We are often told that the constitution, our constitution, is the epitome of our (all of us) ideals, values and aspirations. By this, it is assumed, at least, that the ideas of every recognisable unit of our polity as to how to structure and deploy government is represented and reflected in the Constitution; and, subsequently, in the laws of the polity.

According to Marx, however, no set of ideas (values, ideals and aspirations) has ever reflected the true ideas of all the recognisable units of the polity. Rather, “the ruling ideas of every epoch in a polity are the ideas of the ruling class of that epoch.”

In every period in the history of polities, there has only been one ruling class. This ruling class may have several departments; but it is still the ruling class. The ruling class, according to classical Marxist theory, is in constant struggle with the class of the ruled, the oppressed. The ruling class, the theory continues, is the class that owns and controls the resources and the other factors of production in the polity. The other class, the ruled, are nothing but a factor of production – labour – in the hands of the ruling class to used. How does this analytic play out in the making of constitutions?

Well, let’s begin by saying that constitutions are made up of big ideas. Second, big ideas are a product of big thinking. Third, by the very nature of the roles that the classes play, the habit of ‘thinking big’ becomes a luxury. Fourth, by the nature of the relationship and the respective roles of the classes, only the ruling class (call them the bourgeoisie) could afford the luxury of thinking big. The class of the ruled (call them the proletariat), on the other hand, is preoccupied with the habitual thoughts of the next meal (the source of strength for the next day’s labour).

Therefore, to the extent that the constitution is a set of ideas put together and ascribed the status of supreme law, the constitution of every polity (and the entire legal system which rests on it) in every era becomes nothing but a bundle of the ideas (values, ideals and aspirations) of only the ruling class of that era. This is true on both the micro and the macro levels. On a micro level, for instance, the ideas expressed in the 1992 Constitution as law are nothing but the ideas of the ruling class of the era – the PNDC.

On a macro level, take the idea that governmental power should be separated into 3 departments, for example. Separation of powers is nothing but a parochial arrangement between the various departments of the ruling class – the monarch, the MP and the judges – as to how to share power and harmonise the relationship between and among themselves and themselves alone. Separation of powers does not involve the people. Rather, the people are alienated and, in order to keep them at bay, pacified by another mechanism – elections.

This mechanism will be the subject of our next discussion.



Legal Reasoning Box

In life, generally, we are often encouraged to think outside the box. Whatever that means, the position in the murky world of legal of reasoning is different. In legal reasoning, one is not to reason outside the box unless she completely exhausts the space within the box. In other words, the creation of a new legal rule or a legal fiction should be the last resort in resolving legal problems.

New Law

In Amidu v A-G, Waterville & Woyome (No. 2), the Supreme Court (the “Court”), constituted by a single Justice of the Court, seems to have created a new legal rule, a kind of legal fiction. The learned Justice admitted this when he cited that hallowed passage in Tuffour v A-G as authority for his liberal interpretation of Article 2 of the Constitution. The new rule may be stated as follows:

The right to enforce the Constitution includes the right to enforce an order of the Court enforcing a provision of the Constitution.

This rule is so so that a person who has the right to invoke the enforcement jurisdiction of the Court on a particular issue is deemed as also having the right to personally enforce the execution of the order made by the Court pursuant to the enforcement jurisdiction.

My Claims

In my previous article on this issue, I explained that the Court has, without more, created a qui tam jurisdiction in the Republic. In this article, I make 2 other claims. The first is that the Court, constituted by a single Justice of the Court, has no jurisdiction to interpret Article 2 of the Constitution. My second claim is that, even if the Court did have jurisdiction, there was no need for it to create that new legal rule. For want of space, however, I will limit this discussion to the second claim, not least because I think it is also the most difficult of the 2 claims.

Constitution versus Court Orders

Hon Amidu’s action was hinged on Article 2 of the Constitution. Article 2 deals with enforcement of the Constitution. This means that a person may rely on Article 2 to commence an action for the enforcement of “a provision of this Constitution.” Article 2, at least on the face of it, does not deal with the enforcement of the Court’s orders. There are 2 reasons why Article 2 does not and may not be a basis for enforcing the Court’s order.

