Monday, 29 March 2010

The Financial Services Authority v Amro International and Goodman Jones LLP (interested party)

Sunday, 14 March 2010

The independence of Ghana: The truncated African vision and the way forward – By Kwame E. Bidi

After several years of independence struggle, Nkrumah and the people of Ghana, with support from fellow Africans, home and abroad, succeeded finally in liberating Ghana from colonial shackles - at least politically. That happened on 6 March 1957.

There was the need, however, for the sustainable economic liberation of Ghanaians. That way, their political independence would be rendered more meaningful.

As every economist would agree, Nkrumah saw Ghana, a nation with a little over six million people at the time, as economically unviable, as it could not possibly benefit from the kind of economies of scale needed to survive and compete fairly on the international market.

Naturally, he sought to help Africa decolonize, using every means possible, so that through their collective power as a giant nation- the Nation of Africa- they would pool their resources together and become competitive economically; have a voice on the international stage, and collectively push for the interest of Africa.

The West, however, realized that, United Africa, with a socialist development agenda, together with its natural resources was a threat to its quest to world dominance. Besides, Africa might drift towards the Soviet bloc and pose a mortal threat to capitalism. To avert that potential fate, the West reasoned that the overthrow of Nkrumah would mean a defeat to the prospect of a united Africa. Because they could no longer colonize Africa, they sought to balkanize it.

As per the normal operation, the CIA masterminded his overthrow eventually, using local political opponents and the military (the recent declassified CIA files say it all: The government that took over was a natural puppet of the West – with capitalist leanings.

To justify the coup, the West allegedly sponsored a conspiracy with local politicians to brainwash Ghanaians. School curricula were altered to indoctrinate students against Nkrumah and the Pan-African consciousness.

With support from the West, the local politicians altered the history of Ghana to satisfy their political and ideological whims. The past and current generation of Ghanaians, including you and me, unfortunately, are victims of this conspiracy.

This explains why Nkrumah’s recognition as Africa’s Man of the Millennium, yielded to the astonishment of many Ghanaians; young and old, lettered and the unlettered.

By that singular feat, the prospect of African unity, together with its collective development was truncated. African leaders, who would not yield to the West and thus allow exploitation to continue in their countries, became targets. Many, including Patrick Lumumba of Congo, were assassinated - (

Today many African youth are coming back to the realization that the only true way to real African economic and political emancipation, rests in a United States of Africa.

With a common market, common currency and a continental bank, Africa would no longer need the poisonous IMF loans with its structural adjustment rhetoric to extract its own resources.

The current situation where Ghanaians stand to gain only 10% (one billion annually) of their oil revenue, while close to 90% of the dividend is repatriated outside its shores to ‘develop’ the already developed countries is a living testimony to the neo-colonial trap that Nkrumah foresaw. The case is no different from Nigeria, Congo, Zimbabwe, Namibia and SA among others.

It is my conviction that until Ghana and Africa reconcile with the inevitable reality that our true and sustainable economic and political development reside in our UNITY, the West with its agents- the IMF/World Bank, Transnational Corporations - would continue to buy our leaders with our own money and use them as instruments to further rob us!

The recent underhand Vodafone deal and the Mabey & Johnson saga in Ghana are living attestations to this inconvenient realism.

Let us resurrect our African consciousness and find African solutions to African challenges. If our leaders have traded our destiny, let us refuse to repeat it when the leadership mantle of Africa falls on us.

When this generation of Ghanaians and Africans rise to that level of conscious awareness, the independence declaration of 1957 would become ever meaningful.

Wednesday, 10 March 2010

Big Money Returns to American Politics: Citizens United v. Federal Election Commission


Before the Citizens United case, certain types of nonprofit organizations were able to pump millions of dollars into "electioneering communications" (highly pointed commercials about political issues that can even mention specific candidates) without revealing their donors.

For the first time, though, as a result of the ruling, corporations will be able to spend unlimited amounts of money on advertisements expressly advocating for a candidate's election or defeat. The ruling also clears the way, for the first time, for corporations to donate money to nonprofit groups that place advocacy advertisements.

