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:
- What is the jurisdictional basis for the Supreme Court’s decision?
- 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?
- 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?
- 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.