Journalists and Unauthorised Access to Police Docket Information

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A suspect says in a police caution statement that a person we now have good reasons to believe is an entrapper tells him (the suspect) that a certain Sheikh had told him (the entrapper) that he (the Sheikh) did fund the 2016 campaign of President John Mahama and the NDC with $8 million. A media house, then, publishes a copy of the police caution statement with a story which creates the impression that President Mahama and the NDC have committed a crime. As it turns out, we are told that the copy of the police caution statement was not obtained from official police sources.

Some of my friends have sent me messages, wanting to have an idea of the legal issues involved. These are my preliminary thoughts.

Is it Lawful for the Police to Release Docket Information?

I did not find any specific law which bars the police from releasing docket information to the public. This means that the police may release a suspect’s details and other information on a docket to the public where they deem it necessary. However, in deciding whether to release such information, the police must consider at least two categories of factors – reputational factors and process integrity factors.

Reputational factors include those matters that relate to the need to protect the reputation of suspects as well as the reputation of persons who may be mentioned by suspects. Process integrity factors includes the integrity of further investigation as well as the integrity of any ensuing trial. Because of these factors, we may say further that no one is entitled to police docket information as of right. In other words, the constitutional right to information does not cover information on a police docket.

How Police may Release Docket Information

Having decided to release docket information to the public, the police need to further decide how to release such information. This decision is not just about the medium through which the police may release the information, it is also about the form that the publication may take. There are a number of mediums of publication – posting the information on police notice boards or website, to the press (conference, interview or statement), in a gazette, etc.

In respect of form, paraphrasing the information has been the norm. Publication of hard material evidence (such as copies of a caution statement) appears rather unconventional. Be that as it may, one thing is clear – such a publication must be deliberately official. I did not find any legal basis for the police ‘leaking’ docket information or materials to individuals, be they journalists or not.

Media Publication of Unofficially-obtained Docket Information

Journalists may however use the many tools at their disposal to obtain police docket information. Obtaining such information in ways other than through official police publications is not in itself a crime. However, a particular means adopted in obtaining such information may be criminal, for example, stealing it or obtaining it through bribery or corruption. You will notice here that it is the means (rather than the fact) of having access to the information which triggers the crime. This is because the media laws protect what journalists have (not entirely how they got it).

However, the biggest concern that often comes with a journalist or a media house publishing unofficially-obtained (u-o) docket information is not criminal prosecution. It is civil libel. This arises from the reputational category of factors I mentioned earlier – the law protects every person’s reputation perhaps more than it protects a person’s right to information.

Consequences of Media Publication of Docket Information

The beginning point in discussing libel in this context is this: when a media house publishes docket information the source of which is official police publication, such a publication is privileged. And, the media house will have a defence at libel even if the docket information did not make it to trial.

The second point is that libel may not hold if the u-o docket information in question makes it to trial. This is because, information disclosed at the trial of an adult is public information in respect of which media publication may be privileged. Cool. But, how about if the u-o docket information which the media house publishes fails to result in criminal prosecution? This leads us to the third and most intriguing point.

The third point is that the mantra – “innocent until proven guilty” – is not a defence if the u-o docket information which the media publishes does not result in prosecution. In other words, a journalist who publishes crime-suggesting u-o docket information on a person cannot, if the docket information fails to make it to trial, explain away a libel claim simply by saying that the public knows or ought to know that docket information is not a verdict. And, it does not even matter that such information is factually accurate. Yes, it doesn’t. The information may be true, but being true does not mean a crime has been committed as the media story might suggest. And, oh, it does not also matter that the media house published such information with a caveat that the information is a mere allegation.

The reason is pretty much obvious. First, not everyone who got wind of the crime-suggesting but u-o docket information from the media gets to hear that the information did not even make it to trial subsequently. Second, the court of public opinion does not operate exactly by the judicial rules of evidence – the ‘judges’ there will, regardless, continue to assess a person’s reputation in the light of the published docket information somehow.

So, one may be wondering why media houses go all lengths to risk procuring and publishing such police docket information? Well, the answer is simple – media is business. Like any business, prudent media houses do conduct cost-benefit analyses in respect of each publication. If the earnings from the sales of u-o docket information on scandals will substantially outweigh the damages that they may pay at libel, a media house will be more likely to go out with the publication. Well, some media houses too could actually be foolhardy like that – they will publish without regard for the consequences whatsoever .

How about the Police?

If the police had done their job properly and professionally, the docket information would not be in the hands of unauthorised persons. Because of this, the police command may have questions to answer. They will have to answer, primarily, to the public in respect of process integrity factors – how credible are your systems and processes? But they also may have to answer to the individuals whose reputation may be implicated as a result of the unauthorised publication of the docket information.

Defrauding by False Pretence: What it Looks Like

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Section 132 of Act 29: “A person is guilty of defrauding by false pretences if, by means of any FALSE PRETENCE, or by personation he OBTAINS THE CONSENT of another person to part with or transfer the ownership of ANYTHING.”

Lets say we have charged Kofi with false pretence. This is how most lawyers are likely to think about it.

We can begin by thinking about “false pretence” as “impression” (“shii impre”). The first thing to look out for is if Kofi created an impression that something or some situation is what it actually is not. Lets assume that (1) Kofi told Ama that he can get the MD to give her a job. This statement alone is not enough to cause us to start thinking about false pretence. But, what if Kofi adds that (2) he can get the job for Ama because he is the MD’s “body-body”? This additional situation (of being the MD’s body-body) draws us a little closer to false pretence. However, this too is not enough. At all. There’s nothing inherently wrong with using one’s influence to get something for someone. So, we need more.

To move closer to false pretence, Kofi should have said these things with (3) the intension to defraud Ama. Now, this is where the meat is. We know that fraud has everything to do with dishonesty (animus furandi); and dishonesty, here, is when you say something which you know is not true i.e. to shii false impre. But to defraud someone is not to merely shii false impre to the person. Otherwise, the President would have “instructed” the police on many of us here on social media.