The first is that there is a difference between the provisions of the Constitution, on one hand, and the Court’s orders, on the other. Even though the Court’s Article 2 order is always consequent upon its interpretation or application of the provision of the Constitution, the enforcement of those orders involves entirely different consideration, both substantive and procedural, than the factors that the Court considers when it is called upon to enforce a provision of the Constitution.

The second reason is that the Court, when exercising its enforcement jurisdiction, has, itself, the power to order an appropriate person (including the President) to enforce its orders. Therefore, a proper exercise of the Court’s enforcement power should not give rise to a situation where (as here) a new legal rule would have to be created constituting a private person into a public or quasi-public official just to get the Court’s order enforced. In other words, when the Court properly exercises its enforcement powers, the order it gives, without more, becomes a binding legal duty on a person already clothed with public power.

Duty to Enforce

This legal duty, too, comes with at least 3 cardinal incidents: The first incident is that the duty is public (rather than private) in nature. This derives from the fact that a constitutional matter is a public matter; and, conceptually, cannot give birth to an order directed at or enforceable by a private person. The duty to enforce such an order, naturally, could only be performed by a public officer, not a private person.

The second incident of the duty is that the public officer has no discretion in her performance of the duty. This derives from the principle that a public official has no discretion when directed by a court of competent jurisdiction to perform a public function. Indeed, such a public official is bound to perform the duty strictly, precisely and exactly in accordance with the terms of the Court’s order, even if the order is void or voidable.

The third (and last) incident of the duty is that refusal by the public officer (even if that officer is the President) to obey or carry it out precisely and exactly in the terms of the Court’s order constitutes a high crime under the Constitution.

The Substantive Order

From the above, it may be pretty obvious that everything depends on the nature and terms of the Court order in question. The issue, then, is: what is the nature of the Court’s order in the substantive case, that is, the case whose judgement Hon. Amidu now seeks to enforce? In the substantive case, the Court made 3 declarations and only one order. The order states as follows:

“An order directed at the 3rd Defendant [Mr. Woyome] to refund to the Republic of Ghana all sums of money paid to him upon or as a result of the unconstitutional conduct of the 1st Respondent, therein 1st Defendant [the Attorney-General], in purported pursuance of the said inoperative Agreement dated 26 April 2006.”

Indeed, there is nothing wrong with this order until one begins to realise (as we all now have) that the order is directed at the judgment-debtor to pay; and that there is no specific or precise order directed at any public officer to enforce payment. This deficiency (as to “who” should enforce), in itself, is not fatal to the course – the Attorney-General is not without a duty to enforce payment on the ground only that the Court did not expressly say so. This is because (and as Hohfeldian correlatives tell us): to every legal duty there is a correlative legal right and vice versa. Therefore, a duty on a judgement-debtor to pay creates a concomitant right in the judgement-creditor to enforcement payment.

In respect of time of payment, too, lack of express timelines does not mean that the payment may be made at the behest of the judgement-debtor. This is because, one may, again, recall that where (as here) time is of the essence and there is no time given, reasonable time is the time which will apply. Going forward, one may say that the questions of “who” bears the duty and “when” to perform the duty are not unanswered. Indeed, the Attorney-General (a public officer) is under a duty to collect the monies from the judgement-debtor for the Republic within a reasonable time.

How to Enforce

This leaves us with the question of “how” to perform the duty. And this is exactly where Order 46 of CI 47 comes in. The relevant part of the Order says that:

“… where a person has obtained a judgment or order for the payment of money by some other person, hereinafter referred to as “the judgment debtor”, the Court may, on all application made ex-parte by the person entitled to enforce the judgment or order, order the judgment debtor to attend before the Court and be orally examined on the questions …”

There is no doubt that “the person entitled to enforce the judgment or order” on behalf of the Republic here is the Attorney-General or another public officer acting on her advice or directive. Indeed, there are more than one ways by which the Attorney-General may perform this duty; and there is some evidence that the Attorney-General has been using some collection methods.

However, it appears (and Hon Amidu deposes so before the Court) that the Attorney-General has, either unwilling or unable, failed to enforce the Courts orders, at least, in the manner that Hon Amidu expects her to.  Indeed, if it is the view of Hon Amidu or another citizen that Order 46 is the best or, even, the only method of enforcing payment, the existing legal regime is not silent on “how” to get the Attorney-General or another public officer to use that method. Particularly, the Civil procedure rules allows a party to:

“upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order.”

