A Petition without a Petitioner is a Myth

CHARLOTTE5-01It is an abuse of language to even say that a petition is anonymous. Before we come to the veracity of this statement, however, let’s, first of all, distinguish between 2 situations: (1) where the investigative machinery involved in processing a petition is empowered to self-initiate its own investigative processes; and (2) where the investigative machinery is not empowered to self-initiate its own processes.

Suo Sponte

In the case where the investigative machinery is empowered to self-initiate its own investigative processes, it would not matter who initiates the process. That is because the machinery may do so by itself anyways. The draftswoman  must have a reason for not excluding the machinery. She, probably, thinks it doesn’t matter who starts it. For example, the police may, by themselves, commence investigation into a crime upon reasonable suspicion. They do not need a complainant in order to do so. For this reason, lack of a complainant, ordinarily, cannot be a defence to a criminal charge. It doesn’t matter who brings the plaint. We may, therefore, make a claim that the ascertainment of existence of an initiator is not necessary where the investigative machinery is empowered to self-initiate its own processes.

Indeed, the question of self-initiation, was at the heart of the difficult contention in the Anane case. In that case the issue was whether CHRAJ could, on its own, commence an investigation even without an identifiable complainant or petitioner. Those who believed that CHRAJ could, did so because they believed that CHRAJ cannot be useful unless it be given the power to invoke its own jurisdiction. As it turned out, the courts thought otherwise – CHRAJ could still be useful without having the power to self-initiate investigations under Article 218(a). It is therefore necessary to state, resoundingly, that the Anane case was never about anonymity of the petitioner. It has no direct application in the present case.

The second situation is where the machinery is not empowered to self-initiate its processes. In this situation, the question ‘who initiates the process’ becomes indispensable. It appears that the initiator’s existence must always be ascertained in order to kick-start the process. This is because, here (unlike the first situation), it is not any person who may initiate the proceedings. And, at least, we know that, here, the investigating machinery in question or its components are such persons who are not clothed with capacity to initiate the proceedings. The draftswoman must have a reason for this exclusion. She, probably, thinks it matters who brings the petition. So, for example, our courts do not have the power to self-initiate proceedings. For this reason, lack of an existing plaintiff is always a valid defence to court proceedings. It matters who brings the plaint. We may, therefore, make a second claim that the ascertainment of the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.

But, even this second situation (where the ascertainment of the initiator is required), too, one needs to make another distinction between 2 sub-situations: (a) where the initiator exists and is disclosed; and (b) where the initiator exist but is not disclosed. Here, most adjudicatory bodies may allow a situation where the initiator, though existing, may not have her identity disclosed. This may be for a number of reason, e.g. where such disclosure may expose the initiator to some danger. But even here, the adjudicator would always have to ascertain the existence of the initiator. Therefore, the non-disclosure of an initiator who, in fact exists, does not take away from this second claim.

Article 146

Having set out the background, we may now have a discussion on the issue whether a “petition” which seeks the removal of a Justice from office (in this case, the chairperson of the Electoral Commission) under Article 146 of the Constitution, requires a petitioner. To be able to resolve this issue, it appears that one would have to, first, find out whether the investigating machinery (or its components) may self-initiate such removal proceedings.

Let’s note that the investigating machinery here includes, (1) the President (including the Vice President), (2) the Chief Justice, (3) any of the Justice of the Superior Court, (4) the Council of State and (5) the Judicial Council. Ordinarily, therefore, none of these persons, acting in such capacities, may initiate the process. Note, however, that the relevant component of the machinery here is the President. Therefore, the real question is whether the President may self-initiate the removal process.

At least, the tenor of Article 146 makes it very doubtful if the President could self-initiate the impeachment of a Justice of the superior court (and by extension, as in this case, the Chairperson of the EC). This is what 146(3) says:

“If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”

In other words, unless a President “receives” a petition, the process cannot start. Obviously, the President cannot “receive” a petition from herself. This, therefore, may give us a deep insight into whether the ascertainment of the initiator is necessary. In this regard, we may call in aid our second claim which states that “the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.” Accordingly, we may say that the ascertainment of the existence of the initiator is a prerequisite to the competence of the petition.

