MUSING MARXISM: PUBLIC ELECTIONS

vladimir-lenin-crowd-communism-171818

In my previous note on this issue, I mused in support of the claim that that a constitution does not represent the true aspirations, values or ideals (ideas) of the whole of the people as we are often made to believe. I explained that a constitution is, rather, a bundle of the ideas of the ruling class of the time. A constitution is also a parochial arrangement between and among the ruling class only.

That arrangement expressly excludes the ruled, the masses, from the government of the polity. In order to pacify the masses (for excluding them from government), the ruling class invented a mechanism called ‘regular election,’ where the masses are allowed to choose one ruling class from the others. Like a typical idea of the ruling class, regular election is constitutionalised.

In this note, I will use Vladimir Lenin’s analytic to explain why election is a sham just as the constitution which contains it.

According to Lenin, “the oppressed are allowed once every few years to decide which particular representatives of the oppressing class are to represent and repress them.” By this statement, one may notice that Lenin divides society into 2 classes: (a) the oppressor-ruler-politician; and (b) the oppressed-ruled-voter. This division, itself, is in accordance with classical Marxist theory which finds an ongoing struggle between the two classes.

If Lenin’s statement is anything to go by, then, one may say that any person or group of persons who, habitually, put themselves up for election to a public office fall within the oppressor class. By this stretch, one may notice, too, that political parties and their leader, whether in power or in opposition, are oppressors; the only difference being that those in power are oppressors at present while those in opposition, are oppressors in waiting.

Coming home, there are 2 main political parties in our polity – the NDC and the NPP. Both parties have ruled the polity and have, at all material times, maintained their readiness to rule. By this, we may say that the two parties have attained the minimum level of harbituality required to be classified as a part of the oppressing class – the NDC at present and the NPP in waiting.

So, once every four years, we are allowed by our Constitution to, through election, decide which of the two divisions of oppressing class, the NPP or the NDC, is to represent and repress us, the people, for the next four years.

Advertisements

MUSING MARXISM: THE CONSTITUTION AND LAW

constitutional-vs-non-constitutional

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.

OF THE SUPREME COURT, AMIDU AND WOYOME: REASONING OUTSIDE THE BOX?

img_3249

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.

 

OF THE SUPREME COURT, AMIDU AND WOYOME: QUI TAM?

img_8585

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.

RAMADAN AND THE LEGAL MEANING OF ‘VOID’: THEORY VERSUS FUNCTIONALITY (PART 1)

Void-Stamp

A. BACKGROUND

Having omitted in 2014 to expressly seek the deletion of what has come to be known as the ‘NHIS names’ from the voters register, the Plaintiffs in the Ramadan case returned to the Supreme Court (the ‘Court’) earlier this year, election year, to complete what they began. This time, they expressly asked the court to, among others, either set aside the entire voters register as void; or in the alternative make “an order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register … [and] to delete the names of unqualified persons …” By ‘unqualified persons’, I believe, the Plaintiffs mean person who registered with the NHIS cards.

In this two-part article, I will offer a defence to the decision of the Supreme Court in the Ramadan case refusing to order the automatic deletion of NHIS names from the voters register. In doing this, I will attempt to foil the attacks that have been variously mounted against the decision. Particularly, I will conclude that (1) under our Constitution, an act or its consequences are not necessarily or automatically void even if the law under which they were done becomes void; and, (2) public law (like private law) does, indeed, admit of the the concept of ‘voidable.’

B. THE ‘AUTO VIEW’

A law is unconstitutional if it is found to be inconsistent with any provision of the Constitution. According to our Constitution, such a law, “to the extent of the inconsistency [is] void.” Ordinarily, if a thing is void, then, it is ineffectual, it is nugatory, it has no legal or binding force. Therefore, by the very provision of the Constitution, particularly Article 1(2), any law which is unconstitutional is also automatically void ab initio.

By asking the court for that relief, therefore, the Plaintiffs were labouring under the understanding that everything which is void is void ab initio. The consequence of that understanding is that the relevant law as well as every act that is done in pursuance of such a law is deemed as though it was never done. It never was in the eyes of the law. Such an act is incurably bad and cannot yield any fruit whatsoever. After all (and as most classical lawyers would insist), “you cannot put something on nothing and expect it to stand” (much apologies to Macfoy v. U.A.C. (1962) and its Ghanaian offspring, Mosi v Bagyina (1963)). For the purposes of simplicity, I will refer to this understanding of ‘void’ as the ‘auto view’, not the least because it assumes that an act which is made under a law which is subsequently declared void is also void automatically.

