RICHARD OBENG MENSAH: 2018

Thursday 1 November 2018

THE GHANAIAN PARLIAMENT AND THE RIGHT TO INFORMATION BILL

THE GHANAIAN PARLIAMENT AND THE RIGHT TO INFORMATION BILL

RICHARD OBENG MENSAH*

“All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society” – Article 21(1) (f), 1992 Constitution.

The Fourth Republican 1992 Constitution of Ghana, and the Parliament established under it, is about 25 years old. The Constitution has vested the legislative power of Ghana in the Parliament of Ghana. This means that, except otherwise provided by the Constitution, only Parliament has the legal authority to enact laws or sanction other persons (natural and unnatural) to do so on its behalf within the limits of the Constitution. Although Parliament has immensely contributed to the growth and development of democracy and good governance in Ghana since 1993 when the Constitution came into effect, it continues to demonstrate lacklustre commitment towards the passage of the Right to Information Bill (RTI) Bill. The RTI Bill has been lying in the womb of Parliament for about 19 years. Does the Ghanaian Parliament need caesarean section to pass the Bill?

Article 21(1) (f) of the 1992 Constitution guarantees the right of all persons to information, subject to such qualifications and laws as are necessary in a democratic society. The RTI Bill mainly seeks to give flesh to the foregoing article by providing for access to official information held by public institutions[1] subject to public interests and freedom of others[2]. Right to information is central to active participation by all in the governance of Ghana.[3] This is because it only takes well informed people, who have access to relevant data or information, to contribute meaningfully to the good governance of their country.[4] Access to requisite data and information will, among others, reduce corruption and ensure truthfulness and transparency in governance.[5] It has been observed that the various bodies in Ghana’s criminal justice system have not shown enough commitment to prosecute corrupt public officials because the structure lacks transparency to fight corruption.[6]

Despite the foregoing benefits that Ghana stands to get from the passage of the RTI Bill, it has taken its Parliament more than 19 wanton years to pass the Bill into law. Parliament’s cold feet towards the passage of the Bill raises several legitimate questions about its focus and interests. Is it the case that Ghanaian political leaders are dreading the kind of public scrutiny that they might be subjected to when the Bill is passed into law? If that is the case then where lies their commitment towards transparency in government and the fight against corruption? Is it true that ‘Government will no longer have secrets if Parliament passes the RTI Bill into law’?[7] Honourable K.T Hammond, please what kind of government secrets are you talking about? A closer reading of articles 12(2) and 21(1) (f) of the 1992 Constitution and other relevant provisions reveal that right to information is not a blank cheque. Honourable Osei Kyei Mensah Bonsu, Majority Leader of Parliament, did you say that you do ‘not want Parliament pressured into passing the bill’? Please what else should Parliament expect if it still appears to be playing rhetoric with a bill that was drafted in 1999? Is pressure not necessary whenever persuasion fails? I believe the growing mounting pressure on Parliament is a good caesarean section Parliament requires to do the needful.

It is necessary to stress that Parliament of Ghana needs to place national interests above personal or political interests in its deals towards the passage of the RTI Bill into law. Ghanaians have since 1992 chosen to be ruled by law, not by political interests. Right to information is not a mere political promise nor a populist political propaganda; it is a constitutionally guaranteed right. There is everything wrong with the motives of any pregnant woman who refuses to give birth when her time is due. Even more so when she is resisting caesarean section.

*The writer is a certified life and leadership coach, a legal academic, and a prolific author of 7 books and over 200 articles. Blog: www.richard-obeng-mensah.blogspot.com Email:richardobengmensah@gmail.com

[1] Memorandum, Right to Information Bill 2018, 1.

[2] Right to Information Bill 2018, 2,

[3] Ibid, n 1.

[4] Ibid n 1.

[5] Ibid n 1.

[6] Akoto Ampaw, “Not Enough Commitment Shown in Corruption Fight”, Ghanaweb

https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Not-enough-commitment-shown-in-corruption-fight-Akoto-Ampaw-697078 (Accessed: 1 November 2018).