An application under this rule allows the Court to review and revise its previous order and to make new orders to give proper effect and meaning to its judgement. This rule therefore offers an avenue for the Court to make, if it so wishes, specific orders directed at the Attorney-General, including an order to her to adopt the Order 46 method to enforcing payment.

If the Court does so, the Attorney-General would, as it were, be torn between the choices of committing high crime or obeying the Court’s order. This, no doubt, would have delivered the same result of getting the judgement enforced by the Order 46 methodology without necessarily creating a new rule, which in turn puts the Court’s ruling at war with well-established jurisdictional and jurisprudential positions.

Outside the Box

It seems obvious, therefore, that the Court has absolutely no reason to create a new rule to solve a problem for which a solution already exists at law. In other words, the Court has not exhausted the space within the box before venturing into creating the new legal rule; and, most importantly, doing so without being certain of its jurisdiction.




You have heard of the writ of certiorari, the writ of mandamus, the writ of habeas corpus, and other similar writs. But I bet you have never heard of the writ of qui tam. There is a reason. The writ of qui tam is an old form of action in England & Wales. ‘Qui tam’ is the short form for the Latin phrase ‘qui tam pro domino rege quam pro se ipso in hac parte sequitur’, meaning ‘he who sues in this matter for the King as well as for himself.’

Generally, all criminal and civil prosecutions of and for the King are to be carried out by the Attorney-General only and only her. This position of the law was handed down to all common law countries, including Ghana. However, the writ of qui tam allows a private person to prosecute a case, usually involving some pecuniary loss to the King, on behalf of the King without necessarily having recourse to the A-G. When she wins, the private person is entitled to a share, usually a third, of the recovery as of right.

For a writ of qui tam to apply to a transaction, it must be specifically provided by law. So in 1381, for instance, it was enacted under King Edward II that:

“… no officer in City or in Borough … shall merchandise for Wines … And if any do, and be thereof convict, the Merchandize whereof he is convict shall be forfeit to the King, and the third part thereof shall be delivered to the Party that sued the Offender, as the King’s Gift …”

A similar law was enacted in in the Commonwealth of Massachusetts in 1686 under King James II and VII, where “penalties for fraud in the sale of bread [are] to be distributed one third to inspector who discovered the fraud and the remainder for the benefit of the town where the offense occurred.” President Lincoln would in, I think, 1863 cause a law to be enacted in a similar light to deal with corrupt war profiteering.

In 1943, however, qui tam was substantially curtailed in the US. An aspect of the old writ would, however, be re-introduced and expanded beyond government contacts to the private financial sector in 2010 by the False Claims Act. In the meantime, the writ was, for good reasons, completely abolished in England & Wales by the Common Informers Act (14 & 15 Geo. 6, c. 39) in 1951 and never revived.

I have found no evidence that the writ of qui tam entered into the Ghana (or Gold Coast) legal system as a statute of general application. Neither was the Supreme Court of the Gold Coast (the predecessor of the current Superior Court of Judicature of Ghana) endowed under the Gold Coast Courts Ordinance Cap. 4 (1876) with the inherent jurisdiction over this form of action. Also, I have not found that the writ has entered into a common law jurisdiction as a statute of general application under any of the UK Judicature Acts.

Therefore, the Supreme Court’s decision this morning, at least, raises a number of questions worth the attention of students of law, namely:

  1. What is the jurisdictional basis for the Supreme Court’s decision?
  2. What does the Constitution say about the power to prosecute claims for and on behalf of the State? Does the Constitution contemplate an exception to the general rule in Article 88? If so, under what circumstances may the exception kick in?
  3. Does the fact that the Whistleblowers Act (which follows the spirit of the qui tam cause) retains the power of prosecution of public wrongs for the A-G alone speak to the question?
  4. Is the Court creating a new form of action? If so, what is the constitutional basis for such creativity (desirable, though, it may be), having in mind that courts and their jurisdiction are creatures of statute?

Indeed accountability is good, but there is no greater danger to democracy than unlimited power, particularly of unelected power-holders, judges.