Going by the auto view, persons who were registered by the EC using NHIS cards were never registered. In the eyes of the law, they are not on the register, right from the day of their purported registration. Deleting them, therefore, is a natural consequence.

The Court however took a view other than the auto view. The Court refused to grant the Plaintiffs that relief. This is what Justice Gbadegbe, through whom the entire Court spoke, said:

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.”

In other words, the court does not believe that an act done pursuant to an unconstitutional law is necessarily and automatically void. It is exactly this position of the Court which brings anguish to the Plaintiffs and their fans. It is also exactly this holding that has caused a second round of rumbling in the law circles.

For example, Mr. Akoto Ampaw and Prof Kwasi Prempeh, writing jointly, have described the Court’s position as “profoundly extraordinary and deeply troubling.” To support their accusation, the two gentlemen, unfortunately, conflated Articles 1 and 2 of the Constitution and argued as follows:

“If the Constitution is the supreme law of Ghana; and if it lies within the exclusive province of the Supreme Court to declare that a law is unconstitutional; then, a law declared to be unconstitutional by the Supreme Court, is definitively void and, therefore, of no legal effect.”

As if that was not enough, the two gentlemen went further to make an extraordinarily-large claim. They find it “fanciful” that a Court would import a private law concept of ‘voidable’ into the realms of public law. Further, they assert that “[t]he concept of voidability is a concept known to contract law but completely unknown to constitutional law.”

From this, we may deduce that the auto view rest on two pillars, namely (1) under our Constitution, an act (including its consequences) is necessarily and automatically void if the law under which it was done becomes void; and (2) public law does not admit the concept of ‘voidable.’

C. THE CHECK

I wish to run a legal-validity check on each of these pillars. In other words, I will be arguing, first, that under our constitution, an act or its consequences are not necessarily or automatically void even if the law under which they were done becomes void; and, second, that public law does, indeed, admit of the concept of ‘voidable’.

  1. The Constitution and “Void”

The beginning point of this section of the argument is that there is a difference between a law and the act which is done under the law. The drafters of the Constitution knew this too well. That is, perhaps, why they created separate Articles for them. Article 1 deals with “law” only and is placed under the scope called the ‘Supremacy of the Constitution” (see the marginal note). Article 2, on the other hand, deals with both “laws” and “acts” that are done, whether in pursuance of a law (intra vires) or without legal backing (ultra vires). Article 2, unlike Article 1, deals with ‘Enforcement of the Constitution’ (see marginal note).

By this, we may also say that the drafters of the Constitution know pretty well that proclaiming the supremacy of the Constitution is one thing and enforcing it another. The former is theoretical and desirable, requiring nothing more than a “declaration”, while the latter is functional and requires practicable “orders”. So, the relevant portion of Article 1 says that:

“The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency, be void.” (emphasis mine)

Here, we would notice that the provision contains the word “void” and says nothing about an act. On the other hand, however, the relevant portion of Article 2 says that:

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

Note that this provision, which deals with ‘acts’ says nothing about ‘void.’ Rather it commands the Court to make a “declaration” to the effect that the act or law in question is indeed “in contravention of a provision of this Constitution.” In other words, while a law which is inconsistent with the Constitution is automatically “void” and is of no effect, acts done under that law may not be automatically void.

Some may attempt to argue that this bifurcation is extremely fine and merely artificial. However, there are a number of substantial functional and practical reasons that may be advanced in support of the bifurcation. i.e. reasons why a law may be void while an act done under it would not be void without further steps. For example, a situation where innocent third parties have already acquired rights under the void law, those rights are not automatically extinguished merely because the law is declared void. This falls in line with the rule against destruction of accrued rights.

Further, the bifurcation also explains why lawyers always separate declaratory-reliefs from order-reliefs. Every lawyer knows (or, perhaps, ought to know) that seeking an order-relief requires a lot more consideration than declaratory-reliefs.  For example, one may seek a declaratory relief that Justice Cecilia Koranteng-Addow (may her soul rest in peace) right to life was violated. However, an order-relief which seeks to bring the perpetrators of the alleged violation to book or which seeks an award of compensation will, definitely, require more consideration (including a consideration of Section 35(2) of the Transitional Provisions, proof of next of kin, public policy, etc.) than the factors that are considered in granting the declaratory relief.