For a false impre to be fraudulent, it should be aimed at (4) gaining a thing (in fact the law says “anything”). But “anything” here also means any tangible thing. Emotional or psychic benefits are not “anything” really. But once the thing is tangible – like momo, car, phone, airtime, yes MTN credit, etc – you’re in. The value of the thing doesn’t matter. So lets assume that Kofi’s condition for getting the job for Ama is – hey, don’t even start, the distin is not “anything” – Kofi’s condition for getting the job for Ama is GHC5k momo. We’re getting there small small.

The next major thing to look out for is “consent”. If (5) Ama agreed to momo, there’s consent. It doesn’t matter that she’s only able to momo GHC20 (of the GHC5k) or even less. GHC 20 is still “anything”. It also doesn’t matter that she is too intelligent to believe or shouldn’t have believed that Kofi can live the impre. The law is interested in Kofi’s intention, period. In fact, it does even matter that the GHC 20 belongs to Ama’s mum or that Ama even stole it. That’s a different matter altogether.

Point – without evidence of Ama’s “consent” to give the “anything”, let’s all pack our popcorn and soda bottles and go home to sleep. The case will collapse. The first real question, then, is (A) will an undercover agent give evidence of such consent? If the undercover guys do testify, will their intention really matter? Also, there’re very serious admissibility issues in this area. Yes. Very serious ones.

So far, we have been assuming that Kofi is a total stranger to MD and has never dealt with MD in the manner close to the impression he created to Ama. Its a straightforward matter if that’s the case. But what if Kofi is not really a stranger to MD? Well, then, more popcorn and soda. You see, what really matters in all this is HONESTY. Does Kofi have an honest belief that he has the capacity to deliver, AT (not before or after) the time he shiied the impre. Here, it doesn’t really matter that he couldn’t actually deliver. So long as his belief that he could is found to be reasonable, he is honest. And, if his belief is honest, then, he’s not dishonest. And, if he’s not dishonest, then, there’s no pretence. And, if there’s no pretence, then, he’s FREE. It is irrelevant that what he says he’d do is criminal or immoral; that’s a different issue altogether.

After the prosecution has shown that Kofi has shiied impre and that Ama has parted with the momo and all that, Kofi will have an opportunity to explain himself. Here, as is usually the case, Kofi will like to explain away the allegation of dishonesty. To do so he’d need to adduce evidence, of course. In matter of (dis)honesty, the most important thing is the past. The past matters bunch. This leads us to the second real question (B) can Kofi show that he has ever used his relationship with MD to get the MD to do such a favour, even for once? Here, Kofi has a pretty good defence if, for example, he ever got another person (say, Yaa Baby) or even the same Ama to get, say, a food supply contract through MD. It doesn’t really have to be a job necessarily.

Yes, this is the flashpoint of the whole show. This is exactly where you have to order another round of popcorn and soda; fasten your seat belt and cross your thighs. Because, if Kofi testifies that he has ever procured such a favour from MD, the prosecutor has to find a way of getting MD into the witness box to debunk Kofi’s testimony. Because, without debunking it, Kofi would have succeeded in showing that his belief to deliver was not dishonest. I doubt if we’d get to this point, however.

Anyways, who has two premiering tickets to spare?

Article 2(1) Jurisdiction: Does a Non-Citizen too have Capacity?

IMG_3580.JPGOne of the interesting points of law I like discussing my students in my Constitutional Law class is the capacity to invoke the Supreme Court’s Article 2(1) jurisdiction. The popular view is that non-citizens do not have the capacity to invoke that jurisdiction. In fact, a Supreme Court Justice has even hinted that view in a judgement (thankfully, her comment in that case was an obiter). The view is so popular that I noticed my students knew it even before stepping into their first law class; and that is exactly what makes the discussion even more exciting. I always take that opportunity to highlight the importance of critical reading – a key to success in law school and practice.

My claim here is that I have searched but have not found that there is a bar to non-citizens invoking the Court’s Article 2(1) jurisdiction. The question, then, is: how did the view above come to attain this level of popular acceptance? My investigations led me to the epic case of Tuffour v Attorney-General. The case was decided in September 1980 under the 1979 Constitution. The facts occurred during the transition from the AFRC military regime to the 3rd Republic. These are the relevant facts:

Hon. Mr Justice F.K. Apaloo was the Chief Justice immediately before the 1979 Constitution came into force. The new Constitution (as would be interpreted by Supreme Court) allowed him to continue holding that office. That notwithstanding, he was asked to appear before the newly inaugurated Parliament to have his appointment regularised by way of vetting. Contrary to the expectation that the process was going to be a mere rubber-stamping, the Parliament shocked everyone by disapproving Mr Apaloo C.J., bringing his office to an immediate end. In fact, that same Parliament would later disapprove President Limann‘s budget, a behaviour which would later become the basis for the current hybrid system of government which we are running.

The Plaintiff, Dr Amoako Tuffour, an ordinary citizen who, obviously, was not enthused by Parliament’s behaviour, brought this action invoking the Article 2(1) jurisdiction of the Court under the 1979 Constitution (the provision is the same in the 1992 Constitution) to challenge the constitutionality of Parliament’s vetting. As they always do, the Attorney-General opposed the action with several lines of preliminary objections, including one which says that the Plaintiff, having no “community of interest” in the office of CJ Apaloo, has no capacity to bring the action. Ok, let me explain community of interest before we continue.

Generally, at law, a wrong can only be vindicated by a person whose interest is or is likely to be affected by the wrong. I cannot, for instance, sue a driver simply because he has carelessly knocked someone down the street. I should be able to show that I have an interest in the accident victim’s wellbeing such that I stand to suffer some loss by his injury. That interest is what is called “community of interest.” In this scenario, I will be what lawyers call a ‘meddlesome interloper’ if I do not disclose such an interest; and the courts will dismiss my action for want of capacity or lack of locus standi.

So, the A-G was simply saying that Mr Justice Apaloo (rather than Dr Tuffour or another person) was the person entitled to bring the action. Counsel for the Plaintiff (our current President, H.E. Nana Addo, with Mr Tsatsu Tsikata, one Mr Glover and Mrs Reindorf) opposed the A-G’s objection. They argued that unlike in ordinary civil cases where a person needs to show a community of interest in order to have capacity, a Constitutional matter requires no such special community if interest. That so, because the Constitution already clothes every Ghanaian citizen with the capacity to defend the Constitution without more. The Court, of course, threw out the A-G’s objection. Justice Sowah, who spoke for the Court, stated.