In all aspects of life, there seem to be just too many criteria for distinguishing between humans – age, sex, colour, race, wealth, weight, nationality, religion, etc. Yet, two main criteria stand out. The first is sex/gender, where a person is either classified as male or female, and now possibly both or none. It even turns out that distinction based on gender applies, in some cultures, not only to humans and other animates but also to inanimates – la table, le weekend, l’orange, etc.

The second is age. A person may be classified as a child or an adult (for the purposes of this discussion, we shall sometimes conveniently refer to a ‘child’ as a ‘minor’ with its various conjugated forms, for example, minority, etc. In the same vein we shall refer to adulthood as ‘majority’).

Law and Age

The importance of age cannot be overemphasised, particularly, when it comes to the province of law. Law is so much interested in knowing whether a person falls within the domain of minority or of majority. Indeed, classification based on age comes with several incidents. It determines rights, duties, responsibilities, privileges, entitlements, etc.

With this obvious importance (of the distinction between majority and minority), one may readily expect that the law would state one single age to serve as the barrier between minority and majority for all purposes. The advantages of this well-founded desire are many and obvious – certainty, clarity, convenience, etc.

The Absolutist’s Assertion

There is a growing school of thought that the coming into force of the 1992 Constitution has put an end to the uncertainty concerning the age barrier between minority and majority. The proponents of this school of thought, which I’ll, for purposes of convenience refer to here as the “Absolutist”, build their proposition upon certain legally-plausible bases soon to be explained.

Musing Scope

I intend, through this muse, to test the validity of the Absolutist’s assertion. Also, I’ll attempt to reach certain conclusions which I think is germane to this matter. In doing this, I’ll limit myself to legislations and, rather, refrain from veering into the murky arena of case law. This is because, case law may, depending on the circumstances of a case, hold a person who is factually above minority to still be a minor. For example, in one case a court held that a 32 year old woman was a minor. She suffered severe physical and psychosocial disabilities from birth and was left out of her deceased father’s will.

Ghanaian Age

At common law, a person remains a minor until 21 years. This common law position became part of the laws of Ghana as inherited law from England by virtue of our antecedent colonial relationship. The continuous application of age 21 as the age of majority is therefore rooted in the Supreme Court Ordinance of 1876. By Section 14 of this Ordinance, the common law, the doctrines of equity and the statutes of general application which were in force in England on July 24, 1874, were to be in force in the Gold Coast. The age of majority in Ghana on July 24, 1874, was, thus, 21 years.

The effect of the foregoing is that until laws are made in Ghana to alter the age of minority for various purposes, the age of majority, especially for commercial contract purposes, will be 21 years or more.

The Absolutist’s Contention

The Absolutists contend, among others, that in all matters and for all purposes the age for majority is 18 years. So that a person who is 18 year or more has the capacity not only to enter into any legal contract but also to marry with or without parental consent. They often cite article 28(5) of the 1992 Constitution, which sets the age barrier for majority at 18 years. Also, the Absolutists rely on article 42 of the 1992 Constitution which also sets the age for voting at 18 year or more. Reliance is also made on legislation such as the Children’s Act 1998 (ACT 560). Section 1 of that Act states that a person who is below the age of 18 years is a child. Accordingly, a person who is above 18 years is an adult.

Other special legislations are marshalled in support of the position taken by the Absolutists. A typical example is Section 13(1) of the Wills Act, 1971 (Act 360) which makes a reasonable provision for a child of a deceased where a child is a person below the age of 18 years. The Absolutists, based on the above provisions and their likes, threaten the conclusion that it is only a person who is below 18 years who is a minor and that a person attains the age of majority for all purposes when he/she hits age 18.

A Scrutiny

It is worth subjecting the above position to a casual scrutiny at this stage. Article 28 of the 1992 Constitution, which forms the principal basis for the proposition of the absolutists, deals substantially with the right of the Child. Clause 5 of article 28 leaves us in no doubt that the Constitution intends the age of 18 to apply as a limit only for purposes of the subject matter of article 28, namely, the right of the child.

Consequently, section 1 of the Children’s Act, 1998 (ACT 560) is just a reproduction of the position in article 28(5), since the two provisions deal with the same subject matter – the right of the child. Further, article 42 of the 1992 Constitution maintains 18 years as the age for majority, but for the purposes of voting rights only. Also, for the purposes of ‘reasonable provision’ under section 13(1) of the Wills Act 1971 (Act 360) it may not be far-fetched to state that a person is a child if he/she is under 18 years.

