ARE EXCLUSION CLAUSES OR LIMITATION CLAUSES IN A CONTRACT ALWAYS ENFORCEABLE AS TERMS OF THE CONTRACT?

An exclusion clause is any term in the contract that seeks to exclude or exempt liability, responsibility, loss or damage caused as a result of a breach of the contract. Exclusion clauses are very common in business contracts. They are often seen at public car parks, malls, hotel rooms etc. fundamentally, an exclusion clause in order to be enforceable in a particular contract must answer in affirmative, two questions; has the exclusion clause been incorporated into the contract? Has the incorporated exclusion clause cover the loss that results from the breach of the contract? If an exclusion clause answers the above two questions in affirmative, then it is enforceable. There are four fundamental ways by which an exclusion clause can be incorporated into a contract, either by signature, by prior notice, by trade practice or by previous consistent and regular course of dealing.

Generally, once a party to a contract has signed a document that contains the exclusion clause, it means he has accepted the exclusion clause as part of the contract irrespective of whether or not the party read it. This principle was well established in the seminal case of L’ESTRANGE V GRAUCOB. Here, the claimant signed a cigarette vending machine and signed an order form which excluded the defendants from any express or implied conditions or warranty either by statutes or otherwise. The vending machine failed to work and she sued. The court was of the view that in signing the form, she was bound by it irrespective of whether or not she read it. However, where there was a misrepresentation as to the written term, the non-innocent party could not rely on the exemption clause as was established in CURTIS V CHEMICAL CLEANING. Here, the claimant read the terms but sought for clarification regarding the effect of the terms which was misinterpreted to her by an agent.

Another way by which an exclusion clause can be incorporated into a contract to make it enforceable is by prior notice. For an exclusion clause to be considered incorporated into a contract, notice of that clause must be given before or during the time of contracting as established in the case of OLLEY V MARLBOROUGH COURT HOTEL. The claimant booked a room in a hotel owned by the defendant. Inside the door of her room was a notice stating that the hotel was not liable for anything lost or stolen unless the item had been given to the management to look after. When the fur coat of the claimant was stolen from her room, she sued the defendant for damages. It was held that because the contract had been made at the reception desk before the claimant got to the room, and because notice of the term was only given after the formation of the contract, it was not an incorporated term and the claimant could sue the defendant for damages. it must be noted therefore, that notice of terms given after the contract has been completed will not be incorporated into the contract and thus, will not be enforceable.

The courts have always maintained that the more exceptional or unusual an exclusion clause is, the more that must be done to bring it to the attention of the other party. In J SPURLING V BRADSHAW Lord Denning said that “the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient“, thus,  establishing the “red hand rule“.

 The third ground by which an exclusion clause can be incorporated into a contract, and thus, enforceable is when the parties have had similar consistent dealings in the past, the courts have previously found that notice is not necessarily required if their past dealings represent a “consistent course of action”. In MCCUTCHEON V MACBRAYNE, the House of Lords said that the course of dealing must be both “regular and consistent”. This has never been more closely defined, however, in KENDALL LTD V WILLIAM LILLICO,  the House of Lords held that 100 similar contracts over three years were a “regular and consistent” course of dealing, but the court of appeal held in HOLLIER V RAMBLER MOTORS that four contracts over five years was not a consistent and regular course of dealing. it is therefore a question of fact, having regard to all the circumstances, whether a particular pattern of activities can be deemed regular and consistent cause of action. the facts, as presented, should be able to lead a reasonable disinterested prudent man to such conclusion.

The fourth and final ground on which an exclusion clause can become enforceable by virtue of its incorporation is through trade practice within a particular industry. For instance, In BRITISH CRANE V IPSWICH PLANT, both parties were engaged in the same business of hiring out earth-moving equipment. They entered into a quick contract on phone call without either party mentioning any conditions. The plaintiff later supplied the defendants with their conditions but before the defendants could sign them, the crane over which the contract was made sang in a marshy ground. The court was of the view that since both parties are in the same business and they are all aware of the standard practice terms, the plaintiffs were entitled to be indemnified. this is different from previous regular and consistent dealing in that, both parties must have belonged to the same trading industry and they must have understood, accept and practice the common trading method in question and there must not be any misrepresentation.

In a nutshell, it is not always the case that an exclusion clause would be enforceable in a contract. It must first be incorporated and it must also cover the loss occasioned by the breach of the contract in question. These are conditions precedent.

THE INDEFENSIBLE EXPOSURE OF WISCONSIN BY COVID-19; A CASE OF INCOMPETENCE, INSENSITIVITY OR IRRESPONSIBILITY?

At last, Wisconsin international university college sent emails to students purporting to update them on the issues of end of semester exams. Unfortunately, and very typical of the school, they said nothing new in the email. The communication left the germane issues unanswered. In fact, the email produces more questions than answers. For ease of reference, I reproduce the email below.

“NOTICE TO ALL STUDENTS

END OF SEMESTER EXAMINATION – 2019/20 ACADEMIC YEAR (2nd SEMESTER)

Management wishes to commend both staff and students for a successful end to Online Lectures, despite the challenges brought about by the outbreak of the COVID 19 pandemic. Following the completion of lectures, management wishes to bring to the attention of all students that end-of-semester examination for this second semester may be held from 13th June, 2020 to 11th July, 2020. Kindly note that depending on the government’s further directive on the existing ban on social gatherings, this semester’s examination would either be conducted online or on-campus (albeit ensuring adherence to established safety protocols). As a result, students are encouraged to use this period to prepare themselves for either an online or on campus examination.

NO SUMMER SCHOOL

Owing to the disruptions to the academic calendar as a result of the outbreak of the COVID 19, Students are to note that there will be no Summer School this semester. Further directives pertaining to the end-of-semester examinations, timetable and summer school will be communicated in due course. Thank you for your patience and understanding throughout this period.

SIGNED

REGISTRAR

19th MAY, 2020”

First of all, the timing of the exams is extremely bad for level 400 Upper law students who are preparing to take part in the upcoming Ghana school of law entrance exams. Given that the exams usually comes in July and application usually in June, how and when will the lecturers finish marking the scripts for the mentor school to finish vetting them in order to issue certificates to students before they can even apply for admission to the Ghana school of law in order to qualify for the entrance exams? This is practically impossible. In any case, if the mentoring school which is KNUST is conducting their exams via take home, why should Wisconsin who depends on KNUST for certification stress students to July? The ultimate effect of this decision is that, the affected students will have to forego their aim of applying for admission to the Ghana school of law in the coming academic year for next year but the consequential effect is that, majority of students who otherwise will have been fresh in knowledge for the exams will have to spend another year forgetting everything and then go to confront 30 multiple choice questions and three optional theory questions from nine courses after virtually forgetting everything. This should not be the punishment the school should met out to students who have been so loyal, so determined and so disciplined for three or four years!

In any case, there are several questions and lapses on the school’s insistence on any so called “on campus” examination. First of all, how is the school going to ensure that lecturers who are definitely going to come in contact with every script is safe? How will the school ensure that students wear the Ghana health service prescribed face mask to be able to write the exams? Will the school provide students with the medically approved mask for every paper? At whose cost? How will the school ensure that examination halls are safe for students given that the exams will most likely be in batches and students are definitely going to come to contact with desks left behind by other students? Even if the school disinfect the lecture halls for the first paper, will they be able to disinfect the exam halls for every paper? At whose cost? Even if the school can do this, why will the school expose students to these chemicals unnecessarily? The school needs to understand that checking temperature levels of students before they enter the exam hall is never the ultimate preventive measure unless they are closing their eyes to asymptomatic carriers.

I made this point in my last article and at the risk of repetition, I will make it again. Since the beginning of this pandemic, the school has not produced a single student-centred policy! Even when the SRC developed an app and negotiate with Vodafone Ghana to help students hold free online group discussion, the school went to pirate it and the whole website became nonsense at the end. So apart from the school’s failure to help students, they have taken active steps to frustrate efforts aimed at helping students. Yet, students have seldom complained about the trauma of zoom lectures expecting that the school will do the needful only to be greeted with another ill-calculated, insensitive and incompetent decision to conduct “on campus” examination at the expense of lives of not only students but lecturers and invigilators as a whole!

Even the supposed online exams, the school failed to indicate what kind or form of online exams contemplated. Thee are several ways to that communication. For instance, students may be offered multiple choice questions on a website with time which will close when the time expires. Students may also be given the normal seven question exam paper with the option to answer four within a stipulated time and then upload same via their school emails. Students may also be given a single research question with a stipulated time to submit same via school emails. All these and many more are options available and the school could have given students the options they are considering in case the online exams stands activated. Merely saying the exams could be conducted online or on campus is the same information students already know so the school should just have kept quite if they had nothing new to tell students.

What is really the issue? The real concern of the school is not the fate of students. It is how they can maximise the collection of their school fees and the unreasonable penalty imposed on already suffocating students. For the avoidance of doubt, the writer has no problem with the school collecting their due fees from students, on the contrary, I believe the school is entitled to and students are obliged to pay. The writer’s problem is why the school cannot for once put the life and fate of students first? the lives over economy mantra is well accepted in the world right now, why should Wisconsin be any different? one is left to wonder whether those in charge of the school are simply insensitive, incompetent or irresponsible?

It is respectfully submitted that the school should take a look at their actions and policies because almost every step taken so far during this period is an indictment on the image of the school. This is not the institution we recommend to other people!

CHARGING GH₵300 PENALTY FOR LATE PAYMENT OF FEES BY WISCONSIN, A CASE OF INSENTIVITY OR MAN’S INHUMANITY TO MAN?

It has been reported by students of Wisconsin international university college-Ghana that the school is demanding and collecting from students a late registration fees of GHS300 from students who have made efforts to pay their school fees even in the midst of this deadly pandemic. A cursory look at the fee components on the school’s website wiuc-ghana.edu.gh reveals no penalty attached to the schedule. It is understood that the school instituted this policy of charging penalty fees for late registration during normal times to facilitate early payment of fees and prompt registration but the question that should engage the mind of every reasonable person is; is this the right time to punish students in pecuniary terms? Is the decision to charge this penalty a miscalculated insensitivity to the plight of their own students or it just demonstrate the inhumanity of man to his fellow men?

There is no gainsaying that this pandemic is tearing through every fabric of society, grounding businesses and collapsing households indiscriminately. Several corporate institutions have step up their efforts to help vulnerable people during this period jointly and severally as well as donating to augment the efforts of the government through the COVID-19 fund. Ironically, the private schools association have donated some amount of money to the fund whilst Wisconsin is squeezing it through the nose of students. Given the cosmopolitan nature of the university with international students making up a considerable number of students who will be hard hit by this pandemic owing to the inability of their guardians to help them financially due to lockdowns in almost every country, the university should have been leading relief efforts among tertiary institutions to demonstrate their human side to the students, at least to let them know that their only intention is not to milk them dry of their finances but be there for them during hard times.

Certainly, some students must have lost their jobs during this pandemic. Some students must have lost their businesses during this period. Some students are on the front lines fighting for the survival of the country and the world at large during this period. Some students are struggling to survive on daily basis during this period. Families are devastated by this pandemic. Businesses are collapsing daily and economies are gasping for breath worldwide. The pandemic shows no mercy despite. In all these, Wisconsin subjected their students to the trauma of an online lecture via zoom application with zero data package, zero financial incentive, in fact, zero everything. On top of this gross neglect of students, the school is punishing students with an exorbitant GHS 300 for paying their fees late.

The SRC is understood to have distributed some food items to students out of the meagre dues they collect but the school in their wildest wisdom remained unconcerned. The school finds no reason to cushion their students with some financial packages by reducing their fees because students by being at home do not use any facility coupled with paying half the price for tuition via zoom. Instead, the school is choosing to punish students irrespective. For this, I ask the question; does the decision of the school to charge this penalty fees a misguided, miscalculated and mis-informed insensitivity to the plight of their own students or an unequivocal demonstration of man’s inhumanity to man?

RAPE; A DANGEROUS WEAPON IN A WRONG HAND!

Sex and rape; just like kill and murder, are two distinct terms in law with the occurrence of one dependent on the occurrence of the other. Whilst the former is established by the mere assemble of facts, the latter is a term of art which can only be established by strict application of legal principles to the assembled facts. The law on rape has receive a lot of essay over the years but the need to pay attention to this unruly horse has even become more prudent with the advent of the “metoo” movement in America over the past few years which is fast gaining grounds around the world. Whilst some countries like Kenya seems to have a more liberal definition and application of the law of rape, the Ghanaian version remains unchanged since time immemorial. It is the writer’s hope that sooner rather than later, and with multiple voices, loud and clear, the law maker in Ghana will have a relook at the law to ensure swift, fair and equal justice for all. The law on rape in Ghana defies even the 1992 Constitution which in Article 17(1) declares that “all persons shall be equal before the law”.

