights of a director. What it does is to impose on him a director’s “duties and liabilities”.

Further, the Companies Code does not expressly call such a person by the name “shadow director;” but that is the name by which such persons are generally called in Company Law. A shadow director is therefore not a director properly so-called. He does not have the rights of a director, and is an interloper in the affairs of the company. But the law recognises his existence and imposes upon him the duties and liabilities of a director by virtue of his control over or domination of the directors of the company.

The fact is that a shadow director does not claim or purport to act as a director, and the company does not hold him out as a director. He rather lurks in the shadows and shelters behind others who are the duly appointed directors. The generally accepted test in ascertaining whether a person is a shadow director is as follows:
(1) Who are the directors of the company?
(2) Did the ‘third party’ direct those directors how to act in relation to the company?
(3) Did the duly appointed directors act in accordance with such directions?
(4) Were the duly appointed directors accustomed so to act?

Accordingly, central to a determination as to whether a person is a shadow director is, first, there is a board of directors claiming and purporting to act as such; and, second, there is a “discernible pattern of behaviour” in which the board did not exercise any discretion or judgment of its own, but acted in accordance with the directions of the third party. If these are answered in the affirmative, then that third party is a shadow director. Accordingly the definition of shadow director presupposes that there is a board of directors who act in accordance with instructions from someone else, the èminence grise (literally the “wise old man.”) Another appropriate illustration of a shadow director is that he is, in effect, the puppet master who controls the actions of the board, and the directors are his ‘cat’s paw’.

“Accustomed to act”
The use of the phrase “accustomed to act” in section 179 would also suggest that the directors must be people who act on the directions or instructions of the shadow director as a matter of regular practice. It therefore applies to instances where the third party is shown to issue instructions and directions, and the directors are shown to comply with such, as a regular course of conduct over a period of time. Reference must therefore be made, not to acts on an individual occasion, but over a period of time and as a regular course of conduct. Simply put, a one-off instruction and compliance will not satisfy the “accustomed to act” criterion.

However, it is not necessarily required that there be directions or instructions embracing all matters involving the board, or extend over all or most of the corporate activities of the company. It is also not necessary to demonstrate a degree of compulsion in excess of that implicit in the fact that the board was accustomed to act in accordance with them. Rather it only required that as and when the directors are directed or instructed, they habitually and regularly obey and act accordingly. The idea is that the third party ‘calls the tune’ and the directors ‘dance’ in their capacity as directors. It is therefore sufficient to show that the duly appointed directors had cast themselves in a subservient role or surrendered their discretions in the face of the directions or instructions. What is important is that the third party is shown to have exercised real influence in the corporate governance of the company, and the key question is: Where, for some or all purposes, is the locus or place of effective decision-making? If the answer to this question is a person other than the board of directors, then it is open to find that that person is a shadow director.

Illustrations
Directors of Parent Companies: Flowing from the above discussion, it has been held that the directors of a parent company per se would not make themselves shadow directors of the subsidiary if they act in their capacity as the board of the parent so as to give instructions to the directors of the subsidiary. However, individual and personal instructions from a director of the parent to the directors of the subsidiary could bring that director within the definition of a shadow director.

Creditors: In one English authority, the activities of the company were financed by a loan. The security for the loan was a 125-year lease of the company’s premises, which the creditor then leased back to the company. The rent payable was to be used to amortise the loan. Subsequently the company became insolvent and could not pay the rent. Thereupon, weekly management meetings were held between the managing director of the company and officers of the creditor with a view to rescuing what the creditor could out of the company (e.g. making terms for the continuation of the credit in the light of the threatened default). It was held that the officers of the creditor were merely defending the creditor’s interests and imposing terms for the protection of those interests. That did not constitute them into shadow directors, especially when it was clear that the directors of the company were quite free to take the offer or leave it.

Conclusion
Section 179 of the Companies Code constitutes statutory recognition that effective legal control over the central management of companies requires restrictions that may extend beyond the regulation of those formally appointed by the company as its directors. The law disapproves of the existence of such a person, who, not having been appointed as a director, yet becomes one on whose instructions and directions the directors are accustomed to act. It therefore provides that directors have a duty not to obey such third parties, and imposes the duties and liabilities of a director such third parties.

To be able to make a conclusive finding that a person is a shadow director of a company it may be ascertained that there is a discernible pattern of behaviour or a relevant regular course of conduct over a period of time that supports the conclusion. It may also be shown that the directors have cast themselves in a submissive and compliant role or given up their discretions in the face of the directions or instructions.

In sum, the answer to the question, “who is a shadow director?” lies in yet another question, to wit, “who is the effective corporate decision-maker?” There are no problems if the answer to this question points to the Board of Directors. However, if the answer directs us to a person other than the Board, i.e. a third party, that third party is a shadow director – the èminence grise, (in normal Ghanaian parlance the “BIG MAN”); and that person is subject to all the duties and liabilities (but not the rights) of the duly appointed directors.

