Saturday, 28 November 2009
Tuesday, 24 November 2009
Sunday, 22 November 2009
Saturday, 21 November 2009
Friday, 13 November 2009
Tuesday, 10 November 2009
Wednesday, 4 November 2009
Sunday, 1 November 2009
Wednesday, 28 October 2009
Saturday, 24 October 2009
Wednesday, 21 October 2009
Is there any feeling more powerful than that of betrayal? Ask a high school girl whose boyfriend has dumped her for a pretty cheerleader. Or tune your radio to a country-western station and listen to the lyrics of infidelity. Or check out the murders reported in the daily newspaper, an amazing number of which trace back to a quarrel with an estranged lover.
In the Old Testament, God through Hosea's marriage demonstrates in living color exactly what it is like to love someone desperately and get nothing in return. Not even God, with all His power, will force a human being to love Him.
Many people think of God as an impersonal force, something akin to the law of gravity. The book Hosea portrays almost the opposite: a God of passion and fury and tears and love. A God in mourning Israel's rejection of Him (11:8).
God the lover does not desire to share his bride with anyone else. Yet, amazingly, when Israel turned her back on God, He stuck with her. He was willing to suffer, in hope that someday she would return to Him.
Hosea, and later Jesus, prove that God longs not to punish but to love. In fact, He loved us so much that He sent His Son to die for us!
Monday, 19 October 2009
Thursday, 15 October 2009
Friday, 2 October 2009
So I get out of the shower and get on my laptop; spending time with my newly found love. I receive a text from a friend inviting me to attend a service with her at Temple Church. I reluctantly agree. I say reluctantly because it saddens me to leave my newly found love and not because I don't enjoy church. After all, I owed God a whole lot of gratitude after all he did for me in the past week. So I grabbed a blazer and pants (still in an empire state of mind) or trousers and made my way towards Temple Church.
I don't think I was expecting anything special on my journey to church except I was hoping to run into a barrister who would offer me a pupillage or a solicitor who would offer me a training contract or a judge who would offer a marshalling opportunity or perhaps, clerkship. A bad reason to go to church? Oh yes but I'm certain God understands. I was also interested in the theme of the service – An Annual Service Dedicating the Legal Year to God. I arrived at Lewisham station to find out the DLR was down. I got the national rail to London Bridge and then tried to figure out the rest of the journey from there. What happens to those mini tube maps when you need them the most?
I had to rely on my intuition and memory. Well many lines run through Bank so it was a safe choice. I got to Bank and got on the Circle Line. There is always a story to tell on the tube. Sorry to disappoint this time. Lol. But I tried out an observation. A week ago a friend of mine made an observation and I was curious to find the truth in that. Friend's observation - why do people on the bus and tube try to prevent you from reading the Metro and London Lite when they are clearly free newspapers. I mean you didn't pay for it so you're really not losing anything if someone reads it with you. With this in mind I was busily starring into the London Lite being read by fellow commuters. I was waiting for someone to turn away or shut the newspaper but they never did. It was like they were reading my mind. Oh I read attentively and with interest too. Lol. At one point, I nearly asked a fellow commuter to hold on as I wasn't done with that page until something else caught my eye.
I thought emails were meant to be personal messages. Oh yes my thoughts are justified alright otherwise what's the fuss with all the email protection software. I found myself looking over the shoulder of another commuter who was busily sending an email on her Blackberry. I could read the entire email. It said "…". You didn't think I read it. Come on, I'm a Lincoln's Inn gentleman. But seriously I realized how vulnerable we are with the influx of these Blackberrys and other smart phones. I don't even answer my phone on the bus or train because I assume someone is listening; whether actively or passively.
I got off the tube and out of the train station to wait on this friend of mine. Like every other girl she chose to arrive fashionably late. In the mean time, I obtained my own copy of the London Lite. I didn't even ask the vendor, I just picked it off the pile. Remember, free. Lol. I am sure most of you have seen the new Cadbury commercial (still in an empire state of mind) or advert. If not here is the link: new Cadbury advert. There was a full page dedicated to it in the London Lite. Well done Cadbury for choosing Ghana. She finally arrives and we head off to Temple Church. She observed one thing I am quite used to now – why are all these barristers and judges stuck up? I tried unsuccessfully to explain.
The address was very refreshing. It was based on Romans 3:10-26. I learned the bad news and the good news in that passage. Bad news – "there is no one righteous, not even one; there is no one who understands, no one who seeks God (Romans 3:10-11) … there is no fear of God before their eyes (Romans 3:18)" and the good news is – "for all have sinned and fall short of the glory of God, and are justified freely by his grace through the redemption that came by Christ Jesus (Romans 3:23-24)". I did pay attention and I encourage you to apply this in your life. Temple Church looked marvellous. There were refreshments in the round church which is where they acted part of the "Da Vinci Code". So if you think about it, I was actually standing on set where Tom Hanks and that old guy were fighting.