Finally, one may, upon a careful reading, also notice that this bifurcation lies at the heart of Article 2(2). Article 2(2) confers discretion on the Court to, notwithstanding whatever declaratory reliefs they have granted, “make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.” The million-cedi question, therefore, is: if everything done under a law is automatically void (by reason of unconstitutionality) and is of no effect, why, then, will the Constitution give some discretion to the Court to make such orders and give such directions as it may consider appropriate”?

This reasoning was sufficiently stated in the recent case of Dery v Tiger Eye (2016), where the Court, in considering “what consequences that flow from the violation of Article 146(8)” in that case, recalled its position in the Election Petition case (2013) that “it is not every violation of a constitutional provision which results in the annulment of the action.” In Dery, the Court went further to state that the consequences of unconstitutionality require more consideration than the declaration of the unconstitutionality itself. It says:

“Apart from legal considerations, there are also public policy considerations that support that general principle of law. It does not follow that a declaration that an action or inaction is unconstitutional has the effect of nullifying the action in question. The court must say it does have such an effect having regard to an express or implied provision of the Constitution or that it should have such effect in the spirit of a particular Constitutional provision, and proceed to give directions or make the appropriate consequential orders under Article 2(2) of the Constitution, 1992.”

Therefore, even though it is true that “all laws which are repugnant to the Constitution are null and void” (Marbury v. Madison, 1803.), it is equally true, even under American constitutional law, that “an unconstitutional statute is not necessarily a nullity as it may have indeterminate consequences binding on the people” (See: 16 Am. Jur. 2d., Sec. 257). Consequently, in Ghana, too, acts that are done under an unconstitutional law and their consequences are not always automatically and necessarily void as the law itself. So, like Prof Forsyth, I believe that public law acts are theoretically void but functionally voidable.

In part 2 of this article, I will attempt to assail the second pillar on which the auto view rests, namely that public law does not admit of the concept of ‘voidable.’

By Justice Srem-Sai, Lecturer, GIMPA Faculty of Law

OF JUDGES AND PUBLIC STATEMENTS AND PUBLIC COMMENT (PART 2)

limiting-free-speech

By Dr. Raymond Atuguba

This is the continuation of an earlier article published here.

Whilst dismissing the untrustworthy, deceitful, and opportunistic commentaries of these lawyers and social commentators, it is now necessary to return to our true enterprise: the exposition of the state of the law to ordinary Ghanaian citizens as best as we can. In an election year, it is important for the ordinary citizen to know the true legal effects of laws passed by Parliament, judgments issued by courts and tribunals, and Regulations and Administrative Instructions issued by the EC and other relevant administrative bodies.

Today, we would like to look at instances when a judge may comment on a pending or impending case. We will use the statements made by Justice Jones Dotse about the recent Abu Ramadan case as a point of reference for our learning. There are two aspects to the Justice Dotse Saga. The first is whether he should have spoken as and when as he did. The second is the meaning of what he said and its potential effect on the interpretation of the recent Abu Ramadan case. I have already dealt with this second aspect above.

The outstanding issue is whether Justice Dotse should have spoken and on the subject and to the audience that he did. Rule 2A of the Code of Conduct for Judges and Magistrates in Ghana, 2011, stipulates that a Judge must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Rule 3B (2) further states that “…A judge shall not be swayed by partisan interests, public clamor, or fear of criticism”.

The combined effect of these two Rules is that Justice Dotse should not have allowed the public clamor for an interpretation of the judgment or the public criticism of the judgment to entice him into making a Public Comment on the case. By making a Public Comment on the case, Justice Dotse has compromised public confidence in his capacity to sit on and determine any further suit by the parties in the recent Abu Ramadan case seeking an interpretation of the judgment.

The Code of Conduct further provides in Rule 5(B) that a judge may engage in “avocational activities”, that is “activities to improve the law, the legal system, and the administration of justice if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties”. These activities include speaking, writing, lecturing, appearing before a public inquiry, sitting as a commissioner in a public inquiry, etc.

So to the extent that Justice Dotse was at a workshop to orient judges on the legal procedures applicable to election disputes, he was very well within his remit as a judge to do so. Justice Dotse’s attendance at the workshop, his lecture(s) at the workshop, were all within the Rules and the law.

