WHY LAWYERS CAN’T ADVERTISE IN 21ST CENTURY GHANA

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It is outrightly unlawful for a lawyer to inform the pubic of his previous successes in his professional practice with the aim of attracting briefs in the future. This is because Rule 2 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613) prohibits lawyers from touting, advertising or otherwise doing anything that may be seen “as calculated to attract business unfairly.”

Today, many consider the Rule as a senseless piece of legislation which is, “archaic” and “greatly inimical to the development of this country” in the sense that it “forces all lawyers to scramble for space under the wings of old and established law firms” and deprives citizens of the “right to know about the law firms available and the kinds of services they offered.

Interestingly, while some call on the incoming Chief Justice, Her Ladyship, Justice Sophia Akuffo, to “break this old curse,” the former President of the African Court on Human and Peoples’ Rights rather boldly announced at his vetting in Parliament how “distasteful” she finds the campaign against the rule. Clearly, if this rule would be scrapped, it definitely won’t come from the General Legal Council of which Her Ladyship would be head for the next two or so years.

But, what at all is the basis or essence of this rule? Well, one could not understand the Rule’s utility unless we wind back our minds to pre-medieval England; that is to say, the years immediately preceding 1400 AD.

A great point to approach history, they say, is to begin from the known to the unknown. Most of us are familiar with the chorister’s or the academic robe. The main difference between these robes and a lawyer’s is that the later has a stupid piece of violin-shaped cloth attached to the back of its left shoulders with a long silly strap running along the left breast down to the feet. The former robes don’t. That piece of cloth at the shoulders is cut into a pair of cute little sacks. These sacks used to be the money sack for lawyers – one for silver coins the other for gold. It’s actually called the “money bag.”

The theory behind this mysterious pair of sacks was that law practice was purely a noble selfless public service profession. It was neither for money nor for profit. Because of this, lawyers could never charge fees. In fact, it is said that “the gentlemanly barrister would not lower himself to ask clients for money.” Clients only made voluntary ex gratia donations which they surreptitiously dropped into these sacks. Remember, the pair of sacks hang loosely behind him; meaning he could not feel, know or be influenced by how much a client dropped in. Money was completely irrelevant!

Now the catch: since professional law practice for most part of its life was noble and not for profit, open competition was never a sensible thing to do, entertain let alone encourage. Therefore, it made sense to prohibit touting and advertising among lawyers. As a matter of fact, advertising or touting was as ignoble, base and unprofessional as asking clients for money. This is the only (if not the main) reason why Rule 2 exists in Ghana in 2017.

Assuming (without admitting) that this medieval reason for the Rule is still valid in this IT age, the question, however, would be: why does the General Legal Council find it noble for lawyers to now lower themselves and ask clients for money but ignoble for them to advertise their services? Perhaps, the answer to this question would never come.

MUSING MARXISM: THE CONSTITUTION AND LAW

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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?

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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.

 

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

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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)

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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)

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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

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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.

OF THE ANAS VIDEO AND MATTERS ARISING

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This note seeks to discuss two issues: (1) the nature and scope of the job of the Disciplinary Committee of the Judicial Council (the Committee) which is tasked with hearing the 34 judges and magistrates caught on the Anas vidoe (2) the operation of the rule against double jeopardy in respect of administrative matters.

The Difference

There’s a difference between disciplinary proceedings and criminal proceedings. The difference is not just nominal and formal. It is also substantive. Here are some of the differences:

Disciplinary proceedings usually take place before quasi-judicial bodies, while criminal proceedings cannot take place outside the judicial (court) system.

Disciplinary proceedings touch on matters of ethics, etiquette, values, norms or soft rules, large body of which are inferred, deduced rather than expressly or exhaustively listed in writing. Criminal proceedings, on the other hand, entail prohibitions that are expressly and exhaustively defined in writing with sufficient precision. If it is not written in law, it is not a crime.

Most importantly, the standard of proving an allegation in disciplinary proceedings is not necessarily ‘beyond reasonable doubt’. In criminal proceedings however, the prosecution is required to prove the allegation to the extent that a reasonable mind will be left without a reasonable doubt that the accused person did commit the crime.

The Committee’s Job

The proceedings currently going on before the Committee are not a criminal proceedings, of course. What this means is that the issues that the Committee will be determining are issues of ethics, values and those other soft rules that are meant to keep judges and magistrates and the administration of justice above reproach, ridicule or disrepute.

In other words, the Committee will be determining, mainly, whether it’s proper for a judge to behave in the manner that, though not in violation of a criminal law, these judges have behaved in the videos. The Committee will, in substance, be telling the people of Ghana (from whom justice emanates) whether, having behaved in the manner that we saw in the videos, the named judges are decent enough to continue to adjudicate over people’s disputes.

In doing this, the members of the Committee are not to subject the named judge to the rigours of criminal proceedings. Similarly, the standard of proof at the Committee’s hearing is not to be raised to the level of ‘beyond reasonable doubt’.  As a matter of fact, the members of the Committee need not infest their minds with the criminal laws. They only need to keep their focus on the standard of behaviours expected of judges and magistrates.