With accusations of rape reaching crescendo by the day, it is more demanding now than ever that men are recognised as potential victims of rape. The mere allegation of rape creates irreparable consequences to the image of the man to an extent that any fanciful allegation by a disgruntled whore can be devastating. The ever hungry Court of social media is ready to hang the accused before his is proved guilty. The overzealous extremists of feminism are thirsty for fresh blood of their victims. The bad news thirsty mainstream media is ready to break it first. The world around men accused of rape starts crumbling even before they face the court of competent jurisdiction. There is an argument for civil action when the accused is eventually acquitted but to what end? Many of the supposed victims are women of straw!

But what is rape in law? Section 98 of the criminal offences act, 1960 (Act 29) defines rape as; “Rape is the carnal knowledge of A FEMALE of not less than sixteen years without her CONSENT.” Section 97 of the act makes rape a very serious offence. It states; “A person who commits rape commits a first degree felony and is liable on conviction to a term of imprisonment of not less than five years and not more than twenty-five years.” And here is the interesting one. Section 99 provides that; “Where, on the trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge is complete on proof of the LEAST DEGREE OF PENETRATION.” (emphasis mine). From the foregoing, it is not nebulous that the framers of the law never for a moment consider the man as a potential victim of rape. Never!

Like I said in the very first sentence, to establish sex is just to assemble facts but to establish rape is to apply legal principles to the facts. The most important question in rape cases is not whether or not there was sex; it is whether or not the sex was consensual? To prove consent is a daunting task as the legendary William Shakespeare puts it; “There is no art to find a mind’s construction in the face”. Unless it is a gang rape, the battle is almost always oath against oath, word against word, credibility against credibility. But how is that law discriminatory? Section 98 expressly mentions “female”. While the ‘her’ in the sentence can equally mean ‘he’ in law, it ceases to be a big deal. But ‘female’ as expressly mentioned can only mean female which makes it gender specific. Carnal knowledge is sexual intercourse between a male and female in which there is a degree of penetration of the woman’s vagina by the man’s penis. There cannot be rape therefore between two females. That leaves lesbians off the hook of rape. The least degree of penetration is enough to deny the man his constitutionally guaranteed freedom up to twenty five solid years. It is immaterial whether he ejaculates! DOTSE JSC commenting on the degree of penetration in GCPL VALENTINO GLIGA VRS THE REPUBLIC (2010) said this; “Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed”. Aside the law being specific to females, the section on the requirement of penetration is equally couched to favour the female. Penetration is defined by the Merriam Webster dictionary as “the act of going through or into something”. Can the vagina go through or into the penis? No! This leaves only one option, the penis does the going through and only the man has the penis. What happens if the victim and the accused started consensual sex and the consent got revoked half way through the act? Will the man be deemed to have penetrated even though the penis entered there consensually? Well, I guess prove of penetration would not be required.

There is a school of thought that, the possibility of a woman raping a man is widely rejected as a man must maintain an erection to make sexual intercourse possible. It is therefore argued that, an erection by a man is a function of his voluntariness and if he maintains erection, then it signifies his consent to the act. With all due deference and in all humility, this is fallacious! There are stimuli that make a man erect and when the penis feels the stimuli, it becomes unbelievably uncontrollable whether the owner intends it or not. It becomes unruly different animal from the owner! So, to deem continues erection a voluntary act and a justification for consent of the man is just pure injustice and untenable.

The most difficult element to prove in rape is consent. Since only a female of sixteen years or above can be a victim of rape, it also means she can give consent but that should also be obtained fairly and must not be revoked until the end of the act, otherwise it creates some sought of half rape. (There is no half crime though). Failure to prove consent is fatal to the prosecution but like I said, unless it a gang rape, it is always oath against oath, word against word and credibility against credibility. The court in AMARTEY v. THE STATE [1964] GLR 256-262  sounded a word of caution in holding one that “where a question boils down to oath against oath, especially in a criminal case, the trial judge should first consider the version of the prosecution, applying to it all the tests and principles governing credibility of witnesses; when satisfied that the prosecution’s witnesses are worthy of belief, consideration should then be given to the credibility of the accused’s story, and if the accused’s case is disbelieved, the judge should consider whether, short of believing it, the accused’s story is reasonably probable”. Consent is a huge topic on its own but a cursory look will serve the purpose here. Consent is covered under section 14 of act 29. 14 (a) provides that “a consent is void if the person giving it is under twelve years of age, or in the case of an act involving a sexual offence, sixteen years, or is, by reason of insanity or of immaturity, or of any other permanent or temporary incapability whether from intoxication or any other cause, unable to understand the nature or consequences of the act to which he consents”. (b) “a consent is void if it is obtained by means of deceit or of duress”. This section is equally very much open to exploitation. See R v Flattery (1874-77) 13 Cox CC 388, R v Young (1877-82) 14 CC 114.

Take the Ghanaian law on the one hand and compare the provisions to that of Kenya. The sexual offences act of Kenya states that “a person commits the offence of rape if- a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; b) the other person does not consent to the penetration or the consent is obtained by means of force or by means of threats or intimidation of any kind”. The same act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. Of course, the word insertion here is susceptible to questions but there is no doubt when the law is read in full, there is a clear attempt by the framers to indicate that the male may equally be a victim of rape. So far as his consent is not procured or is procured unlawfully, he ought to have locus in court.  You either cause the insertion or it is forced on you. With this, the man can equally be a victim.

For instance, I read a U.S news article where a woman overpowered a thief and tired him, forced to feed him sexually active drugs and had sex with him. Imagine if this happens in Ghana, will the woman be charged for rape since the man did not consent to the sex?  Going forward, I will suggest to the law maker to take conscious efforts to make this law more balanced to ensure that when a man is forced to have sex with a woman; the woman should be charged with the offence of rape since after age sixteen, there can only be rape and not defilement. With the current nature of the law in Ghana, it remains a dangerous weapon which in a wrong hand can cause mass destruction! SALMON L.J put it more aptly in R V HENRY MANNING (1969)Crim App Rep 150 that “…it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experiences has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not enumerate, and sometimes for no reason at all”

I do not think there is any need to belabour this point further!

Thanks for reading! Your comments are very much appreciated.

 

 

 

TAXATION OF RELIGIOUS ORGANISATIONS: The Position of the Law and Related Matters. Opinion Paper By Kwasi Nyantakyi Owiredu SEPTEMBER 2018

“There are two certainties in life: Death and Taxes. There is no escape from either of these variables. The inscription in the IRS building in Washington reads: “Taxes are what we pay for a civilised society.”” These were the introductory remarks by Jennifer Dodoo, Justice of the High Court, in Taylor & Taylor Limited v. The Commissioner-General and the Attorney-General (2017, Unreported).

In Matthew 22:21, Jesus was asked by the Pharisees whether it is lawful to pay taxes to the emperor, or not. Jesus responded “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s”. My understanding of Jesus’ statement “Render unto Caesar that which is Caesar’s” is that it unambiguously commands people to respect state authority and to pay the taxes it demands of them.

Article 41(j) of the Constitution, 1992 requires every citizen of Ghana to declare his income honestly to the appropriate and lawful agencies and to satisfy all tax obligations.

Religious organisations and their leaders have come under intense scrutiny in recent times from the public as to whether or not their incomes should be subjected to tax. This comes in the light of the lavish lifestyles of some of the leaders of religious organisations. Similar sentiments have been expressed by his Excellency, President Nana Addo Dankwa Akufo-Addo. It is, therefore, important for us as a country to know the position of the law and chart a way forward in creating an all-inclusive society that promotes fairness in honouring our tax obligations.

The questions I seek to address in this contribution are as follows:

1. Are religious organisations required to pay taxes and/or comply with the tax laws of Ghana?
2. Are religious leaders or founders, and employees of religious organisations required to pay taxes and/or comply with the tax laws of Ghana?

My contribution is directed towards the Commissioner-General (CG) and his officials, the Government of Ghana, Tax Professionals and Students, and the Academia in our attempt to educate the religious fraternity, and the general public, in particular, the ordinary man in “madina trotro”.

1. Historical Antecedents of Taxation of Religious Organisations in Ghana

The 1947 Ordinance outlined the first provision of exemption from tax by charitable organisations including religious organisations. It specifically exempted religious bodies – Catholic, Anglican, and Presbyterian Churches from paying duties on imported items.

In 1961 (fourteen years later), the Income Tax Ordinance introduced the concept of exemption from payment of income taxes by ecclesiastical or charitable organisations, Christian Council of Churches, the Muslim Council, et al. This was in recognition of the contribution these organisations made in society as they prioritised the helping of the poor and needy whilst lifting the spiritual welfare of the people.

After 14 years following the passage of the Income Tax Ordinance, then came the Income Tax Decree, 1975, S.M.C.D 5. It maintained the tax exemption status for religious organisations under Section 3(1)(d) of the law. It provided as follows: “there shall be exempted from tax the income of an ecclesiastical, charitable … of a public character insofar as such income is not derived from trade or business carried on by such institution” [Emphasis mine]. This definition limited tax exemption to the Christian Church with regards to their income other than derived from business. No mention was made of other religious organisations.

In the year 2001, the Internal Revenue Act, 2000, Act 592, was enacted and came into force on 16 February 2001. The law streamlined the definition of religious organisation by going beyond the limited scope provided under S.M.C.D 5 to include religious organisations other than churches. Under Section 10(1)(d) of Act 592, it was provided that “the income accruing to or derived by an exempt organisation other than income from any business is exempt from income tax”. [Emphasis mine] Exempt organisation was defined in Section 94 to mean a person

1. Who or that is and functions as a religious organisation of a public character …;
2. Who or that has been issued with a written ruling by the CG currently in force stating that it is an exempt organisation; and
3. None of whose income or assets confer, or may confer, a private benefit, other than in pursuit of the organisation’s functions

The implication of the above definition was that, for any religious organisation to qualify for exemption, it should not only be described on paper as such, it must also act pari passu. The religious organisation must also apply to the CG for the grant of the status of being a religious organisation as a way of serving as check and balances to curtail abuse of the tax exemption process. Lastly, the income that is being exempted should not confer private benefit.

On 1 January 2016, the Income Tax Act, 2015, Act 896 (as amended) came into force repealing Act 592 and saved Regulations, notices, and other acts lawfully done under the repealed law. This is the law on taxation of income currently in force. The purpose of the law with regards to the activities of religious organisations is to, among others, specifically empower the CG to approve an entity as a religious organisation, revoke the approval for a good cause or in contravention of the requirement of the law. Section 97 of Act 896 covers the approval process of a religious organisation.

Section 97(2) of Act 896 provides that the CG shall before approving an entity as a charitable organisation (including a religious organisation), ensure that

1. The entity is established to operate as a religious institution which is of a public nature
2. The entity has a written constitution that prohibits that entity from
3. engaging in a party political activity, supporting a political party or using its platform to engage in party politics
4. any function other than operating as a religious institution; and

• conferring a private benefit, other than in pursuit of a function of the entity as a religious institution

Sections 97(3)&(4) of Act 896 makes the income of a religious organisation exempt from tax except income attributable to business.

From the aforesaid provisions in Act 896, the lawmaker has empowered the CG to grant and revoke the tax exemption for religious institutions to promote tax compliance in Ghana. The CG has issued practice notes to serve as a guide in the implementation of the law in this regard.

From the historical analysis above, there are key underlying themes running through all the various tax dispensations. First and foremost, the type of organisation should be religious in nature. Secondly, the organisation should have a public character. Lastly, the income thereof should not be for private benefit of individuals.

 

2. Status as Religious Organisation for income tax purposes

Under Act 896, there are 3 key conditions that must be satisfied by a religious organisation to qualify for exemption from income tax. These are:

1. Vehicle for operation
2. Constitution and prohibition of the organisational activities
3. Public nature of activities

Vehicle for operation

For tax exemption purposes, a religious organisation must not engage in business the purpose of which is to make profit. Therefore, the vehicle of operation should not be by a company with shares. This is because shares confers beneficial interest in a company to only identifiable members. By necessary implication, the route for undertaking religious organisations in Ghana may be by a Company Limited by Guarantee under the Companies Act, 1963, Act 179, or by a Trust registered under Trustees (Incorporation) Act, 1962, Act 106 with no particular individual(s) being ultimate beneficiary(ies).

From the foregoing, the objects of a religious organisation may include, but not limited to provision of services to, or conferring of benefits on an identifiable community or body or a section thereof with equal access to all intended beneficiaries without any particular individual(s) being the ultimate beneficiary(ies).

Constitution and Prohibitions

A religious organisation that seeks the approval of the CG for tax exemption must have a written constitution with express provisions that prohibit it from:

1. engaging in a political party activity, supporting a political party or using its platform to engage in party politics;
2. any function other than those that the entity is established to operate; and

• conferring a private benefit on any person other than a benefit that is in pursuit of a function for which the entity is established

 

Public Nature of Activities

Act 896 does not define “public nature”. However, the practice notes issued by the CG regards activities of a religious organisation to be of “public nature” where, by its activities and operations, it

1. is open or accessible to the general public or a section of the public; and
2. does not confer a private benefit on any person other than in pursuit of a function or activity that is in line with the objects of the entity.