“The Constitution, by the provisions of Article 1(3) conferred on every citizen of Ghana the right to see to it that the constitutional order was not abolished or sought to be abolished. One method by which it could be determined whether a person was seeking to abolish the constitutional order, was to seek an interpretation of the Constitution as to the meaning or the effect of a particular provision or provisions. In such a case, in essence, there would neither be a defendant nor a plaintiff properly so called, and as the terms were commonly employed in ordinary proceedings in the courts.”

It is this holding, I suspect, that many pass off as the authority for saying that a non-citizen does not have capacity to invoke the Court’s Article 2(1) jurisdiction. But what did the court really say? Let me try and break it down as I understand it. The Court says as follows:

(1) Everyone need to show a special community of interest before bringing an action in a court; (2) However, when it comes to the interpretation or enforcement of the Constitution, citizens are not required to show any special community of interest, since the Constitution gives them a community of interests under Article 1(3) already; and (3) But because the Constitution does not clothe non-citizens with that community of interest, they would still have to show a special community of interest in order to invoke the Article 2(1) jurisdiction of the Court.

Well, this is how I understand it. As to how this meaning or any part of the case translate into saying that non-citizens are barred from invoking Article 2(1), sorry, I’m still searching.

Indeed, it is also based on this that the practice developed in the Court where a Plaintiff in an Article 2(1) matter may have to depose to her citizenship in the affidavit verifying the fact of her case. Deposing that she is a Ghanaian citizen automatically relieves her of the need to show a special community if interest. However, she is not bound to, since she may ignore her citizenship and still be able to show that she has a special community if interest. A non-citizen however always needs to show that he has a community of interest. Once he shows it, I see no reason why he will not have the capacity to invoke the Court’s jurisdiction in that regard.

Okay, back to my students. Contrary to their expectation that my view is conclusive on the issue, I always tell them to go find their own position on the matter.  Inasmuch as that makes them even more frustrated, I don’t care. All I care about is – I have made my point on critical reading.

Ghana-US DCA: Executed or Not Executed?

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This conversation took place between the Joy FM news anchor and the Chairman of the Interior and Defence Committee of Parliament during Joy evening news of Friday, April 6, 2018. Let me give a little background to the conversation:

You’d notice that there have been so many issues surrounding the Ghana-US defence cooperation agreement since news broke that Cabinet had submitted the agreement to Parliament for ratification under Article 75(2)(b) of the Constitution. One of the issues is whether the agreement was “executed” before laid in Parliament. Technically, execution means any act that kicks the rights and obligations in an agreement into operation. As you know, the usual way of executing an agreement is by signing it. In fact, the word “ratification” necessarily implies that the agreement should have already been executed; one principle of ratification is that it takes effect back on the day that the execution was done (not the day that the ratification was done). In other words, there cannot be ratification without prior execution. So, primarily, Joy FM wanted to find out from the Chairman if the agreement that Cabinet sent to them (and which they “ratified” on March 23) was indeed executed by the executive. Here goes:

JOY FM: What we did that day, in terms of approving it, or what we did in Parliament, was it an approval for the draft agreement to be executed or it was a ratification?

CHAIRMAN: By the letter sent from the executive, and, here, the Cabinet under the authority of the executive President of the Republic of Ghana, Parliament was asked in paragraph  3 of the letter from Cabinet to ratify (stresses word) the agreement. And so the recommendation from Cabinet through its memorandum asked Parliament to ratify (stresses word) the agreement in paragraph 3; and that’s exactly what Parliament did. The processes of Article 75 was followed and pursued to the letter.

(My Comment: The Chairman’s response suggests that he did not have an option than to do what the Cabinet letter instructed (even in the teeth of vehement objection form the minority). So much for Parliament’s independence. But, obviously, the Chairman didn’t answer the question. So, Joy FM put the question more directly).

JOY FM: So, per the document, has it been executed?

CHAIRMAN: Exactly (a brief pause) so. Reason being; and, here, I will just want to say that, that by Article 75, the provisions of Article 75 of our Constitution says that (reads Article 75(2)). And for me, this statement I have just read to you, is fully satisfied. Because this was done under the authority (stresses word) of the executive President of the Republic of Ghana through the highest decision-making body of executive, which is Cabinet. And cabinet after endorsing and forwarding same to Parliament, I have no duty to not perform my office function. So I just went on and I did same.

(My Comment: Ok. Even though the Chairman’s initial response appears emphatic that the agreement was executed, his subsequent explanation suggests that he had no independent view on the matter. So much for oversight. Of course, Joy FM spotted the gap, so, they became more upfront with him.)

JOY FM: But, Mr Acheampong, per the document that came to Parliament. You’re quoting Article 75 and all, that document did not have signatures. Do we know whether the US and Ghana have since appended their signatures?

CHAIRMAN: As a matter of fact, the Supreme Court is the best arbiter to this question, because, they will best interpret Article 75. Insofar as I understand, any communication from the executive, through cabinet, which the President Chairs, written to us under the office of the President, tells me that the President has so (stresses word) endorsed that treaty and I take it, and the Constitution says “under the authority of the President”. That is my simple lay person agreement (sic). I cannot take the responsibility of the Superior Courts of Ghana (voice fades).

(My Comment: At this point, you could see that the Chairman has sought to carefully absolve himself, basically saying that Parliament is just a conveyor belt. If you have any problems with what has happened go to court. But Joy FM wanted to give him a 4th chance).

JOY FM: So, are we expecting this document to come back to Parliament at any point in time?

CHAIRMAN: Never at all (stresses word). I don’t … (voice fades).

JOY FM: Mr Acheampong we’re grateful for your time. We have to leave you here.

To Fire or not to Fire: Presidents’ Dilemma

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Today, this democracy is 25 years old. We need to appreciate the leadership we’ve had so far. This means we need to celebrate our presidents (including those who had the opportunity but couldn’t make 2 consecutive terms). A moment of celebration, I think, should also be a moment of empathy. Let’s empathise with our presidents, past, present and even future. Let’s consider their fears, worries and, even most importantly, their  challenges. Trust me, their challenges are innumerable (and, I’m not saying I’ve been a president before). Just trust me.

