Of Asare v GLC: Our Veritable Octopus Supreme Court

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Our Supreme Court has done it again! It seems to have behaved like the proverbial ‘veritable octopus,’ stretching its tentacles to assume jurisdiction over a matter which is clearly out of its original exclusive jurisdiction. As if that was not enough, the Court has given a judgement that has successfully entrenched the common-held view that the honourable Court is in a dire need of consistency and judicial humility.

This note seeks to show that the Supreme Court did not have jurisdiction over the Asare v General Legal Counsel & Ors in the first place.

Judicial Review Generally

Article 2 of the 1992 Constitution codifies the doctrine of judicial review as established by the landmark case of Marbury v. Madison (1803). In that case, Justice Marshall stated that:

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

The essence of this statement is that the Constitution is the sole standard for exercising a supreme court’s power of judicial review. It is exactly this doctrine that is codified in Article 2 of our Constitution.

Judicial Review in Ghana

So, Article 2(1) says that:

“A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

From this provision one may glean out the following elements, which must be satisfied in order to successfully invoke the Supreme Court’s Article 2 jurisdiction. In other words, for a plaintiff to invoke the Article 2 jurisdiction of the Supreme Court, she must show the following:

  1. That there is an allegation of violation;
  2. That that allegation of violation is in the form of:
    • A contravention, or
    • An inconsistency;
  3. That the alleged violation stems from at least 1 of 2 principal sources, namely:
    • From an enactment; or
    • From a person.
  4. That where the alleged violation stems from an enactment, it is either:
    • From the content of the enactment (without more); or
    • From a conduct done under or pursuant to the authority of an enactment.
  5. That where the alleged violation stems from a person, it is either through:
    • A person’s action; or
    • A person’s inaction.
  6. That whatever nature the alleged violation may take from 1 to 5, it should be a violation of the Constitution and nothing else.

In fact, that is the reason why Article 2 claims must always allege an unconstitutionality – meaning the constitution (and nothing else) is the sole standard of evaluation.

Un-constitutionality

It is true that any illegal act or omission may also be a violation of one of the many principles in the Constitution, but it would be an abuse of language and, of course, the concept of judicial review to suggest that a person who steals my iPhone has committed an unconstitutionality, having violated my right to property under Article 20 of the Constitution.

It is exactly the prevention of this possible abuse (of every legal wrong coming to the Supreme Court for judicial review) that the Supreme Court itself insists strongly in a long line of cases that where the Supreme Court has concurrent jurisdiction with another court over a matter, the Supreme Court would relinquish jurisdiction to that other court. In fact, it is for this reason that the Supreme Court’s Article 2 jurisdiction called “exclusive original jurisdiction.”

Asare v GLC Jurisdiction

Now, the question is this: what is the dominant feature of the violation which the Plaintiff in Asare v GLC & Ors. alleged? To all intents and purposes, the allegation is primarily one which says that the defendants have acted, are still acting and, unless restrained, would continue to act outside their enabling Act, Act 32, or its subsidiary legislation, L.I. 1296. And, even though such violations may derivatively result in an inconsistency or even a contravention of a principle in the Constitution, it is an abuse of the term ‘judicial review’ to suggest that that act or omission is unconstitutional.

In other words, the Supreme Court, as a matter law and in accordance with its own established jurisprudence, did not have and should not have assumed an exclusive original jurisdiction over the plaint. The plaint should have been referred to the High Court which has original jurisdiction to determine such administrative (rather than constitutional) matters.

Conclusion

Until and unless the Honourable Supreme Court begins to take some of these jurisdictional issues more seriously, it would continue to exude an air of inconsistency and judicial tyranny, while at the same time weakening not just itself, but also all the Courts and other administrative bodies below it.

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Of Dual Citizenship and Allegiance: Emotive or Juridical

12715-Dualnationalitypassport-1342092104-492-640x480Apparently, there is a raging social media debate on Article 8 of the Constitution. That Article allows Ghanaians to be dual citizens. However, it bars dual citizens from holding certain public offices. For example, a dual citizen cannot become President or Vice, Ambassador or High Commissioner, Member of Parliament, Inspector-General of Police, Chief of Defence Staff, etc.

Dual Citizen

A dual citizen is a person who is a citizen of two countries. Within this context, a Ghanaian is a dual citizen if he holds the citizenship of a country in addition to that of Ghana at the same time. The beginning point of the discussion (which is also the basic rule) is that every person automatically owes allegiance to the country of which he is a citizen. This also means that a dual citizen owes allegiance to two (or more) countries. At the core of the discussion, therefore, is the question of ‘allegiance.’ Consequently, one’s understanding of ‘allegiance’ within this context is very fundamental to the discussion. I’ll be explaining ‘allegiance’ very soon; but before that let me just quickly scope out the debate.