The activities of the entity should not directly or indirectly be to the private benefit of the owner(s) or associates of the owner(s). The resources and income generated by the entity should not be assigned to, or distributed among the owner(s) or their associates.

 

3. Income Exempt from Tax under the Tax Law

The law does not specifically mention incomes that are attributable to religious organisations which are not subject to tax. It only says that “income accruing to or derived by a religious organisation” is exempt from tax. Ordinary meaning can, therefore, be given to the stream of income attributable to religious organisations that are exempt from tax. In practice, these may include

1. tithe,
2. offering,

• welfare dues,

1. funeral dues, and
2. gifts and similar donations

to a religious organisation.

Notwithstanding the fact that a religious organisation is not required to pay income taxes on receipts incidental to their objects, the law requires them to file their corporate income tax returns with the Ghana Revenue Authority within four month after each financial year of the organisation. This is in compliance with Section 124 of Act 896.

 

 

4. Income subject to Tax under the Tax Law

 

1. Business Income of a Religious Organisation

Section 5(1) of Act 896 provides that the “income of a person from a business for a year of assessment is the gains and profits of that person from the business for the year or part of the year.” Income derived by religious organisation from engagement in business activities may include:

1. sale of anointing oil, water, and similar goods
2. spiritual consultation fee

• disposal of assets;

1. provision of services (such as hiring out of venues and facilities of the religious organisation);
2. selling of in-house expertise to interested persons (e.g. publishing, and training);
3. operation of a bookshop; and

• operation of commercial transport.

Section 97(4) of Act 896 provides that “income accruing to or derived by a charitable organisation is exempt from tax.” Section 97(5) provides that “Section 97(4) does not apply to business income of the charitable organisation” [Emphasis mine]. The intention of the tax law is to tax the business income of a charitable organisation.

The intention of the law to tax the business income of charitable organisation gives rise to two key issues that needs addressing.

First and foremost, despite the provisions of the tax law, the question that needs answering is: whether or not it is legal for a religious organisation to engage in business for the purpose of making profit for which the tax law envisages taxing same?

Section 10(1) of Act 179 provides that a Company Limited by Guarantee shall not be incorporated with the object of carrying on business for the purpose of making profits. Section 10(2) of Act 179 goes on to provide for sanction for officers, members of the company and the company itself should it carry out activities for the purpose of making profit. Therefore, to the extent that the activities of a religious organisation is required to be of public character as per Act 896, where lies in the taxation of business income of a Company Limited by Guarantee? Are we condoning contravention of Act 179? That said, for tax purposes, the taxman may be unconcerned with how the income is generated. In the case of Attorney of Hong-Kong v Reid, [1993] the court said “a principal ought to have the right to trace and to follow a bribe or secret commission” It can therefore be construed that, however an income is earned, once it is taxable, the Ghana Revenue Authority can tax same.

Notwithstanding the above, there are avenues or vehicles through which religious organisations can engage in profit-making activities without contravening any law. This can be done where the operating vehicle is through the establishment of Trusts, for example. As a result, for tax purposes, any profit generated by Trusts which have ultimate beneficiaries as individuals, exposes their business income to tax.

The second question that needs answering is, whether or not the business income of a religious organisation generated incidental to its purpose of a public character without private benefit to some individuals be subject to tax?

In Chapel Hill School Limited v the Attorney-General and the Commissioner, Internal Revenue Service, [2009, Unreported] Dr. Date-Bah JSC (as he then was), said “Our comment on this argument by the Second Respondent (Commissioner, Internal Revenue Service) would be that the mere fact that what the Appellant does constitutes a business does not inevitably lead to the conclusion that the activity cannot be exempt from tax.  If the business concerned is one that falls within the purview of the educational business carried out by an educational institution of a public character, then the income from that business will qualify for exemption from tax.”

In explaining what constitutes public character, the learned judge said “… business was of public character … did not confer any private benefit to individuals.” He further said that, “… for as long as the appellant was a Company Limited by Guarantee, there was a legal assurance that its business was not conferring any private benefit on individuals.” The court concluded that an education institution of a public character is not subject to income tax during the said period it remained as a Company Limited by Guarantee until such time that it converted into a Company Limited by Shares.

The learned judge also referred to the South African case of Chancellor, Master and Scholars of the University of Oxford v.  Commissioner for Inland Revenue, Republic of South Africa  to support his position. In the said case, the court held that “the person whose liability to tax was being assessed was thus Oxford University, which the court held to be indubitably an educational institution of a public character.  The fact that the activities of Oxford University Press South Africa appeared commercial did not deprive Oxford University of its exemption from tax in respect of the proceeds from the business from South Africa”… “What was important was that the income derived by Oxford University from its business in South Africa was fed into its educational purposes and was not for the private gain of individuals.”

It must be pointed out that educational institutions and religious institutions under enactments in Ghana prior to the year 2016 were considered as exempt organisations for tax purposes. Though educational institution is excluded from tax-exempt organisation under Act 896, religious institution remains.

Following from the foregoing, it is my humble opinion that the business income of a religious organisation is not subject to tax insofar as the income does not confer private benefit to individuals. Any excess revenue (surplus) remaining after all the expenditures of a religious organisation in any year has to be retained and applied in the future to the company’s purposes. That is to say, where business is carried out incidental to its purpose as a religious organisation Limited by Guarantee, or Trust (with no ultimate private benefit to individuals), the profit is exempt from tax, simpliciter. However, should the religious organisation’s operating vehicle be by way of for example Trust with individuals as ultimate beneficiaries, the business profits shall be taxable.

 

1. Income of religious leaders and/or employees of religious organisations

For tax purposes, a company is a separate and distinct entity from its employees and affiliates. Therefore, a religious organisation registered as such with the Registrar of Companies is separate from the founder(s), religious leaders, or employees of the company. As a result, the exemption from tax of the income of a religious organisation is not applicable to the individuals.

Individuals are taxed based upon their income from employment, business and investment. Taxation of a resident person in Ghana is based upon the principle of worldwide taxation. That is to say, wherever the income is earned, however the monies/benefits are paid, it is subject to tax in Ghana insofar as the person earning the income is resident in Ghana unless exempt. The income of an individual may arise from sources including

1. Salaries, wages, overtime, leave pay, bonus, and similar employment income
2. Income from business

• Income from investment

1. Gifts derived in course of employment, business and investment;

 

Now, where a religious leader acquires property or makes investment in his own name, the question that must be asked is; what is the source of income of the person?

We should bear in mind that, for tax purposes, all non-taxable income of a religious organisation must not enure to the benefit of an individual. It is for the organisation, simpliciter. And, any corresponding expenditure must relate to the purpose for which it was set up and approved by the CG. Therefore, where the income is to the benefit of a specific individual, that income is subject to tax unless generally exempt.

Hypothetical case

Let’s take a hypothetical illustration below to ascertain how the income of a religious leader (such as a pastor) should be taxed. The use of a pastor is by no means an attempt to limit the taxation to only churches and/or pastors. It applies to Mallams, Imams, Traditional Priest (e.g. Antoa) and the like on all fours.

In 2017, the annual income generated by a church from

1. tithes and offering amounted to US$600,000.
2. Other donations to the church amounted to US$800,000.

In course of the year, the pastor

• bought a land cruiser, a Mercedes Benz, and a House for a combined sum of US$500,000
• bought shares in a foreign company at a cost of US$100,000

The employment income of the pastor is US$8,333.33 per month.

The pastor also travelled to the United Kingdom to preach in one of the branches of the church and received a gift equivalent to a value of US$50,000.

The pastor should be taxed as follows:

333. The annual employment income of the pastor of US$100,000 [8,333.33*12months] is subject to employment income tax (PAYE) using the graduated scale. The highest rate is presently 35%.

With the above settled, the next question of interest is: what are the sources of income of the pastor that enabled him to buy the vehicles, house and shares?

1. A tax auditor must assess whether the annual income of the pastor is enough to fund the investments he made during the year after allowing for consumption expenditure, other capital expenditure incurred and savings he might have made in the course of the year.

 

After the investigation, the facts will speak for themselves.

 

• With the above set of facts, it is clear that the total of the monies used to buy the vehicles, house and shares exceeds the pastor’s employment income.

 

1. The monies used by the pastor must have a source and must fall under one of the categories of income of an individual for which it should be subject to tax unless exempt. Thus, it may have come from
   • use of the church’s tithes and offering to his personal benefit, and
   • gifts from church members in the United Kingdom, etc.

 

1. From the facts, the aggregate cost incurred by the pastor in buying the vehicle, house and shares is US$600,000 [500k+100k]. The questions begging for answers are as follows:

• Where did the monies come from?
• Was the income disclosed to the Ghana Revenue Authority?
• If no, why not?

Obviously, the employment income of the pastor of US$100,000 and gift of US$50,000 couldn’t have been enough to enable him make the kind of expenditure he made during the year. The unreported (untaxed) income of the pastor can be derived as follows:

100,000+50,000+Undisclosed Income=500,000+100,000

Undisclosed income = US$450,000

On the assumption that the pastor had already paid income tax in Ghana on his employment income and gift he received in the UK, he should also pay income tax on his undisclosed income of US$450,000.

It should be noted that in a situation where the assets are in the name of the church but are being used for the personal benefit of the pastor, the collateral benefit or benefit in kind should be assessed to tax in the hands of the pastor as required by law.

As already indicated, the Constitution of Ghana, 1992, the Income Tax Act, and the Holy Bible all require a pastor, as a man of God and a good citizen, to disclose his income to the Ghana Revenue Authority for an assessment to be made in compliance with law.  The Bible says in Luke 11:28, “…, blessed are those hearing the word of God and keeping it.”

 

1. Withholding Tax

Every person in Ghana (other than an individual who is not into business) is required to withhold tax on payments to resident and non-resident persons for the supply of goods, works and services unless exempt. The withheld tax must be paid to the Ghana Revenue Authority within 15 days following the month to which the payment relates. Therefore, whenever a religious organisation makes payments for

1. Construction and renovation of church premises
2. Supply of goods such as books, anointing oil, etc.
3. Provision of services such as training, or consultancy
4. Rental of premises, etc.,

same must be subjected to withholding taxes. Failure to withhold taxes is an infringement of the law which exposes the organisation to penalties and interest surcharges.

The rate for the withholding of the taxes depends upon the nature of transaction and residency of the supplier. For domestic transactions, examples include, works (5%); goods (3%); services (7.5%); etc.

A hypothetical case

A church intends having its 20th Anniversary and the Planning Committee has outlined the following programme of expenditure and the costs are payable in the month of August 2018:

1. Renovation of the church – painting, repairs and related construction activities etc.; US$5,000
2. Purchase of anniversary T-Shirts and Clothes; US$1,000
3. Rental of the premises of a near-by School which has bigger space for reception after the programme; US$2,000
4. Catering – caterer to provide food and drinks for the programme; US$1,000; and
5. photography services; US$300

What is the withholding tax obligation of the Church?

 

750. The renovation is considered as works. Therefore, the applicable withholding tax rate is 5%. The church is required to withhold tax of US$250 on payments to the supplier and pay same to the Ghana Revenue Authority. The net amount due to the supplier is US$4,750.
751. The purchase of T-shirts and clothes are considered as goods. Therefore, the applicable withholding tax rate is 3%. The church is required to withhold tax of US$30 on payments to the supplier and pay same to the Ghana Revenue Authority. The net amount due to the supplier is US$970.
752. The rental of premises for commercial purpose is considered as rent. The School is not into the business of rental of commercial premises. Therefore, the applicable withholding tax rate is 15%. The church is, therefore, required to withhold tax of US$300 on payments to the School and pay same to the Ghana Revenue Authority. The net amount due to the School is US$1,700.
753. The procurement of food and drinks may constitute goods. Therefore, the applicable withholding tax rate is 3%. The church is required to withhold tax of US$30 on payments to the supplier and pay same to the Ghana Revenue Authority. The net amount due to the supplier is US$970.
754. The photography services constitutes services. However, the value of the transaction is less GHS2,000 (approx.. US$420). On the assumption that this represents payment to the photographer for the whole year, the payment is exempt from tax. Therefore, the amount due the service provider is US$300

From the foregoing, the total amount payable to the Ghana Revenue Authority is US$610. The payment of the withheld tax and filing of the withholding tax return must be done by 15 September 2018.

Subsequent to the above, the current practice is that the Church will have to procure Tax Credit Certificate (TCC) from the Ghana Revenue Authority to serve as evidence of payment of provisional taxes by the suppliers or service providers. The TCCs serve as tax credits towards annual tax payable.

 

5. Value Added Tax (VAT), National Health Insurance Levy (NHIL), and Ghana Education Trust Fund Levy (GETFund)

VAT is applicable on all taxable supply of goods and services provided in, and imported into Ghana unless exempt. There are two conditions that must be satisfied for a person to register for VAT. These are:

1. The person must make taxable supplies; and
2. The annual turnover from the taxable supply must exceed GHC200,000 or part thereof in a quarterly or monthly period.