Well, I had to leave so I said my goodbyes and left. We ended up getting the DLR from Tower Gateway. I got off at Poplar and changed at Canary Wharf to get the direct one to Lewisham. As I waited, I noticed two gay men kissing and touching. I looked away and never looked that way again. I can't judge them though because like the passage said we all have sinned and fall short of God's glory. I got on the train, started writing this piece until I finally arrived at Lewisham and had to dash for the bus. Running across Lewisham centre, I came across a dance group practising in front of the Lewisham shopping centre. I paused to enjoy it a bit and to catch my breath. I got the bus anyway. What an eventful evening though I nearly walked into a lamp post as I walked home from the bus stop. If I had the opportunity, I would do it all over again. Well, except seeing the gay men kiss and touch in public.
On another note, it is Nigeria's 49th Independence Day today. I wished them a happy one on facebook and encouraged them to be rid of all the socio-political evils before they hit 50. I knew I was in for an attack but I didn't think it would come from someone so dear to me; who is not even Nigerian. Lol. I ended up removing the status and replacing it with Happy 49th Independence Day to all Nigerians. So as Nigerians enjoyed this day it is my hope that they will take a firm stance in reducing corruption, bank scandals, 419s and violence. We need them to stand tall in the Region as Ghana cannot achieve the objective alone. Well it can but it'll take longer. I hope to say Happy 50th Independence Day to all Nigerians next year with fewer faults to point out.
Finally, I read a piece from Ato Kwamena Dadzie today which was the highlight of my day. Here is the link: Mabey & Johnson: NDC porous defence. Do enjoy.
Friday, 14 August 2009
Just like everyone else, I woke up to the news that the former Minister for Information, Mr. Asamoah Boateng (Asabee), had attended the offices of the Bureau of National Investigations (BNI) after he had been prevented from travelling outside the country on a second occasion. I interpreted Asabee's action as cooperation with the BNI to resolve whatever issue was outstanding. Later on in the day, I found out Asabee had been arrested and detained. Asabee was the former honourable Member of Parliament for Mfantseman West and given my ties to that area, I am much obliged to put pen to paper in attempt to educate the ordinary Ghanaian on the issues surrounding his arrest and detention.
- Before jumping into any discussion of the issues, I refer readers to Article (Art.) 35(1) of the 1992 Constitution (the Constitution) where it is stated that "Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution". And most importantly, Art. 35(4) which provides that, "the State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person".
- The facts leading to Asabee's arrest and detention can be read on the myjoyonline website. (See http://news.myjoyonline.com/news/200908/33960.asp). According to his lawyer, Peter Okudzeto, Asabee was forcibly hounded into the BNI cell on Thursday, 13th August 2009 at 18:30 GMT without any formal charge. Asabee voluntarily handed himself to the investigative body on Thursday morning following media reports that he was a fugitive of justice. He is under investigation for alleged malfeasance in the award of a contract to his sister-in-law for the refurbishment of the Ministry of Information last year.
- Mr. Okudzeto narrated that they had waited for hours to see the director of BNI, only to be told later afternoon that they, the lawyers, could leave because their client was going to be detained. They resisted, arguing it was against the Constitution and a breach of fundamental human rights to interrogate their client without his counsel. He said they demanded to know what charges had been preferred against their client, something the BNI officials were not ready to provide. According to him, a scuffle ensued between officials of the BNI and Asabee which led to the shoving of Zuleika Asamoah Boateng, wife of Asabee to the ground. Zuleika had insisted to be locked up together with her husband. The counsel said they will meet to consider the next line of action.
- One issue which should be discussed or at the very least, be addressed before discussing Asabee's arrest and detention is whether the BNI has been acting appropriately in carrying out its duties. This issue has popped up many times since former members of government begun receiving invitations to the BNI.
- The BNI is the internal intelligence agency of Ghana. Among the duties of the BNI are dealing with organized crime and providing intelligence to counter threats to security. The BNI is legally a creature of The Security and Intelligence Agencies Act (Act 526) 1996. Amongst other security agencies, the Security an Intelligence Agencies Act 1996 also recognized the existence of Ghana's Bureau of National Investigations and the research department (of the Ministry of Foreign Affairs) as 'the Internal and External Intelligence Agencies of the State, referred to in this Act as "the Intelligence Agencies"'. (See Kwame Boafo Arthur, Ghana: one decade of the liberal State, page 193) The wide range of responsibilities assigned to the intelligence agencies under the Act covered the following functions:
- Collect, analyze, retain and disseminate as appropriate information and intelligence respecting activities that may constitute threats to the security of the State and government of Ghana;
- Safeguard the economic well-being of the State against threats posed by the acts of omissions of persons or organizations both inside and outside the country;
- Protect the country against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences;
- Protect the State against activities of persons, both nationals and non-nationals, intended to overthrow the government of Ghana or undermine the constitutional order through illegal political, military, industrial or other means or through any other unconstitutional method; and
- Perform such other functions as may be directed by the President or the Council. (Republic of Ghana 1996).