Perhaps, the greatest challenge in political leadership is how to get the ‘right’ persons to work with (and, here, I’m speaking within the context of presidents and their ministers). Getting the right people entails combining competence with loyalty in the right proportions. But that’s not all, a leader has to do this within certain legal, time, sociocultural and economic frameworks. So, first of all, its not easy to get the men and women for the job.

The second great challenge, I think, is the ability to, having appointed some persons to work with, instil discipline into such appointees. Of course, if political appointees were kids, a leader could use disciplinary tools like, reprimand, corporal punishment, ‘silent corner’, etc. to achieve some discipline. But when you are dealing with grown ass men and women with greys in all manner of places, then, you know it’s a different ball game. In such circumstances, dismissal becomes the only (if not the most) viable way to ensuring discipline.

So you’ll probably be wondering why dismissal isn’t used a lot of the times. Well, thing is dismissal, too, isn’t without serious questions. The first question is political clout – can you just dismiss the woman you have rewarded with a ministry for her enormous contribution to your journey to office? Of course, if her contribution was merely pecuniary, you could still venture a wager and hope to find other ways of settling your pecuniary debts with her. How about if she represents a major voting constituency?

The second question is replacement. It is true that one man’s misfortune is another’s blessing – sacking an appointee presents a job opportunity for another party member. So, the replacement question is not really about nominal intra-party equations. Rather, the replacement question takes us back to the beginning of the dilemma – getting the ‘right’ person to work with. Only that the question turns into how may I get a better (or even similar) replacement. A leader would still have to face the same legal, time, sociocultural and economic framework and above all loyalty-competence mix; this time round afresh and with even more rigour.

The third question (which is inseparably-linked with replacement) is assurance. Political situation is probably one of the most unpredictable on earth. Even the weather has a say in it. Even army-worms may have a say. Persons with impeccable professional acumen have been drowned in exceptional failures in political situations. CVs are helpful but certainly not very reliable anymore. The assurance question here is: what’s the guarantee that the new appointee won’t commit even more grave blunders? There’s a conventional answer to this question. It has something to do with known devils and unknown angels.

But there’s also a fourth question – the ‘gang-up’ situation. No one understands allegiance better than politicians. A president who shows signs, no matter how faint, of freely plucking off ministers for wrongdoing also exposes herself to the ‘gang-up’ situation. Soon, the ministers would realise that none of them is beyond wrongdoing. Soon, they would realise that none of them is safe. Soon, they would agree among themselves that all should be for one and one for all. They would gang up and pit up against the President. And, if the President is to rely on them for advice in ensuring discipline (which he’s bound to), what would be the direction of such advice? No one wants that. Certainly, not when the opposition is warning up on the touchline.

Often, dismissal for wrongdoing is considered a strong sign of good governance. It shows that a president has a good sense of judgement. It also shows that she’s in “control”. In fact, governments lose elections simply because they failed to sack some appointees. But often, too, dismissal may be seen as admission of incompetence; and if it happens often (as principle-based dismissal is bound to), then, the opposition (rather than the government) becomes the ultimate beneficiary. This is the fifth question – confidence. How do you run your government in such a way as to not lose the confidence of the electorates?

What I’m trying to say is that the next time you ask a president to fire an appointee, do  not just focus on one side of the equation. Do well to consider all these questions and more. Happy 25th birthday to this democracy that the events of 31st December, 1981, gave us.

The Bond Saga, CHRAJ and the Rules on Conflict of Interest (Part 4)

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In the previous part of this note, I concluded that CHRAJ could only clear the Minister of the allegations of conflict of interest violations if it finds the following: (1) That the Minister did not breach the BoG rules on issuing such bonds; (2) That the alleged crony-relationship did not exist; or (3) that even if the alleged crony-relationships existed, the Minister has taken refuge at the safe harbour under Article 78(3).

In this concluding Part of my note, I’ll outline the findings of CHRAJ in respect of each of these 3 issues. I’ll do this by simply reproducing the relevant parts of the report.

(1) Did the Minister Breach the BoG Rules?

In respect of the allegation that the Minister breached the BoG rules for issuing such bonds, CHRAJ found that the Minister did breach the rule. Here are some of the findings in this respect at pages 109 and 117 respectively:

“In terms of the 7-year and 15-year bonds, the BOG should have notified the market at least two (2) weeks in advance of their issue since they were “new products” in accordance with the Bank of Ghana Guidelines. But as the evidence shows, the market was notified only one (1) day on the availability of the 7-year and 15-year bonds prior to the commencement of trading. This period is shorter than the 2-3 days period that the previous issues provided.”

“The publication by BOG on the availability of the financial instrument (5-year and 10-year bonds) was not done “two weeks prior to the commencement of the Calendar period which was state as 30 March 2017 as required by Rule 2.0.(a) of the BOG Guidelines. The publication was done on same day trading was to commence.”

(2) Did a Crony-relationship Exist?  

In respect of the allegation that the Minister has interest in Batabank and Enterprise, CHRAJ found such interest to be significantly present. It says on page … of the report:

“The evidence before the Commission shows that before assuming or on the assumption of duty, the Respondent had and still has personal interests, some pecuniary and other non-pecuniary. The Assets Declaration Form which the Respondent completed and submitted to the Auditor-General in compliance with Article 286(6) of the Constitution and dated 12 March 2017 discloses that the Respondent has employment or business interests listed as unspecified shares in Databank, Ventures and Acquisition and Enterprise Group Ltd.”

CHRAJ found that Trafgarne, too, has interests in both Templeton AND Enterprise. It says on page 120 of the report that:

“FT [Franklin Templeton] unaudited report 2017indicates that the “Honourable Trevor G. Trefgarne was appointed to the Board of Franklin Templeton Investment Funds on November 29, 2002. He is the Chairman of Enterprise Group Limited, Ghana, and has been Diretor of a number of U.K. Listed investment funds including Templeton Emerging Markets Investment Trust, Recovery Trust (Chairman) and Gartmore High Income Trust. He has extensive experience of the management of listed companies in the UK and Africa”

(3) Did the Minister Dock at the Safe Harbour?