The question is: whether or not a religious organisation is required to register for the VAT?

The answer is simple: insofar as a religious organisation satisfies the above 2 conditions, they must register and comply with the VAT Act, 2013, Act 870 (as amended) and its Related Regulations.

Taxable supplies include sale of anointing oil, bottled water, consultancy services, rental of premises, training, sale of magazines, diaries, calendars, stationery, Bible, and Quran. Therefore, once the threshold for registration is met or expected to be met, it becomes mandatory for the registration to be done within 30 days.

At a glance, it may appear that most of our religious organisations whose activities fall within the above-mentioned conditions for VAT registration may not have registered with the Ghana Revenue Authority. Where such is the case, it is quite worrisome, and it requires immediate action.

The VAT is at a standard rate of 12.5%.

NHIL and GETFund shall apply with the necessary modifications as may be required by law. NHIL is at a flat rate of 2.5%; GETFund is at a flat rate of 2.5%.

6. The way forward

Flowing from the foregoing, it is imperative that there should be a paradigm shift in our deliberation on the position of the law with regards to taxation of religious organisations. I therefore recommend the following:

1. Education of taxpayers

It appears that a lot of Ghanaians are unaware of the position of the law. In particular, the religious organisations and their associated stakeholders who are required to pay the applicable taxes and/or comply with the law are unaware of the responsibilities they have as operating persons in Ghana. It is, therefore, important for the Ghana Revenue Authority to develop training programme to educate all charitable organisations including religious organisations to ensure full compliance with the tax laws. The programme should be segmented and tailored to meet the needs of each identifiable group for its effectiveness.

 

1. Enforcement of the law

As was said by Ms Sophia Akuffo, JSC (as she then was), in the case of Atta Barfour v Tema Development Corporation, “it is a basic principle that equity aids the vigilant and not the indolent.” Therefore, where the Ghana Revenue Authority continues to sit and watch, and fail to enforce the law, it cannot put blame on the religious fraternity. Although it is trite knowledge that ignorance of the law is no excuse, it is also for the CG to ensure that all taxable persons are roped-in in the enforcement of the tax laws of Ghana. This will not only improve upon the revenue generation of the government, but will also ensure equity in the tax system.

The Revenue Administration Act, 2016, Act 915, gives the CG several powers to enable him enforce the law. These include:

• Attachment of assets;
• Possession of charged assets
• Sale of charged assets
• Restraint of individuals by acting in concert with Ghana Immigration Service to prevent travel without paying taxes due
• Recovery from third parties
• Appointment of receivers
• Notification of third party debtors
• Recovery through agents of non-residents; and
• Recovery through the courts

Considering the enormous powers of the CG, if he fails to enforce the law, who should we blame? Your answer is as good as mine.

Similarly, Act 179, requires all Companies and Trusts to file their annual accounts (returns) with the Registrar of Companies. The accounts of religious organisations must, among others, capture all receipts and payments for each year, and a statement of financial position of the company or trust, as the case may be.

The Registrar of Companies appears not to be enforcing the law. I say so because, how many of our religious organisations file their annual returns with the Registrar of Companies? Again, your answer is as good as mine.

Our government agencies must be up and doing to ensure compliance with the laws of Ghana by all. Lack of enforcement by one agency, may have a repelling effect on the other.

 

1. Compliance with the law by the CG

The CG is appointed by the President in compliance with section 13(1) of the Ghana Revenue Authority Act, 2009, Act 791. The CG is, therefore, an administrative officer within the meaning of Article 23 of the Constitution, 1992. He is required by Article 23 of the Constitution 1992 to comply with the requirements imposed on him by Section 1(1) of Act 915 to administer and give effect to the tax laws of Ghana. Failure to do so empowers citizens of Ghana the right to seek redress before a court to compel him to enforce the law. In the case of Mould v. De Vine, Jiagge S. (as she then was) wrote, “There was no alternative remedy available to the applicant. She could neither sue in tort nor in contract. Yet a wrong had been done her which needed righting. The writ of mandamus is of special value in such cases where there is a legal right but no specific legal remedy for enforcing such right.”(Emphasis mine). I hope it wouldn’t take a court to compel the CG to do what he is supposed to do.

 

1. Taxation of the Business and Investment Income of Religious

With reference to the holding of the Chapel Hill School Limited (Supra) case, and considering the present state of all applicable laws, the income of a religious organisation established as a Company Limited by Guarantee or a Trust (with no individuals ultimately being the beneficiaries) in the performance of its objects, the business profit is not subject to tax in Ghana. However, a religious organisation registered as a Trust (with individuals as ultimate beneficiaries), for example, the business profit shall be subject to tax.

Consequent upon the above, it is advisable for the CG as part of assessing religious organisations to tax to determine the vehicle of operation of the religious organisation to form the basis of how to approach and determine the assessment.

1. Deduction for worthwhile causes

Donation to religious organisations creates a 360 degree benefit for individuals. This is because such donations do not only benefit these organisations, but are also tax deductible for the donors in computing their chargeable income. Therefore, if we create a robust system where evidence of donations serves as a basis for deduction by individuals, it could make traceability of religious organisations income easier. Further, accountability, transparency and enforcement of the law may become easier as the Ghana Revenue Authority can easily corroborate information provided by taxpayers in support of filed returns.

 

1. Establishment of Charity Commission

The Corporate governance in the Charity industry in Ghana appears not to be robust enough to build trust that assures all and sundry that assets of these organisations are safeguarded. There are increased calls from the public for regulation of the sector. It is, therefore, important for the government to proactively establish a body that will have the legal backing to regulate the affairs of all charitable organisations including religious organisations. In the United Kingdom, for example, they have a Charity Commission responsible for regulating the charity sector. They establish rules governing matters including

1. Setting up of a charity;
2. Use of charity funds
3. Preparation of annual returns
4. Trustees and board roles – people and skills
5. Public benefits,
6. Making decisions and voting
7. Investigation of non-compliance with charity rules;
8. Establishment of charity courts; and
9. Sanction of persons for non-compliance

The Department of Social Development under the Ministry of Gender, Children and Social Protection does not have the power and legal backing to deal with these pertinent issues. We should, therefore, consider having similar Charity Commission established by an Act of Parliament in Ghana and tweak it to meet our needs. This will help the efforts in bringing sanity in terms of the objects of religious organisations, how they operate, among others. Furthermore, it will go a long way to help promote a charity sector geared towards their traditional role of helping the poor and needy whilst building the spiritual life of the people.

 

The writer is a Chartered Tax Practitioner, a Chartered Accountant, a Postgraduate of University of East London, a Graduate of University of Ghana (Business School) and a Student of Law.

Should you have any comments for me, you may send it by email, kwasi.nyantakyi.owiredu@gmail.com

THE RISE OF POLICE INSANITY: SELF-DEFENCE OR MAN’S INHUMANITY TO MAN? A BYSTANDER’S QUANDARY

Quite recently, the Ghana police service has found themselves in an uncomfortable center of the media obviously for all the wrong reasons. Two weeks ago, seven people suspected to be armed robbers were killed in Ashanti Region. A week ago, a policeman assaulted an unarmed helpless woman with a child at a certain Service and Loans company for refusing to leave the premises of the company when she was asked to. Apparently, she had come to collect money belonging to her lawfully, which she lawfully deposited into her lawfully opened account with the company. It took the public for the woman to be celebrated. The following Saturday, a policeman accompanying a bullion van killed the driver which they said was accidental. Sometime back in February 2016, policemen shot and killed two brothers who were apparently answering a distress call by a female teacher and the police mistook them for the robbers.  These and many more stories come and go but the sorry state of professionalism by the Ghana police service remains unchanged. Two days ago, the Inspector General of Police (IGP) was reported in the media to have said they (the police service) are in talks to making a first degree as the minimum qualification for entry into the service. Wow! Someone asked the question, “What is the educational qualification of the people in nice jackets and polished shoes in the offices who send millions of Ghanaians to the grave by denying them healthcare through their insatiably consistent pen robbery over the years?”  First degree does not teach sense and professionalism, training does!

As a concern bystander, the question I ask myself is; what is missing in the police service and the public? For the police, it is an omnibus! For the public; has the 1992 Constitution enough protection for them against such crass recklessness? The highest form of punishment that can be meted to a person is to deny him of the chance to breathe again forever. That is exactly what the police service has done to some innocent citizens for some time now.  But the Constitution, 1992, is very clear in Article 19(2) (C) that “a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty”. The Ghana police service has reversed this provision to “until you are proved innocent”.  The constitution has provided enough protection to everyone right from arrest to conviction or acquittal. A little academic exercise may suffice. Hold on!

Article 14 (2) requires the police or whoever arrest a person for whatever lawful reason to informed the person immediately in the language he understands, the reasons for his arrest. Failure to comply with this provision of the constitution will render such arrest unlawful and anything the accused might have done to the arrestor will be seen to be in self defence. The popular Common Law case of CHRISTIE V LEACHINSKY and the Ghanaian case of ASANTE V THE REPUBLIC are classical authorities. In the latter case, a policeman sought to arrest one Mr. ASANTE upon a complaint lodged by a certain lady of some acts of the accused person. The man resisted the arrest and in the process damaged the cloths of the policeman, the arrest was declared by the court to be unlawful given that the circumstances warrants that the person was entitled to be informed of the reasons for his arrest in the language he understands.  There are obvious limitations to this right though. If you make the circumstances difficult to be informed of the reasons for your arrest, such arrest however form it takes would not be deemed to be unlawful. Or if the circumstances are such that you should know the reasons for your arrest already, such arrest will not be deemed unlawful even if the arrestor fails to inform you of the reason for your arrest. An example may suffice, if you unjustifiably start assaulting one of the innocent pedestrians who wake up dawn to hawk on the road in front of a policeman, you don’t expect him to inform you why he is arresting you if he does.  Do you?

After your arrest, article 14(3) (b) also requires that when a person is arrested upon a suspicion of having committed or about to commit a criminal offence, he shall be brought before a court within 48 hours.  Article 19(1) and (2) (d) and (f) of the 1992 constitution requires a person charged with a criminal offence to be given a fair trial within a reasonable time by a court. You must also be informed again of what offence or offences you have been charged with, this time, in detailed and you must be afforded adequate time and facilities for the preparation of your defence. The Supreme Court in a recent unreported case of THE REPUBLIC V EUGENE BAFFOE-BONNIE AND FOUR OTHERS, (NO. J1/06/2018,) delivered on June 7^TH, 2018, said that “what is considered adequate facilities is understood to mean the duty of the prosecution to disclose to the accused materials in his possession to enable the accused prepare his defence, examination of witnesses called by the prosecution and securing witnesses to testify on his behalf.  He should not be denied something the result of which denial will hamper his defence as it is one of the principles of fundamental justice to ensure that the innocent is not convicted”. The Court went further to hold that “from the forgoing, we hold that in order to meet the requirement of fair trial in criminal matters, it is the duty of the prosecution in both indictment and summary trials, to disclose to the defence, statements made to the police by persons who will or may not be called to testify as witnesses for the prosecution, as well as copies of exhibits and documents which are to be offered in evidence for the prosecution”.

What else should the Court say? It means right from arrest until the time judgment is pronounced on you, you are presumed not to have committed the offence for which you stand trial. Why should you be punished before then?

In all these, the police have always been quick to play the self-defence card but come on! Is preemptive strike the same as self-defence? Section 37 of THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) as amended, reads; “For the prevention of, or for the defence of himself or any other person against any crime, or for the suppression or dispersion of a riotous or unlawful assembly, a person may justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing.” The law recognizes self – preservation as the first law of nature, it thus allow a person  in defence of himself or others to use reasonable force if that is the only way one can save one’s self or another. This right even allows the killing of another if necessary in self defence or in saving another person’s life. This section however is not a catchall license to kill. Take a look at the following cases on self-defence: STATE V AMPOMAH [1960] GLR 262, STATE V KOFI AMPONSAH (1967) C.C 80 AND TORTO V THE REPUBLIC [1971] 2 GLR 342.  When you strike out of a genuine suspicion of imminent danger, you are still guilty. The difference is the punishments!

 

One beautiful thing about victory in a matter of life and death situation is that you have got to write the story of what happened. The police service might have to write the ultimate stories of what happened in these cases but when the people start to fight back, FREEDOM WON’T BE FREE FOR LONG IN GHANA! Several speculative reasons have flied high for this omnibus of police unprofessionalism including filling the service with frustrated “game boys”. the question that should linger in our minds is what will the reasonable man in a madina “trotro” in the shoes of the police service would or should do under these circumstances? Shoot to kill?

The defect in looking at these issues through a political lens is that death is not a politician!