The Fable

But, I made an initial claim that “it is an abuse of language to even say that a petition is anonymous.” The basis of that claim is as follows:

The Oxford law dictionary defines a “petition” a “written application for a legal remedy or relief that is only available if statute or rules of procedure permit it. The dictionary goes on to give examples of petitions. It lists “a petition for divorce, a bankruptcy petition, an election petition, or a petition for winding up a company …” These examples may be instructive in helping us answer the question, may a petition be without a petitioner? In other words, may a divorce be sought without an existing petitioner? How about election petition? Bankruptcy? Probably not.

Secondly, the Black’s law dictionary, defines a petition as a “written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favor, privilege, or license.” This definition is apposite as relates directly to the historical antecedent of “petition.”

Under medieval English law and ‘forms of action’, a person usually petitions the King through the Lord Chancellor or the Exchequer for a “favour”, a “licence” or a “privilege.” This is in contradistinction with a “writ” which was the prescribed medium for asserting a “right.” A good example is where a person may petition the King for leave to be able to sue the King. This is because no one has the right to sue the King. You need the King’s “fiat” to be able to sue him. Indeed, those who are familiar with our legal history of law practice would know that this concept sipped into our law, where a person who wishes to sue the State had to first issue a process known as a “petition of right’ for the grant of a “fiat” in order to be able to issue a writ against the State. Let me, however, mention that this requirement is now abolished by Article 293(1) of the Constitution. So, now, you may sue the State without first issuing a ‘petition of right’.

This historical analysis may not be conclusive on the matter. However, it helps one to note that seeking a “privilege”, a “licence” or a “favour” necessarily requires that the grantor of such “privilege”, “licence” or “favour” knows the person who seeks and in respect of whom he would grant such “privilege”, “licence” or “favour”. Therefore, both definitions, when taken critically and within the proper context, makes the concept of “anonymous petition” rather fabulous, awkward and a little too disturbing at law.

For these reasons, I think, a petition, unless otherwise expressly excepted, must have a petitioner.

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The Problems that Face Legal Education in Ghana are not Legalities

ghana-school-of-law

Events of the past weeks have led some to believe that the problems facing legal education in Ghana are caused by non-compliance with laws. That belief is unfounded. In fact, legality is not even one of the problems. The real problems facing legal education in Ghana today include expired approach to teaching, poor teacher-student ratio, poor access to trending learning materials, weak research base and unworkable rules on admission to the bar. All these lead to a very hectic, costly, almost-oppressive and highly unpredictable legal education process.

Efforts at Solution

Varied efforts have been made by the General Legal Council (GLC) and other stakeholders to help solve the problems. These efforts include the construction of a new law school building at the University of Ghana (UG), the renovation of the Ghana School of Law (GSL) facility in Makola, plans to build an ultramodern GSL training facility at Legon, prohibition of non-PhD-holders from teaching law in UG, recruitment of more lecturers at both UG and GSL, etc. However, the most dramatic effort is what may be called ‘democratisation of the LL.B. program’. This saw a paradigm shift from the policy which gave exclusive mandate to UG to award the LL.B. degree to the current situation where almost every degree-awarding institution may.

However, the democratisation process did not come without its own attending challenges. It has seen more LL.B. degree holders willing to be enrolled at the bar than the GSL could admit for professional training. To solve this problem, the GLC had to increase admissions to the GLS from a little over 50 in the early 2000s to about 250 last year. This move also came with the creation, in 2011, of 2 outstation campuses of the GSL, one in Kumasi and another in eastern Accra. At a point, the GSL also used a quota system of admission, where each LL.B. awarding university was given a quota in respect of the number of their LLB graduates to send to the GSL.