The instances mentioned here ought and must be read in context. Reading them in context, one will but agree that these provisions are not intended to serve as a one-stop shop for the determination of majority or minority in Ghana. We so submit.

There is, however, evidence that the 18 years age barrier, as it were, is not maintained throughout the 1992 Constitution. Thus in article 94(1)(a) a person does not have the capacity to become a Member of Parliament if he is below the age of 21 years. In the case of article 94(1)(a), could one be justified in holding that age 21 is an absolute age for determining whether a person is a minor or not for all purposes? We think, as in the cases of articles 28(5) and 42 of the 1992, that article 94(1)(a) is not applicable beyond the limit of its purpose i.e. a person’s qualification as Member of Parliament.

Sex Age

A further study of other legislations will offer additional evidence in support of the hypothesis that there is no one single conclusive age for the determination of majority in Ghana. Thus, Section 97 of the Criminal Offences Act, 1960 (Act 29), if read together with section 101 of the same Act, makes it quite clear that a girl who is below 16 years does not have the capacity to consent to sex.

Marriage Age

Further, the Marriages Act 1884 – 1985 (CAP 127) under Section 59, denies a person (male or female) who is not 21 years or more the capacity to give consent to his/her own marriage. This is so notwithstanding the fact that Section 13(2) of Act 560 provides that a person who is 18 years or more may marry but only with a parental consent (where parental consent includes the consent of persons standing in loco parentis).

Commerce Age

It must, however, be loudly noted that Section 59 seems to discharge the requirement of parental consent in a marriage involving a divorced person or a widow/widower who is below age 21.

With respect to commercial contracts, we submit that the common law age barrier of 21 years (explained above) will apply in Ghana today. This submission is supported by the fact that the Contract Act, 1960 (Act 25) which seeks to alter various  common law principles of contract (including the capacity of persons to enter into contract) left the common law age barrier at 21  years (See: Dowuona-Hammond, Towards A Uniform Age Of Majority  In Ghana: Rethinking The Contractual Capacity Of Minors. UGLJ Vol. XX, 62 at 62).


In the light of the above, we respectfully conclude as follows:

  1. That there is no single all-purpose age for determining majority in Ghana. The corollary of this is that there exist different ages for majority for different purposes.
  2. That very enticing and cogent arguments exist for the proposition that age 18 is the ‘one-stop shop’ age for attaining majority in Ghana. However, until an express statement of law is made either by Parliament or by the judiciary (particularly the Supreme Court), conclusion (1) above will remain a more compelling position of the law.

We’re even more comforted in our conclusions by the statement of Elizabeth S. Scott, in her work “The Legal Construction of Adolescence”, in 29 Hofstra L. Rev. 547, at pages 547 to 548. There, the learned writer states:

“…the legal regulation of children is extremely complex. Thus, the question, “What is a child?” is readily answered by policy makers, but the answer to the question, “When does childhood end?” is different in different policy contexts. This variation makes it very difficult to discern a coherent image of legal childhood. Youths who are in elementary school may be deemed adults for purposes of assigning criminal responsibility and punishment, while seniors in high school cannot vote and most college students are legally prohibited from drinking. … by shifting the boundary and extending adult rights and duties at different ages for different purposes, lawmakers accomplish the transition from childhood to adulthood gradually …”

*** I published this article as a Facebook Note 5 years ago in November, 2010. It’s still a draft and should be treated as such.



The Issue

This morning, a friend sent me a soundbite. On it I heard a leading member of Occupy Ghana, Mr. Ace Ankomah, say a lot of stuff. Apparently, he’s only a lead vocalist in the choir that’s been singing the same verse since yesterday when this otherwise not-too-important issue came up.

The issue under discussion is whether one Mr. George Andah, a leading Occupier (we’re not sure if he still is), did something inappropriate by putting himself up on the ticket of the opposition NPP to contest the Ewutu Senya West constituency seat.

According to Ace, a criticism of George’s conduct as inappropriate and a subsequent comparison of Occupy Ghana to the now-dozing Committee for Joint Action (CJA) could only be a product of “warped logic”.