REMOVAL FROM OFFICE OF THE EC CHAIRPERSON, THE DILEMMA OF A LAW STUDENT

The removal of the former EC chairperson and her two deputies, Mrs. Charllote Osei, Mr. Amadu Sule and Mrs. Georgina Amankwa raises several fundamental jurisprudential issues every law student or student of law should take some time to ponder over. There have been several common sense arguments hovering around since this issue first gain the attention of the media. Whereas the whirlwind of political game swept across the public, as a law student, careless of the political reasons whatsoever, I have decided to look at the issue holistically from the perspective of the law as it is now and not as it ought to be. There have been cries of inconvenience following the decision of the President but this position is dashed at birth by the famous remark by Hayfron-Benjamin J.  (as he then was) in SHALABI v. A-G. (1972) GLR 259 @ 263 where he stated classically that, “The courts are concerned with justice and not inconvenience”.

Three of the issues will be touched on in this article. The first;Whether the chief justice’s committee has the power to proceed to consider the merits of their case when the Act which they were said to breach provides specific methods of dealing with procurement breaches? In other words, did the committee have the competence to deal with the merits of the case when it was clear to them that there is a procedure provided by the Act that made their actions unlawful? Section 92 (1) of PUBLIC PROCUREMENT ACT, 2003 (ACT 663) provides that “Any person who contravenes any provision of this Act commits an offence and where no penalty has been provided for the offence, the person is liable on summary conviction to a fine not exceeding 1000 penalty units or a term of imprisonment not exceeding five years or to both”. Clearly, the three officers should have been arraigned and processed through a court of competent jurisdiction and sentenced accordingly in accordance with this section of the Act.   This question arises given the well settled principle of law that when an act provides a remedy for its breach, only that remedy ought to apply unless otherwise specified. Depending on which angle one may look at it, it will appear that the committee exceeded its power when the six grounds of misconduct all fell within the procurement act. On another angle, the 1992 Constitution failed to define what it conceive to be “stated misbahaviour and incompetence” so it is save to argue that a willful breach of the law properly so called is enough to fall within the ambit of article 146 of the 1992 constitution. Until the Supreme Court exercises its exclusive interpretative jurisdiction, either way one look at the whole issue, you would not be far from either right or wrong. Well, there is no middle ground in the court room, you are either right or you are wrong simplicitur!

The next question that arises from the given facts is the form of the petition. Quite frankly, unlike the first question, this one has receive a plethora of judicial pronouncement from the Supreme Court, first the dictum Prof. Ocran JSC in the famous Agyei-Twum v Attorney-General & Akwetey and that of ATUGUBA JSC in Oppong v Attorney-General to the effect that a petition must be signed either by the petitioner himself or his lawyer in order to be valid. From the media and excepts that emerged in the wake of this issue, it appears settled that the petition was not signed. Quite apart from that, it appears the petition had other questions hanging on its neck but that did not stop the president or the C J or even the committee from proceeding to look at the merits.  It will appear that the C J’s committee or the powers be did not see the form of the petition as important as its merits.

The next issue that everyone seems to allow by acquiescence is the question of whether or not article 146 is the right procedure for the removal of the EC chairperson. Interestingly, in all these, neither the 1992 constitution nor any of the previous republican constitutions provide expressly, the removal process of the electoral commissioner. The ELECTORAL COMMISSION ACT, 1993, ACT 451 in the same vein provides nothing more that ipsissima verbatim of the 1992 Constitution. This makes the whole issues incomparable to the offices of the commission for human rights and administrative justice, the chairman of the National commission for civic education and the Auditor-General whose removal process is catered for expressly in the constitution in articles 228, 236 and 187(13) respectively to be the same as that of the justices of the superior courts aside their enjoyment of the same salaries and terms and conditions of office. This question is necessitated by the Supreme Court’s decision in APPIAH OFORI V A-G (2010) SCGLR, 484 where, despite their linkages, the court held that the auditor-general’s enjoyment of the same terms and conditions of office of a superior court judge does not equate him to a superior court judge, therefore, he cannot by virtue of that retire at age seventy like a superior court judge. The point here is; since terms and conditions could not earn the auditor-general the same retirement age as that of a judge of the Superior Court, why should the same terms and conditions earn the chairperson of the electoral commission the same removal process? Just in case one is tempted to think that in the auditor-general’s case, the audit service act provided for the retirement age, it is worthy of a reminder that an act of parliament cannot take the place of a provision of the constitution. The court was clear on that.

The final twist to this whole issue is the president’s decision to proceed with the appointment of new personnel to Mann the affairs of the commission despite the pending law suits. This is even more striking considering the scenario where the Supreme Court was to reverse the decision of the president on the removal and declare null and void the recommendations of the committee. What will be the faith of the four people appointed? A contrary decision by the Supreme Court will be reversing two executive decisions, one the decision to remove and two the decision to appoint. More interestingly, the latter is not before the court so how will a court reverse a decision that is unchallenged before them?

This issue of the electoral commission expose yet another hole in the constitutional law of the country. How this scenario has not engaged the minds of successive governments and jurist is baffling. How someone over the years has not gone to court over this issue is even more bewildering given how incessant article 2(1) and 130(1) is invoked. What is more striking is the decision by the two legal teams to feel comfortable with this whole process without objecting to the procedure. What can man do? All we have is time and patience to wait for what the men and women in wigs on the highest bench in the highest office of the land will say and we will follow. Until then, these mind troubling questions will linger on.

CONSTITUTIONALISM

CONSTITUTIONALISM AND HOW IT PERTAINS TO GHANA

This paper sets out to examine the concept of constitutionalism and how it pertains to Ghana on the basis of the doctrines of judicial independence, separation of powers, rule of law and respect for human rights.

Brief history of Constitutionalism

Constitutionalism has a vibrant history among the English people, and that tradition has been passed on to other nations, Ghana included.  Like any other political concept, constitutionalism evolved with the passage of time. The concept traces its roots way back to 1215 when King John of England was forced by a group of wealthy nobles to sign a document called the Magna Carta, setting certain limits on the King’s powers. One of the fundamental clauses of the charter read: “No free man shall be seized or imprisoned, or stripped of his rights or possessions,or outlawed or exiled. Nor will we proceed with force against him. Except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice. (https://www.bl.uk/treasures/magnacarta/basics/basics.html). This specific clause can be said to have been a binding precedent for the later conceptions of constitutionalism.

Fast forward to the year 1689, the English Bill of Rights was signed by King William III of England. The English Bill of Rights outlined what rights English citizens possessed, and placed limits on the monarch and Parliament. The English Bill of Rights is a foundational constitutional document that helped inspire the American Bill of Rights.

Political theorist like John Locke also played a huge role in cementing the philosophy of constitutionalism. Locke was an English intellectual who helped develop the concept of social contract theory. According to this theory, government itself is a sort of contract between the people and the state, and if the state abuses its power or doesn’t hold up its end of the bargain, the people have the right to make the contract null and void. America’s Founding Fathers were big fans of Locke, and his ideas provided the philosophical justification for the American Revolution. These words of Thomas Jefferson in the declaratory notes of Americas independence aptly portrays John Locke’s notion of constitutionalism “That to secure these rights, governments is instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new one”

David Fellman, a constitutional scholar and a former lecturer at Wisconsin-Madison, had this to say on constitutionalism. “Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials … Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.” (www.getdocuments.asp) .

Constitutionalism, therefore, is a political philosophy based on the idea that the authority of government is derived from the people and should be limited by a constitution that clearly expresses what the government can and cannot do. It’s the idea that the government is not free to do anything they please and in any manner they so choose, but is bound by laws limiting its authority. That government can and should be legally limited in its power and that its authority or legitimacy depends on its observance of these limitations. Governments are supposed to exercise their power in accordance with pre-determined rules with effective restraints; these restraints could be substantive, institutional or procedural. The basic idea is that, government must be effectively restricted so as not to take undue advantage of the citizenry. These limitations must be clearly and unequivocally spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial. Constitutionalism must however be distinguished from democracy, or better still, a government set up by a constitution. A constitution can set up a government and leave it to act as it pleases.

In the celebrated cases of RE AKOTO and NPP V ATTONEY GENERAL (the 31^st December case), the difference between a constitutionally established government and constitutionalism was clearly demonstrated. The government of Ghana was duly established by a constitution (1960 constitution) but that constitution could not place effective restraints on the powers of the governor-general. In RE AKOTO, Mr. Baffour Osei Akoto and seven others were arrested under the Preventive Detention Act which virtually made the government the complainant, prosecutor and a judge, a clear violation of both the letter and spirit of the 1960 constitution. Section 2 of article 42 of the republican constitution enjoined the supreme court to declare any legislation made by parliament null and void if they find out it was made in excess of the powers conferred on it. Nonetheless, the courts failed to appreciate this unique power afforded them by the constitution and went on to recklessly condemn these people with absolute impunity. These people were arrested and sentenced by an order made by the governor-general and signed on his behalf by the interior minister under section (2) of the said PDA. In fact, the entire PDA and the dubious judgment of the court were summed up in the following comments of Mr. J.A Braimah during a parliamentary debate on the PDA bill, 1958: “By introducing this preventive detention bill in the house, the government is behaving as if the British had not left behind a deep respect for individual rights and an understanding of the practical mechanics of democratic law and government. Is the government telling us that there is no longer going to be the rule of law in this country? This three page bill, containing only five clauses, and with only five clauses, if allowed to be passed into law, can deprive any person who is a citizen of Ghana of his liberty for a period of five years, or 1,825 days. We gather from the preventive detention bill that it will no longer be the obligation of the prosecution to prove that crime has actually been committed by the person accused….the application of the bill will only amount to shouting to a blind man that he is going the wrong direction wherever he turns. It is like gambling with a blind man. The person with the eyesight, which is the government, will always win against the blind, which is the public….if this bill is allowed to be passed, the government will be the complainant, the prosecutor and the judge at the same time. How do members expect the poor accused person to get a fair trial?” Clearly, if a constitution can be rendered this impotent by government and a competent judiciary who, otherwise should have known better, such a system cannot be said to be constitutionalism. In the case of NPP V THE ATTORNEY GENERAL (the 31^st December case). On 19^th January 1993, the Government of Ghana announced that 31^st December will be declared a statutory public holiday to commemorate a coup d’état that occurred on December 31^st 1981 where a constitutionally elected government was overthrown. The New Patriotic Party, a registered political party in Ghana brought a suit against the government, seeking a declaration that the said celebration was inconsistent with the 1992 constitution, particularly articles 3(3- 7), 35(1) and 41(f) and an order compelling the government to cancel preparations for the celebrations and refrain from carrying out the celebration with public funds. The court by majority decision ruled against the celebration and declared same unconstitutional despite the fact that the stakes were too high. The fundamental law of the land which is the constitution triumphed in the midst of uncertainties.

Another case of importance to what constitutionalism actually means is the case of MARBURY v MADISON.

Marbury was nominated and appointed by John Adams to become the Justice of Peace for the District of Columbia. After the appointment document was signed by the President and the seal of the United States was affixed to it by the Secretary of State, the Secretary of State, Madison failed in his duty to deliver the letter as required by law. As such, Marbury was refused the position of the Justice of Peace because the commissions signed by former President, John Adams were not delivered before the expiration of John Adams time in office. Marbury brought a petition to the Supreme Court under the Judiciary Act of 1789 for an order of mandamus to compel the Secretary of State to deliver his commission to take up the post of justice of the peace.

The court concluded that when a commission has been signed by the President, the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. Thus, MARBURY was duly appointed under the laws of the United States of America.

This idea brings with it a vex question of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state. How can a government be legally limited if law is the creation of government? For constitutionalism to be present and effective in a country, there are certain inevitable elements that must be present. These elements fundamentally include but not limited to the following; the presence of a constitution, rule of law, separation of powers, independent judiciary and fundamental human rights.

PRESENCE OF A CONSTITUTION

The Merriam Webster dictionary defines a constitution in simple terms as “the basic principles and laws of a nation, state or a social group that determines the powers and duties of the government and guarantees certain rights to the people”. Also defined by the online legal dictionary as “the fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers” (www.thefreedictionary.com).

Suffice to say from the above understandings of constitution that, a constitution is simply a set of fundamental rules and regulations under which everything actionable in a state must fall. Whether codified or otherwise, society, within which its provisions are applicable, must unconditionally subscribe to its dictates. Once there is this “ground norm” that places enough restrictions on the exercise of authority, constitutionalism would be palpable.

 

JUDICIAL INDEPENDENCE

It’s a constitutional provision which enables the judicial arm of government work without any influence, sanction or pressure from the other arms of government. Bishop Hoadly (1717) in a sermon before the English King observed that: “Whoever hath an ultimate authority to interpret any written or spoken laws; it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.” (Quoted in Gray 1986, p.12). it is important therefore that, anybody vested with the task of giving meaning to the provisions of any written be sufficiently independent in order to discharge their duties without prejudice.