The Ministers did not allege and CHRAJ did not find any evidence that the Minister made a disclosure to Parliament on the material facts of his relationship with Templeton (to which 95% of bond of the US$ 2.25 billion bonds was sold in breach of the BOG rules). As a matter of fact, CHRAJ found that the Minister concealed some of his assets in breach of the asset declaration laws. It stated at page 120 as follow:

“It is observed that the Respondent [Minister] had other assets which he did not disclose in his Asset Declaration Form. They include his interest in Databank Financial Services Limited and Databank Brokerage Limited.”

In the teeth of all this, CHRAJ was still able to conclude that:

“[T]he allegations by the Complainant that the Respondent has contravened Article 284 of the 1992 Constitution by putting himself in a conflict of interest situation in relation to the issuance of the 5-year, 7-year, 10-year and 15-year bonds, have not been substantiated.” (Underlining mine)

How CHRAJ Erred

But, hey, how did CHRAJ arrive at this conclusion? We may get the answer to this question from the reasoning at page 133 of the report:

“There was also no evidence before the Commission at this stage that there was a personal benefit to the Respondent or his business and other relations. On the basis of the foregoing, it is reasonable to conclude that though there was the significant potential that the Respondent’s personal interest could have been in conflict with the vast personal interest in the securities sector, it was not the case in this specific bond issue.” (Underlining is mine)

It may be obvious from this reasoning that CHRAJ got to this rather lonely conclusion by relying on a rule in the Okudzeto Ablakwa (No. 2) case. The rule in that case is that a person cannot be guilty of a breach of Articles 23, 35(8) and 296 (NOT Article 284) unless she is found to have actually derived a “personal benefit” from the transaction. But as I’ve disclosed in the previous part of this note, this rule has absolutely nothing to do with Article 248 conflict of interest claims; and shouldn’t have come in here at all.

Way Forward

CHRAJ’s decision may be reviewed by the courts. This allows for 3 things to happen. First, the Minister may seek a review of the decision if he honestly believes that CHRAJ’s findings do not reflect the facts. Second, the complainant, too, may seek a review from the courts if he believes (as I do) that CHRAJ’s decision is at war with the facts it found. The final option is for a citizen to seek a review.

Happy new year!

The Bond Saga, CHRAJ and the Rules on Conflict of Interest (Part 3)

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We know that CHRAJ has cleared the Minister of the allegation of breach of conflict of interest rules. My claim is that the evidence on record could not allow CHRAJ to come to that conclusion. I’ve been writing this note to show this. In Part 1 of this note, I disclosed some of the challenges that the Deputy A-G faced in defending the Minister at CHRAJ. In Part 2, I attempted a simplified explanation of the concept of conflict of interest. In this Part 3 of the note, I’ll begin to dissect the CHRAJ report. Particularly, I’ll outline the circumstances under which CHRAJ could clear the Minister of the allegations.

The Allegations

The Complainant’s allegations are that the Minister cooked the US$ 2.25 billion bond deal for his cronies. According to him, the Minister did this by side-stepping the Bank of Ghana (BoG) rules on how such bonds are to be issued.

The Complainant outlines the alleged crony-relationship between the Minister and the persons who took the bond. He says that: (1) the Minister has interests in certain companies, particularly, Enterprise Group Limited (Enterprise). Enterprise owns Databank, a company in which the Minister has significant interest; (2) one Trevor G Trefgarne is a director at Franklin Templeton Investment Limited (Templeton). Templeton is the entity which acquired as much as 95% of the bonds; (3) the same Trefgarne is the chairman or director at Enterprise. By these facts, the Complainant alleges that the Minister, a “public officer”, is found in “the position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office” contrary to Article 284 of the Constitution.

Clearing the Minister

CHRAJ could only clear the Minister of the allegations if it makes the following 3 major findings. First, CHRAJ has to find that the Minister did not breach the BOG rules in issuing the bonds in question. Ordinarily, one needs not show a breach of these rules in order to prove the existence of conflict of interests. However, such breaches, when proven, go a long way to lend substantial credit to the allegation of conflict of interest violations.

Second, CHRAJ has to find that the alleged crony-relationships don’t exist. This second finding may be arrived at by any 1 of 2 sub-findings: either that (a) Trefgarne was not a director at Templeton and also not a director or chairman at Enterprise; or that (b) the Minister does not have any interest in Enterprise or the other related persons or entities. If the Commission finds that the crony-relationship is non-existent, the Complainants case collapses; in which case there would be no need to make the third finding.  For the Commission to move to the third finding, therefore, it should have found that the alleged crony-relationships existed.

Nonetheless, a finding that the crony-relationships exist would still not be enough to conclude that the Minister is guilty of a breach of the conflict of interest rules. This is because of the ‘safe harbour’ opportunity offered by our Constitution. On the other hand, if the Commission finds that the alleged crony-relationships exist, it needs to go further to make the third finding. The third finding should be that the Minister, though cough in a crony-relationship, has docked himself at the ‘safe harbour.’ To benefit from the safe harbour, however, two things must happen: (a) the Minister should have disclosed the material facts of such crony-relationships to Parliament prior to the transaction; and (b) Parliament should have independently approved that the Minister continue to oversee the transaction notwithstanding the crony-relationships.

For this proposition (of disclosure to Parliament and prior Parliamentary approval), I rely on Article 78(3) of the Constitution. The Article provides that:

“A Minister of State shall not hold any other office of profit or emolument whether private or public and whether directly or indirectly unless otherwise permitted by the Speaker acting on the recommendations of a committee of Parliament on the ground (a) that holding that office will not prejudice the work of a Minister; and (b) that no conflict of interest arises or would arise as a result of the Minister holding that office.”

In order to not constitute myself into an oracle, I would make a brief detour to demonstrate accountability in respect of my reliance on the provision. A careful reading of the Article 78(3) would reveal that its essence (which I believe has sadly been ignored over the years) is to provide a safe harbour for Ministers who may be caught up in Article 284 conflict of interest situations.