A 1986 Supreme Court decision, Federal Election Commission v. Massachusetts Citizens for Life, opened the way for certain narrowly-defined nonprofit groups to advertise for and against political candidates. However, the 1986 decision forbade corporations and unions to give money to nonprofit organizations that financed advocacy advertisements. The Citizens United decision lifts that ban.

Summary of the facts and arguments

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative ninety-minute documentary entitled Hillary: The Movie ("The Movie"). This documentary covered Hillary Clinton's record while in the Senate, the White House as First Lady and during her bid for presidential Democratic nominee, and contains express opinions about whether she would be a good choice for President. However, The Movie fell within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")-a federal enactment designed to prevent "big money" from unfairly influencing federal elections-which, among other things, prohibits corporate financing of "electioneering communications" and imposes mandatory disclosure and disclaimer requirements on such communications.

Citizens United's sought a motion for a preliminary injunction to enjoin the Federal Election Commission ("FEC") from enforcing these provisions of the BCRA against Citizens United in the District Court for the District of Columbia. The questions the Supreme Court decided were (1) whether BCRA's disclosure requirements imposed on "electioneering communications" were to be upheld against all as-applied challenges' (2) whether BCRA's disclosure requirements were overly burdensome and fail a strict scrutiny test as-applied to The Movie; (3) whether The Movie was a "clear plea for action to vote," subjecting it to the "electioneering communications" corporate prohibition; and (4) whether The Movie constituted an advertisement, making it subject to the BCRA's disclosure and disclaimer regulations.

BCRA is a federal enactment designed to restrict "big money" from unfairly influencing national politics by regulating "electioneering communications." It defines "electioneering communications" as any cable or satellite broadcast made within sixty days before a general election or thirty days before a primary election, and which "refers to a clearly identified candidate for Federal office." See 2 U.S.C. 434(f)(3)(A). Citizens conceded that its planned advertisements and VOD broadcast of The Movie fell within this definition of "electioneering communications," making them subject to three relevant restrictions under BCRA. Firstly, BCRA § 203 prohibited Citizens from using its corporate funds to broadcast "electioneering communications" in order to advocate how a viewer should vote. See 2 U.S.C. 441b(b)(2) and (b)(4)(A). Secondly, if Citizens passed the first requirement, BCRA § 201 required Citizens to disclose the identities of anybody who contributed more than $1,000 dollars towards the production of The MovieSee 2 U.S.C. 434(f)(1), 2(F); see also 11 C.F.R. 104.20(c)(9). Thirdly, BCRA § 311 required Citizens to display for at least four seconds a written disclaimer in its advertisements stating that it is responsible for the contents. See 2 U.S.C. 441d(d)(2).

Citizens argued that a financing restriction on the film violates free speech and therefore was subject to strict scrutiny, which required that the restriction further a compelling interest and be narrowly tailored to meet that interest. Citizens contended that the FEC's anti-corruption interest was not compelling in the case of feature length films that were distributed on demand and privately financed by individuals. According to Citizens, anti-corruption is only a concern when the financial support is being given in exchange for political favors and consequently undermining the integrity of democracy.  Further, viewers of Videos On Demand ("VOD") films have opted to receive the information on purpose, unlike viewers of television or radio ads, and are therefore far less vulnerable to influence or corruption.  Finally, Citizens pointed out that the FEC's disparate treatment of VOD (but not DVDs) as potentially corrupt, casts serious doubt that there is a genuine state interest in preventing communication.

The FEC, on the other hand, argued that by seeking to distribute content via VOD rather than through television or radio, Citizens was trying to create its own special exception to the BCRA restrictions. According to the FEC, just because the film was not being broadcast to all viewers the same way that a television or radio ad would and rather reached only those who chose to view it, did not mean that those viewers had already made up their minds and will not be influenced by it. The FEC pointed out that even if the film merely motivated prior Hillary supporters to be more active, that effect would be enough to justify the restriction. The FEC argued that while section 203 of the BCRA extended the express advocacy restriction to certain types of media and did not explicitly include VOD, it did not grant an exemption to those media types.