The Code of Conduct, however provides in Rule 3C (9) (at page 13) that: “Except as otherwise provided in the section, a judge shall abstain from public comment (my emphasis) about a pending or impending proceeding in any court…A case is impending for purposes of this section if it seems probable that a case will be filed”. Due to the fact that the plaintiffs in the Abu Ramadan case have said that they will return to the Supreme Court on this very matter, one can safely state that the case is “impending”.

It is necessary for us to understand the difference between what a judge may or may not say about a pending or impending case. The Code provides in the same Rule that “A judge is permitted to make public statements (my emphasis) in the course of his or her official duties or to explain for public information the procedure of the court, general legal principles, or what may be learned from the public record in a case. At the same time, the code provides that “A judge may not discuss the rationale for a decision, however, unless the judge is repeating what was already made part of the public record. Speaking to a journalist is public comment even where it is agreed that the statements are “off the record”.

This means that Justice Dotse was acting within the law if he explained the Abu Ramadan case to the judges and magistrates assembled for training. He was also within the law if he talked to them about the rationale for the decision in that case based on (and not outside of) the judgment and related material in the Abu Ramadan case, which judgment and material is part of the public record. These are “public statements” that are permitted by the Code of Conduct. However, Justice Dotse departed from the Code when he spoke to a journalist on an impending case. That is “public comment” and is proscribed by the Code of Conduct.

The effect of this breach is that Justice Dotse has to be sanctioned. For Rule 7 of the Code of Conduct provides that “Where a Judge commits a breach of any rule of this Code he shall be sanctioned with reference to the gravity of the act or omission constituting the breach in accordance with the Judicial Service Regulations.”

I have listened with incredulity at lawyers and social commentators arguing that Justice Dotse did no wrong. They argue that there is no difference between “public statement” and “public comment”. Every first year law student is taught that where a lawmaker uses two different words or expressions in the same document, they are presumed to express different things and to have different meanings. This principle is part of our rules of interpretation. Yet, we are hearing and reading lawyers say that “public statement” and “public comment”, as used in the Code of Conduct, must be presumed to mean the same thing. Ebei! A simple search on the internet will reveal that “Public Comment” is a term of art, whilst “public statement” is ordinary English Language. When lawyers and social commentators descend to this level of deliberate distortion and misinterpretation for their own ends, they do not serve the public interest and should cease to be taken seriously.

Public Statements by a judge on a pending or impending matter are permitted by the Code. Public Comment by a judge on a pending or impending matter is proscribed by the Code. Speaking to a journalist is Public Comment according to the Code and is, therefore, proscribed. It is as simple as that.

CONCLUSION

We need to be very careful when we do legal or constitutional analyses, because the soul of the Nation and the rights and responsibilities of our people depend on it. Rush analyses can lead everyone astray.

In conclusion, going forward, we expect our judges to engage in avocational activities, and to make public statements during such activities. This is what Justice Dotse did when he oriented other judges and magistrates on electoral laws and how they should interpret and apply them. Advancing the capacity of our judges and magistrates can only be a good thing and must be encouraged.

However, we do not expect our judges to make Public Comment on pending or impending matters, including speaking to journalists on such matters. This is all the more important in an election year where a section of the population can hang on the extra judicial Public Comment of a judge for nefarious purposes.

THANK YOU ALL FOR YOUR ATTENTION

Dr. Raymond Akongburo ATUGUBA is a Senior Lecturer at the University of Ghana School of Law and Team Leader at the LADA Group.

OF JUDGES AND PUBLIC STATEMENTS AND PUBLIC COMMENT (PART 1)

censurachina-e1320181202666 (1)

By Dr. Raymond Akongburo ATUGUBA

INTRODUCTION

In my first article published last week, I promised to continue to provide you, my readers, with more down-to-earth interpretations of the “Law”. This is necessary because of legal jargon and the wilful misinterpretation of laws and judgments by lawyers and social commentators. Today, we will look at what judges are permitted to say and not to say about cases decided by the courts. I would, however, like to take us on a short journey into history, before we come to the crux of today’s legal lesson. This deviation is necessary if we are to know the lawyers and social commentators we are talking about by their historical fruit, their current fruit, and thereby project the character of the fruit they will bear in the future.