Would shareholding or directorship amount to “office” within the intendment of Article 78(3)? Of course! This is why: directorship of a company is an office for “emolument”. Shareholding in a company, too, is a profit-making venture. Both shareholding and directorship are examples of direct interest. It’s worth stressing however that the provision is not limited to direct interests. It also talks of indirect interests. Why? Because, a person may not be a shareholder or a director personally. She may, however, be closely related to or associated with a shareholder, director or even the company itself in such a way as to put her in a situation where her interest (though impersonal) may clash with her duties to protect the interest of the public. Conflict of interests rules reins in such indirect situations, too. For example, I may not be a shareholder or director of a company; but my spouse may. Such situations may fall within the “indirectly” component of the Article.

By way of summary, CHRAJ could only clear the Minister if it finds the following: (1) That the Minister did not breach the BoG rules on issuing bonds; (2) That the alleged crony-relationship did not exist; and (3) that even if the alleged crony-relationships existed, the Minister has taken refuge in a safe harbour under Article 78(3). In all this, you would observe (and in line with the explanation of the conflict of interest in Part 2 of this note) that there is no requirement that the persons in question should have actually intended or caused an injury to the principal or made a gain out of the transaction. In other words, there is no requirement that the Minister should have actually “cooked” the deal for Templeton or actually made a profit.

The Fatal Misunderstanding

One of the cases that the Deputy A-G cited to the Commission is the Okudzeto Ablakwa (No.2) case (2012). In that case the Supreme Court gave a check-list for determining a claim against public officials. The Supreme Court (per Justice Brobbey) stated that one has to answer the additional question – “did the decision-maker profit by the decision or action (to provide the basis for conflict of interest or economic gain)?” This question, when put within this context, would imply that an adjudicator cannot find a violation of conflict of interest rules unless he also finds that the public officer actually made a profit from the transaction.

The question, however, is whether this understanding of the Supreme Court decision is accurate. A more committed reading of the Okudzeto Ablakwa line of cases would reveal that this understanding of the decision is morbid. This is why:

In Okudzeto Ablakwa (No. 1), the Respondent Attorney-General, by way of preliminary objection, prayed the Supreme Court to dismiss the writ on the basis that CHRAJ (rather than the Supreme Court) has exclusive original jurisdiction over the enforcement of Article 284 conflict of interest claims. The Supreme Court, however, overruled the A-G’s objection on the basis that the Plaintiffs’ case turned more on other constitutional provisions than Article 284.  These other provisions included Article 23, Article 35(8) and Article 296. As a result, Okudzeto Ablakwa (No. 2) was decided not on Article 284.

As a matter of fact, the checklist which the Deputy A-G cited to the Commission was never in respect of Article 284. It was rather in respect of Articles 23, 35(8) and 296 only. This is what the very learned Justice Brobbey said before laying out the checklist:

“For a complainant to succeed in an action brought under Articles 23, 35(8) or 296 based on these conditions, it is essential to establish the following …”

Justice Brobbey, then, went on to list the 7-item checklist which the Deputy A-G cited to CHRAJ. In fact, he went on to state further that:

“Since specific remedy has been provided for investigating complaints of conflict of interest [at CHRAJ], the plaintiffs were clearly in the wrong forum when they applied to this Court to investigate complaints relating to conflict of interest involving those public officers.”

Quite clearly, therefore, the Supreme Court did not consider Article 284 at all in the case. Accordingly, it did not (and could not) possibly have added a criterion which requires evidence of actual gain or injury for a breach conflict of interest rules to be proven. Therefore, I submit, respectfully, that the Deputy A-G’s understanding finds no place within the hallowed principles of conflict of interest, the jurisprudence of the Supreme Court or anywhere for that matter.

Up Next

Should I find time to continue this note, I would digest CHRAJ’s findings and humbly inform you on the following: (1) whether the Commission relied on the Deputy A-G’s misunderstanding of the decision in Okudzeto Ablakwa (No. 2); and (2) the extent to which such reliance (if any) affected CHRAJ’s final decision to clear the Minister of the allegation of conflict of interest.

Before I go, however, this is what the Commission said:

“There was also no evidence before the Commission at this stage that there was a personal benefit to the Respondent or his business and other relations. On the basis of the foregoing, it is reasonable to conclude that though there was the significant potential that the Respondent’s personal interest could have been in conflict with the vast personal interest in the securities sector, it was not the case in this specific bond issue.” (I did the underlining)

The Bond Saga, CHRAJ and the Rules on Conflict of Interest (Part 2)

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In the first part of this note, I said I would do a series of notes showing how CHRAJ’s decision on the Bond Saga complaint against the Minister of Finance fails to reflect the evidence it has on record. Thankfully, last night’s festivities went well – I was literally jumping from one party to another. I met with friends I have not seen in a while.

In this second part of the note, I will attempt a simplified explanation of a very difficult subject – conflict of interest. This explanation is to have us on the same page before I attempt a surgery of the report.

Meaning

Conflict of interest occurs when a person (an agent) is in a position where her personal interest interferes with the interest of another person (her principal) for whom and in whose interest she is supposed to act. In simple terms, conflict of interest occurs when a person finds herself in a position where she may be seen as serving two masters. It is simply a position of divided loyalty.

Personal and Impersonal

The interest may be personal or impersonal, but it is still ‘personal’. It is personal where the interest involves the interest of the actor personally. This happens when, for example, I sell my own car to Marcia who has asked me to by her a car (without me disclosing to her that the car I am selling to her is mine). Here, the car is mine; but the problem is that we won’t really be sure if I’ll be protecting Marcia’s interest or mine. On the other hand, the conflict is impersonal when it involves the interest of an organisation or a person other than the actor’s. Same example, except that the car in question here belongs to my mum or my company. In this case, too, one may not be clear whose interest – Marcia’s or my mum’s – I would protect.