Citizens argued that the disclosure requirements violated the First Amendment when applied in this case because they furthered no important government interest. According to Citizens, strict scrutiny must be applied since the disclosure requirements would force speech; however, strict scrutiny subsequently fails because there is no compelling interest. Citizens further argued that even if exacting scrutiny is used, the result would be the same. Citizens argued that the FEC's argument that the disclosure is necessary to help the audience assess the credibility of the ad did not make sense because viewers are smart enough to know to discount the message if they are unsure of its producer. Also, Citizens pointed out that even if there was some government interest, it would be outweighed by the burden that the requirements place on Citizens. Citizens feared that the requirements would turn viewers off to the film by making it seem less like a documentary and more like a piece of propaganda, and that it would hinder their ability to make future expressions because the requirements would chill donations. Citizens stressed that BCRA's disclosure requirements, like the financial restrictions, are only to be applied to express advocacy, and therefore do not extend to this communication since viewers do not need to be protected from misinformation. 

In contrast, the FEC stressed that disclosure requirements were subject to exacting scrutiny rather than strict scrutiny, which meant that the restrictions must bear a substantial relation to a sufficiently important interest. According to the FEC, the interests served by the disclosure requirements here were transparency and monitoring and so must extend to all electioneering communication, and not just to those deemed to be the functional equivalent of express advocacy. The FEC pointed to McConnell, which held that disclosure requirements could be applied to all election communications even though financing restrictions could not. The FEC stressed that in order for the public to make fully informed choices, the voter needed to know the source of any information perceived to be in connection with the election in order to properly assess its credibility. Finally, the FEC argued that while in some cases the burden of the disclosure requirements could outweigh the government's interest, here this was not the case because there was no showing that the disclosure would "subject identified persons to 'threats, harassment, and reprisals.'"  Moreover, the FEC contended, Citizens offered no evidence to support its arguments that the restrictions would hinder its ability to communicate, and that the disclosure was so far removed that it probably would not affect donations. 

What the decision means

Experts say the ruling, along with a pair of earlier Supreme Court cases, makes it possible for corporations and unions to donate anonymously to nonprofit civic leagues and trade associations. The groups can then use the money to finance the types of political advertisements that were at the heart of last month's ruling, in Citizens United v. Federal Election Commission. That means that those nonprofit groups, which are not required to disclose their donors, can now use corporate contributions to buy political commercials, and the corporations can potentially operate behind the anonymity of their donations.

While the decision allows corporations to spend without limit on advertising for or against candidates, if they do so directly, they will have to report their expenditures and identify their donors. Corporations are often loath to have their names attached to such advertisements. Therefore, nonprofit groups, with their legal ability to withhold donors' names, offer an attractive alternative.

Election commission rules require that organizations and individuals placing advocacy advertising or electioneering communications report their expenditures and identify donors who gave them money for those purposes. Many nonprofit groups, however, have taken the position that their donors and dues-paying members did not give them money specifically for political uses. Therefore, the groups have maintained, they are not obligated to name contributors.

Criticisms and proposals

During the 2010 State of the Union Address, President Barack Obama condemned the decision stating that, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Democratic Congressional leaders called the loophole dangerous, and they have proposed legislation that would require nonprofit groups to identify publicly the sources of financing for their political advertisements. Among provisions in a bill proposed in February, is a requirement that nonprofit groups engaging in political advertising set up accounts specifically for that purpose. The bill would require that the nonprofit organizations identify people and groups who contribute directly to those accounts, or whose dues or other donations are transferred from other accounts into the political accounts.

The bill would also require organizations that raise outside money for political advertisements to list their top five contributors at the end of a commercial. In addition, an advertisement would have to display a statement from its No. 1 donor accepting responsibility for its content. The bill would prohibit companies that received federal bailout money — as well as companies that hold federal contracts and companies that are more than 20 percent owned by foreign entities — from making political expenditures. It would also bar a company from doing so if a majority of its board consists of foreign principals, or if its operations in the United States or its political decision-making is controlled by a foreign entity.