In order to reveal the fruit of these lawyers and social commentators, I will need to be very direct and forthright in this article, so forgive me in advance for my directness and forthrightness.

HISTORY REPEATS ITSELF

History is beautiful. And history matters. And history always repeats itself. It was actually 20 years ago, not 10 years ago, that I wrote the series of articles on the 1996 elections. And it was exactly 8 years ago that I wrote the article in the New Legon Observer, Vol. 2, No. 2 (2008) titled “To Comment or Not to Comment on Judgments of Courts of Law”.

The reaction from a section of lawyers (used here to include judges) and social commentators on this article and my discussion of it in the media was swift. As we say in Ghana, “they insulted me well well” for daring to say that everyone was entitled to comment on, even criticise a judgment of our courts. They lambasted me for arguing that lawyers and ordinary citizens may talk freely to the media in moderate criticism of the judgments of our courts. I repeated the same propositions in my lecture to the Ghana Bar Association Conference of that year and was essentially ostracised by a  section of lawyers as a result.

Today, those same lawyers and social commentators argue that a judge may sit on a case, rise up whilst the case is pending or impending, and make a Public Comment on the case, even to journalists. For clarity, a case is pending when it has not been disposed of by a court, and a case is impending when there is a high likelihood that it will come before a court. Matthew 7:16, “Ye shall know them by their fruits”.

Incidentally, these are the same lawyers and social commentators who, before the Anas exposé, insulted; made formal disciplinary complaints against; and without a hearing, illegally banned myself and others from practicing in the courts of law-all for daring to say that “no one can convince me that there is no corruption in the judiciary or that some judges do not take bribes”. After Anas, at least one social commentator shamelessly called in to many radio stations, insisting that the exposé has no relationship to what others and I had said four years earlier. Matthew 7:16, “Ye shall know them by their fruits”.

TO REMOVE OR NOT TO REMOVE THE NAME OF NHI CARD REGISTRANTS

Consistent with their opportunistic abhorrence for due process and the twisting of facts and reality, the same lawyers and social commentators are now calling for the removal of the names of “NHI card Registrants” from the Voters Register without Due Process and with disregard for the Rule of Law.

They say that there is no difference between “automatically removing names from a register” and “removing names from a register according to due process of law”. Without knowing it, what they are saying is that there should be no difference in the way dictatorial regimes ruled Ghana, and the way a constitutional democratic government should rule Ghana. Let’s watch it.

Automatic removal of the name of a registered voter, who lawfully and legally registered to vote, using an ID Card that the Supreme Court has confirmed was legal to use at the time she registered, is like a dictatorial government divesting citizens of their rights, in this case, the right to vote enshrined in Article 42 of our Constitution, without due process. This is why the Supreme Court, wisely, did not strike out those names from the register, as they are entitled to do, and did not order automatic deregistration, as they are entitled to do. The Supreme Court, on the contrary, held as follows on pages 22-23 of the judgment:

“As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of cards should not automatically (my emphasis) render them void. The legitimate way of treating them is to have them deleted by means of processes established under the law” (My Emphasis).

Removing names by due process, using the quasi-judicial methods outlined in the Public Elections (Registration of Voters) Regulations, 2016 (C.I. 91) and by the Supreme Court, is the democratic, constitutional and civilised way to go; unless we are already fed-up with the Rule of Law and Due Process and are longing and yearning for the return of dictatorial rule.

And whilst these lawyers and social commentators are busy calling for the automatic removal of names from the register without Due Process and contrary to the Rule of Law, and since they are so in love with automaticity, they may as well ask for the following:

  1. Automatic shutdown of social media without due process;
  2. Automatic throwing of people in jail by the Bureau of National Investigations (BNI) without Due Process; and
  3. Automatic deletion of SSNIT beneficiaries from the Pension list, who are suspected to be illegally present there.

THE SUPREME COURT DID NOT ORDER THAT ALL NAMES OF NHI REGISTRANTS BE AUTOMATICALLY DELETED FROM THE VOTERS REGISTER.

THE SUPREME COURT ASKED THAT THE ELECTORAL COMMISSION (EC) TAKES STEPS, REPEAT, TAKES STEPS, TO REMOVE UNDESIRABLE NAMES FROM THE VOTERS REGISTER.

THOSE STEPS ARE CALLED RULE OF LAW AND DUE PROCESS STEPS, IN ACCORDANCE WITH THE CONSTITUTION, C.I. 91 AND THE JUDGMENT OF THE COURTS.