Actual and Potential

Conflict of interest may also be actual or potential. It is actual if the actor did actually act against the interest of the person whose interest he is supposed to protect. Still with the car example, there would be actual conflict of interest if I sold the car to Marcia above the market price (so as to make a secrete profit). On the other hand, it is potential conflict of interest if there is a possibility or probability, no matter how small, that I would fail to protect the interest I’m supposed to protect even though I have not yet done or may , in fact, never even do so. Therefore, in the car example, I’ll be guilty of potential conflict of interest if there is a possibility or probability that I would sell the car to Marcia above the market price. It doesn’t matter that I have not done or may never even do so or that I have in fact sold it to her below the market price.

Whichever way – whether actual or potential – it is still conflict of interest. For, as the courts would say:

“It is not necessary that an officer or director have an intent to defraud or that any injury result for an officer or director to violate his fiduciary obligation.”

Similarly:

“Actual injury is not the principle upon which the law proceeds in condemning such contracts. Fidelity in the agents is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be TEMPTED by his own private interests to disregard that of his principal.” (Caps mine)

In other words, a person needs not actually intend or actually cause an injury to be found guilty of breaching the rules regulating conflict of interest. That, I think, is the true and proper position of the rule on the matter.

Enormity of the Rule

I’m sure you’re by now intimidated by the enormity of the conflict of interest rules. If you are, you’re justified. The rule is, indeed, superimposing. So, a great judge once put it this way:

“A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior… the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd.”

A fiduciary cannot behave like us, the ordinary people. The standard for her crushes through the roof.

But why? Let me explain: When someone repose trust in you to protect her interest, law and equity would not allow you the space to stab her in the back by sacrificing her interest on the altar of yours. Let’s put it into the context of a public office: when the people of a country entrust you with the power to protect their interest, the law will not allow you to put them in a situation where they can’t be sure whose interest you’re really protecting. It may be that you’re really protecting their interest. But that is not the point, as far as the subject is concerned. The real question is: would they doubt that? It is not whether you “have“, “will” or “would” betray them. It is whether you “could” betray them.

Taken from this perspective, one would easily realise that the rule is an effective tool against corruption. It would, if properly understood and enforced, do away completely with (if not reduce drastically) the cornerstones of corruption – cronyism, nepotism, favouritism, tribalism and whatnots. It would actually “protect the public purse.” The framers of our Constitution knew this pretty well. That is why they wrote in Article 284 that:

“A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.” (Underlining is mine)

Now read the provision again. Carefully. It would be obvious to you that the Article sets a standard. The standard is “potential” conflict of interest, namely, the officer merely “putting himself in the position.” The standard is NOT “actual” conflict of interest. That is, the officer needs not intend or actually cause an injury or a loss. Indeed, this is the true standard.

The Duty to Disclose

However, the law also acknowledges the limitation of such a rigid application of the rules. For example, the rule in its unbridled form would prevent principals from getting ‘good deals’, if these good deals are from their agents or fiduciaries. For example, going strictly by the rule, I wouldn’t be able to sell my car to Marcia even if my price was below the market price. In a public office context, it would prevent the Republic from benefiting from the acumen of very experienced industry players like Hon Ken Ofori Atta (who has been a top player in the finance and securities industry for over 30 years) from serving us as Finance Minister. Let’s face it: after 30 years in the industry, he would literally be ‘related’ to everyone and every entity in the industry.

The law knows this. So, to avoid this situation, it provides for what is invariably called a “safe harbour.” Safe harbour rules are intended to do 2 main things: (1) allow principals to have ‘good deals’ from fiduciaries; and, at the same time (2) have their interests protected from backstabbing by fiduciaries.

Therefore, while the unbridled rules on conflict of interest would not ordinarily allow me to sell my car to Marcia under the circumstances, it would if and only if 2 things happen: (1) if I disclose all the material facts about the ownership of the car to her without withholding any AND, also, (2) if, consequent upon such disclosure, I allow her to freely decide whether to go ahead and buy it, my ownership notwithstanding. In other words, disclosure of personal interest is an integral part of the conflict of interest rules. This is because the primary aim of the rules on conflict of interest is to prevent what is unfair; and, as the courts and scholars have always maintained, “nondisclosure by an interested director or officer is, in itself, unfair.” This is exactly where CHRAJ tripped.

Up Next

In the next part, I’ll attempt to explain how CHRAJ tripped by cutting the Commission’s report open.

The Bond Saga, CHRAJ and the Rules on Conflict of Interest.

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The details of the report on what has come to be known invariably as the #KenBond saga would show that CHRAJ is not a ‘rundown’ institution as we often are made to believe. It really did a thorough job investigating this rather complex complaint; and did so within a relatively short period. However, there seems to be a fundamental problem with its decision, particularly the one in relation to the allegation of a breach of the conflict of interest rules. The problem is that its final decision is at war with the evidence on record.

As you may know, this kind of anomaly is often a function of at least 1 of 2 things: (1) misunderstanding of the relevant legal rules; or (2) misapplication of them. In the coming days (and, of course, depending on how the festivities go for me), I’ll attempt to show the gap between the evidence on the Commission’s record and its decision that allegation of breach of conflict of interest rules have not been substantiated.

I’ll begin by discussing some details of the proceedings, particularly how the Deputy A-G fared in his arguments before the Commission, not least because the Commission’s treatment of those arguments would, in a way, speak to the difficulty with the decision.

On Jurisdiction

The first thing that the Deputy A-G did was to try to make nonsense of the allegation of conflict of interest. He chose to do this, as many a lawyer would do, by trying to excise the conflict of interest issue from the jurisdiction of the Commission. He argued that the propriety or otherwise of the issue of 7-year and 15-year Bonds does not fall within the jurisdiction of the Commission. Unfortunately for the Respondent, the Commission didn’t think the Deputy A-G even understood the very nature of the complaints he seeks to oppose. This is what the Commission said at page 97:

“The Commission considers this submission by the Deputy Attorney-General and Deputy Minister of Justice as lack of appreciation of the nature of the complaint of conflict of interest made against the Respondent … His submission does not also reflect the true position of the law on the mandate of the Commission.”

