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 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.

 

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?