[7] K. T. Hammond, “Gov’t will no longer have secrets if we pass RTI Bill”, Joy Online

https://www.myjoyonline.com/politics/2018/November-1st/govt-will-no-longer-have-secrets-if-we-pass-rti-bill-kt-hammond.php (Accessed: 1 November 2018).

Saturday 27 October 2018

EULOGY IN MEMORY OF THE LATE DR SETH YEBOA BIMPONG-BUTA

EULOGY IN MEMORY OF THE LATE DR SETH YEBOA BIMPONG-BUTA

Richard Obeng Mensah

On 4^th June 1940 you were born into this beautiful world;

Ghana was not only blessed to welcome you at your birth but also to witness your nurturing, growth and monumental contribution to its development, and that of Africa and the world.

Dr. S. Y Bimpong-Buta, you were more than a genius;

you were called into the Ghana Bar and the Bar of England and Wales in 1967 and 1987 respectively; in 2005 you obtained your PhD in Law from the University of South Africa; you served as the Director of Legal Education/Director of the Ghana School of Law for about 12 years; you also served the Council of Law Reporting and the Ghana Legal Aid Board for 20 years and 3 years respectively. You also served on several statutory bodies such as the General Legal Council.

You were a light to legal education and constitutional jurisprudence in Ghana and within the Commonwealth; thank you for immensely contributing to Continuing Legal Education in Ghana. Beyond being the Editor/Publisher of eleven volumes of the Supreme Court of Ghana Law Reports from 1996 to 2010, and a Consulting Editor/Editor-in-Chief of subsequent volumes; you published 6 books in Ghana. Gambia is blessed to be a beneficiary of your prowess and acumen in law reporting. Of your chain of publications in law journals and conference papers; Australia, Jamaica, Kenya, Malaysia, Nigeria, South Africa, Sri Lanka, Gambia, United Kingdom and the United States of America are proud of your positive role in the conferences you attended on their lands. Nigeria and South Africa are particularly grateful for your visiting lectures; the General Council of the Ghana Bar Association was right in elevating you to the status of Senior Advocate of Ghana; your life was decorated with numerous awards and certificates by several local and international reputable bodies in acknowledgment of your great works. No wonder you were elected to a Fellow of Ghana Academy of Arts and Sciences.

You were a great father and mentor to me; I used to know you from books but sometime in 2010 God caused our paths to cross by courtesy of National Union of Ghana Students and Africa Leadership Initiatives’ ALIncubator; our last interactions at your residence in February 2018 are still fresh in my mind; I still remember that evening when I escorted you to buy LPG gas for your family; despite your numerous commitments, you made time for your family, protégés and God. I admire your beautiful humility, you were so approachable and down-to-earth; you were generous to many, the Supreme Court Law Reports and the books you gifted to me attest to your generosity; you were frank in words and deeds; your counsel were always spot-on and devoid of pretence; you were God-fearing and always sought to correct the wrong irrespective of the opposition.

Why have you left us at the time we needed you most?

When I heard of your death on 24^th August 2018, it sounded like an expensive joke but it turned out to be a painful truth; Your Maker had permitted it to be so although your loved ones count it as a great lost to humanity; we are proud of your great legacy which are worth emulating; as you have been laid to rest today (27^th October 2018), may the faithful God remember your good works and generosity. May you enter His rest.

The writer is a certified life and leadership coach, a legal academic and a prolific author of 7 books and over 200 articles. Blog: www.richard-obeng-mensah.blogspot.com Email: richardobengmensah@gmail.com.

Thursday 9 August 2018

LACK OF DUE DILIGENCE IN ENERGY DEALS IN GHANA AND ITS IMPLICATIONS ON ‘DUMSOR’

LACK OF DUE DILIGENCE IN ENERGY DEALS IN GHANA AND ITS

IMPLICATIONS ON ‘DUMSOR’