THOSE QUASI-JUDICIAL STEPS ALLOW, FOR EXAMPLE, FOR A PERSON WHO IS MISTAKENLY TAGGED AS AN NHI CARD REGISTRANT, WHEN, IN FACT, SHE IS NOT, TO CHALLENGE AN ATTEMPT TO REMOVE HER NAME FROM THE REGISTER, A SCENARIO PROTECTIVE OF THE RIGHT TO VOTE. AGAIN, THOSE STEPS ALLOW FOR A PERSON WHO PREVIOUSLY, AND ACTING LEGALLY, REGISTERED TO VOTE WITH AN NHI CARD, AND WHO IS NOW DEREGISTERED, TO IMMEDIATELY REGISTER AGAIN WITH A VALID I.D. CARD OR OTHER MECHANISM ALLOWED BY LAW.

NOT EVEN THE SUPREME COURT CAN ORDER THE EC TO REMOVE THE NAMES OF VOTERS WHO VALIDLY REGISTERED TO VOTE, WITHOUT DUE PROCESS AND WITHOUT REGARD FOR THE RULE OF LAW. AGAIN, THE SUPREME COURT CANNOT ORDER THE REMOVAL OF NAMES FROM THE REGISTER IN A MANNER THAT DEPRIVES THEM OF THEIR CONSTITUTIONALLY PROTECTED RIGHT TO VOTE.

IF THE SUPREME COURT WERE TO DO THAT, SOME GHANAIANS MAY RESORT TO THE ECOWAS COURT OR THE AFRICAN COURT OR THE HUNDREDS OF MECHANISMS IN THE UNITED NATIONS SYSTEM, TO PUT PRESSURE ON GHANA TO DO THE RIGHT THING, PARTICULARLY SINCE GHANA HAS SIGNED AND RATIFIED THE CONVENTIONS RELATIVE TO THOSE BODIES WHICH PROTECT THE RIGHT TO VOTE.

THIS INTERPRETATION IS CONSISTENT WITH WHAT JUSTICE DOTSE IS REPORTED BY THE MEDIA TO HAVE SAID. HE IS REPORTED TO HAVE SAID THAT THE COURT ORDERED THE DELETION OF NHI REGISTRANTS FROM THE REGISTER IN ACCORDANCE WITH LAW, NOT AUTOMATICALLY.

THERE IS A WORLD OF DIFFERENCE BETWEEN DELETING THE NAMES OF “NHI REGISTRANTS” AUTOMATICALLY, AND DELETING THEM ACCORDING TO THE PROCEDURES LAID DOWN BY LAW. THE TWO HAVE VERY DIFFERENT LEGAL AND PRACTICAL EFFECTS. THE ONE DENIES THE RIGHT TO VOTE TO A SEGMENT OF THE POPULATION, AND THE OTHER IS PROTECTIVE OF THEIR RIGHT TO VOTE.

You may read the continuation of this article here.

Dr. Raymond Akongburo ATUGUBA is a Senior Lecturer at the University of Ghana School of Law and Team Leader at the LADA Group.

 

WHEN ‘VOID’ DOESN’T MEAN EXACTLY VOID: THE RAMADAN-SCOGH ROMANCE

front

Since the Supreme Court of Ghana (Court or SCOGH) gave its decision in the 2016 Ramadan case on the fate of names that entered the voters register, there has been a huge disagreement over exactly what the Court ordered the Electoral Commission (EC) to do. In this short article, I trace the journey of the NHIS names in the register from 2012, through the 2014 Ramadan case to now. I conclude that the Court did not order the EC to clean the register in any specific manner.

2014 Ramadan

In 2014, the Plaintiffs in this 2016 case went to SCOGH to seek an answer to the question whether the use of the NHI card as provided under regulation 1 (3) (d) of C.I. 72, as proof of qualification to register, is inconsistent with Article 42 of the 1992 Constitution. In other words, they sought to challenge EC’s decision to register voters using NHIS cards.

The Plaintiffs’ reason for the challenge was as follows: (1) by Article 42 of the Constitution, voting in public elections or referenda is reserved for Ghanaian nationals only; (2) an NHIS card does not prove its holder’s nationality at all (in fact, a non-national, too, may hold an NHIS card); and, therefore, (3) the EC’s use of NHIS cards as one of the tools for determining who is qualified to be registered to vote violated Article 42.

