Of Birth Certificates and Proof of Citizenship: NDC v AG & EC

In the NDC v AG & EC judgement (June 2020), the honourable Supreme Court said two things in respect of the birth certificate (BC). To better understand what the Court said, we need to first adopt and explain (strictly for the purposes of this discussion) two key terms – “bearer” and “holder”.

Bearer and Holder

Let’s call the person who, for the time being, holds and presents the BC as hers the “holder”. On the other hand, let’s call the person in whose name the BC is actually issued, the “bearer”.

From this bifurcation, it may be quite obvious that the holder of the BC will also be the bearer. Indeed, it is true that the holder is, in almost all cases, also the bearer. It is, however, also true that the holder of a BC is not always the bearer (e.g. in cases where Kofi fraudulently presents Kojo’s BC as Kofi’s).

The Birth Cert and Identification

Now, back to what the Court said: The first thing the Court said was that the BC is not a proof of identity. So, the Court noted:

“A birth certificate is not a form of identification. It does not establish the identity of the bearer. Nor does it link the holder with the information on the certificate.”

This is a valid point. It reveals the real situation where the holder of a BC may not be its bearer. The point must be accepted as valid because identification is an important element in the electoral process. For example, without an intervening identification mechanism, Kofi (the holder) can successfully present Kojo’s (the bearer) BC as Kofi’s.

Birth Cert and Citizenship

But the Court also said another thing. It said that the BC is not a proof of citizenship. The Court stated as follows:

“Quite obviously, it [a BC] provides no evidence of citizenship. It therefore does not satisfy the requirements of the article 42 of the Constitution.”

Further, the Court insisted:

“In fact, as a form of identification, it is worse than the NHI card which was held to be unconstitutional as evidence of identification of a person who applies for registration as a voter in Abu Ramadan (No1), supra and Abu Ramadan (No.2), supra.”

First of all, the NHI card was not dislodged in Ramadan on grounds of identification – the card had an identification mechanism. Rather, it was dislodged on grounds of citizenship. Therefore, it was quite a significant mix-up that their Lordships compared the two instruments in this context.

Secondly, from the judgement, one may understand my Lords to be saying that because of its inability to prove the holder’s identity, the BC cannot also be accepted as evidence of citizenship. Let me say this in another way:

His Lordships seem to be saying that (a) citizenship is necessary for voter registration; (b) identification too is necessary for voter registration; (c) the BC cannot prove its holder’s identity; therefore (d) the BC is not evidence of citizenship.

One may notice that while the link between points (a), (b) and (c) are immaculate, the link between points (c) and (d) formed a kind of Bermuda link – quite dangerous. It conflates the issue if identification with the issue of proof of citizenship. However, since this is an entanglement problem, we may disentangle the points with the following corrective explanation:

(a) citizenship is necessary for voter registration; (b) identification too is necessary for voter registration; (c) the BC cannot prove it’s holder’s identity; therefore (d) the BC, by and of itself alone, cannot be accepted as a proof of identity and, thereby, (e) not also fit for the purposes of voter registration.

What is extremely difficult to accept, however, is the proposition which says that because of its inability to prove the holder’s identity, the BC is not and cannot also be accepted as evidence to prove citizenship.

Quite to the contrary, a more accurate proposition, I think, will be the one which says that the BC is a valid and complete means of proof of its bearer’s citizenship. Let me explain how the BC achieves this:

A person’s citizenship is determined along two main particulars: (a) her place of birth – jus soli; or (b) her parentage – jus sanguinis. Both of these particulars are contained in the BC. That, I think, makes the BC, having been duly issued, a valid evidence for establishing whether or not its bearer is a citizen.

Misrepresented Birth Certs

However, there’s another interesting line of argument. This argument seeks to propel the claim that the BC is basically rubbish because it could be forged, faked or misrepresented. That argument, too, can be quite difficult to sustain.