I think it’s the other way round – an inability to see the impropriety in George’s conduct and using him as evidence to support the claim that Occupy Ghana is just another CJA in the making, rather, is a product of “warped logic”.

Understanding dishonesty

This is not a criminal matter. Strictly speaking, it is not even a legal matter. However, the point I wish to make will better be made using a bit of criminal jurisprudence.

Offences are usually categorised according to the nature of their elements. For example, there is a category of offences called Sexual Offences, the basis of which is sexual acts. This category of offence include rape, indecent assault, unnatural carnal knowledge, etc. There’s a different category of offences which relates to the safety and protection of the living human body. This category includes assault, kidnapping, abduction, etc. This category is called Offences against the Person.

There’s yet another category called Offences Involving Dishonesty. The key element here, of course, is honesty (or want of it). Dishonesty is hinged on the understanding that it is not good to abuse another person’s trust in you.

The beginning point of understanding dishonesty is the hallowed acknowledgement that no person is under an obligation to rest his trust in another, and that no person is entitled to another’s trust as of right. However, a person, say Mr. A, may conduct his affairs in relation to another, say Miss B, in a manner that will lead Miss B to repose her trust in him. In such a case, Mr. A will not be considered as a person who has behaved appropriately, if he abuses the trust of Miss B. Further, Mr. A may, as a result of this breach of trust, earn some benefits; or Miss B may, as a result of Mr A’s breach of her trust, make some losses. In such a situation, we say that Mr. A has been dishonest. He has led Miss B to vest him with her trust only for him to deliberately violate that trust.

Accordingly, stealing, fraud, false pretence, etc. are offences involving dishonesty. A critical look at these items will show that they’re also indices of corruption if they involve a public officer, either as the active party or as the passive party.

So, you see, when we accuse the public officer of corruption, what we’re actually saying is that she’s involved herself, either actively or passively, in a dishonest practice the result of which is a private gain to her or a public loss to us. In other words, we’re actually saying that the public officer has abused our trust in her.

At this point, it may be clear that a huge portion of our problems with the politician is rooted deeply in this important element – dishonesty. Consequently, whether you think that Mr. Woyome is guilty or that his prosecutors, the A-G, deliberately let him (and his other conspirators) off the hook, you’re saying the same thing – they’re both dishonest. They all pretended to be what they’re not and have caused us, the public, huge losses.

Occupy Ghana’s Strength

If Occupy Ghana ever had any strength, it is their claim that they’re a group of neutral persons whose only objective is to seek the good of all of us; it is their posture of purism, non-partisanship and developmental philosophism; it is their claim that they’re this very new group of “middle-class” men and women with no ill-will  against government or affection for the opposition. And, to prove this image to the public, they had to physically remove known party members from within their ranks during their July 1 march.

As if that wasn’t enough, any innocuous attempt by anyone to suggest, even remotely, that the membership of the group is more multi-partisan than non-partisan was always met with fierce denial amidst tirades and name-calling. By this sustained defensive conduct, the group (or a part of it) has succeeded in wooing the unsuspecting corridor of the public into their fold. You usually see them in red stuff on Fridays and all.

The Deception

At least now it is becoming increasingly clear that Occupy Ghana consists of something other than what they have made the unsuspecting public to believe. Persons of all shades, from fingered or exposed fraudsters, through to diehard party foot-soldiers, are all found at the frontline of Occupy Ghana.

Now the Point

Indeed, there’s nothing wrong with a person exercising her political rights to join a political party and contest on its ticked. There’s, equally, nothing inappropriate about forming or joining a civil society group whose aim is to put government on its toes for the betterment of all. In fact, it is not even inappropriate if the group’s sole aim is to bring down a certain government. Such conducts are needed for a stronger democracy. But that is not the point here.

The point here, as it appears to me, involves a question of honesty or lack of it. That is, wooing the trust of people by assuming a purist, non-partisan posture when, in fact, your palms, feet and face are heavily coloured with the colours of a particular party. That, I think, is pretence. That, I believe, is deception. That, I know, does not speak well of someone who has gained popularity, partly, through unbridled criticism of dishonesty in public offices; and, particularly, of someone who claims to be the new thing in town. That’s the logic.

And if you still think this logic is distorted, try answering this question: would we be having this discussion if George was contesting the seat as an independent candidate?