Judicial independence is a means through which the judiciary is absolved from government and other influences. Existence of judicial independence as an element of constitutionalism enables judges discharge their duties without fear or favor. The independence of the judiciary has been established by article 125(1) of the Ghanaian constitution that states that: justice emanates from the people and shall be administered in the name of the republic by the judiciary which will be independent and subject only to the constitution. Further clause 1 of article 127 stipulates that the judiciary shall not be subject to the control or direction of any person or authority in the exercise of judicial powers in terms of judicial function, administrative responsibilities and financial administration. Article  127 (2) also stipulates that, neither the president nor parliament nor any  person whatsoever  shall interfere with judges and judicial officers or other persons exercising  judicial power, in the exercise of their judicial function and that all state organs must accord the court such assistance as they may reasonably require to protect their independence, dignity and effective judiciary. The NPP V ATTORNEY GENERAL (supra), demonstrates the independence of the judiciary as against the whims and caprice of the executive. Some measures put in place to ensure judicial independence in Ghana includes:

1. REMOVAL FROM OFFICE: there are defined rules and procedure for the removal of judges from office. Once they are appointed, the executive cannot dismiss them so long as their work and behavior are in tandem with the laid down procedure contained in the constitution. The judicial independence is also strengthened with the immunity of judges from prosecution in the course of administering justice. They’re not made to suffer any legal action as a result of the nature of a judicial decision. It means that judges cannot be sued on the basis of the judgment they pass. This is grounded in article 146 (1) of the 1992 constitution. 146(1) states: “A Justice of the superior court or chairman of a regional tribunal shall not be removed from office except for stated grounds of misbehavior or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind” section 113 of act 459 as (amendment) act, 2002, (act 620) by also provides that; “A Judge of the superior court, a circuit court judge, a magistrate, panel members of a regional tribunal, and juvenile court shall not be liable to any action or suit for any matter or thing done in the performance of their functions as such officers”
2. THE CONSTITUTION GUARANTEES THE FINANCIAL INDEPENDENCE OF THE JUDICIARY: Good conditions of service of the judiciary also ensure the independence of judges. According to the 1992 constitution, the administrative expenses of the judiciary, including all the salaries, allowances, gratuities and pensions payable to judges shall be charged on the consolidated fund. This prevents the other organs of government, thus, the executive and parliament from controlling the judicial arm of government since they not have the power to determine the service conditions of the judiciary. In some countries judges retire on their salaries. See generally article 127 of the 1992 constitution. See also BROWN V THE ATTORNEY GENERAL where the Supreme Court held that the administrative expenses of independent constitutional bodies are not subject to budget policy directives of the executive and hearings of the ministry of finance or reduction by the ministry of finance before parliamentary approval. The court further held that the only thing parliament can do is to reject the administrative estimates or to seek clarification in circumstances where the estimate results in fundamental errors in relation to the information laid before parliament.
3. ENTIRE ABSENCE OF EXECUTIVE AND LEGISLATIVE CONTROL: decisions of judges are binding. The executive and legislature must accept the decision and judgement of judges. See article 127(1) and (2) of the Constitution, 1992.
4. NON- PARTISAN: judges are nonpartisan so that they can impartially adjudicate cases between the government and the citizens. To ensure his or her impartiality, no member of a government in office should be appointed to a judicial position.

In TUFFUOR V ATTORNEY GENRAL, an incumbent chief justice was reappointed by the president of the second republic Dr Hilla Limann despite the second republican constitution conspicuously stating that the chief justice shall be deemed to have been appointed by that constitution immediately upon the coming into effect of the 1969 constitution. Despite this glaring provision in the constitution, the incumbent chief justice was nominated to be vetted and approved by parliament. The plaintiff by virtue of being a citizen of Ghana sued the government seeking inter alia, that the purported nomination and subsequent vetting with rejection of the chief justice is inconsistent with the constitution and  same should be declared null, void and of no effect. That justice apaloo should be reinstated as the substantive chief justice. The court ruled for the plaintiff demonstrating that, the judiciary is independent of the whims and caprices of both the executive and the legislature.

 

SEPARATION OF POWERS

Separation of Powers as a concept is central to Constitutionalism. We will want to examine the various ways in which the doctrine of separation of powers promotes constitutionalism in Ghana. But before we proceed, let us take a brief look at the meaning of the concept of separation of powers.

According to Montesquieu,

‘When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty … Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes’ (Montesquie B, L’Espirit des Lois; cited in Opoku-Agyemang M, 2009).

Other scholars, like N. W. Barber, believe that the purpose of separation of powers is efficiency; that if the various types of power are allocated sensibly to the right kind of institutions, it is more likely to be exercised efficiently.

So essentially, the rationale underpinning the doctrine of separation of powers is that the three branches of government should each be vested with one function of government – executive, legislative and judicial. ‘The aim of separation of powers is to prevent the concentration of power in one man or a group of men and the emergence of authoritarian tyrannical government’ (Asante R & Debrah E, ). This is the theory propounded by Montesquieu and also held by Prof. Eric Barendt.

Now let us turn our attention to the principle of separation of powers as it pertains to Ghana. The 1992 Constitution vests each of the three distinctive powers of government separately in each of the three arms of government. Article 58 (1) vests executive power in the President:

‘The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution.’

Second, article 93 (2) vests legislative power in the Legislature thus:

‘Subject to the provisions of this constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.’

Third, article 125 (3) confers judicial power on the Judiciary as follows:

‘The judicial power of Ghana shall be vested in the Judiciary; accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.’

Therefore the Constitution makes a clear demarcation in respect of the powers of each of the branches of government.

Let us now consider the relationship between these organs of state, and how they serve as a check on one another thereby promoting constitutionalism.

the judiciary and the legislature

Judicial appointments as well as the appointment of the Chief Justice, although made by the President,  requires Parliamentary approval;  for instance, Article 144 (1&2) states; 144(1)  “the Chief Justice shall be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament” (emphasis mine) and 144(2) “the other Supreme Court justices shall be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State with the  approval of Parliament” (emphasis mine).

Also, ‘Even though article 127 of the Constitution guarantees the financial independence of the judiciary, Parliament controls the release of money to the judiciary through the promulgation of the Appropriation Act as provided for under article 178’ (Opoku-Agyemang M, 2009).

The judiciary, on the other hand, has exclusive power or jurisdiction under the Constitution to declare whether or not an Act of Parliament is constitutional. Article 2 (1-4). Article 2 (1) stipulates, ‘A person who alleges that—

(a) An enactment or anything contained in or done, under the authority of that or

(b) Any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.’

Thus in MARTIN KPEBU V ATTORNEY GENERAL (unreported), the Supreme Court exercised its power of judicial review, a check mechanism guaranteed by the constitution, when it declared section 96 (7) of the Criminal and Other Offences (Procedure) Act (Act 30) which classified certain offences as ‘non-bailable’ as unconstitutional. The plaintiff had argued that section 96(7) of act 30, a creation of Parliament, was inconsistent with article 14 and 19(2)(c) of the 1992 constitution. Article 14 contains the circumstances under which the liberty of an individual can be curtailed whilst article 19 (2) (c) presume the accused to be innocent until he is proven guilty in a competent court of jurisdiction or he pleads guilty. The effect of the ruling therefore was that the same section stood repealed. The decision in this case is a clear indication that the judiciary serve as a check on the work of the legislative organ of government as far the law making power of parliament is concern.

 

The Judiciary and the Executive

The Constitution establishes the Judiciary as an independent body and vests final judicial power in it (Article 125 (1); the Constitution precludes the Executive and the Legislature from arrogating unto themselves judicial power. Article 125 (3) makes this quite clear,

‘The judicial power of Ghana shall be vested in the Judiciary; accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.’

The power of judicial review which the Constitution confers on the Judiciary is a check and control mechanism through which the judiciary keeps the government and its agencies in line with the dictates of the Constitution. In J.H. MENSAH V THE A-G  ]1997-98] 1 GLR 227 (the facts are set out below) for example,  the plaintiff  brought an action against the Attorney-General for a declaration, among others, ‘that on a true and proper interpretation of articles 57(3), 58(1) and (3), 66(1) 76(1) and (2) 78(1), 79(1), 80, 81, 97(1), 100(1) and 113(1) and (3) of the Constitution, 1992, no person could after 6 January 1997 act as a minister or deputy minister of state without the prior approval of  Parliament of his appointment’.

The defendant raised some preliminary objection to the action against him on the grounds that: (i) on the basis of the plaintiff’s claim, he could not institute an action against the Attorney-General since the person acting in that capacity was also a retained minister who had also not had prior approval; and (ii) the process by which Parliament exercised its sovereign powers in giving approval to the President’s nominees could not be questioned by the court. He was arguing, in effect, that the court had no jurisdiction over the political question. The defendant’s preliminary objection was dismissed thus:

(i) ‘ It was clear from the provisions of article 88(1) that the Attorney-General should be a minister of state and the principal legal adviser of the government, that the individual personality of the one holding that office was paramount. And as a minister of state, that person fell into the same category as any other ministers of state. Accordingly, the court had to determine whether anyone who had not had prior approval of the Second Parliament could act or hold himself out as the Attorney-General.’

(ii) ‘The principle guiding the court in refusing to decide moot questions was quite settled. If the question though moot, was certainly not likely to recur, the courts would not waste their time to determine questions and issues which were dead. Thus for a court to decline deciding a moot question, it had to be established that subsequent events made it absolutely clear that the allegedly wrong behaviour could not reasonably be expected to recur. Since no such proof had been established in the instant case, and the court could not be certain that the issue might not recur, the court would go into the question to forestall multiplicity of suits and for the guidance of future governments and Parliaments.’ This is a clear case of the judiciary asserting itself and deploying its constitutional power to check the executive.

But at the same time the judiciary, conscious of the doctrine of separation of powers as one of the pillars of the Constitution, is unwilling to encroach or usurp the powers and functions of the executive. One classical case, for example, is GHANA BAR ASSOCIATION V THE ATTORNEY GENERAL AND ANOTHER. [1995-96] 1 GLR 598-662 “On 15 February 1995 the President of the Republic of Ghana nominated Justice I K Abban, a justice of the Supreme Court for appointment as Chief Justice after due consultation with the Council of State. The nomination was approved by Parliament under a certificate of urgency on 21 February 1995. Subsequently, the plaintiff, the Ghana Bar Association, claiming that the appointment was contrary to the provisions of article 128(4) of the Constitution, 1992 because Justice I K Abban was not a person of high moral character and proven integrity and therefore not qualified for appointment as a justice of the Supreme Court and consequently as Chief Justice, invoked the original jurisdiction of the Supreme Court under article 2(b) of the Constitution, 1992 and sought against the Attorney-General as the first defendant and Justice I K Abban as the second defendant (i) a declaration that by articles 2(1)(a) and (b), 91(1) and (2), 144(1) and 128(4) of the Constitution, 1992 the President should not have nominated and appointed Justice I K Abban Chief Justice since he was not a person “of high moral character and proven integrity”; (ii) a declaration that the appointment of Justice I K Abban as Chief Justice by the President as well as the advice by the Council of State and the approval by Parliament of his nomination were each made in contravention of articles 91(1) and (2) and 128(4) of the Constitution, 1992 and were therefore null and void; (iii) an injunction restraining Justice I K Abban from acting or purporting to act in the office of Chief Justice of Ghana; and (iv) a declaration that the warrant of appointment of Justice I K Abban was null and void and he should deliver it up to the Supreme Court for cancellation. The defendants denied the averments of the plaintiff and then raised a preliminary objection to the plaintiff’s case on the ground that by virtue of the doctrine of separation of powers enshrined in the Constitution, 1992, the appointment of Justice I K Abban as the Chief Justice pursuant to article 144(1) and (5) of the Constitution, 1992 by the President was a non-justiciable political question specifically committed to the Council of State, Parliament and the President, ie the executive and the legislature. The plaintiff however submitted that the principle of non-justiciable political question was not applicable under the Constitution, 1992 because by the combined effect of articles 125(3) and 259(8) of the Constitution, 1992 the Supreme Court had the final judicial power to determine whether any person had properly performed his duties under the Constitution, 1992.” (Emphasis mine).  A “political question” in the concept of separation of powers refers to a situation where certain functions that are committed to a specific branch of government under the constitution are in contention for determination by the court.

The court in a unanimous decision upheld the preliminary objection by the defendants by declaring the suit as a non-justiciable political question. According to the court, as contained in the headnote (2) “by the provisions of article 144(1) of the Constitution, 1992 the appointment of the Chief Justice had been specifically committed to both the executive and the legislature. Accordingly, any attempt by the Supreme Court to claim a power to be able to declare null and void the appointment of the Chief Justice made by the President in consultation with the Council of State and with the approval of Parliament as provided in the Constitution, 1992 would not only be an absurd and excessive extravagance but also an usurpation of the constitutional functions of both the executive and the legislature, and therefore illegal…. since the appointment of the Chief Justice was vested in the President, the Council of State and Parliament, ipso facto the determination of who was a person of high moral character and proven integrity. Their decision in that regard was therefore binding on the court.”

