MASS FAILURE AT GHANA SCHOOL OF LAW – WHOSE FAILURE?

MASS FAILURE AT GHANA SCHOOL OF LAW – WHOSE FAILURE?

‘All persons shall have the right to equal educational opportunities and facilities...’

-Article 25(1) of the 1992 Constitution of Ghana.

This world began with just one person, called Adam. Later his Maker realized it was not good for him to live alone. So Eve was also created to help Adam administer the world. Today, about 7.5 billion people have been added to assist in the prudent and efficient administration of this world.

Yet there is a school of thought in Ghana’s legal fraternity that still opines that what was done by ‘5 people’ in 1960 in Ghana can be done by ‘9 people’ in 2019. Because of this the mass failures of candidates at Ghana School of Law is tolerated and even cherished by adherents of what could be referred to as the ‘gatekeeping’ school of thought,  irrespective of multitudes of incessant legitimate concerns and suggestions expressed by many others.

Meanwhile plethora of cases are rotting in our courtrooms due to inadequate judges, magistrates and lawyers. Besides, most government institutions, organisations and communities in Ghana are legally malnourished due to inadequate lawyers.

Who is failing massively? The candidates, the Ghana School of Law or the people of Ghana? Gatekeeping measures are not benchmark for assessing quality legal education in the world. Where is the right to equal educational opportunities and facilities in Ghana? Everything indeed rises and falls on leadership. It is not the candidates who are failing massively, it is legal education in Ghana and Ghana as a nation. This is a call on the true sons and daughters of Ghana to arise; be awake, alive and act now!

Richard Obeng Mensah, author of Persecutions are Promotions

The writer is a blogger, legal academic, life and leadership coach,

and a private legal practitioner in Ghana.

Blog: www.richard-obeng-mensah.blogspot.com 

Email: richardobengmensah@gmail.com

Facebook: https://web.facebook.com/obeng.m.richard?_rdc=1&_rdr

© 26 September 2019.

NATURAL JUSTICE IN THE HANDS OF A CRAFTY JUDGE

NATURAL JUSTICE IN THE HANDS OF A CRAFTY JUDGE

In the history of humanity, the rules of natural justice were first observed by God in the Garden of Eden after Adam and Eve had eaten the proverbial forbidden fruit. The first couple were given opportunity to be heard before God, their judge, condemned their ill conduct and imposed hefty sanctions on them. The rules were later equally observed by God before punishing Cain who murdered his younger brother, Abel. The rules are among some of the most age-long revered legal doctrines in all legal systems across the globe. Failure to observe them can ground the quashing or nullification of any relevant proceedings or decision of a court of competent jurisdiction or any other adjudicating body. The rules are consistent with a principle of law which posits that justice must not only be done but must be seen to have been manifestly done.

Natural justice has two main components namely: no man should be condemned unheard (audi alteram partem), and no man should sit as a judge in his own case (nemo iudex in causa sua). Rules of natural justice are thus meant to provide justice through procedural fairness and to guarantee fair trial, unbiased and transparent judgments to all persons who resort to the law for justice.[1] This means that persons affected by a decision should not only be given prior notice and an opportunity to be heard, but also be entitled to an unbiased decision maker. This article focuses on the first leg of the rules of natural justice since issues bordering on biased or hostile attitudes of a judge or an adjudicating authority can easily be discerned and confronted or challenged where necessary.

According to a plethora of legal authorities, fair hearing includes receiving prior notice of decision making, prior communication to parties of any change in the nature of hearing,   right to legal representation, and opportunity to put before the court a party’s version of the case. Superior Courts are especially obliged by law to record arguments, submissions, evidence led by parties and their witnesses, and all decisions or orders or judgments made by them.[2] Justice Sowah (as he then was) rightly stated in Cruishank v Commissioner of Police[3]  that a magistrate was obliged to record whatever submission counsel makes in a case, and that failure to do so vitiates the whole proceedings and makes the record incomplete. The Supreme Court of Ghana has also held that any event that cannot be traced from the records of a court cannot be accepted as having taken place.[4] What then happens if a crafty judge deliberately fails to record any relevant portion of a party’s testimony or argument of that party’s counsel in the record book of the court? What also happens if a wily judge deliberately summarises a party’s case in the record book in a manner that distorts the true import of that party’s case? What becomes of a decision or an order of a court if a wily judge after openly reading the decision in court later modifies the records to disfavour one of the parties before same could be procured? The foregoing issues usually occur in courts presided over by a magistrate or a single judge, and in courts that are not automated. 