- Collect, analyze, retain and disseminate as appropriate information and intelligence respecting activities that may constitute threats to the security of the State and government of Ghana;
- The reforms and adoption of a new security structure were seen as a fundamental priority in order to address and ensure the end of military coups. (See Higazi 2004, quoted in Security Sector Reform in Ghana, page 4). The intelligence agencies were intended to be political neutral. In light of the functions of the BNI set out above, I do not believe the BNI is the most appropriate government agency to determine whether Asabee was wrong in awarding the contract to his sister-in-law. The BNI's primary concern should be related and limited to intelligence concerning the national security of Ghana from within and without the Ghana. Awarding a contract to refurbish the Ministry of Information does not fall within this concern and as such the BNI cannot be the most appropriate body to deal with Asabee awarding the contract to refurbish the Ministry of Information to his sister-in-law.
- The Commission on Human Rights and Administrative Justice (CHRAJ) and the Serious Fraud Office (SFO) constitute the two main anti-corruption bodies actively existing in contemporary Ghana. The CHRAJ has pretty much the same role as all other commissions of inquiry that have existed in the past, its role is to investigate deeply into all types of allegations of corruption and report their findings to the Attorney General who then takes a decision as what procedures should be undertaken under legal requirements. Nevertheless, it has a role that was not given to any other precedent commissions, that is a mission to educate the public on their human rights and freedom. Its jurisdiction is limited because it cannot investigate certain matters which are, overall, to prevent it to 'engage in unnecessary litigation and confrontation with the government of the day.'
- The other anti-corruption body that is active in contemporary Ghana is the SFO. The SFO was created by an Act of Parliament, the Serious Fraud Office Act 1993 (Act 466) as part of the Public Services of Ghana. It was established as a specialized agency to monitor, investigate and, on authority of the Attorney-General, prosecute any offence involving serious financial or economic loss to the State. The executive director of the SFO can decide from his own accord, and more importantly without any legal institutional control, to accuse that person of 'serious and complex fraud' and consequently deprive that person of freedom of movement and of access to his or her property.
- Thus, these two bodies are appropriately set up to deal with Asabee awarding the contract to his sister-in-law. Given the limited financial autonomy of the CHRAJ and the extensive prosecution powers of the executive director of the SFO, the SFO would have been the most appropriate agency amongst all three agencies to handle Asabee's issue. It has been argued that the discretion the executive of the SFO has creates a presumption of institutional corruption. Nonetheless, the executive director's powers under the Serious Fraud Office Act 1993 (Act 466) would have been legitimately exhausted if the SFO had decided to prosecute Asabee under the Act.
- Accordingly, it is my opinion that the BNI were not the most appropriate agency to investigate and/or prosecute any contract award by a former minister particularly in Asabee's case. This is because awarding a contract to his sister-in-law to refurbish the Ministry of Information, assuming the facts were proved against him, may potentially amount to an offence involving serious financial or economic loss to the State and as such the SFO was responsible for investigating and prosecuting Asabee. It must be proved that the financial or economic loss to the State was serious. What amounts to serious will be determined by the courts. However, case law gives a fair idea and in my opinion, it is less likely that awarding a contract to a sister-in-law will amount to serious financial or economic loss to the State.
- The fundamental human rights and freedoms of the Ghanaian citizen are entrenched in Chapter 5 of the Constitution. Art. 12(1) of the Constitution provides that "The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution." Every person in Ghana is entitled to fundamental human rights and freedoms in Chapter 5 of the Constitution. (See Art. 12(2)).
- According to Art. 14(1)(g), "every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law – upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana." Subject to argument one and assuming the BNI had the authority to investigate and prosecute Asabee, then upon reasonable suspicion that Asabee had committed a criminal offence or about to commit a criminal offence under the laws of Ghana, the BNI could deprive Asabee of his personal liberty in accordance with the procedure permitted by law.
- Art. 14(2) further states that "a person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice." According to the facts as reported by the media (myjoyonline), the BNI failed to provide the reasons for Asabee's arrest, restriction or detention when asked by Peter Okudzeto, Asabee's lawyer. This is a breach of Art. 14(2). The clear and utter disregard for this fundamental human right and freedom – even after protests from Asabee's lawyer – raises serious issues of the rule of law and constitutionality in Ghana's growing democracy.
- Under Art. 14(3)(b), "a person who is arrested, restricted or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention." Thus, Asabee must be brought before a court within forty-eight hours of his arrest and detention. Forty-eight hours after his arrest and his detention will be Saturday, 15th August 2009. If Asabee is not brought before the court on Friday, 14th August 2009, he will have to wait until Monday, 17th August 2009, to appear before court since the courts are not in session during the weekends.
- Alternatively, he should be released without prejudice to any further proceedings that may be brought against him. (See Art. 14(4)). His release should either be unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (See Art. 14(4)).