In finishing its job, the Committee, for instance, needs to primarily remember the hallowed words of Hewart CJ, when he said that it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The Committee only needs to decide whether, by allowing the named judges to resume their duties, persons who submit disputes to them to adjudicate upon, could go home satisfied that justice will be or has been done, irrespective of whether justice was actually done.

Two other Issues

The above explanation leads us to two other issues that have come up in all this. First, whether subjecting the named judges to criminal proceedings even after the disciplinary proceedings will amount to double jeopardy. And, second, the ‘criminal trial approach’ that has been adopted by some of the lawyers who represent the named judges before the Committee. For reasons that may not find space here, I’ll desist from discussing the second.

The Rule against Double Jeopardy

The rule against double jeopardy says that a person must not be vexed twice for the same wrong. Stated more accurately, the rule says that a person must not be prosecuted again after a legitimate and final prosecution for the same offence, whether or not he’s found guilty. The relevant elements in the rule, therefore, are: (1) that there has been a prosecution; (2) that the prosecution was legitimate; and (3) that the prosecution was final. It is irrelevant that the person was acquitted or convicted.

It may be seen from this explanation, therefore, that the mischief sought to be avoided by the rule is double trial and double conviction, not necessarily double punishment (note that conviction is a subset of punishment). In fact, in one case (and the cases on this are many), the court held that “the constitutional prohibitions against double jeopardy and double punishment do not prevent the legislature from enacting, and the executive from enforcing, civil as well as criminal sanctions for the same conduct.”

I’ve already explained the substantive difference between criminal proceedings (prosecution) and disciplinary proceedings. From that explanation and the one on double jeopardy, it may be pretty clear that a person will not be entitled to the plea of double jeopardy if he is subjected to criminal prosecution after a disciplinary hearing. What I’m actually saying is that my reading does not tell me that by going through the disciplinary proceedings the named judges cannot be subjected to subsequent criminal proceedings should the need arise. As a matter of law, they may be prosecuted first and disciplined subsequently or disciplined first and prosecuted subsequently.

Conclusion

What bothers me in all this, however, is the loud silence of the office of the Attorney-General on what it has done, what it is doing and what it intends to do in all this.

LEGAL EDUCATION IN GHANA AND THE ‘250:1000’ PROBLEM: CLEARING THE DEBRIS

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This is my third article on this topic. In this article, I wish to clear the debris left behind by my friend, Professor Stephen Kwaku Asare, in his rejoinder to my substantive two-part article published by Graphic Online on Monday, August 17, 2015. I will take the disputed points one-by-one and address them accordingly.

Alleged Arbitrariness of the GLC 

Professor Kwaku Asare mounts his rejoinder, substantially on the claim that the decision by the GLC (General Legal Council) to cap the enrolment of lawyers at 250 is arbitrary. Beyond the persistent complaints and expression of personal dislike for the GLC’s decision, he is yet to demonstrate a clear basis for his allegation. This lack of clarity leaves one to doubt what exactly he means by ‘arbitrary.’ Let me explain further:

Alleged arbitrariness in this context may be hinged on two mutually exclusive grounds:

  1. That the GLC does not have the power to determine the number of persons to call to the bar every year; or
  2. That the GLC has the power to determine the numbers but that the present 250 cap is unreasonable.

This clarification is important because the ground one chooses will, necessarily, determine how one analyses the problem and offers a solution to it.

My reading of the rejoinder discloses that Prof. Asare, most likely, hinges his allegation of arbitrariness on the first grounds. So, he crosses swords with me:

“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 …”

Then, he declares:

“What the GLC cannot do is to arbitrary (sic) 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.”

This declaration seems to have some face value. But a closer scrutiny will show that it does not in any way help us going forward. This is because he has again qualified the power (the existence or otherwise of which power is the issue at stake) with “arbitrary”. In other words, he sets out to show that the GLC does not have the power to cap the numbers; you ask him why; and he simply says the GLC cannot cap the numbers arbitrarily. That, clearly, is a fallacy of circular reasoning – he alleges one thing and uses that same thing to prove that which he alleges. So as it stands, his claim remains a farce.

It is true that sometimes we tend to focus too much on winning the argument (than on helping the discussion) that we tend to make outrageous denials. How could one deny that the number of persons who are admitted to a professional body has no nexus whatsoever with the standards of that professional conduct? Even in high school, house captains know very well that the number of persons in their dorms affects the standard of discipline. Let me not spend much time on this.

Inability or Unwillingness

Prof. Asare insists, contrary to my suggestion, that the 250:1000 problem is as a result of inadequate facilities at the disposal of the GLC. To substantiate this, he goes back to yank out a 2010 (5 years ago) speech by Her Ladyship the Chief Justice, Mrs. G. Wood when she inaugurated the Kumasi Campus of the Ghana Law School. At the ceremony, Her Ladyship lamented over lack of facilities, but indicated the steps that the GLC intended to take to solve the problem. One of such steps was to create other campuses of the Ghana School of Law.