Let’s use currency (money) system to examine this argument: Currency is evidence of the value which is written on it. Because of this quality, currency is treated as legal tender – everyone is bound to accept it as a payment of debt to the value which is stated on it.

But, then, we have fake currency. Currency is fake if it lies about itself. A currency note lies about itself if any of theses two things happens: (a) if it is not duly issued, e.g. a forged note; or (b) if, though duly issued, its true value is not what it is offered for, e.g. passing off a GHC 1 note for a GHC 50 note.

The existence of fake currency notwithstanding, only a few people would seriously argue that currencies generally are not evidence of the value which is written on them. People would rather argue for a stiff punishment for currency fraud.

Let’s apply the currency framework to BCs – they (like passport, diplomas, etc) are both legal instruments. The BC is evidence of what is written on it. As indicated earlier, what is written on a BC are exactly what you need in order to know the bearer’s citizenship.

But we have fake BCs, too. A BC lies about itself if what it says is not what it is offered to prove. And, a BC is incapable of proving what it is offered to prove if any of these two things happens: (a) if it is not duly issued, e.g. a forged BC; or (b) if, though duly issued, its holder is not its bearer.

Like in the case of a currency note and, indeed, in the case of all other legal instruments, only a handful of people will seriously argue that BCs generally don’t prove their content simply because people do fake, forge or misrepresent a few BCs.

Indeed, the approach in such matters is not to rubbish or deny the instrument’s utility altogether but, rather, to enhance its integrity and sanctity. And, the best way to enhance or protect the instrument’s integrity is to ensure a rigorous regime for its issuance and a stiff punishment for it abuse.

Margin of Error

Finally, for the fake-BC line of argument to be taken seriously, it is not enough to simply say or prove that people do fake, forge or misrepresent the BC. After all, people do fake currency notes, degrees, passports, etc, but we still accept them as valid representation of the particulars they contain.

To reject the BC as evidence for proving citizenship, therefore, one must go beyond and show also that the number of fake, forged or misrepresented BCs are so overwhelming that it has rendered the entire BC system completely broken. This is a margin of error question which must be shown by cogent evidence.

Conclusion

Perhaps, if these humble lines had attracted the attention of their learned Lordships, the holding on the BC’s capacity to prove citizenship would have been a little different. In all, I think, the Court ought to begin to shift towards upholding the utility and integrity of State institutions and the legal documents they issue rather than lend its mighty support to forces that render such institutions weak and less useful.

Now, the big question – would the Court have added the BC to the list of identification documents in CI 126 even if it held that the BC provided evidence of citizenship? For so many reasons, I doubt.

For instance, in Ramadan (No.1), Wood CJ held that an identification document will not be fit for the electoral register’s purposes unless it cumulatively discloses the following:

(a) the holder’s identity (in terms of name, face or other biometric data);
(b) the holder’s citizenship (in terms of place of birth and parentage); AND
(c) the holder’s age (or date of birth).

As a matter of fact, the BC has not, in recent history, been used as a complete or autonomous identification document for voter registration purposes. And, that’s probably because the BC, by and of itself, though a complete proof of citizenship, lacks the identification quality that the electoral process needs.

Ramadan and the Legal meaning of ‘Void’: Theory versus Functionality (Part 1)

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, 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 emanating from it are deemed as though they never existed. 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, 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)

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.

When ‘Void’ doesn’t mean Exactly Void: The Ramadan-SCOGH Romance

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 name 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 around, asking 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 1^st 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 1^st 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 1^st 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.

Legal Education in Ghana and the ‘250:1000’ Problem: Setting the Records Straight

This is the rejoinder by Prof. Stephen Kwaku Asare, lawyer and Professor of Accounting, to my two-part article published on  Monday, August 17, 2015, by the Graphic Online. 