Automatic Admission

From this background, it may be pretty much obvious that the problems facing legal education has grown in genre and scope, giving birth to all manner of activists trying furiously, though in good faith, to fight for change. It is, however, even more obvious that the problem that concerns the activists most is not any of the above, but rather one that has to do with the number of persons that may be admitted to the bar each year. This claim is evidenced by events characterising this year’s GSL admission process, where activists have asked that all the over 3,000 LL.B. holders in Ghana be admitted to the GSL without any further criteria for scrutiny.

There may be many arguments in favour or against the automatic admission campaign. However, only a very few persons may deny the fact that the campaign is mono-dimensional as it seems to have no regard for the other more serious problems facing legal education in the country, e.g., quality of training. Indeed, one may even say that the automatic admission campaign bears strong features of fundamentalism and overly-generous obsession with high numbers and only diverts attention from the more serious problems.

Deinstitutionalisation

Another call that is often made towards the resolution of the problem is one which calls for deinstitutionalisation of the professional bar training program. This call would see the abolishing of the GSL and the reconstitution of the GLC’s Board of Legal Education into an examination (rather than a training) body. Of course, this appears to be a more progressive approach when all is said and done. The question, however, is how the deinstitutionalisation approach would resolve the number problem, which it is often proffered to solve?

In answering this question, the apostles of deinstitutionalisation would say that the teeming number of universities running law programs would develop the capacity to absorb and handle the numbers. This is true; but only true if one assumes that the law student’s only and ultimate interest is having legal training for the sake of it. The argument hardly speaks to the issue of numbers when taken in its proper context, which is that the average law student’s ultimate interest is to become a lawyer and not just to have legal training. To become a lawyer, the law student must move beyond professional legal training (to be offered by the universities) to being enrolled at the bar. Therefore, while the various universities may have the capacity to offer professional legal training to the teeming number of persons seeking to become lawyers, they have no power whatsoever to determine which or how many of their many graduates end up becoming lawyers.

The power to admit persons to the bar vests solely with the GLC. This also means that it is only the GLC (not the universities) that could resolve the number issue. It also means that no serious progress could be made in respect of numbers unless the GLC is convinced that Ghana needs more than the current 250 new lawyers being admitted in a year. From this background, therefore, the deinstitutionalisation approach, like its predecessor democratisation of LL.B. approach, unless coupled with a deliberate and concerted effort at convincing the GLC to increase the number of persons admitted to the bar, would merely portend another situation where an army of “trained lawyers” would wait in agony and frustration, perhaps, forever to be admitted to the bar.

Way Forward

Going forward, it behoves stakeholder of legal education in Ghana to take steps to have a comprehensive dialogue leading to practicable proposals to the GLC in respect of the following:

  1. Preferred teaching approach in law schools;
  2. Minimum qualification for law teachers;
  3. Minimum qualification for admission to the LL.B. program;
  4. Accreditation criteria for institutions that will award LL.B. degrees;
  5. Deinstitutionalisation of professional law training program;
  6. Ghana’s need for lawyers, leading to an objectively determined number of lawyers to be admitted to the bar each year for the next 10 years;
  7. Effective pupillage program; and
  8. Cost of legal education.

The stakeholders to this dialogue should include the following:

  1. The General Legal Council,
  2. The Ghana Bar Association,
  3. The National Accreditation Board,
  4. Deans and directors of law faculties and schools;
  5. The National Union of Ghana Students (and law student associations),
  6. Law teachers’ associations, and
  7. Proprietors of law schools.

Conclusion

In all, it may not be false to say that the current agitation over the number of persons to be admitted to the Ghana bar would see no end until and unless the GLC is convinced with credible evidence that Ghana needs more lawyers than the current rate of enrolment. Such evidence, sure, would not come from dry legal arguments of doubtful integrity. Such evidence may only be had from sound economic, social and political policy analysis and considerations.