It would appear that the Constitution confers enormous power on the Judiciary and leaves it unchecked, thus, making it appear ‘untouchable’; on the contrary, the Constitution gives the President the power to remove a judge from office on stated grounds (albeit a laborious process) as stipulated in Article 146, hence, the power of the judiciary after all is not unrestricted despite the fact that it appears absolute. In other words the judiciary are subject to checks.

It is important to note that Article 72 confers on the President the Prerogative of Mercy, and he is free to exercise this power. Article 72 (1) (a) for example states, ‘The President may, acting in consultation with the Council of State—

Grant to a person convicted of an offence a pardon either free or subject to lawful conditions;’

Indeed former President Kuffuor exercised this power in favour of many prisoners including Tsatsu Tsikata whom he granted a pardon in 2008 while serving a jail term for the offence of causing financial loss to the State. Former President John Mahama also granted pardons to a number of prisoners including the infamous ‘Montie Three’ in 2016 who were serving a jail term for contempt of court.

It is important to emphasize that the President’s prerogative of mercy does not in any way constitute the exercise of judicial power; contrariwise, it is purely an executive function.

The Executive and the Legislature 

The President is elected separately from Parliament for four years and he does not depend on Parliament for his continuous stay in power as set out in the entire chapter 8 of the 1992 constitution. It is important to note that the President, even though not part of Parliament, he is obliged to give a sessional address at the beginning of a session and during the dissolution of Parliament (Article 67).

Again, with regard to the legislative process, there is inevitable interdependence between the executive and the legislature. It is the executive who initiates a bill and Parliament takes the bill through its procedures to pass it before the President gives his Assent for it to have effect as an Act of Parliament.  Article 106 sets out Parliament’s mode of exercising legislative power.

Article 78 (1) stipulates, ‘Ministers of State shall be appointed by the President with the prior approval of Parliament from among members of parliament or persons qualified to be elected as members of Parliament, except that the majority of Ministers of State shall be appointed from members of Parliament.’

Two issues arise from the above-cited article: first, it is clear that although the President has the power to appoint Ministers of State, the express approval of Parliament is required in that regard;  parliament carries out this function usually by vetting nominees. Thus the legislature has power to check the executive function in relation to the appointment of ministers of state.  The case of J. H. MENSAH V A-G [1996-97] SCGLR 320 (SUPRA) is quite instructive in this respect.. The first term President Rawlings had ended on 6th January, 1997. Having been re-elected for a second term and Rawlings sworn in on 7th January 1997, it was then announced that the President had decided to retain in office some of his previous ministers and deputy ministers of state and since they were approved by the previous Parliament of the first term of the Fourth Republic, they would not be presented to the new Parliament for their approval. Thereupon the plaintiff went to court, praying the court to determine whether the requirement of prior parliamentary approval extend to all nominees, whether retained or new.

The court held that per the Constitution, 1992, arts 58(1) and (4), 60, 78 and 79 the term of office of a minister or deputy minister was coterminous with that of the government which appointed him.  Accordingly, the contention that unless the office of a minister or deputy minister became vacant in any of the ways provided for in article 81 of the Constitution, 1992 he had an indefinite term of office, was untenable and inconsistent with the government structure established in the Constitution, 1992.

Turning to the second question, the court decided that articles 78 and 79( I) of the Constitution, 1992 which provided that the President should appoint his ministers and deputy ministers with the prior approval of Parliament did not draw a distinction between fresh and reappointed candidates. Consequently, both a new or reappointed candidate should obtain the prior approval of Parliament.

Therefore, the ruling in J.H. MENSAH V THE A-G reaffirms the separate functions conferred by the Constitution on the Executive and the Legislature, and on that occasion Parliament rose to assert its power and to exercise its ‘watchdog’ role over the Executive.

The second issue which emanates from article 78, supra, which mandates the President to appoint the majority of Ministers of State from Parliament is the concern as to whether the requirement does not defeat the principle of separation of powers. We shall return to this question shortly.

Furthermore, it is the Executive that initiates all fiscal policies; however, Parliament has the sole prerogative to authorise spending and raising of money (Articles 174 – 178). Thus the Executive submits to Parliament for approval its annual budget.

Another source of Parliament’s power to control and to check the activities of the Executive issues from Article 75 (1) and (2) (a) and (b) which requires that treaties, agreements and conventions entered into by the executive shall be subject to ratification by an Act of Parliament or by a resolution of Parliament. Similarly, Article 181 requires that all loan agreements entered into by the Executive are ratified by Parliament.

Again, under Article 69, Parliament has the power to begin impeachment proceedings against the President on stated grounds. Also, article 82 (1) empowers Parliament to censure a minister for misconduct; it provides thus:

‘Parliament may, by a resolution supported by the votes of not less than two-thirds of all the members of Parliament, pass a vote of censure on a Minister of State.’

Finally, in response to the question raised earlier, it is clear that the Constitution imbues Parliament with enormous powers to control and check the President in the execution of his executive functions and in exercising executive power. However, some are of the opinion that the fusion of the executive and the legislature, created by Article 78 (1) referred to supra which makes it mandatory for the President to appoint ministers from Parliament,  puts Parliament in a compromising situation and thereby paralysing it in the light of playing its ‘watchdog’ role over the Executive.

In conclusion, it is clear that the powers exercised by the three branches of government are clearly demarcated and separated from each other. But there is some unity between the personnel who hold executive and legislative offices, i.e the President appoints majority of ministers from parliament. While there is complete separation in terms of powers and functions between the judiciary and the other two branches.  But it is the President who appoints judges to the superior courts.

Separation of powers in the pure sense of the doctrine is idealistic and therefore impractical.   Indeed the interdependence between the executive and the legislature in Ghana is a creation of the Constitution. It is an attempt to cure the acrimony that characterised the relationship between executive and the Parliament under Limann as a result of ‘strict separation of powers’. The interplay between the arms of government notwithstanding, the judiciary plays its oversight role over the executive and the legislature; and the legislature, to some extent, is able to check and to control the executive. The overall effect is that the various arms of government are unable to act in excess of their powers and this inures to the benefit of the citizen in protecting his rights. Therefore Separation of Powers is established and key to constitutionalism in Ghana.

 

RULE OF LAW

Rule of Law as a fundamental element of constitutionalism can be explained as the legal principle of Law which should be used to govern a nation as opposed to abitrary powers of rulers. It could primarily be viewed from the point of influence and authority of Law in society by rulers of a state as constraint on behaviour of the Citizen. In a wider sense, it is a legal philosophy or political theory which lays down the fundamental requirements of law or as a procedural device by which government should rule. Many philosophers like Samuel Rutherford, Montesquieu, and A.V.Dicey among others trace the development of the concept from the Political institutions in England since the Norman Conquest in 1066 and spread to all democratic loving states all over the world with Ghana being no exception.

Dicey postulates generally, three concepts in his analysis to express the rule of law as existed for a very long time through the history of the English. He stated and portrays the Supremacy of the  law as an undisputed feature in relation to offences and their resultant action of punishment. He was first of the conceptions that no man is punishable or can be lawfully made to suffer in body or in goods except for a distinct breach of law established in the ordinary courts of the land. In the Ghanaian system this concept as enshrined in Article 19(11) of the constitution of the 1992 constitution which states that “no person shall be convicted of a criminal offence unless the offence is defined and penalty for it is prescribed in a written law”.

This principle was demonstrated in the case of TSATSU TSIKATA V THE REPUBLIC, the plaintiff, a former chief executive director of GPHC, was accused of causing financial loss to the state in guaranteeing a loan for a private company circa 1992 when he was the Chief Executive Director of that state agency. The company defaulted in payment and the state was hauled to bear the cost. The court, after a careful perusal, ruled that, even if the actions of Mr Tsatsu Tsikata was a crime,  as at the time he was committing  the supposed crime, there was no law in Ghana pertaining to causing financial loss to the state and punishment prescribed in the constitution of the state. The point is, the law purporting to criminalised his actions and upon which he was convicted came long after he had undertaken this transaction. So since as at the time the supposed crime was committed, there was no law in the statute books of Ghana criminalising such actions since it is trite that laws do not take retrospective effect.

Dicey secondly postulate that “whatever a man be, he is subject to the ordinary law and pliable to the jurisdiction of the ordinary tribunals”. This is basically equality before the law or equal subjection of all manner of persons to the ordinary law of the land. This is in to equal subjection of all manner of persons to the ordinary law of the land administered by the ordinary courts. Nobody should be subject to detention without trial; everybody must have the right of access to court for defence.  No man is above the law , every man and woman , whatever be his or her rank or condition , is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

This is seen in article 17(1) and (2) of the 1992 constitution of Ghana which states that “all persons shall be equal before the law”. Clause (2) also states that “a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status

Thus in the case of CAPTAN V AG, it was held that Captan was discriminated against.  Omar Ibrahim Captan, a Lebanese citizen Accra, applied for naturalization in July 1968, the application was received by the interior minister on 23 July 1968. In September 1969, the principal secretary to the minister received a letter from the National Liberation Council that the application had been approved. The ministry of interior sent a letter to Captan, asking him to complete forms and attach forty new cedis as a naturalization fee for submission together with a certificate of naturalization issued under a presidential decree from the government of Lebanon permitting him to acquire Ghanaian citizenship. And that it was only when a certificate of naturalization has been issued that the plaintiff can become a citizen of Ghana. The plaintiff did as told and swore an oath and was issued with a receipt. On the same day, the plaintiff received a letter from the Lebanese embassy signed by the ambassador and stamped with the seal of Lebanon indicated that the plaintiff was authorized to renounce his Lebanese passport and acquire a Ghanaian citizenship. The principle secretary refused to issue the certificate of naturalization which remained on the file of the plaintiff at the interior ministry on the grounds that there was no presidential decree. On 18 September, 1969 , the plaintiff received a letter signed by the interior minister that his permit had been withdrawn and that he should leave Ghana within 24 hours which expired by 6 pm.

It was held that the minister in expelling an alien from Ghana under sections 7 and 8, of the Aliens Act1963, (Act160) does not exercise such a discretionary power as falls within the purview of article 173 and he is not obliged to assign reasons. Article 24 does not vest in an alien the right of immunity from expulsion from Ghana. That right is enjoyed by a citizen of Ghana.

The third conception of rule of law as set out by Dicey has got to do with the right to personal liberty and freedom. The rule of law believes in the respect for fundamental human right and Dicey, together with a host of other proponents of the law advocated that, the state must respect human rights as a valued obligation which flows as a natural consequence of the rule through the law. In this respect, every state that upholds the tenets of the rule of law compulsorily must include in their constitutions real provisions that seek to uphold and guarantee human rights. Ghana in compliance of this notion has devoted the entire Chapter five of its constitution on Human Rights and freedom issues. In the case of human rights, two cases of immense interest comes to mind, the famous two SALIFA cases.

THE REPUBLIC V DIRECTOR OF PRISONS (EX PARTE SALIFA 1)

Salifa, a school boy, then aged fifteen years was sent to Guinea by his father in 1965 to continue his education. In 1967 he ran away from his guardian who was allegedly maltreating him. He went to Sierra Leone where he asked the Ghana High Commissioner to help him to return to his parents in Ghana. On his arrival in Accra, in June 1967, he was immediately arrested by the police and detained in Ussher Fort Prison. On 25 June 1968, Salifa’s father filed an ex parte application for an order of habeas corpus on the ground that his son’s detention was unlawful. Upon a notice of motion filed on 29 June 1968, for hearing on 2 July 1968, the Director of Prisons made a return thereto by an affidavit annexing thereto a Photostat copy of a document purporting to be a Decree signed by the Chairman of the National Liberation Council authorising the arrest and detention of Salifa. The document was not numbered and neither was it published in the Gazette as required by the Proclamation establishing the National Liberation Council. In a press release dated 24 April 1968 issued by the Ministry of Information, it was stated therein that all persons placed in protective custody since 24 February 1966 and the 17 April 1967 abortive coup had been released. This is a clear case of the fundamental liberty of a citizen.

The court ruled inter alia, that, (I) even though the date of the coming into force of a Decree could be so stated in the body of the Decree as to make the date of publication not the date of its coming into force, nevertheless, publication of it in the Gazette, numbering thereof in accordance with the order in which Decrees were published, printing and publication thereof by the Government Printer, together with its consequential purport that it was signed by the Chairman of the National Liberation Council, could not be respectively legally dispensed with in the making and issuing of a Decree having the force of law. Consequently, since the document in question was neither numbered nor published in the Gazette, it could not be classified as a Decree.

(I) the contention that the National Liberation Council had an unlimited power was pitched too high – it undermined or undefined the purposes for which by the Proclamation the National Liberation Council was established. According to the preamble to the Proclamation, it was established in the interest of the people of Ghana, and for the provision for the proper administration of the country and for the maintenance of law and order. In effect the Proclamation provided for the eradication by the National Liberation Council of illimitability of power in Ghana; for, autocracy in Ghana was given a decent burial on 24 February 1966. SALIFA as therefore discharged.