- The BNI was not the most appropriate body to handle issues concerning contracts being awarded to former minister's sister-in-law by the former minister as the BNI's primary concern should be related and where possible, limited to intelligence concerning national security. I further submit that the SFO is and should be the most appropriate agency to handle Asabee's issue as the issue falls within the SFO's authority and the SFO has extensive powers in dealing with the issue competently. In addition, the BNI breached Asabee's fundamental human rights and freedoms when the BNI failed to inform or provide reasons as to why Asabee had been arrested and detained. I reiterate the fact that this raises serious concerns regarding the turn rule of law and constitutionality is taking or has taken in Ghana. This is definitely not the State cultivating respect for the fundamental human rights and freedoms.
- President Mills in his many speeches and interviews has not hesitated to inform Ghanaians and the world of his desire to ensure the rule of law is strongly upheld in Ghana. I suggest he lets his administration's actions do the talking instead of him repeating the theme in the preceding statement in his speeches and interviews.
- Also, I should mention that I am not saying Asabee is innocent; nor am I saying he is guilty. Awarding a contract to a sister-in-law raises a conflict of interest issue. Therefore, Asabee was required and should have ensured that the conflict of interest issue did not impair, in anyway, his discretion in awarding the contract to his sister-in-law. Failure to ensure his discretion was not impaired by the conflict of interest issue is a breach of a fiduciary duty given the position he held and if he did cause financial loss to the State he should be rightly held accountable.
Tuesday, 30 June 2009
- I would refer to myself as a Ghanaian whenever I am asked what my nationality is; regardless of where in the world I am. It is my national identity. All Ghanaians belong to different tribes and have different cultural values. The only thing that brings all these tribes and cultures together is the national identity as Ghanaians. Since we all identify ourselves as Ghanaians, one will naturally assume that we will relate to each other as Ghanaians and run the affairs of the country as Ghanaians. However, it is sad to observe and say that such is not the case; particularly in the politics of Ghana. I will not attempt to compare political parties in this short opinion except focus on the main differences in the way things are done in the NPP and maybe draw examples from the main political parties.
"National" to "New"
- The founders of the New Patriotic Party (as it is called now) had agreed on naming the party National Patriotic Party. However, at a press conference to outdoor the party, the interim chairman, Mr B J da Rocha announced the name of the party as the "New Patriotic Party" and dropped the "National" to the surprise of all of those who were present at the earlier meeting at which "National" was adopted. He later explained that many of the parties that had been formed in Ghana, following the lifting of the ban on party politics had "National" in them and he thought the NPP should sound different. (See http://www.npp-ghana.org/index.php?categoryid=8).
- I never thought deeply about the above paragraph until very recently when I read an article about the history of the NPP. Was the reason behind dropping "National" for "New" given in good faith? I would rather have a political party with the word "National" in its name because then I would feel the party serves the interest of everyone who identifies as a Ghanaian national. But then with the word "New" substituting "National", I question whether the NPP has a national interest. The article I read summarized the history of the NPP as follows: tension between two parties – one dominated by Asantes and the other dominated by Akyems – finally led to a united political party. To avoid further tensions, both sides agreed to select a leader not from one of the dominating tribes i.e. Asante or Akyem. Busia, a Bono, was picked and eventually led this newly formed party to victory. Therefore, with the NPP deriving its foundations from the Progress Party and the Danquah/Busia Tradition, it is safe to say that the NPP is a large Asante-Akyem base. (Read the entire article here http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=163697).
Asante – Akyem Rivalry
- You may ask why any of this tribal classification is relevant. Fast forward to 1992 when the NPP was formed, the word "National" is substituted for the word "New". I fail to see what is new about the NPP. The NPP is still dominated by Asantes and Akyems, seventeen years since the formation of the NPP. There is nothing new in that is there? Tribalism has never been so palpable in the party until now. Many will disagree with me on the last statement. Nonetheless, those who disagree are only living in denial and it will be in the party's interest to deal with this issue before it escalates. Ultimately, it will be in the interest of Ghana and its young democracy.
- The party through its presidential candidate, Mr. J.A. Kufuor (an Asante), won the 2000 elections in a run-off. For a party founded to reflect the strong principles of the Progress Party, one would assume they would have upheld the agreement not to have a leader from either dominating tribes until all tribes within the party were equally represented. There is the argument that, Mr. Kufuor deserved to be the presidential candidate as he was duly qualified. I strongly believed that Nana Addo (an Akyem) also deserved to be the presidential candidate as he was also duly qualified. He played a significant role in the formation of the NPP; contributed to the party financially and intellectual; appeared on television shows such as Talking Point to defend the position of the NPP whilst the NPP was in opposition; and participated in demonstrations such as "Kumi Preko" whilst the NPP was in opposition. I was under the blind impression that he would secure the presidential candidacy of the NPP for the 2008 election without strong opposition.