The Debate Sides

One side of the discussion – the inclusion view – argues that there is no real gain in barring dual citizens from holding these public offices. To them, dual citizens, if allowed to hold these key offices, may well be the solution to Ghana’s endless train of problems. This is because duals have enormous talents and expertise which they could bring to bear on those offices. “Without occupying those offices,” the argument goes, “dual citizens can’t contribute sufficiently to solving Ghana’s problems.” Based on this, the inclusionists accuse the exclusionists as inward-looking folks who fear competition.

The other side of the debate – the exclusion view – defends the bar as very helpful in preventing treachery. To the exclusionists, a mono-citizen cannot or is less likely to betray his country than a dual since he owes allegiance to only one sovereign. To the treachery argument in particular, the inclusionists would retort that in a country where poverty is rife, a mono could more easily betray her country than a dual. Indeed, that may be very true, considering the way boys are hungry these days, they could sell anything. The exclusionists’ pushback is that: well, if you think dual citizenship doesn’t have a downside, then, single citizenship would also not have an advantage; so, nationality as a whole shouldn’t matter in getting people into public offices – let’s just throw all these nationality issues away and look for competence only, even for the presidency!

I, myself, am confused as to which side of the debate to belong. Therefore, the purpose of this short note is not to suggest, propose or indicate, even remotely, the better of the two sides. I only wish to, in my own small way, make the debate a little more informed.

Allegiance not an Emotive Concept

Okay; as one could already observe from these snippets of arguments, both sides of the discussion have been very creative, committed and forceful in making their case. Interestingly, these snippets of arguments also tell us that their forcefulness, though admirable, is premised on an honest misconstruction of the most critical element in the discussion – ‘allegiance.’ They seem to give ‘allegiance’ an emotive meaning only. To them, allegiance is the feeling of loyalty, fidelity or faithfulness towards a country. So, they often use football game to illustrate their arguments whether for or against. They ask questions like: how would Milovan Rajevac feel while coaching Ghana in a football match between Ghana and his country, Serbia (I think, I saw this one in the Asare v A-G case or so)? They also would ask – how did Jerome Boateng feel about playing for Germany against Ghana?

Indeed, how a person feels in these situations matters in measuring their output and commitment. However, I’m not particularly sure how that feeling translates into how ‘allegiance’ is determined in this context. I’m encouraged to say that ‘allegiance’ as used within the context of citizenship is too serious a matter to be left to feelings and emotions; not least because there is no art to find a man’s feeling on his face.

Allegiance is Juridical

‘Allegiance’ go way beyond these emotive attributes. It doesn’t simply connote a feeling of indebtedness, fidelity or loyalty. Rather, the word carries with it a bundle of well-defined legal incidents and consequences. It usually entails defined duties of a citizen to her country. It equally entails the rights of a country to punish the citizen should she fail in performing those duties. It speaks directly to the question of State protection to citizens as well. At law, it is what a citizen gives in return for the protection that her country provides her.

For instance, a citizen has a duty to defend the constitution of his country and, usually, to defend the government which is, for the time being, in place. On the other hand, the country has the right to commit the citizen for treason and punish her as such should she do anything that betrays this duty. It goes without saying, too, generally, that a non-citizen cannot commit treason – he doesn’t owe allegiance to the sovereign in question. This is a well-established rule under both domestic and international law. To this end, a person’s allegiance to a country is determined by such objective (rather than subjective or emotive) criteria as citizenship, domicile, etc.

So, in Carlisle v. US (1872) for example, a group of aliens were manufacturing and selling gunpowder to the rebel Confederate army to enable them overthrow the federal government. These guys were doing pure business. They didn’t have any special feeling towards any of the waring parties. As a matter of fact, they could and were ready to sell to both sides. The US Supreme Court held as follows:

“He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof.” 

Of a more current and comprehensive help is the English case of Joyce v DPP (1946). Here the accused person, an American citizen who also held British passport was caught translating English news for the Nazi during World War II. No one knew his feelings. The key issue that came before the House of Lords was whether a person who held a passport (but who is merely a naturalised citizen) owes allegiance to His Majesty, the King of England. Answering this question, Lord Jowitt LC said:

“In these circumstances, I am clearly of the opinion that so long as he holds the passport he is within the meaning of the statute a man who, if he is adherent to the King’s enemies in the realm or elsewhere commits an act of treason.”