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It is hard to get the gravamen of Justice Srem Sai’s 2-part article, on the above subject matter. In part 1, Justice Sai defends the use of an annual arbitrary ceiling on the number of lawyers admitted to the Bar. In part 2, Justice Sai insists that “all efforts must be made to get as many as desire to be lawyers to be lawyers.” Thus, it is not clear whether Justice Sai favors or is against the ceiling! Nor are his intermediate arguments any more coherent.

Justice Sai correctly notes that the General Legal Council (GLC) is “responsible for upholding standards of lawyers’ professional conduct.” Mysteriously, he concludes that “by this, the body has a mandate to determine the number of persons who are enrolled at the Ghana Bar.” In fact, there is no nexus between upholding standards of lawyers’ professional conduct and determining the number of persons who are enrolled at the Ghana Bar. Rather, the GLC, by this mandate, is simply required to “prescribe standards of professional etiquette and professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of rules shall constitute grave misconduct in a professional respect” (see section 23 of ACT 32).

Justice Sai contends that “the GLC, its Board of Legal Education and its Ghana School of Law do not have any power over how the Universities administer their academic law programs.” This contention is both wrong and naive. It is trite knowledge that only graduates from universities approved by the GLC can qualify for enrollment at the Bar (see Section 4 of ACT 32). Thus, the GLC has significant input and oversight responsibility over the curriculum of law schools. In fact, this is why GIMPA and other Law Faculties take steps to assure potential LLB students that their “programmes are structured to meet the criteria required by the GLC for admission to the Ghana Bar”.

Justice Sai seems so sure that the GLC and its Ghana School of Law (GSL) “retains the mandate to determine the number of persons who are enrolled as lawyers in Ghana.” His problem is that he does not and cannot cite any authority to support this assertion, save the need to uphold standards of lawyers’ professional conduct discussed supra. The GLC is statutorily charged to establish a system of legal education, to select the subjects in which those seeking to qualify as lawyers are to be examined, to establish courses of instruction for students, to regulate the admission of students and to hold examinations, including the final qualifying examinations (see section 13 of ACT 32). The GLC can carry out these functions either through the GSL or through any educational institution, as it does when it outsources the LLB component of legal education to Law faculties. What the GLC cannot do is to arbitrary cap the number of students who can be given an opportunity to obtain a qualifying certificate in law. Not only will such an action lack statutory foundation, it will also probably offend Article 296(b) of the Constitution.

Justice Sai claims, once again, without any evidence that a cap on the number of students is not driven by the lack of facilities. His belief in the theory that there are adequate facilities to train enough lawyers rests on the existence of 3 campuses of the GSL (two in Accra and one in Kumasi). Thus, he argues that, if there are now 3 campuses then it follows that there are enough facilities to train all qualified lawyers. The facts, however, are to the contrary!

Indeed, the facilities problem is one that is universally acknowledged. For instance, while inaugrating the Kumasi Branch of the GSL in 2010, Chief Justice Woode said, “recently, 450 LLB qualified lawyers applied to the Ghana School of Law but only 200 could be admitted.” Her ladyship also guaranteed that new facilities will be built in the private and public universities to cater for the increasing number of law students. In effect, her ladyship is keenly aware that facilities constraints are preventing many qualified students from getting the opportunity to obtain the qualifying license and she is working to remediate this problem. Thus, contrary to Justice Sai’s unsupported assertion, the lack of facilities continues to be the primary hurdle in the way of the many qualified students who are being denied the opportunity to obtain the qualifying certificate in law. Moreover, the addition of the 2 facilities has not assuaged the problem. In fact, the ‘250:1000’ problem of 2015 is worse compared to the 200:450 problem of 2010. Unfortunately, the problem will not abate unless we change our mindsets and the way we define and think about it.

Why is Justice Sai so reluctant to acknowledge the facilities problem? Apparently, because he believes his “supply side” analysis is not just the better explanatory variable but also that it fully explains the problem. According to this supply side analysis, the GLC is simply interested in “regulating the number of persons who are allowed to practice the profession. This is because number, as it were, has a direct effect on how the standards fare. … Suffice it to say, however, that the 250:1000 problem has more to do with the unwillingness (rather than inability) of the General Legal Council to increase the population of lawyers in the country.”