Article 23 of the 1992 Constitution of Ghana requires even purely administrative bodies to act fairly and reasonably in consistent with rules of natural justice.[5] It is argued that the right to fair hearing cannot be guaranteed if a party’s case is not borne out by the record of a designated court. Thus a party may subtly be denied of his right to fair hearing if a magistrate or a judge spitefully records only an aspect of that party’s case while recording every relevant aspect of the other party’s case. Consequently, the former party will suffer grave miscarriage of justice which may not be salvaged even on appeal since the record will not favour his or her case. I therefore suggest the following recommendations to deal with the problem:

1. The Government should expedite the automation of all courts in Ghana;
2. There should be a practice direction on rules of natural justice to guide the courts;
3. In the absence of full automation, all unautomated courts should be given recording gadgets to record all relevant proceedings, and parties or their lawyers should have immediate access to such proceedings after court; and
4. A court should be required to order lawyers to file their written submissions or addresses if it is not in a position to write down all the salient aspects of their arguments in court.

Richard Obeng Mensah, author of Persecutions are Promotions. The writer is a certified life and leadership coach, a legal academic and practitioner, and a prolific author of 7 books and over 200 articles.Blog:www.richard-obeng-mensah.blogspot.comEmail: richardobengmensah@gmail.com               

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[1] Republic v High Court, Denu; Ex Parte Agbesi Awusi II (No 2) (Nyonyo Agboada (SRI III) Interested Party) [2003-2004] SCGLR 909-910.

[2] Iddrisu v Amartey [2009] SCGLR 670, 677.

[3] [1963] 2 GLR 369.

[4] Ibid n 2.

[5] Awuku-Sao v Ghana Supply Limited [2009] SCGLR 711 at 719-722.

THE BEST GIFT OF THE FATHER

THE BEST GIFT OF THE FATHER 

“Do not be deceived, my beloved brethren. Every good and perfect gift is from above, and comes from the Father of lights, with whom there is no variation or shadow of turning” – James 1:16-17 (NKJV)

  

All great gifts fall into two main categories -

Good and perfect gifts. Good gifts include; godly marriage, sound health, righteous riches and faithful friends. Love, grace, glory and eternal life are examples of perfect gifts.

 

Every good and perfect gift comes from above

Everything that is from above is above all. Good and perfect gifts are above all other gifts – especially earthly gifts. One good or perfect gift is better than thousand earthly gifts.

 

Every good and perfect gift comes from the Father who is trustworthy and faithful

Is He your father or He remains just your Creator? Truly God is not Father of all though He is the Creator of all. He is Father to only those who have personal relationship with Him. 

The Father is a father to only those who know themselves to be sinners and have accepted His Son into their hearts. The name of His Son is Jesus Christ. The Son is God’s best gift to the world. He came from above and later ascended to above - Heaven. You can find good and perfect gifts ONLY in Jesus. I give you the best gift of the Father – Jesus.  Do not be deceived; there is no better gift outside Jesus. Choose to always to walk with Him.

Richard Obeng Mensah, author of Persecutions are Promotions. The writer is an award-winning author of 7 books and over 250 articles on legal and non-legal themes.  He is also a certified life and leadership coach, a lawyer, a law lecturer and a blogger.  Blog: www.richard-obeng-mensah.blogspot.com   Email: richardobengmensah@gmail.com © 12/11/2018.

 

THE TWO MAIN PARTISAN POLITICS IN GHANA

THE TWO MAIN PARTISAN POLITICS IN GHANA

There are two main partisan politics in 62-year old Ghana, not three

They are not just politics clothed with mere socialist, capitalist or democratic philosophies

There are two main partisan politics in Ghana, not four; yes, not five

They are not just the politics of Nkrumah, Danquah, Busia, Limann nor Rawlings.

There are two main partisan politics in modern Ghana, not one

They are not just the politics of CPP, NDC, NDP, PPP or NPP

There are two main partisan politics in Ghana, not six

Yes, they are not just about Kufuor, Mills, Mahama or Nana.

The two main partisan politics in modern Ghana are twins

They are identical and uterine siblings yet they are of different fathers

They are always active, current, visible and alive!

Very much alive in the valleys and on the mountains in Ghana.

Truly there are two main partisan politics in today’s Ghana

They are not just politics of a political party in power or in opposition

There are two main partisan politics in Ghana, not just three; not four; not five

They are not politics of real nationalism, patriotism, democracy or good governance.

The two main partisan politics in Ghana are politics of deceit and pretence on one hand

And politics of greed and wickedness on the other hand – they are two, not one; not four!

These two main partisan politics continue to bleed corruption, division, insecurity, lawlessness and needless hardship in the country

The power to change these unfortunate partisan politics resides in Ghanaians most of whom remain mere observers, mere complainers and are even complicit in the big mess.  

 Richard Obeng Mensah, author of Persecutions are Promotions

The writer is a blogger, legal academic, life and leadership coach, 

and a private legal practitioner in Ghana.

Blog:www.richard-obeng-mensah.blogspot.com                                                          Email: richardobengmensah@gmail.com

Facebook: https://web.facebook.com/obeng.m.richard?_rdc=1&_rdr

© 10 March 2019.

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               

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[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).

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.                                                      

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.

*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               

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[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).