- However, the beauty of the democracy existent within the NPP proved me wrong. Or at least I thought it did. Nana Addo's strongest opponent was Alan Kyerematen (an Asante). Comparing the two men from an objective point of view, taking into account who had made significant contributions to the party since its formation and who will serve as a better leader, I had no doubt in my mind that Nana Addo was the better man. Amongst the contestants for presidential candidacy were other duly qualified members who had contributed significantly to the NPP as Nana Addo had. For instance, Jake Obetsebi Lamptey (a Ga) had contributed significantly to the formation of the party and whilst the party was in opposition. However, he was overlooked when it came to selecting a presidential candidate because he was not Asante or Akyem.
- Given the contributions by these men, you would have expected Mr. Kufuor to have rendered his support to either of them or any of the other contestants who had contributed to the party from its formation through the time when the party was in opposition. On the contrary, Mr. Kufuor threw his support behind his fellow Asante man, Alan Kyeremanten. He immediately won the support of the Asante arm of the party resurrecting the supposedly buried tribalism within the party. Nana Addo lost the election in a run-off. Since then, there have been calls for him to remain as the presidential candidate. Others argue that he had his chance and he lost it. The latter comes from the Asante arm of the party. As much as I would like to see Nana Addo run as the presidential candidate in 2012, I am afraid such tribalism in politics is eating up the party.
- Many people refer to the NDC as an "Ewe" party primarily because majority of the votes the NDC receives comes from the Volta Region. It is their strongest hold amongst the other regions. However, the composition of the NDC party is very diverse. In fact, almost all tribes are represented within the NDC. In any event, it is arguable that "Fantes" are a majority within the NDC. The NDC can therefore hold itself out as a party with a national interest at heart. Similarly, the CPP has a diverse membership.
"Patriotic" in NPP
- The NPP may argue that the word "Patriotic" in the name of its party demonstrates its national interest. A patriot is a proud supporter or defender of his or her own country and its way of life. Is this what the NPP is about? I argue that the NPP is a proud supporter or defender of the Asante and Akyem tribes and its way of life and not Ghana as a nation. The NPP's motto is "Development in Freedom". How is there freedom when members of other tribes are not able to compete fairly for presidential candidacy? Some members argue that the running mate is always from the northern part of Ghana; so given that, the party reflects representation across the entire country. That argument only supports how the NPP takes for granted the other tribes in the country. In order not to appear tribally biased, they select a northerner as a running mate in every election year. Why can't a northerner be a presidential candidate?
- In fact, if the NPP wants to portray itself as a Ghanaian party or an all inclusive tribe party, then the presidential ticket for the 2012 election should have someone from the northern part of Ghana as a presidential candidate and either someone from the Central Region, Western Region, Brong Ahafo Region or Greater Accra as a running mate. Alternatively, if the NPP wants to play the game of politics, it can concentrate on southern Ghana to win the election. In that case, the presidential ticket should have someone from the Central Region with the running mate from Brong Ahafo Region. This gives the party a fighting chance and at the same time appearing as an all tribes party – a Ghanaian political party and not an Asante-Akyem party. This will limit if not stop members of the NPP joining political parties that appear to be Ghanaian parties.
- At the moment, the NPP is neither a national party nor is it a patriotic party and there is nothing new about the party. So as the party takes steps to amend its constitution, it should bear in mind the effect tribalism has in splitting a country and not only a political party. The party seeks to enlarge the Electoral College and limiting the number of contestants for presidential candidacy. Enlarging the Electoral College will not solve the current tribalism problem unless the Electoral College is diverse and fully represents the other tribes in Ghana. Furthermore, putting a cap on the number of contestants for presidential candidacy undermines democracy. Instead, I suggest that the party re-adopt the agreement not to have an Asante-Akyem leader or presidential candidate for some time. This position should be adopted for peace and unity within the party. In the process, it will allow the party to even out and be a more nationally represented party. And hopefully, members of the party will identify themselves as Ghanaians and not by tribes.
Written and Edited by
Kow A. Essuman Esq. LL.M. (Cornell);
Barrister-at-Law of Lincoln's Inn.
All comments, corrections and contributions should be sent to firstname.lastname@example.org.
This opinion is based on the thoughts and observations of Kow A. Essuman Esq. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.
Thursday, 19 March 2009
- This piece is in fact long overdue. I was asked by many colleagues and friends to provide my opinion on the ex gratia package recommended for the former President, Mr. Kufuor. I failed to do so; given the busy schedule I had to manage at the time the package got into the public domain. Nevertheless, I do recall mentioning to a few colleagues and friends that Mr. Kufuor was entitled to the recommended package. At the time of making those statements, I was unaware of the constitutional provisions making that possible. I relied solely on the authority of Parliament to make laws which become binding once they have received assent. I read numerous articles on the issue as well as comments individuals posted regarding the package. It was unfortunate to see how personal some individuals responded to these articles. Even worse, these individuals referred to Mr. Kufuor as an extortionist who had the sole intention of defrauding the country. I was saddened by such comments for many reasons. But the only reason which pervaded my sadness is as follows.