Permit me to say, respectfully, that Prof. Asare’s use of Her Ladyship’s 2010 speech as evidence to support his claim in 2015 is very dishonest. This is because the good Professor of Accounting knows or ought to have known that the GLC has already opened another satellite campus at GIMPA in addition to the Makola and Kumasi campuses since the day of the speech (in 2010), thus solving the facility problem.

As a matter of fact, the Makola campus of the Ghana School of Law used to accommodate 200 students for each year group as at 2011. The current number of students on that campus has now reduced to about 100 for each class, making the Makola campus almost half-empty.

This turn of even has caused a senior lecturer at the Ghana School of Law, (one of my favourites, actually), Mr. Maxwell Opoku-Agyemang, to lament over the under-utilization of the Makola campus in the light of the teeming lawyer-aspirants warming up behind the School’s gates hoping to be admitted. He was reported as saying:

“How can an institution with one campus admit over two hundred but admit same number after opening two more campuses. You have only 31 students at a campus that can accommodate almost 100 students and yet there is a backlog of applicants.”

This report makes it clear that willingness (rather than ability) is the solution. Yet, in the teeth of all this evidence, even from an insider, Prof. Asare, still insists, stubbornly, that inadequate facilities is the reason for the 250:1000 problem.

Demand-Supply-Price Analogy

The last, and perhaps the lowest point in Prof. Asare’s rejoinder is that which applies the demand-supply-price model or the ‘invisible hand’ analytic of Economics to the situation here. Economists say that, all things being equal, price falls when supply exceeds demand. Extrapolating this to the present situation of the number of lawyers, their geographical distribution, and the question of affordability, Professor Asare says that producing more lawyers will cause the price of legal services to fall, making it possible for many more people to afford legal services.

This reasoning, as it were, is supposed to be a counter to my argument that a country’s need for lawyers should not be determined, as he and his disciples have persisted and still persist to do, by simply dividing the population by the number of lawyers in the country; and that the calculation should also include a variable indicating the ability of the population to afford legal services. It is also supposed to counter my argument that even if we produce 1 million lawyers today, all of them will be practicing in the 3 big cities of Accra, Kumasi and Sekondi-Takoradi, leaving the larger part of the country still unlawyered.

Now, let us see how helpless this crude application of the demand-supply-price analytic is in this discussion: An increase in the production of lawyers only speaks to the supply side of the analysis. We all know, however, that demand has two components – willingness and ability. We also know that there is a point below which price cannot fall. That point is reached when the cost of producing the goods or services does not fall below the price at which it is sold. That point I certainly not zero price. Therefore  legal services cannot be free.

At this point we can say that Prof. Azar’s reference to our mutual friend who runs HelpLaw, a pro bono law office, is either disingenuous or naïve. Such practices are not at zero cost. What actually happens is that someone other than the litigant or the lawyer is paying for the services. So that example does not in anyway advance Prof. Asare’s course in any way.

Going forward: what is the lowest price at which a lawyer will offer his services? Could the fisherman in my village, Aveme, or in the thousands of towns and villages outside Accra, Kumasi and Sekondi-Takoradi, living on less that a dollar a day, afford that lowest price? That is the real question to be answered. Not a simple division of the country’s population by the number of lawyers. It is therefore extremely simplistic to just scream in infinity the cliché – when supply increases price falls – and apply it in such a rudimentary manner to a very sophisticated matter as this.

In other words, producing more lawyers is completely myopic a solution when it comes to the distribution of income aspect of the discussion; and the distribution of income directly relates to demand (the ability to afford legal services), which, in turn, directly affects the ability of people outside the 3 big cities to afford the assumed ‘affordable’ legal services; which, then, directly affects the distribution of lawyers in the entire country, which distribution of lawyers is the original problem that Prof. Asare and his ardent disciples seek to solve by calling for literally an unlimited production of lawyers.

Therefore, by simply increasing the number of lawyers without a corresponding success at evening out the distribution of money throughout the country, I insist, one cannot expect lawyers to be evenly distributed. After all (and as I have already mentioned) lawyers are not moved by justice, they are moved by money.

Conclusion

I have noticed that Prof. Asare has interpreted my reflections as confusing and, in some instances, tacitly as an opposition the cry for admitting more lawyers to the bar. That interpretation cannot be honest, as it cannot be traced to my article. In a sophisticated society, it should be possible for us subject a proposed process for the attainment of a goal to scrutiny even if we all believe in the same goal. What I have spent my time doing on this, therefore, is to show that the diagnosis of the problem and the proposals being put across are bereft of critical scrutiny and are purely based on emotions. For example, how could a person say that there is no legitimate basis for a society to control the number of people who join a particular profession or trade? Or that outsourcing the professional training of lawyers to the universities will automatically result in an increase in the number of lawyers when the GLC still controls the tap?

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

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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.”