Final Part of a 4-Part Series

Too Many Holidays

I am also of the view also that already Ghana has too many public holidays, and that there is virtually no space to add even one more. Instead of adding on holidays, we should be exploring the prospect of reducing the number of public holidays on our calendar.

I would commend to us all, the observations of the late Archer CJ, captured in his concluding words even in his dissenting opinion in the NPP v. A-G case as follows:

“Before this action was instituted, Ghana had ten public holidays throughout the year and second only to Northern Ireland, throughout the whole world, which has eleven public holidays… Ghana has more holidays than England and Wales and Scotland, each with nine holidays. Can a developing country like Ghana afford a string of holidays which at times can be boring? I leave the answer to Parliament and the executive. The British colonial administration introduced six public holidays in this country in 1899. We have ten and I wonder what the number would be by the year 2000.”

His Lordship the Chief Justice’s words were prophetic, and his worries were not unfounded. Currently we have 12 statutory holidays, 2 more than we had when Justice Archer penned these words. We are debating adding even more days. What we should be debating, I think, is how to reduce the number of holidays. These 12 paid working days that are observed as public holidays are in addition to the paid leave days guaranteed to all workers under article 24(2) of the Constitution and numerous provisions of the Labour Act.

Let us do some rough calculation. Year 2009 has 365 days, out of which 104 fall on weekends, leaving 261 working days. Out of the 261 working days, there are 12 public holidays (assuming there are no Additional Holidays), which increases the number of non-working days to 116 and reduces the number of working days to 249. Then if we assume that the average number of leave days is a conservative 20, that further increases the non-working days to 136 and reduces the total working days to 229. In other words, all things being equal, the average Ghanaian worker will spend roughly 40% (actually 37.26%) of his or her time on a vacation, holiday or weekend this year. If you consider that the actual work-time covers between 8 and 10 hours of the day, the percentage of non-work time increases exponentially.

It is in the light of the above that I hold the humble view that some of the dates that are currently marked as holidays should be simply commemorated without subjecting the entire workforce of the nation to punishment-based and statutorily enforced rest days. For instance, we always commemorate Armistice Day. It is not a holiday, and that has no devalued that date in any way. For example, I do not see why Africa Day should be marked by rest, when work, and not more rest, is what Africa needs right now. Likewise, it is time to debate amongst ourselves whether Easter Monday, May Day, Farmers Day, Boxing Day etc. can also be commemorated without being made public holidays. Similarly, the proposed Founder’s Day or Founders’ Day, should simply be commemorated. We respect our founders, but I am pretty certain they would want us to roll up our sleeves and get to work harder to build a better Ghana, and not simply add another lazy day to sit at home and twiddle our thumbs. Further, I would suggest that we consider returning to the days when Saturdays were half-working days. If we have 40-hour working weeks now, increasing that by even 10% (i.e. an additional 4 hours on Saturday) might be a step in the right direction.

Conclusion

I conclude by commending President Mills for making quite a definite break from the past by not declaring June 4th a public holiday when he had the power to do so. Further, his non-appearance at the public commemorative events cannot pass without comment. We however cannot ignore the suggestions that the date was still commemorated with direct and indirect state support. We might never be able to quantify the cost to the nation when a major road is blocked so wreaths are laid, when our police and other security personnel are deployed to provide security for these events, when government functionaries attend these events on our time, and in government cars fuelled by our taxes, etc. etc. But I think that we ought to be grateful for small mercies. My guess is that with time, even this state support (if true) will wane, and one day, very soon, we will finally consign June 4th to its proper place, the dustbin of history, where its historically ignominious Section 34(2) cousins, namely February 24th, January 13th and December 31st currently lie.

And, this country does not need a single more holiday; we simply cannot afford it.

Your in the service of God and Country,

Kojo Anan

Part III of a 4-Part Series

Current Holiday Legislation

From the above account of our history where governments played politics with national holidays, I now turn to discuss the relevant provisions of the 2001 Public Holidays Act, which is the statute that is currently in force. Under the Act, there are three kinds of statutory holidays, namely, (i) Public Holidays (properly so-called), (ii) Additional Holidays and (iii) Substituted Holidays.

Public Holidays: There are currently as many as 12 Public Holidays, and these are specifically listed in the Act, as amended, as follows: New Year’s Day (1st January), Independence Day (6th March), Good Friday, Easter Monday, Eid-al Adha Festival (Hajj), Eid-al Fitr (Ramadan), Worker’s Day (1st May), Africa Day (25th May), Republic Day (1st July), Farmers Day (1st Friday in December), Christmas Day (25th December), Boxing Day (26th December).