Saturday, 6 March 2010

The Independence of Ghana Is Still Meaningless Unless...

On the eve of independence, some 53 years ago, Dr. Nkrumah made one of the most inspirational speeches known in African and World politics. The speech is usually remembered for 'the often referred to' statement, "the independence of Ghana is meaningless unless it is linked up to the total liberation of Africa". This statement was true and relevant at the time it was made and is even more relevant in modern times albeit in a different context. Nkrumah had a blueprint for a united Africa and took steps to ensure that the foregoing statement became a reality. Although some of the steps he took towards achieving a united Africa were criticised, the man went to the extent of getting married to a non Ghanaian to demonstrate his commitment to this cause. I strongly believe when Nkrumah made that statement he was referring to the political and economic independence of Africa.

All African countries are now rid of their respective colonial masters with Africans controlling and governing the affairs of African countries. This was only a step in Nkrumah's blueprint. The man wanted more than that. Political instability continues to trouble African countries. And it is understandable why that is so (at least in some cases). Tribalism plays a critical and very sensitive role in African politics. There are all sorts of power sharing agreements across the continent for various reasons. I am sure this was not the political independence Nkrumah visualised. However, all has not been lost. Some African countries have been able to build a political system that actually works. Botswana is a very good example but Ghana is a better example. Of course it is. If it was not, Obama would not have visited and praised Ghana's good governance.

However, I am almost certain Nkrumah's vision will not be realised any time soon because many African countries – if not all – are not economically independent. We depend on foreign aid and loans from developed countries and international financial institutions. More often than not, we are not in a position to negotiate the terms of these loan agreements and sign these agreements with absolute disregard for the long term effects on our development. Ghana is no exception.

In the past year, I have come across many ambitious young men who have expressed an interest in running for the office of president of Ghana. First of all, it is a good thing to know the youth is interested in the politics of their country. Secondly, it is an even better thing to know they all have development of the Ghana as an agenda. As I spoke with these ambitious young men, I realised they all had brilliant policies and ideas; that when implemented accordingly, will definitely move the country forward economically and politically.

My only problem with the policies and ideas these ambitious young men spoke of was that the policies and ideas were only with concerned the development of Ghana. This brings me back to the title of this short note – the independence of Ghana is still meaningless unless... Personally, I do not think a united Africa can be achieved. The continent is too large to make that a reality. Nonetheless, a strongly integrated region is not farfetched. If Ghana manages to become economically independent leaving its neighbours and fellow members of ECOWAS behind, a situation will be created whereby citizens of other ECOWAS countries will end up in Ghana seeking greener pastures. A burden will then be placed on the Ghanaian economy to the detriment of Ghanaians. Moreover, if any of the ECOWAS countries encounter severe political instability; their citizens will seek refuge in a politically stable Ghana – again, placing a burden on the Ghanaian economy.

I am not saying we should focus on integrating the region and concentrate less on our own development. Instead, the development of the region should be incidental to the development of Ghana. After all, we have nothing to lose if that happens. A strong regional body – similar to the EU – puts both the region and countries within the region at par when negotiating trade agreements and economic policies with the rest of the world. The concerns of the members of the region and the region as a whole will not only be heard but also taken into account. So on this 53rd Independence Day of Ghana, I reiterate Dr. Nkrumah's statement with a slight modification – "the independence of Ghana is meaningless unless it is linked up to the total economic liberation of West Africa".

Happy Independence!!!


Written and Edited by:

Kow A. Essuman Esq.

LL.B. Hons (Westminster), PgDip (BPP), LL.M. (Cornell)

Barrister-at-Law (Lincoln's Inn)

Attorney and Counselor-at-Law (New York)



All comments, corrections and contributions should be sent to


This note is based on the thoughts, observations and opinions 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.