RICHARD OBENG MENSAH*

President Akufo-Addo on 6^th August 2018 relieved his Minister of Energy, Mr. Boakye Agyarko, of his position. Although the Communication Directorate of the Government did not assign any specific reason to Mr. Agyarko’s immediate sacking, the dismissal is certainly connected to the controversial renegotiated AMERI deal. Some experts and stakeholders in the energy industry have hailed the president’s decision and are calling for further show down in the Ministry of Energy, including possible dismissal of the three Deputy Ministers of Energy.[1] The former minister and his team reviewed and renamed the $510 million 2015 AMERI deal as the Novated and Amended AMERI deal. The Akufo-Addo government promised to review the original deal which was entered into by the Mahama administration in 2015 because it was allegedly over-priced by $150 million. For Emmanuel Kuyole, Executive Director for the Centre for Extractives and Development Africa (CEDA), “the restructuring of the arrangement was riddled with errors”.[2] The botched reviewed AMERI deal which has undoubtedly brought a lot of embarrassment on the people and Government of Ghana, caused the latter to withdraw it from Parliament. Nevertheless, the lack of due diligence in relation to the AMERI saga has wide implications on reliable electricity supply in Ghana.

The AMERI saga once again raises questions about lack of due diligence on the part of some African leaders in relation to international energy agreements. The relevant case that comes to mind is the Attorney-General v Faroe Atlantic Co. Ltd[3]. The facts of the Faroe Case are that on 24th July 1998, the plaintiffs-respondents (Faroe Atlantic Co. Ltd) entered into a Power Purchase Agreement (PPA) with the Government of Ghana for the purchase of electric power.[4] The plaintiffs alleged a breach of the agreement and sued the Attorney-General, representing the Government of Ghana, in the High Court, Accra and claimed specific performance or in the alternative damages for breach of contract. The plaintiffs on 8th September 1998 applied for summary judgement and the trial High Court entered final judgement against the defendant for the reliefs endorsed on the writ of summons. The defendant did not appeal against the judgement. The trial High Court on 18th September 2001, subsequent to a motion filed by the plaintiffs on 8th September 1998 to enforce the summary judgment, gave judgment to the plaintiffs in the sum of US$6,298,354 as damages plus interest and an assessed damage of ¢100,000,000.[5] The trial court also ordered the plaintiffs to refund an advance payment of US$855,000 paid by the Government of Ghana under the agreement.

The defendant appealed to the Court of Appeal but the appeal was dismissed. The Court of Appeal affirmed the trial court’s decision to hear the evidence on damages and confirmed the award of damages.[6] The defendant on 23rd September 2003 appealed to the Supreme Court and questioned the legality of the summary judgement entered against it and the subsequent damages founded on the summary judgment.[7] Counsel for the defendant argued that the PPA, although validly concluded, was void for non-compliance with article 181of the 1992 Constitution. The Court unanimously allowed the appeal and held that the contract was unconstitutional and void for non-compliance with article 181 which requires the Government of Ghana to lay before Parliament all international business loan agreements of which the Government is a party.

Likewise the ranging AMERI saga, the conduct of the Government of Ghana in the Faroe case has adverse implications on private investment in Ghana’s power sector and power crisis (‘dumsor’) in the country. The Government’s lack of due diligence, culminating in its failure to comply with the requirements of article 181(1)-(2) in the Faroe case, wrongfully postulates that a private investor in Ghana’s power sector risks losing his investment if the Government fails to exhaust all processes necessary to constitutionally validate an agreement under article 181(5). In addition to the lack of due diligence, the Faroe case took seven years to decide; from the filing of the writ in the High Court to the determination of the appeal by the Supreme Court. The case unnecessarily suffered series of adjournments at the High Court.[8] The needless delay, coupled with the Government’s lack of due diligence and the oxymoronic decision of the Supreme Court, do not enhance investor confidence in Ghana’s power sector.