The Relationship between BOG and the Players

One of the allegations made by the Complainant was that the Minister, in order to cook the deal for his cronies, side-stepped the BOG guidelines for issuing bonds. In order to defend the Minister against this allegation, the Deputy A-G needed, primarily, to demonstrate familiarity with the relationship between the players and the BOG. It appears he wasn’t very strong in this department either. So, the Commission found at page 99 as follows:

“We must point out here again that the Respondent misunderstood the relationship between the BOG and the Bookrunners who were recruited by the MOF after open tender as Transaction Advisors on longer dated bonds (such as the 7-year and 15-year bonds). Therefore, it is inaccurate to state that the “Bookrunners/ Transaction Advisors licensed by the bank of Ghana”. The BOG does not license Bookrunners/ Transaction Advisors. The correct position is that Securities and Exchange Commission licenses financial institutions including banks, some of which (banks) the BOG authorises as “Primary Dealers”, as eligible to participate in the auction of debt securities.”

MOF and the Investors

In his spirited attempt to extricate the Minister from the transactions, the Deputy A-G argued that the Ministry does not transact with any investor; and that “ALL transactions are carried out by Bookrunners designated by the Bank of Ghana as Primary Dealers.” The Commission found this argument, too, very troubling. See what the Commission had to say at page 100:

“The Commission notes a misstatement on the part of the Deputy Attorney-General when he submitted that ‘All transactions are carried out by Book Runners designated by the Bank of Ghana as Primary Dealers.’ As the Commission has explained already, Bank of Ghana only authorises banks as financial institutions to operate as Primary Dealers and to participate in auctions of securities.”

That’s not all, the Commission did a little bit of education as well. It said:

“Bookrunners are different and may not be banks. In fact, in the issuance of the bonds in questions – 5-yar, 7-year, 10-year and 15-year – many players were involved: Debt Management Section of the Ministry of Finance, Bank of Ghana, Primary Dealers and Bookrunners playing different roles. Therefore, ALL the transactions could not have been done any one of them.”

This implies that the Commission did not agree that that the Ministry did not deal one way or the other with the investors.

Up Next

If, (perhaps, when) I return, I’ll attempt an explanation of the nature of fiduciary relationship and conflict of interest rules and how this case is materially different from the Ablakwa case (on which the Commission relied).

Ghana and the African Human Rights Court: Why the Government should Act Fast.

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Yesterday, the Deputy Attorney-General granted a media interview after a Supreme Court hearing in the case involving Mr Alfred Woyome and the Attorney-General. In the interview, the Deputy Attorney-General told the world that the Supreme Court of Ghana had ruled that it does not recognise the African Court on Human and People’s Court (ACtHPR). He even went further to offer several grounds of justification for the alleged Supreme Court ruling.

As it turned out later, the Deputy Attorney-General’s claim appears to be inconsistent with what actually happened in the Supreme Court during the hearing. Contrary to his claim, the Supreme Court did not give such a ruling. In fact, we now know that the Supreme Court did not even consider the ACtHPR or its order, particularly, as the order was directed to the executive (not the Supreme Court).

First of all, I believe strongly that the views expressed by the Deputy Attorney-General on the subject does not represent the view of the government in which he serves. His view on the matter does not also reflect the long-standing position of Ghana in the comity of nations. As a matter of fact and law, the Supreme Court of Ghana could not possibly arrive at the decision attributed to it by the Deputy Attorney-General. Ordinarily, therefore, the Deputy Attorney-General could have been ignored entirely and the matter left to wither out naturally.

However, it would be harmful to ignore his pronouncement. This is why: Just as domestic law, international law, too, has its own sources of law. One of international law’s sources of law is treaty law – the agreement between states or international organisations. Another is ‘custom’. ‘Custom’ is constituted by those behaviours of States which, though not written formally as law, are considered as binding. One way of determining a State’s custom is to aggregate what some of that State’s public officials say (or do not say) publicly in their capacity as State officials. In other words, the Deputy Attorney-General’s public statement, yesterday, could be an index in determining Ghana’s position not just in respect of the ACtHPR, but also in respect of other international courts or tribunals.

Ghana often presents its citizens to serve in international organisations and tribunals. Of recent memory are Judge Akua Kuenyehia of the International Criminal Court (ICC), Justice Anthony Benin of the ECOWAS Court of Justice and Chief Justice, Sophia Akuffo, who has served as President of this very ACtHPR. Interestingly, we are currently presenting Prof Henrietta Mensah-Bonsu of University of Ghana to the ICC to be elected as Judge in a few weeks. From this, it is easy to guess, pretty accurately, the adverse effect that the Deputy Attorney-General’s statement stands to have on the calculation of Ghana’s customary law position on the recognition of these international tribunals and, consequently, on the acceptability of our future candidates (which, of course, may even include the Deputy Attorney-General himself) for such positions.

The international law and relations field has become more competitive than ever; so much so that Britain has, for the first time in over 7 decades, lost its seat on the International Court of Justice to its former colony – India. While India’s efforts cannot be ignored, experts have named Britain’s inward-looking Brexit policy as a factor in the historic loss. International respect, reputation and recognition no longer come easily, if they ever did. Nations, in a bid to be relevant and competitive, are becoming increasingly open and integrated than ever. Openness also means a deliberate effort by State officials, big and small, to be outward-looking (rather than inward-looking). All this requires lawyers, judges and public officials of the local polity to have a broader (rather than narrower) view of their national constitution and its workings. Ghana, the first country South of the Sahara to join the international world; the lead proponent of an African continental central government; and a trending beacon of hope for Africa in the outer world, cannot afford to be inward-looking at a time when outward-looking matters most.

Because of the enormous advantages that come with outward-looking and the concomitant disadvantages that come with inward-looking, it would not be a great idea for our authorities to ignore the statement made by the Deputy Attorney-General on their behalf as if it never happened. They should denounce (if not condemn) it; and reinstate Ghana’s long-standing position on its relationship with international tribunals, particular the ACtHPR.

Truly, it would be most appropriate if the Attorney-General, together with the Foreign Affairs Minister, could utilise the earliest opportunity available to unequivocally and resoundingly reinstate Ghana’s traditional position on the subject to the international community, particularly the African Union. Indeed, it would even be more reassuring if His Excellency, the President (who himself is an international relations expert and who, as Foreign Affairs minster in 2005, led Ghana to ratify the Protocol that established the ACtHPR) could lead this effort.