Wednesday, 3 March 2010

The Apple - HTC Beef

This brand new beef in the tech world promises to be one of the biggest ever if not the biggest. I woke up to the news that Steve Jobs, the C.E.O. of Apple, had expressed some concerns over HTC's recent products. His concerns in summary were that, though he appreciated competition, HTC was infringing on Apple's patents. His concerns have been translated into complaints filed with the US International Trade Commission and a district court in Delaware. You may wonder why Apple, a California company, will file a complaint in Delaware. Well, Delaware is like the Silicon Valley of the corporate world and all the big corporate wars are fought there. Again, which is why I am positive this beef promises to be one of biggest if not the biggest. 

So why am I interested in this beef? Well, I'll give you two reasons. Firstly, besides being an international lawyer with expertise in commercial litigation, I come from a generation where the average person owns an mp3 player and a smart phone. In my case, it gets more interesting because my smart phone is manufactured by HTC (HTC HD2) and my mp3 player is manufactured by Apple (Ipod). Secondly, you rarely hear Apple complain that its patents have been infringed on (at least in recent times). The headlines always read Apple is being sued for some patent infringement. I'll give you a few examples. At the moment, Apple is defending a suit brought by Fujitsu with regard to Apple's just launched iPad. Apple is also battling Nokia in the courts over touch screen patent infringement. Also, a few years back when the iPhone was released by Apple, it had to settle out of court with Siemens for patent infringement.

So what does Steve Jobs and Apple hope to achieve with this lawsuit? An injunction preventing HTC's infringing products from the US market. For readers who don't know, HTC is manufactured in Taiwan. So should Apple succeed in obtaining this injunction, HTC's market outside the US will not be affected. But will this happen, is the question on the minds of all commercial litigators? The stakeholders of HTC are key players in the tech world: Microsoft Windows Mobile, Google Android, Google and T-Mobile.

Again, I reiterate that this will be one of the biggest if not biggest beef in the tech world. Watch this space!

Written & Edited by

Kow A. Essuman Esq.
LL.B. Hons (Westminster); PgDip (BPP); LL.M. (Cornell).
Barrister-at-Law (Lincoln's Inn); Attorney & Counselor-at-Law (New York).

Sent from my HTC HD2 device.

Monday, 1 March 2010

My People And Reductions...

As I sat in the partner's office listening to this couple explain their nightmare to the partner, all I could think of was, "why didn't you instruct a lawyer in the first place?". Only one answer made sense - "We're Ghanaian and we would rather do it ourselves than to pay a fellow Ghanaian to assist us". Interesting is what I thought.

After they had told the partner the entire story, it was agreed that an appeal will be lodged or a re-application. I was then asked by the partner to look at the file and the supporting evidence carefully to see if any action we take will be supported by law. Before the couple left, they offered to give me something small in cash or kind but I declined.

I spent the afternoon reviewing the documents they had submitted and realised that there was a problem. I looked up the law and found a solution. I discussed this solution with the partner who had no idea that this solution existed. He agreed and encouraged me to proceed in that direction. I telephoned the couple and arranged a meeting for the following day.

They turned up late as I expected after telephoning several times that they were on their way. As they sat before me listening to how I intended to proceed with their issue, all I could think about was discussing my fees. Eventually, the opportunity arose and I told them what I would charge. I spelt out my fees boldly and with a straight face. They nodded in agreement. I thought to myself 'whew, that was easy'. But boy was I wrong.

Happy that they were willing to pay me to carry out the service, I continued to advise them regarding their matter and the new application I intended to make on their behalf. As I explained that I would require at least half of my fees before I did any work, the wife said with a smile and in a Ghanaian language, 'brother, we beg you, reduce your fees for us'. Immediately she said that, the husband followed suit and included 'I wanted to ask you to reduce it but I couldn't'. I smiled nicely and said 'I would if I could but my hands are tired because it is the firm's policy. If they wanted any reduction, they would have to speak to the partner.' 

I told them I would get in touch and once my fees had been partly paid, I would commence work. In the mean time, I asked them to bring me further evidence.

Written & Edited by

Kow A. Essuman Esq.
LL.B. Hons (Westminster); PgDip (BPP); LL.M. (Cornell).
Barrister-at-Law (Lincoln's Inn); Attorney & Counselor-at-Law (New York).

Sent from my HTC HD2 device.