- Mr. Kufuor in his capacity as the President did not reward himself with the ex gratia package. A committee was set up to look at what befitted a former President (including all former Presidents). The recommendations of the committee were then sent to Parliament for approval. Parliament approved the recommendations which then had legal effect. The reason for bringing this up is that, Parliament could have rejected the recommendations of the committee if it thought they were unreasonable. But Parliament did not. Instead, Parliament approved the recommendations of the committee thereby giving it legal effect.
- Parliament is representative of the people of Ghana. Members of Parliament are elected through parliamentary elections to represent their constituencies in Parliament. I do not intend to educate anyone on election processes except I am only reminding readers of who sits in Parliament. The electorates send MPs there to represent their interest. Anything done in Parliament by the MPs is done on behalf of the electorate. As a result of that reasoning, the MPs by approving the recommendations were doing so on behalf of the electorate. Hence, the name calling of Mr. Kufuor was unnecessary and in any event, the electorates should have held the MPs they sent to Parliament to represent them accountable for approving the recommendations.
- Having explained the reason that pervaded my sadness, I remember making a comment along the lines of the aforementioned that since Parliament had approved the package; Parliament had the exclusive authority to repeal it. I never went into the details of that statement but I hope to do so in this opinion. I also recall some legal practitioners arguing along the same lines but none of them explained the reasons underlying their arguments.
- In any event, I have now had the opportunity to assess the legal implications and constitutionality of the actions of the current President, His Excellency Professor John Evans Atta-Mills. One question that I faced was: why hasn't Mr. Kufuor claimed what he is entitled to by virtue of the Chinery Hesse ex gratia package? I could come up with only one answer which makes sense to me. And that is Mr. Kufuor is being the gentleman that he is in giving the new administration time to find their feet before he makes any demands on his entitlements. Mr. Kufuor himself, I recall, referred to the contents of the ex gratia package as unreasonable. Such modesty as it may be viewed is not enough and is irrelevant to the issue that has a risen as a result of the Chinery Hesse Report.
- There was a public outcry when the details of the ex gratia package got into the public domain. This in fact caused former and current MPS who contributed to the approval of the recommendation to take a rather adverse stance. Eventually, Prof. Mills suspended all and any payment of gratuity to any beneficiary under the Chinery Hesse Report. It is my understanding, based on reasonable information, that some former MPs withdrew their salaries under the package before Prof. Mills' suspension was announced. Nonetheless, this opinion will focus on the suspension of gratuity payments to Mr. Kufuor.
- At this point, I find it necessary to stress that this opinion is entirely legal and is in no way whatsoever influenced by any political ideology or affiliation. It is not politically biased or indeed biased except to the extent of the arguments raised to persuade the reader that the foregoing act of Prof. Mills is ultra vires and unconstitutional. The 1992 Constitution of the Republic of Ghana is the relevant legal framework for the arguments below and all articles mentioned herein are in reference to the 1992 Constitution unless otherwise stated.
The Suspension is inconsistent with the 1992 Constitution
- At present, it is or should be common knowledge that the President on leaving office receives gratuity payments for his service to the nation. This is enshrined in the Constitution. Unfortunately, when members of the public refer to the Constitution in light of the gratuity package, they mention Article 71 which deals with who determines the salaries and allowances payable, and the facilities and privileges available to the President. This article also deals with salaries and allowances payable and the facilities and privileges available to MPs, Speakers of Parliament, members of the Council of State, Ministers of State and other significant public servants mentioned in that Article.
- As mentioned earlier, this opinion intends to focus on the ex gratia package in relation to Mr. Kufuor – the ex President. For that reason, the relevant part of the Constitution is Article 71(2) which states that "The salaries and allowances payable, and the facilities available, to the President, the Vice-President, the chairman and the other members of the Council of State; Ministers of State and Deputy Ministers, being expenditure charged on the Consolidated Fund, shall be determined by Parliament on the recommendations of the committee referred to in clause (1) of this article." For the purposes of Article 71, and except as otherwise provided in the Constitution, "salaries" includes allowances, facilities and privileges and retiring benefits or awards – See Art. 71(3).
- Interpreting Clause 2 in light of Clause 1, Parliament is the only body charged to determine salaries and allowances payable, and the facilities available to Mr. Kufuor on the recommendations of the committee. Prof. Mills can only determine the salaries and allowances payable, and the facilities and privileges available to MPs, Speakers of Parliament and the public servants mentioned in Clause 1. The context of this power is different from the power that Parliament has in Clause 2. Also, it should be distinguished from Prof. Mills' power to appoint the five person committee in accordance with the advice of the Council of State. Prof. Mills does not have the constitutional power to determine "salaries and allowances payable, and the facilities available" to Mr. Kufuor.