Of course, once again, Justice Sai does not support this declaration with any evidence form the GLC, GSL or even the Law Faculties. He thinks it is a supply problem; therefore, the GLC must be capping the admission of students at 250 because it is unwilling to increase the population of lawyers in the country. Why 250 rather than 100 or 400 to control the supply? Justice Sai does not tell us. His stance is naively that 250 is the number and thus it must be accepted as the equilibrium supply level. One of the problems of op-eds is that the editors do not require authors to support their factual declarations. Perhaps, authors should consider supporting such declarations, especially where the declarations are offered as the positions of others, here the GLC.

Justice Sai takes the wrong position that ceding of professional training programs by the GLC to Law Faculties would lead to the dissolution of the Board of the Legal Education and the closure of the GSL, “since the GLC would have no legal education function.” Once again, I respectfully disagree, largely because Justice Sai and I hold fundamental different views on what constitutes legal education.

In fact, as far back as 1960, it had been recognized that the GLC may carry out its legal education function “either through a school of law set up by the GLC or through any other educational institution” (see section 13 of ACT 32). In effect, the statute is saying, and correctly so, that the GLC does not abdicate its legal education function merely by outsourcing instructions of students to other educational institutions.

Pursuant to Justice Sai’s supply side analysis, he asserts that “all lawyers go in for the pecuniary reward – money. Therefore, any serious analysis of a country’s need for lawyers must include the ability of the population to afford (in pecuniary terms) lawyers and the services they provide.” This argument contains a series of baffling propositions. First, it may surprise Justice Sai but the reality is that not all lawyers go in for the pecuniary reward. There are many lawyers, including many of our prosecutors, who are not well paid but who serve because of their convictions and the desire to carry out justice. In fact, I know one lawyer who relocated from the United States to Ghana to set up HelpLaw, a practice that is primarily aimed at defending indigents. Second, ACT 32 established the GLC to concern itself with the organization of legal education and the upholding of standards of professional conduct. GLC was not set up to decide and is in no position to determine the number of lawyers needed by the country. However, Justice Sai’s point may represent a failure in legal education. If so, the GLC should recommend a mandatory course in professional responsibility, which will educate lawyers not to think of lawyering as only a vehicle for obtaining pecuniary reward but rather as the leveler between the powerful and the less so.

Third, increasing, rather than limiting, supply is the proper economic solution to the “affordablity” problem. Elementary economics will teach us that limiting supply will only create rent for suppliers and price even more consumers out of the market for legal services. The ability to afford professional services, as the basis of admitting people to professional schools, if carried to its logical conclusion will operate to impose caps on the number of doctors, accountants, pharmacists, etc. It is an absurd view of professional education.

Justice Sai says, “the more Ghanaians we have enrolling as lawyers, the fewer of them we have left to become engineers, medical doctors, architects, planners, farmers etc.” Moreover, he continues, “for the records, lawyers do not produce tangibles. Lawyers consume; they import and consume exotic goods. By nature of their work, lawyers only feed off the pliers of other professions and trade.”

Is Justice Sai saying the cap of 250 is justified because the 750 who are otherwise qualified but denied admission to obtain the qualifying certificate should go into engineering, medicine, architecture, etc.? Why can’t Justice Sai trust people to make their own career choices?

As for whether lawyers are importers and consumers of exotic goods (whatever that means), let me just say I have a fundamental disagreement with my learned friend, assuming I understand what he is saying. The notion that one must produce something tangible to add value is too ancient to be taken seriously and must be dismissed with utter contempt.