Joyce v DPP is also the authority for saying that passport is conclusive evidence of allegiance; so that an MP who holds a passport of another country owes allegiance to that country, for which reason she should be removed from Parliament and punished for perjury.

From these 2 cases alone (and there are a litany), I’ve found that ‘allegiance’ is a juridical (rather than emotive) construct. It’s not determined by the subjective criteria of how the person really feels about a country, but rather by clearly stated objective criteria of facts, law or facts mixed with law – citizenship, holding of passport, domicile, etc, – all of which entitles a person to the protection of the sovereign. This is no brainer, the fact that a person feels great about Russia doesn’t mean that he owes allegiance to Russia. And the fact that you’re Gambian doesn’t also mean that you feel love for the Gambia; but you’re held at law, conclusively, to owe allegiance to the Gambia. How, then, may one justify the claim that ‘allegiance’ is an emotive concept?

Countries and Dual Citizenship

A dual citizen may be likened to a servant of two masters. His acts don’t really affect him. They more affect the relationship between the two masters. It also has the potential of limiting what each master may do in respect of this dual-servant. Masters don’t like that. Because of this, even the most liberal countries of the world look at dual citizenship with suspicion. It has always been the case. So, the US Department of State, for instance, would say “the U.S. Government does not encourage dual nationality … Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other.” In fact, other countries don’t allow it at all.

Illustration: What if your energy minister was a dual citizen – Ghanaian and American; and, then, the US (as it usually does) bars its citizens from dealing with the GNPC and Ghana Gas Limited. This, obviously, would have nothing to do with how the minister feels about Ghana or the US. Ghana would have to choose between extraditing the minister to the US (and fail in its primary duty to protect its citizen) or keep him here to continue working with GNPC (and face international sanctions from the US). This is just one of the ways in which dual citizenship may frustrate the relationship between two countries.

Okay, I have to go now. Having said this, I believe the debate could proceed.

WHY LAWYERS CAN’T ADVERTISE IN 21ST CENTURY GHANA

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It is outrightly unlawful for a lawyer to inform the pubic of his previous successes in his professional practice with the aim of attracting briefs in the future. This is because Rule 2 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613) prohibits lawyers from touting, advertising or otherwise doing anything that may be seen “as calculated to attract business unfairly.”

Today, many consider the Rule as a senseless piece of legislation which is, “archaic” and “greatly inimical to the development of this country” in the sense that it “forces all lawyers to scramble for space under the wings of old and established law firms” and deprives citizens of the “right to know about the law firms available and the kinds of services they offered.

Interestingly, while some call on the incoming Chief Justice, Her Ladyship, Justice Sophia Akuffo, to “break this old curse,” the former President of the African Court on Human and Peoples’ Rights rather boldly announced at his vetting in Parliament how “distasteful” she finds the campaign against the rule. Clearly, if this rule would be scrapped, it definitely won’t come from the General Legal Council of which Her Ladyship would be head for the next two or so years.

But, what at all is the basis or essence of this rule? Well, one could not understand the Rule’s utility unless we wind back our minds to pre-medieval England; that is to say, the years immediately preceding 1400 AD.

A great point to approach history, they say, is to begin from the known to the unknown. Most of us are familiar with the chorister’s or the academic robe. The main difference between these robes and a lawyer’s is that the later has a stupid piece of violin-shaped cloth attached to the back of its left shoulders with a long silly strap running along the left breast down to the feet. The former robes don’t. That piece of cloth at the shoulders is cut into a pair of cute little sacks. These sacks used to be the money sack for lawyers – one for silver coins the other for gold. It’s actually called the “money bag.”

The theory behind this mysterious pair of sacks was that law practice was purely a noble selfless public service profession. It was neither for money nor for profit. Because of this, lawyers could never charge fees. In fact, it is said that “the gentlemanly barrister would not lower himself to ask clients for money.” Clients only made voluntary ex gratia donations which they surreptitiously dropped into these sacks. Remember, the pair of sacks hang loosely behind him; meaning he could not feel, know or be influenced by how much a client dropped in. Money was completely irrelevant!

Now the catch: since professional law practice for most part of its life was noble and not for profit, open competition was never a sensible thing to do, entertain let alone encourage. Therefore, it made sense to prohibit touting and advertising among lawyers. As a matter of fact, advertising or touting was as ignoble, base and unprofessional as asking clients for money. This is the only (if not the main) reason why Rule 2 exists in Ghana in 2017.

Assuming (without admitting) that this medieval reason for the Rule is still valid in this IT age, the question, however, would be: why does the General Legal Council find it noble for lawyers to now lower themselves and ask clients for money but ignoble for them to advertise their services? Perhaps, the answer to this question would never come.