Ghana has had five major power crises since 1984[9] despite several reforms in its power sector.[10] Ghana is among the top 10 countries in the world that have experienced and continue to experience crippling load shedding.[11] One of the root causes of this trend in Ghana is the failure to invest in the power sector;[12] more particularly investment in electricity infrastructure.[13] Ghana’s inadequate power supply infrastructure is also due to failure to sustain power sector investment programmes.[14] Sub-Saharan Africa’s energy use has risen by 45% since 2000 due to rapid economic growth.[15] Many of its governments have thus intensified their efforts to tackle the numerous regulatory and political barriers that hold back investment in domestic energy supply.[16] An estimated US$40.8 billion a year in investments is needed for Africa’s power sector and the private sector is expected to play a significant role in closing the demand-resources gap by providing funds and expertise.[17] Ghana’s total capital investment is estimated at US$4.3-5.4 billion for the period 2006-2020 with investment in its electricity subsector taking over 70% of the total amount.[18] However, regulatory impediments and risks, among other factors, impede private investment in energy infrastructure in most developing African countries such as Ghana.[19] Ghana should thus hasten slowly and carefully with the botched AMERI deal to enhance private-investor confidence in the power sector.

[1] Zaina Adamu, “Ex-Energy Ministers deal was ‘simply wrong’ – experts” https://www.myjoyonline.com/business/2018/August-8th/ex-energy-ministers-deal-was-simply-wrong-experts.php. Accessed 8 August 2018.

[2] Ibid

[3] Attorney-General v Faroe Atlantic Co Ltd [2005] Supreme Court Appeal No J4/22/2004, [2005-2006] SCGLR 271.

[4] A-G v Faroe Atlantic Co Ltd (n 3) 273.

[5] ibid, 274.

[6] ibid.

[7] ibid, 275.

[8] A-G v Faroe Atlantic Co Ltd (n 1), 283.

[9] Paul Adjei Kwakwa, ‘Energy-Growth Nexus and Energy Demand in Ghana: A Review of Empirical Studies’ (2014) 1 Applied Research Journal 28.

[10] Ishmael Edjekumhene, Martin Bawa Amadu, Abeeku Brew-Hammond, ‘Power Sector Reform in Ghana: The Untold Story’ <http://www.wri.org/sites/default/files/powerpolitics_ghana.pdf> accessed 13 June 2016.

[11] Louis Schoeman, ‘Top 10 Countries That Have Experienced and Continue to Experienced Crippling Load Shedding’ (Power Plant, 15 May 2015) <ww.powerplanet.co.za/blog/top-10-countries-that-have-experienced-and-continue-to-experience-crippling-load-shedding> accessed 5 March 2016.

[12] Joseph Kapika and Anton Eberhard, Power-Sector Reform and Regulation in Africa: Lessons from Kenya, Tanzania, Uganda, Zambia, Namibia and Ghana (HSRC Press 2013).

[13] International Monetary Fund, ‘Regional Economic Outlook: Sub-Saharan Africa’ <https://www.imf.org/external/pubs/ft/reo/2008/AFR/eng/sreo0408.pdf> accessed 2 June 2016.

[14] Ministry of Energy (Ghana), ‘Energy Sector Strategy and Development Plan 2010’ <http://ghanaoilwatch.org/images/laws/energy_strategy.pdf> accessed 15 February 2016.

[15] International Energy Agency (IEA), ‘Africa Energy Outlook: A Focus on Energy Prospects in Sub-Saharan Africa’ <https://www.iea.org/publications/freepublications/publication/WEO2014_AfricaEnergyOutlook.pdf> accessed 15 February 2016.

[16] Ibid.

[17]Dambudzo Muzenda, ‘Increasing Private Investment in African Energy Infrastructure’ <http://www.oecd.org/investment/investmentfordevelopment/43966848.pdf> accessed 4 June 2016.

[18] ‘Strategic National Energy Plan 2006-2020’ (Energy Commission (Ghana) 2006) Main Report.

[19] Dambudzo Muzenda (n 17).

Friday 3 August 2018

THE FREE SHS AND DOUBLE TRACK SYSTEM IN GHANA: A RUSHING AFTERTHOUGHT?

THE FREE SHS AND DOUBLE TRACK SYSTEM IN GHANA: A RUSHING AFTERTHOUGHT?

RICHARD OBENG MENSAH*

“All persons shall have the right to equal educational opportunities and facilities

and with a view to achieving the full realization of that right— (a) basic education

shall be free, compulsory and available to all; (b) secondary education in its different

forms, including technical and vocational education, shall be made generally available

and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education; (c) higher education shall be made equally accessible to

all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education; (d) functional literacy shall be encouraged or intensified as far as possible; (e) the development of a system of schools with adequate facilities at all levels shall be actively pursued.”