In sum, Justice Sai’s 2-part article provides an interesting distraction from what is an important problem that has an obvious solution. The Law Faculties advertise their LLB programmes as structured to meet the criteria required by the GLC for admission to the Ghana Bar. The students pay thousands of dollars to enrol in these programmes. They buy expensive books, endure unexciting lectures, take time away from their jobs and families, study hard and pass all the LLB courses approved by the GLC. It is “bait and switch” for them to find out at the exit point of the LLB, that the LLB only gives them a 25% chance of admission to the Ghana Bar. The Law Faculties and their faculty members should stand up for the students, whose fees support them, not propose fanciful supply side analysis to justify the irrational exclusion of the students from the Ghana Bar.

Let me reiterate that it is statutory permissible for the GLC to outsource curriculum delivery and the fourth year of legal education to the Law Faculties, freeing the GLC to concentrate on curriculum standards, administering Bar examinations that can identify those who are competent to serve their clients, and upholding the standards of professsional conduct. In today’s technologically sophsiticated world of education delivery, it is unacceptable for so many qualified students to be denied the opportunity to obtain the qualifying certificate on grounds of unavailaibility of facilities.

In conclusion, I agree with Justice Sai on one point − “all efforts must be made to get as many as desire to be lawyers to be lawyers.”

ADVICE MEANS ADVICE: A POST-COLONIAL LEGAL ANALYSIS OF ARTICLE 70(2)

Dr Afari Gyan, the current Chairman of the Electoral Commission, is due for retirement on June 18, 2015. This has ignited discussions not only about the quality of the person who will succeed him, but also about how his successor will be appointed. This article, a summary of a bigger project, seeks to show, contrary to what other legal minds have suggested, that the President is not bound to follow the advice of the Council of State in appointing the Dr Gyan’s successor.

The provision at the centre of the discussion is Article 70(2) of the 1992 Constitution. That Article provides that:

“The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman, and other members of the Electoral Commission.”

This provision entails the question – what’s the meaning of “advice” within the intendment of Article 70(2) in particular or the Constitution as a whole.

“Advice” is generally taken to mean ‘an opinion or a suggestion about what somebody should do in a particular situation.’ Here, the person being offered advice may work with or without it. Going by this ordinary meaning, one may say that the “advice” of the Council of State under Article 70(2) is not binding on the President.

On the other hand, others have argued that “advice” under Article 70(2) should be given a meaning other than its ordinary meaning. In his very fascinating article titled “The President’s Duty to Appoint the EC Chair: The Law and Politics of Article 70(2)” and published by Graphic Online on April 21, 2015, Prof. Kwasi Prempeh, for instance, argues forcefully that advice should be given a technical meaning. The learned Professor concluded:

“Thus, the phrases “acting on the advice of” and “in accordance with the advice of” are used in the Constitution to mean the same thing, namely, that the advice given in those instances is binding advice.”

The essence of this argument is that whenever advice is used within the context of the exercise of, at least, executive power by the President, that “advice” should be binding on the President.

This conclusion is mounted on English constitutional law history. Historically, the medieval English monarch was a feudal lord as well as head of the kingdom. As such, the King had almost unlimited powers to preserve his subjects from dangers, both internal and external. Over time, however, the monarch’s power began to be limited. The Magna Carta, 1215, was one such elements that limited the King’s power. The Glorious Revolution was another. In the 17th century, disputes arose over the undefined residue of prerogative power claimed by the King. This conflict would not be resolved without the execution of Charles I in 1649 and expulsion of James II in 1688. These events gave birth to the Bill of Rights 1689, which declared illegal certain specific uses of the royal prerogative.

These events led to a situation where royal prerogative was exercised in ways other than by a royal fiat. This is where the element of “advice” came to mean a thing other than advice in the ordinary sense. Today in English constitutional law, “advice” is the synonym for Parliamentary dictatorship to the Queen. In essence advice to the Queen becomes binding on her.

But that is England; and this is Ghana. The question therefore is: does “advice” as used in the constitutional law of Ghana carry the same meaning as it carries under English constitutional law?