- Instead, the only role the President has in the determination of the "salaries and allowances payable, and the facilities available" to the President is selecting the five person committee which makes recommendations to Parliament. I believe the rationale behind this is to prevent the President from awarding himself exorbitant salaries and allowances and making available to himself, luxurious facilities. In this case, the Chinery Hesse Committee was set up to recommend gratuity payments befitting a former President. The Committee then made recommendations to Parliament in the Chinery Hesse Report which was subsequently approved by Parliament in accordance with the Article 71(2).
- So far, all that has been discussed is relevant to the "salaries and allowances payable, and the facilities available" to the President. Mr. Kufuor is no longer the President so how does this apply to him? With regards to Mr. Kufuor, the pertinent constitutional provision is Article 68; which I urge anyone reading this opinion to take a look at thoroughly. Article 68(3) reiterates the above analysis of Parliament's power to determine "salaries and allowances payable, and the facilities available" to the President.
- According to Article 68(4), on leaving office, the President shall receive a gratuity in addition to pension, equivalent to his salary and other allowances and facilities prescribed by Parliament in accordance with clause (3) of this article. Thus, Mr. Kufuor is entitled to the contents of the ex gratia package under this article. It is my opinion that this Article gives Mr. Kufuor a constitutional ground for instituting legal proceedings against the current administration for not honouring the contents of the Chinery Hesse Report thus far.
- There is an argument that the use of the words "payable" and "available" in Article 71(2) imply that the ex President has no right to the salaries, allowances and the facilities until the present administration decides to take steps with the view of honouring the contents of the ex gratia package. There is also the argument that Parliament has to determine when the ex gratia package will be available to the President. Both arguments, in my opinion are flawed and unconstitutional.
- The wording of Article 68(4) begins with "on leaving office" which simply refers to the day the incumbent President ceases to be the President. In this case, the Seventh day of January 2009 was the day Mr. Kufuor ceased to be President; as Prof. Mills was sworn in as the third President of the fourth Republic of Ghana that day. Mr. Kufuor has been entitled to the contents of the Chinery Hesse Report since then. I am unaware of any implementation date set by Parliament as to when the Chinery Hesse Report is to have legal effect. Nevertheless, if there was or is such a date, it will be inconsistent with Article 68(4) which entitles Mr. Kufuor to the contents of the Chinery Hesse Report "on leaving office".
- Article 68(8) states that "the salary, allowances, facilities and privileges of the President shall not be varied to his disadvantage while he holds office." Therefore, as Mr. Kufuor is no longer in office, the "salaries and allowances payable, facilities and privileges" can be varied to his disadvantage. However, Article 68(9) stipulates that "the pension payable to the President and the facilities available to him shall not be varied to his disadvantage during his lifetime." Thus, the contents of the Chinery Hesse Report can be varied; save for any pension payable to Mr. Kufuor and the facilities available to him cannot be varied to his disadvantage during his lifetime. Any attempt to do that will be inconsistent with the Constitution.
- In the process of writing this opinion, the Council of State was sworn in; and Prof. Mills immediately directed them to review and work on the Chinery Hesse report. The Council of State's role in the ex gratia package is to advise the President in appointing the five person committee which recommends the package to Parliament (See Art. 71(1)). Therefore, the Council of State does not have a constitutional basis to review or work on the Chinery Hesse report. Any such review or work is unconstitutional and ultra vires. Thus in my opinion, the direction is inconsistent with the 1992 Constitution.
- There is the argument that under Article 90(1), a bill which has been published in the Gazette or passed by Parliament shall be considered by the Council of State if the President so requests. In so far as this appears to be similar to Prof. Mills' direction above, it is not. Firstly, this provision does not relate to gratuity payments where the President and the Council of State are constitutionally barred from direct involvement in the determination of gratuity payments to the President. Secondly, once a bill receives assent, it becomes an Act and is subject to review by the Judiciary only (this is thoroughly elucidated hereinafter). In view of the foregoing, Article 90(1) does not validate Prof. Mills' direction.
The Suspension is inconsistent with the Concept of Separation of Powers
- A model well known and popular discussed in Constitutional Law is the concept of Separation of Powers. This model is often traced to Baron de Montesquieu, a French enlightened political philosopher. It simply requires powers of a State to be vested in three separate branches: the Legislature, the Executive and the Judiciary. The framers of the 1992 Constitution adopted this concept and entrenched it accordingly in Chapters 8, 10 and 11 of the 1992 Constitution. By so doing, each branch of the State acts as a check on the others; thus fulfilling the simultaneous concept of Checks and Balances. The legislature is responsible for enacting the laws of the State. The executive implements the laws passed by the legislature and the judiciary adjudicates by interpreting the enactment and implementation of the law.
- There are some situations where the responsibilities of the three branches overlap. The executive may legislate by enacting regulations or rules but can only do so if the legislature has permitted it to do by enacting an enabling or parent Act. The executive may also adjudicate when it sets up a board or commission to deal with the complaints of aggrieved persons. The judiciary legislates through case law and some members of the legislature are usually in the executive especially in the case of Ghana. I just needed to point that out before getting into the substance of the argument.