Indeed, the Supreme Court agreed with the Plaintiffs, even amidst vehement denial by the EC that the NHIS card (and other cards) were for purposes of determining nationality. Accordingly, the Court declared the law, Regulation 1(3)(d) of CI 72, unconstitutional.

No NHIS Cleaning

Having declared the said law unconstitutional, one would, naturally, expect the EC to devise a way of deleting the names of persons who registered, at least, using the NHIS card. In fact, a committee established by the EC itself seemed to have this in mind when it concluded that the voter register was not ‘clean.’ That notwithstanding, it appears, the EC has no intention of carrying out such deletions; at least, not in the manner that the Plaintiffs and their supporters want.

Exhibition

In the meantime, the EC has devised its own method for cleaning the voters register. The EC refers to this method as ‘exhibition’. ‘Exhibition’ entails an invitation to the public to help the EC delete names of persons who ought not be on the register but are on the register. Perhaps, this is pursuant to the the EC’s ardent belief that the “responsibility of having a clean and credible register is the shared responsibility of all citizens of Ghana.” However, the criteria for deletion under the ‘exhibition’ exercise does not allow a name to be deleted on the sole grounds that the flew on to the register on the back of an NHIS card.

Further, the exhibition entails petitioning the District Registration Review Committee (DRRC). By law, the EC may not, by and of itself, delete a person’s name from the register without an order from the DRRC to do so. The combined effect of the EC’s methodology, therefore, is that the NHIS names will remain on the register even after the exhibition.

2016 Ramadan

Clearly, we do not expect the Plaintiffs and, of course, their supporters to be enthused by this methodology. So early this year, Ramadan and his friend returned to the Court. This time round, they asked the court to, among others, either (a) set aside the entire voters register as void; or in the alternative (b) make “an order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register … [and] to delete the names of unqualified persons …” Of course, by ‘unqualified persons’, the Plaintiff have in mind, firmly, the NHIS names on the register.

The Issue

It is pretty obvious that relief (a) falls squarely within the power of the Court. However, relief (b), which is very detailed, appears to seek to direct the EC as to how to perform its day-to-day functions in a particular manner. Lest we forget, the EC’s independence is guaranteed under the 1992 Constitution. To grant relief (b), therefore, the Court must first answer a fundamental jurisdictional question. The question, as the parties to the case themselves put it in issue (5), is:

“Whether the court has jurisdiction and authority to make orders compelling 1st defendant [EC] to discharge its functions in a particular manner.”

The court began answering this question by reiterating its decision in the 2014 Case. As already mentioned, the Court, in that case, held that the use of NHIS cards as a way of determining a person’s qualification to be registered to vote is unconstitutional.

‘Void’ not Exactly Void

Generally, an act is unconstitutional if it is found to be inconsistent with any provision of the constitution under which it is purported to be done. According to our Constitution, such an act, “to the extent of the inconsistency [is] void.” Therefore, by the very provision of the Constitution, every act which is unconstitutional is also void – void ab initio. The legal meaning of ‘void’ is ineffectual, nugatory, having no legal force, no binding force. Its effect is that the relevant act is deemed as though it was never done. It never was in the eyes of the law. Such an act is incurably bad and cannot yield any fruit whatsoever.

Going by this reasoning (and the Plaintiffs did argue so), it follows that persons who were registered by the EC using NHIS cards were never registered. In the eyes of the law, they are not on the register, right from the day of their purported registration. That is it.

Indeed, the Court addressed this issues. However, the Court seems to have a slightly different view from the above analysis on the effect of a void act. The court speaking through Gbadegbe, JSC, had this to say:

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.”

In other words, the court does not believe that an unconstitutional act is necessarily void. In fact, this case may be the authority for saying that an act which is done in good faith, though subsequently declared unconstitutional, is not void automatically. At this point, I must say, we all must begin to develop some humongous love for interpretation. For this is exactly where the Plaintiffs’ end begins.

To Control or not to Control

The Court then turned to the issue in relation to its power of the Court to grant the plaintiffs’ detailed relief. The relief turns on what the Court thinks it can do in the life of an independent constitutional body (like the EC). In this regard, the court opined through Gbadegbe, JSC, as follows:

“A careful scrutiny of the constitution reveals that its function under article 45(a) is not subject to any other provision, therefore in performing the said function, we cannot make an order compelling the Commission to act in a particular manner.”