The first time the word “advice” was used in a constitution in independent Ghana was under Section 4 of the Ghana Constitution (Order in Council) 1957. Section 4 dealt with the appointment of the Governor-General. Under the 1957 Constitution, the Governor-General, as expected, was to exercise the Queen’s power in respect of many matters, some of which were to be on the “advice” of some authority, person or Cabinet.

How “advice” is treated under the 1957 Constitution, therefore, will give us a very decisive insight into whether the word exudes some dictatorial feature generally. In this regard, one provision comes out very sturdily.

Section 4(3) of the 1957 Constitution states that:

“Where the Governor-General is, by this Order or by any other law for the time being in force in Ghana, directed to exercise any power, authority or function on the advice of any person or authority other than the Cabinet, he shall exercise such power, authority or function in accordance with such advice.”

A less critical reading of this provision may lead one to hastily conclude (and others have drawn such conclusions) that “advice” is intended to be binding under Ghanaian constitutional law as it is under English constitutional law.

However, a more critical reading would disclose a more accurate meaning of the provision. What the provision actually says is that the Constitution may require the Governor-General to act on the advice of a person, an authority or Cabinet; and that while the advice of a person or an authority is binding on the Governor-General, that of Cabinet is not binding on him.

At this point, one is entitled to lay down two rules:

1. That the drafters of the Constitution never intended that all “advice” be binding under Ghanaian constitutional law; and
2. That unless expressly stated to be binding, “advice” is advice and is not binding.

A pushback against these two rules may be that the drafters of the Constitution intended to put the matter beyond doubt by stating it clearly that “advice” is binding. But that is only if the provision makes the binding effect applicable to all “advice” to the Governor-General. The provision, interestingly, doesn’t. It only makes advice by certain institutions binding.

Further, at the time that the 1957 Constitution was drafted, the understanding that “advice” to the Queen was dictatorial (rather than persuasive) had fully crystallised and was never in dispute throughout the Commonwealth. The drafters of the 1957 Constitution would have found no need to write it out that “advice” is binding. As a matter of law, pursuing this pushback any further would sin against the canon of presumption against superfluity. This canon of interpretation, which is also known elsewhere as the ‘textual integrity canon’, simply says that we should avoid interpreting a provision in a way that would render other provisions of the text superfluous. In fact, the canon was explained elsewhere by the Privy Council of the House of Lords as follows:

“It is a good general rule in jurisprudence that one who reads a legal document whether public or private, should not be prompt to ascribe … to its language tautology or superfluity, and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use.” 

Therefore the drafters cannot be taken today to be stating that which was obvious at the time, namely, that advice is binding. They would, rather, be taken to be creating something new, which is that “advice”, contrary to what pertains in England, is not intended to be binding in Ghana unless it is expressly stated to be so binding. In other words, there’s no presumption in Ghanaian constitutional law that advice is binding on the advisee.

Perhaps, even more striking is the fact that one does not see the very expressive language of Section 4(3) appear again in our subsequent Constitutions. This is extremely instructive: could the express mention of the technical meaning of “advice” in the 1957 Constitution and the loud silence of all subsequent Constitutions on the same matter operate to exclude that technical meaning from having effect under the subsequent Constitutions? A juridical answer to this question, certainly, further diminishes the force of the claim that “advice” is binding on the President generally.

Indeed, there are other instances where the technical meaning of “advice” being urged on us, if applied to or inserted into other provisions of the Constitution, may lead to grossly unworkable results. Suffice it to say however that the analyses of this aspect of the argument won’t find space here.

By way of conclusion, therefore, we may say that the claim that the advice of the Council of State is binding on the President has a very questionable basis in law and fact. Accordingly, the President may appoint the successor of Dr. Afari Gyan outside the advice of the Council of State.

*** This article is also published in the May 21, 2015, issue of the Daily Graphic.