- Prof. Mills as the president is a member of the executive branch of the State. Thus his responsibilities are to govern Ghana by implementing the laws passed by parliament through his administration. He does not have the right to interpret the Constitution per se nor to legislate or pass laws. In responding to the public outcry, Prof. Mills suspended all and any payment of the ex gratia package to Mr. Kufuor. It may sound like the politically correct thing to do but my question is and has been throughout this opinion is whether it was legally correct for him to do that. In addition to suspending the payments, Mr. Mills announced that he will review the package. It can therefore be implied that this review will result in amendments to the package in order to appease the public who were appalled by the contents of the ex gratia package.
- Prof. Mills as the executive had no role in suspending a report approved by Parliament as by so doing, he was adjudicating by interpreting the law passed by the legislature. This is clearly inconsistent with the concept outlined above. What the new administration should have done and perhaps, should do is petition the Supreme Court to declare Parliament's approval of the package null and void. In my opinion, it would be difficult to prove that Parliament's approval was inconsistent with the constitution. As per arguments mentioned above, it is Parliament's constitutional role to approve recommendations by a committee set up to determine the President's salary.
- Also, he had no role in legislating which will be exactly what he will be doing if he attempts to amend the ex gratia package recommended by Parliament. It is probable that he will set up a committee to carry out this review and possible amendment. The position does not change if such is the case as the executive will still be legislating through the amendment. Alternatively, it can be argued that the amendments can be introduced in Parliament on behalf of the executive and this is constitutionally permitted (See Art. 108). However, this does not take care of the fact that suspending the package in the first place was inconsistent with the concept.
- Furthermore, Parliament is the only body that can change or repeal prior laws. It usually does this by passing new laws to expressly repeal the old one or expressly changing the old laws. Parliament must also legislate as permitted by the Constitution. Thus, Parliament cannot pass any law which is inconsistent with any Constitutional provisions. If Parliament passes a law that is inconsistent with the Constitution, the Supreme Court has the authority under the Constitution to declare such legislation unconstitutional and invalid. Accordingly, Parliament is the only body that can amend or repeal the ex gratia package in addition to being the only body under the 1992 Constitution that can determine the "salaries and allowances payable, and the facilities available" to the President (See Art. 71(2)).
- Another key issue worth noting is that once a Bill of Parliament goes through all stages and subsequently receives Assent, questions as to the process of its passage are irrelevant. In other words, where a Bill of Parliament becomes an Act of Parliament, questions such as how it was introduced in Parliament, the debates that took place or how it was analysed by a committee is irrelevant to the validity of that piece of legislation as an Act of Parliament. It can only be challenged as being inconsistent with the Constitution.
- It has been argued by some members of the public that because the recommendations were introduced rather late and received approval on 6th January 2009, it is invalid. It is also argued that the package cannot be held to be binding because MPs did not properly debate the contents of the recommendations. Taking into account the issue I have just explained, these arguments are irrelevant. As long as the recommendations were approved by a properly constituted Parliament which seemed to be the case here, questions to the validity of the package, in my opinion, are irrelevant.
- In my humble opinion, Prof. Mills acted ultra vires when he suspended all and any payment of gratuity to Mr. Kufuor. He had no constitutional basis for instituting such an action hence the suspension was and is unconstitutional. Prof. Mills exceeded his powers thereby subjecting the suspension to review by the Courts. As mentioned above, I wonder why Mr. Kufuor has not commenced legal proceedings to challenge the acts of Prof. Mills. As modest as he may be in thinking the package was and is unreasonable, there is a serious constitutional question that needs to be addressed.
- The President and for that matter the executive should know what it can and cannot do. They should not be allowed to take actions which are inconsistent with the constitution and beyond their powers. The citizens of Ghana were quick to cry foul when details of the ex gratia package were made public. Yet, they have ignored and failed to question the unconstitutional way Prof. Mills has handled the situation in relation to Mr. Kufuor's gratuity. The average Ghanaian could have challenged and can still challenge Prof. Mills' suspension of the ex gratia package in relation to Mr. Kufuor.
- All that needs to be done is for a citizen of Ghana to file a motion at the Supreme Court to challenge Prof. Mills' action on the grounds that his actions are ultra vires and unconstitutional. The Supreme Court shall have jurisdiction to hear the case because it involves the President of Ghana as a party in relation to issues of constitutionality (See Art. 130 (1) of the 1992 Constitution). Secondly, the average Ghanaian will have standing to file the motion by reason of being a citizen of Ghana. Thus, I hope the arguments I raised in this opinion will persuade any one of its readers to institute legal proceedings on the grounds echoed throughout this opinion.
Written and Edited by Kow A. Essuman Esq. LL.B. Hons, Barrister. All comments, corrections and contributions should be sent to email@example.com.
This opinion is based on the thoughts and observations of Kow A. Essuman Esq. LL.B. Hons, Barrister. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.