Benin JSC (who wrote a separate concurring opinion) confirmed this position. He began his confirmation by, first, counter-accusing the Plaintiffs. He said:

“The plaintiffs have not told this court that the 1st defendant has taken any step contrary to law, nor have they been accused of breaching its discretionary power.”

Then, he concluded just like his brother, Gbadegbe, JSC:

“In the absence of such breaches, the court has no power to compel or even to direct the 1st defendant as to how to exercise its constitutional mandate to produce a credible register.”

Accordingly, the court held unanimously that “the result is that issue (5) receives an answer in the negative.”

The Exact Order

Base on this, the Court ordered that “the Electoral Commission takes steps immediately to delete or as is popularly known ‘clean’ the current register of voters to comply with the provisions of the 1992 Constitution, and applicable laws of Ghana.”

Effect of Order

The Court having held that it cannot direct the EC as to how to produce a credible register, may one still say, and honestly so, that the Court has ordered the EC to delete from the voters’ register the names of persons who registered with the NHIS card? Would such an order not amount to the Court controlling the EC, something it has, for good or bad, vowed not to do?

I am persuaded, forcefully, by the school of thought that suggests that the Court’s orders in the Ramadan 2016 does not include an order directed at the EC to remove, delete or clean the register of names that entered it on the back of NHIS cards. And in case you doubt this position, just see what Benin, JSC, had to say to on the Plaintiffs’ preferred methodology for the validation of the register:

“However efficacious the [Plaintiff’s] system of validation may be, even the 1st defendant cannot employ it unless it is sanctioned by the law or regulations. That is the more reason why such issues should not be brought before a court without the legal basis.”

Perhaps! Maybe, perhaps, had SCOGH given ‘void’ its natural meaning and effect, we would be at a place other than here.

In-between Planning and Working

mother-prayer2-620x389
Three stories slashed deep into my heart last year. One was about Arthur Booth. Booth’s middle school classmate, Judge Glazer, had the unpleasant duty of sentencing him for burglary. According to the Judge, Booth was “the nicest kid in middle school. He was the best kid in middle school.”
 
The second story was about Alfred Postell, the Harvard Law man and classmate of the current US Chief Justice, John G. Roberts. Postell, somehow, became homeless and was standing trial for sleeping beside an office building in downtown DC.
 
Both men have something in common. No, not their colour (even though that may be relevant in another discussion). Not even that they were standing trial for poverty-related crimes. The 2 men started life as young men who’re determined to break out of poverty. Postell, for instance, had to work night and day to keep his mother and see himself through his 3 degrees – one in Accounting, another Economics and the last in Law. What happened? What went wrong?
 
The third story was about Daniel Cabrera, the Filipino boy who received scholarship after photograph of him studying on the street went viral. That clearly is another determined boy, probably, like Booth and Postell a couple of decades ago. What will become of little Cabrera? No one knows.
 
The renowned US General, George S. Patton, who led the Third US Army against the Nazis, has some insight to offer. In December, 1944, Patton summoned the Chaplain of the Third US Army. That was after over 2 long months of torrential rains. The rains fought against him and, clearly, in favour of the poorly-equipped and extensively-exhausted Nazi forces leading up to the battle of Bulge. A commentator put it this way: “the rains were doing what the Nazis could not do to him.” The General inquired from the Chaplain if there’s been prayer in the camp. The Priest’s answer, unfortunately, disclosed no confidence. Then, Patton exhaled these hallowed words:
 
“Chaplain, I am a strong believer in Prayer. There are three ways that men get what they want; by planning, by working, and by praying. Any great military operation takes careful planning, or thinking. Then you must have well-trained troops to carry it out: that’s working. But between the plan and the operation there is always an unknown. That unknown spells defeat or victory, success or failure… some people call that getting the breaks; I call it God. God has His part in everything. That’s where prayer comes in.”
 
Yes, Patton may not be one of the religious figures in history. He probably never even took his religious obligations seriously. However, his sterling military successes preceded him. He knew the essence of meticulous planning and precise execution. But he also believed in the unknown and in prayer.
 
In-between planning and working, what do you do, friend?

WHO’S A CHILD AT LAW: A MUSE

child

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).

Conclusion

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.