These Public Holidays have been laid down by statute and will be celebrated every year, with or without announcements from the Interior Minister. Such announcements, when made, only remind the citizenry of what already exists in the law. It is not the announcement that creates the public holiday. That holiday is statutorily provided for, and therefore cannot be changed or added to without amending the Act; and only Parliament can do this. For instance, when it was decided to make Africa Day (25th May) a Public Holiday, the 2001 Act was amended by the passage of the 2002 Public Holidays (Amendment) Act.

Obviously, June 4th is not one of the Public Holidays specifically provided in the Act. To be marked as a Public Holiday in future, and thereby somewhat elevated to the status of the existing 12 (as is the daydream of a certain Moses Mabengba), Parliament will have to specifically amend the 2001 Act. That, in my humble view, would be a rather tough sell to Ghanaians. Note that even the current NDC government did not have the appetite to do this and therefore did not introduce an amendment bill to parliament (as currently constituted), seeking to elevate 4th June to the status of the 12 Public Holidays. I do not see this happening under President Mills.

Additional Holidays: Additional Holidays are holidays other than the 12 specifically mentioned in the Act, but which are declared “in addition to the public holidays” by the President, if he considers it to be “in the public interest” so to do. The President must do so by Executive Instrument, if he so decides.

Thus the only other way, apart from going through parliament, that June 4th could have been restored as a holiday, would have been by the President simply invoking his powers and exercising his discretion under the Act to declare it as an Additional Holiday. We cannot fail to recognise President Mills’ choice or decision NOT to exercise this discretion with regard to June 4th 2009. If the President subsequently changes his mind (which he is entitled to do, but I not believe he will) and decides that we should all mark a day of rest to celebrate June 4th on the pain of punishment, he can ignore parliament and pass the required Executive Instrument, and repeat that action every year that he is in power. But President Mills did not do that in 2009, and looking into the future, we might be safe in assuming that the current government under President Mills, has no interest in formally reinstating June 4th as a public holiday.

Substituted Holidays: As the name suggests, Substituted Holidays are alternative or replacement holidays. These will come about where “the President is satisfied that it would be inexpedient” (i.e. not convenient) for any reason, for a Public Holiday to be so observed. Under those circumstances the President is given the statutory discretion to declare by Executive Instrument that any other day would be observed “as a public holiday instead of that day.” It is under a somewhat stretched or expanded application of this provision that sometimes, when the Public Holiday falls on a weekend, the President would declare the following working day, usually a Monday, as a Public Holiday.

Marking June 4th

As noted above, absent a formal legislative amendment of the 2001 Act, the only way that June 4th 2009 could have been marked as a statutory holiday was if the President had exercised his powers under the Act to declare that date as an Additional Holiday. But should he do that in future or introduce a bill to parliament for make that date a Public Holiday again? I do not think that we need to go too far or engage in any political grandstanding or abstract polemics to obtain an answer to that question. It is my considered opinion that the answer to that question exists in Section 34(2) of the Transitional Provisions to the Constitution.

This section of the transitional provision mentions the four very significant but violent, notorious and bloody dates in Ghana’s history, namely February 24th 1966, January 13th 1972, June 4th 1979 and December 31st 1981 (“Section 34(2) Dates”). As we have seen in the above discussion, each of these dates was, at some point in our history, a Public Holiday. Thankfully they are not now. Hopefully they will never be again.

Section 34(2) then informs Ghanaians (just in case we ever forget) that these notorious dates respectively relate to the violent overthrow of (i) the Convention Peoples Party (CPP) by the National Liberation Council (NLC), (ii) the Progress Party (PP) by the National Redemption Council (NRC) and the replacement of the latter by the Supreme Military Council (SMC I), (ii) the second Supreme Military Council (SMC II) by the Armed Forces Revolutionary Council (AFRC), and Peoples National Party (PNP) by the Provisional National Defence Council PNDC). Section 34(2) also reminds Ghanaians of the suspension or abrogation of the First Republican Constitution (1960), Second Republican Constitution (1969) and the Third Republican Constitution (1979) that occurred on some of these dates.

After Section 34(2) has taken us through a short and sour journey through Ghana’s violent political history where these ill-fated dates are concerned, it provides an indemnity to the government and it operatives by forbidding any judicial inquiry into any of the government’s actions with respect to the Section 34(2) Dates. In other words, Ghana’s courts have no power to entertain any legal action related to those dates. By necessary extension the courts of this land cannot take any decision or make any order or grant any remedy and relief against the government, if the legal action or proceeding arises from the activities and incidents associated with the infamous Section 34(2) Dates. Section 34(2) specifically provides as follows:

“It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after the coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in Government which took place on the twenty-fourth day of February 1966, on the thirteenth day of January 1972, on the fourth day of June 1979 and on the thirty-first day of December 1981 in respect of any act or omission relating to, or consequent upon—
(a) the overthrow of the government in power before the formation of the National Liberation Council, the National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and the Provisional National Defence Council; or
(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or
(c) the establishment of the National Liberation Council, the National Redemption Council, the Supreme Military Council which took office on the ninth day of October 1975, the Supreme Military Council established on the fifth day of July 1978, the Armed Forces Revolutionary Council, or the Provisional National Defence Council…”

Clearly, the government (and by this I refer to that continuous, constant and unbroken entity called “government”, howsoever constituted) has something to hide with respect to these dates. There are things that were done on the basis of the Section 34(2) Dates that the government is not proud of and is not keen to discuss or open to judicial scrutiny. Those dates are so similar in character, nature and status to each other, that Section 34(2) paints them with the same brush: indemnity. You do not seek an indemnity if you are not liable for something. The reputation of the Section 34(2) Dates is certainly contrary to and the opposite of the reputation of the 12 Public Holidays mentioned in the Public Holidays Act. Why would the government take the full benefit of the indemnities and protections provided by Section 34(2) if the government has nothing to hide with respect to those dates? Why then would Ghanaians, whose constitutional right to seek redress with respect to any matter in our courts has been clawed-back, muzzled or otherwise restrained by Section 34(2)’s constitutionally-imposed indemnities, be compelled and obliged to celebrate any of those dates by taking a mandatory rest, on the pain of possible imprisonment?

Section 34(2) was added to the draft Constitution, just before it was submitted to the PNDC on March 31st 1992. That section was contained in said draft Constitution when it was submitted to a national referendum held throughout Ghana on April 28th 1992. When the people of Ghana approved the said Constitution for the administration of Ghana to come into force on January 7th 1993, we agreed that the government and the perpetrators of those awful wrongs were forgiven. But we also voted, by virtue of the same Constitution, never to forget those days, not as dates for celebration, but as dates of indemnified ignominy. The indemnified deeds and misdeeds of the government, its military adventurists and civilian collaborators, which commenced on the Section 34(2) Dates, are a painful reminder thus: we should never allow this country to slip back to the rule of such persons.

If the government does not want us to inquire into what happened with respect to the Section 34(2) Dates, that same government cannot and should not attempt to compel us to accord those dates any reverence, respect or value whatsoever by taking a mandatory rest from work. Let the government keep and enjoy its Section 34(2) indemnities. But the government should not add insult to injury by compelling us to celebrate any of those dates, and thereby exposing us to jail terms for not resting on those anniversaries. Let the Section 34(2) Dates retain their constitutionally-defined infamy, but leave the rest of us in peace. That is the price we elected to pay and the compromise we elected to make, so as to purchase the current constitutional disposition; and the matter should rest there.

It is my respectful view that June 4th should continue to be known by the company it keeps under Section 34(2), and never accorded the status of a holiday, whether Public, Additional or Substituted. It is indeed sad that governments may choose to mark any of the Section 34(2) Dates in whatever manner they deem fit. And who are we to complain, since it is the government which holds the strings to our national purse and, as we have seen, it can jolly well swing that purse in whichever way it deems fit? So governments may marshal our security forces at our expense, block streets at our inconvenience and allow government officials to make speeches to our annoyance and on our work time, on any anniversary of any of the Section 34(2) Dates. Any of these that occurred on June 4th 2009 was truly unfortunate. But I have faith in President Mills’ publicly declared personal abhorrence of and repugnance to violent military takeovers, strongly signified by his absence from the public commemorative events and the very loud silence from him. That clearly repudiates the fantasies of Mr. Mabengba and all who think like him. June 4th and its Section 34(2) cousins were violent military takeovers and its actors enjoy immunity from our courts. They are not the hyped up, over-eulogised dates that their proponents and believers (to the extent that any proponents and believers still exist with respect to the three other dates) would have the rest of us believe. No citizen of Ghana ought to be compelled to take a day of rest at the pain of punishment, on account of those dates.

If, 16 years ago, the Supreme Court judged the celebration of and use of state resources to mark December 31st as unconstitutional, there appears to me to be no reason on earth why June 4th should be treated differently. I rely on and completely endorse the wise words of the current Honourable Minister for Foreign Affairs, Mohammed Mumuni in the Consultative Assembly Debates, January 15th 1992, col. 1417, which found its way into the judgment of Adade JSC in the NPP v. A-G case as follows:

“I believe that we are dealing with a principle, and when we are dealing with a principle you either wholly keep it or wholly reject it. You cannot compromise over a principle. We are saying that at this stage of our political development, we must come out positively and assuredly against any form of political adventurism.”

I agree. This could not have been expressed better. But I must add that one sure way to come out “positively and assuredly against any form of political adventurism” is to refuse to spend public funds or employ public resources to mark any of the Section 34(2) Dates, including June 4th.