- Article 25 (1), 1992 Constitution, Ghana (Emphasis is mine).

Articles 25 and 38 of the 1992 Constitution of Ghana (with amendments through 1996) guarantee right to equal educational opportunities and facilities to all persons in Ghana. A closer study of the relevant provisions of the Constitution, especially articles 25, 34(2) and 38, reveals that the drafters of the Constitution tacitly acknowledged that provision of adequate educational facilities is central to enjoyment of a person’s educational rights and implementation of progressive introduction of free education at either the secondary (in its different forms) or higher levels of education or both. Articles 25(1)(e), 34(2) and 38(1) of the 1992 Constitution, for example, enjoin the Government to among other things actively pursue development of adequate facilities at all levels of education to enhance introduction of any free education policy. Although article 38(2) of the Constitution, oblige the Government to, “within two years after Parliament first meets after the coming into force of this Constitution, draw up a programme for implementation within the following ten years, for the provision of free, compulsory and universal basic education” same is yet to be realized in its proper form.

It is a sad commentary that although the 1992 is currently about 25 years old, Ghana is yet to boast of easy access to free and quality education at all levels of education by its citizenry despite enviable natural and human resources at her disposal. The despicable state of affairs is due to failure of successive Governments to prioritize pursuance of development of adequate educational facilities to enhance implementation of progressive introduction of free education at the secondary and higher levels of education. Besides, parochial partisan activism by ruling political parties in Ghana since 1992 has clouded the vision of the various successive Governments to give the needed attention to formulation and implementation of holistic national education policies devoid of scoring cheap political points. Instead of treating education as a national issue with national interests at the centre of implementation of holistic, sustainable and prudent educational policies; successive Governments have resorted to adopting piecemeal approach to addressing challenges militating against the realization of easy access to free and quality education at the secondary and tertiary levels of education in Ghana. From abandoned educational projects to change in duration of secondary education or change in name of secondary education, successive Governments continue to tackle challenges in the education sector with single political eye in the name of fulfilling their political promises. For instance, while the erstwhile NDC administration introduced and implemented free education policy for senior high school day students and sought to construct more educational facilities to enhance secondary education; the present NPP administration has since the 2017/2018 academic year been implementing free education policy for all new entrants at all public Senior High Schools (SHSs).

The present regime also seeks to implement a Double Track Policy in the 2018/2019 academic year to primarily deal with overcrowding at the various public senior high school campuses due to the introduction of the free secondary education policy. Under the proposed Double Track System, beneficiaries of the free secondary education policy will be in school under different track systems at different times except in few occasions where both tracks will run concurrently. The Double Track System has been designed to have a 7-year life span to enable the Government deal with infrastructural challenges within the period. The current NPP administration has vowed to implement the proposed Double Track System despite various concerns raised by different stakeholders. The concerns raised include the need for wider consultation to ensure a well-thought-out and sustainable policy, consideration of other policy alternatives and modification of the free senior high school policy. The Government seems to demonize and ignore any concern that does not conform to the proposed Double Track System in its present form and has mounted an impregnable defence against all diverging views, whether or not those views are legitimate and worth considering.

There is no gainsaying the fact that any holistic and well-thought-out free education policy will be a great asset to Ghana. Beyond improving the quality of her human resources; Ghana stands to eventually escape the occurrence of the Resource Curse Theory (which posits that resource-rich nations ultimately turn out to be poorer) in the country through a holistic and sustainable free education policy. However, the posture of the present regime in relation to the implementation of its flagship free secondary education policy is quite worrying and may erode possible gains Ghana stands to get from the policy if it is treated or implemented as a political project. The proposed Double Track System indubitably cannot be a one-stop solution to the overcrowding challenge bedevilling the free secondary education policy. Even if the Government considers it to be the best way to go; its implementation should not be rushed! Rather the Government should be opened to divergent views to garner sustainability of the free secondary education policy. It needs to be emphasised that introduction of free education in Ghana is a national aspiration. It is not a brainchild of any political party.