REPUBLIC V DIRECTOR OF PRISONS, SPECIAL BRANCH(EX PARTE SALIFA 2)

Immediately after his release, Salifa was re-arrested without warrant and detained for suspected subversion under another unnumbered and unpublished National Liberation Council Decree. Salifa’s father filed another application for a writ of habeas corpus for the immediate release of his son on the grounds, inter alia, that the re-arrest without warrant was unlawful and further that the subsequent unnumbered and unpublished Decree was also invalid.

The court held that, The NLC has so many powers in the sense that even though it proclaimed procedural limitations in its making of Decrees, it also gave its power to amend, repeal or make laws. Also, a decree could be in effect even though it wasn’t known to the public because it was not published in the Gazette. In interpreting an Act of Parliament or a Decree, the Act or Decree should be read as a whole. The cumulative effect of paragraphs 3 (6) and (7) of the Proclamation 1966, was that a Decree could come into force and be operated or administered even though it had not been published in the Gazette. And the word “issue” appearing in para. 3 (1) of the Proclamation, would in the context of the present circumstances appear to mean the operation of the Decree even though it was unpublished. Furthermore a Decree could come into force in some other way or mode of publication or even on some other day than by publication in the Gazette. Thus a retrospective or prospective date could be put in a Decree and such a Decree could not be said to have been published in the Gazette on the date of its coming into operation. Therefore, the Decree authorising the detention of the applicant was to operate retrospectively, consequently it could not be considered to be inoperative merely because it had not been published in the Gazette and a number assigned to it. Clearly, this stop-start system cannot be representative of constitutionalism so far as fundamental human rights are concern.

It can therefore be deduced that if the government’s power is arbitrary or even discretionary, it limits this idea. But the truth of the matter is that, there are many discretionary powers existing around us and many of these powers form part of the law. They may also stem from the courts.

This sense sharply contrasts government by arbitrary power. Fundamentally, it is an absolute predominance or supremacy of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even the wide discretionary authority on the part of the government.

In other countries, the executive exercises discretionary which may infringe on the liberty of individuals and this is not predominantly the case in the government of England. This has led to a general idea held by a lot of Englishmen that whenever there is discretion, there is room for arbitrariness.

The designs and the principles of the rule of law are important as they are the values or the pillars underpinning the constitution to which we can refer when questions arise concerning the exercise of power or authority granted by the constitution. So for constitutionalism to exist in a country, rule of law must not only be operative but must be seen to be operative.

 

Fundamental Human Rights

The basic rights to which all humans are generally considered to be entitled, which can include life, liberty, freedom of speech, freedom of religion, due process, equal rights, and dignity.

Rights are freedoms and privileges that every citizen must enjoy unconditionally.  They are fundamental to the existing and the survival of human race.  Rights are provided for by the constitution or the laws of a country; hence they must be protected, guaranteed and respected at all times.

Protection of Human Rights Under the 1992 constitution.

In Ghana, all the Republican constitutions contain express provisions guaranteeing the fundamental human rights protected by the state, with the exception of the 1960.   The decision to adopt this system has been occasioned by the experience in RE. AKOTO case (SUPRA). The decision of the Supreme Court in Re Akoto is therefore a milestone in securing and ensuring the fundamental human rights and freedoms by the 1992 constitution, which runs in tandem with Article 33 (1) of the 1992 Constitution.

Article 33 of the 1992 constitution states that; ‘where a person alleges that a provision of this constitution on the fundamental rights and freedoms has been , or is being prejudice to any other  action that is lawfully available, that person may apply  to the High Court  for redress’.

The 1992 constitution recognizes certain rights, freedoms and privileges which are generally termed Fundamental Human Rights.  The main rights are classified in most constitutions are legal rights, political rights, economic rights, natural rights and social rights.

In fact, the entire chapter five of the 1992 constitution provides the fundamental human rights as guaranteed by the constitution.    This chapter gives constitutional protection to individuals in the country, manifested in Article 12 (1) which states that ‘’ the fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and the Judiciary and all organs of government and its agencies and, where applicable to them, by the natural and legal persons in Ghana, and shall be enforceable by the courts as provided for in this constitution”

(2) every person in Ghana, whatever his race, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual  contained  in this chapter but subject  to respect for the rights  and freedoms of others and for the public interest.

The constitution imposes its checks and balances on the three arms of government. For example, Parliament cannot make any laws that will affect the human rights of an individual in the country.  The judiciary can declare executive actions that affect the human rights of individuals in Ghana

Article 12 provides that the fundamental human rights that are contained in chapter five of this constitution shall be respected by the Executive, Legislature and the Judiciary and all other organs of government and its agencies and by all natural and legal persons in Ghana all are enforceable by the courts.

The famous case of AWUNI V WAEC is instructive in this regard. The final awards committee of the west African examinations council [herein after referred to as the council] took a decision to not only cancel the entire results of the appellants but also ban them from taking part in any exams under the auspices of the council for three years on grounds that the appellants had been involved in examination malpractices/irregularities in relation to core mathematics paper 2, in the examination organized by the council between October and December 2000. The appellants were said to have had foreknowledge of the paper and colluded among themselves in solving the questions. This decision by the council, the court reasoned, violated the fundamental human rights of the students as guaranteed by the constitution which is the supreme law. The decision violated the principles of natural justice that requires no man to be condemned unheard.  The council’s refusal to give a fair hearing to the appellants violated the “audi alteram partem” rule in natural justice.

Another case of enormous importance to the concept of human rights as guaranteed by the 1992 constitution of Ghana is that of ABOAGYE VS. GHANA COMMERCIAL BANK (2001-2002), the appellant who was bank manager of the Ghana commercial Bank answered queries received from disciplinary committee of the bank with some payments made by him without going through due process. The matter was referred to the BNI and a report issued at the end of the investigation. The disciplinary committee recommended to the executive council without hearing the side of the applicant.  The applicant was dismissed and he sued at the High court for unlawful dismissal where his claims were upheld.  The defendant bank sued at the court of appeal that reversed the decision of the High court, the plaintiff then appealed at the Supreme Court.  It was held that the “audi  alteram  partem” rule which implies that the authority  in exercising disciplinary power should  give the plaintiff reasonable opportunity to be heard and should also be informed of the charges and the dates of trial.

This is how clear in high esteem, the constitution of Ghana respect and defends the fundamental human rights of citizens, unequivocally manifested in chapter five of the 1992 constitution.

The Labour Act (2003) Act 651 also Section 79 also specifies or makes provision for the protection of citizens who happen to be employees.   It states that every worker has the right to form or join a trade union of his or her choice for the promotion and protection of the workers economic and social interests,  however, subsection (2) provides that ,’’Notwithstanding subsection (1), a worker whose function is normally considered as a) policy making b) decision making (c) managerial  d)  holding a position of trust e) performing duties that are of highly confidential  nature; or an agent of shareholder of an undertaking, may not form or join a trade union’

Article (21) of the 1992 constitution specifies detailed general fundamental freedoms which may be regarded as bill of rights thus;

• All persons shall have the right to

1. Freedom speech and expression which shall include freedom of speech of the press and other media
2. Freedom of thought, conscience and belief, which  shall include academic freedom ;
3. freedom to practice any religion and to manifest  such  practice; freedom of assembly including  freedom to take part in procession and demonstrations;
4. freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest
5. Information, subject to such qualifications and laws as are necessary in a democratic society.
6. Freedom of movement which means the right to move freely in Ghana the right to leave and the right to enter Ghana

However, none of these freedoms stated above are absolute.   Article 21 (2) puts restrictions on a person’s freedom of movement by a lawful detention shall not be inconsistent with or in contravention of this article. A check against abuse of these rights

The laws of nation in question makes a provision for the imposition of restrictions by order of the court, that are required in the interest of defense, public safety or public order on the movement or residence within Ghana of any person.  This was reiterated in the dictum of Bamford JSC  in the case of MENSIMA V ATTORNEY-GENERAL where stated that, “the enjoyment of the fundamental human rights and freedoms is not absolute but subject to the rights of others”. In effect, despite the venom with which the constitution protects human rights, they are not to be exercised arbitrarily.  When a person alleges that a provision of the constitution on the fundamental human rights and freedoms has been or is being likely to be contravened in relation to him, he can apply to the high court to seek redress. The High Court is first instance or the main forum for the enforcement of individual rights. An appeal can be made to the Court of Appeal and further appeal to the Supreme Court.

 CONCLUSION

Per the above locus classicus, it is crucial to note that constitutionalism is basically an idea that government should be limited in its powers and that its authority depends on its observations of these limitations. In particular, these limitations relate to the organs of government.

First of all, Constitutionalism as an element of rule of law deals with how constitutional limitations of the government are interpreted and enforced. The maintenance of an independent and accountable judiciary which is also a fundamental element of constitutionalism helps in the protection of human rights.

Secondly Constitutionalism creates a stable society. If government can formulate and enforce fair, just and universal rules of social conduct, citizens will be able to live at peace with one another in a healthy and productive collaboration.

Moreover, because the citizenry are minded to limit the powers vested in the rulers with strict rules of procedure, they ensure that power thus delegated is not misused. This means that the rulers are subject to the law. In England for example, the monarch became subject to the disciplines and limitations of the Common Law, Custom and various agreements placed on him by popular pressure. The King was bound by his Coronation Oath to defend the church, to punish crime and violence and to rule with clemency and mercy.

Similarly, in Ghana, the Presidential Oath states, ‘… I will be faithful and true to the Republic of Ghana; that I will at all times preserve, protect and defend the Constitution of the Republic of Ghana; and that I dedicate myself to the service and well-being of the people and to do right to all manner of persons.’

Furthermore, constitutionalism limits absolute power through placing conditions on that power by requiring the sharing of power with those subject to it through a process of debate. The constitution attempts to preserve discipline and integrity in government through provisions, thereby creating a system in which the various branches of government share power, yet limit that power through a series of checks and balances.

Constitutionalism ensures that the human rights of the citizen are protected. The principle of separation of powers is the idea that power should not be concentrated in the hands of one branch of government in order that the rights of the citizen are not abused. Thus the Constitution, 1992 contains express provisions that protect the fundamental human rights of the individual. Indeed the entire chapter five of the constitution is devoted to provisions that protect the human rights of the individual.

Compare constitutionalism with absolutism and the relevance of the former becomes clearer. In absolutism, the king or sovereign is believed to be ordained by God. He is the embodiment of all the three basic functions and powers of government – executive, legislative and judicial. There are no rules or regulations for the sovereign to run his state. And so he has ultimate power to rule his subjects as he deems fit, and no one challenges his authority. Whereas in a state where there is constitutionalism like Ghana, for example, those vested with governmental powers are required to rule under the law. The 1992 Constitution states in article 34 (1) that,

‘The Directive principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary … in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society’ (emphasis mine). The ruler, like the ruled, is under the law.

In sum, the principle of constitutionalism requires that no government or president or institution of law enforcement should be established or be allowed to exist and function without a system of checks and balances or control mechanisms, exactly the case in Ghana. Therefore, we can assert without any iota of doubt that the system of government in Ghana is in all fours with the concept of constitutionalism.

 

 

 

 

 

 

 

 

 

 

 

REFERENCES:

1. RE AKOTO [1961] SCGLR 523-535
2. NPP V THE ATTORNEY GENERAL (the 31^st December case)
3. MARBURY v MADISON. (1803) 5S. 137 
4. TUFFUOR V ATTORNEY GENRAL  [1980] GLR 637
5. MARTIN KPEBU V ATTORNEY GENERAL 2016 (UNREPORTED)
6. H. MENSAH V THE A-G ]1997-98] 1 GLR 227
7. GHANA BAR ASSOCIATION V THE ATTORNEY GENERAL AND ANOTHER. [1995-96] 1 GLR 598-662
8. REPUBLIC V COURT OF APPEAL, EX PARTE TSATSU TSIKATA [2005-2006] SCGLR 612
9. CAPTAN V AG
10. THE REPUBLIC V DIRECTOR OF PRISONS (EX PARTE SALIFA) 1
11. REPUBLIC V DIRECTOR OF PRISONS, SPECIAL BRANCH(EX PARTE SALIFA) 2
12. AWUNI V WAEC {2003- 2004} 1SCGLR
13. ABOAGYE V GHANA COMMERCIAL BANK (2001-2002),
14. MENSIMA V ATTORNEY-GENERAL [1996-97] SCGLR 676

 

 

RELEVANT AUTHORITIES

1. THE 1992 CONSTITUTION OF GHANA
2. https://www.bl.uk/treasures/magnacarta/basics/basics.html
3. www.getdocuments.asp
4. www.thefreedictionary.com
5. WWW.NCSL.COM (National conference of state legislators)
6. OPUKU-AGYEMAN, CONTITUTIONAL LAW AND HISTORY OF GHANA. 2009
7. WADE AND BRADLEY: CONSTITUTIONAL AND ADMINISTRATIVE LAW. 6^TH edition.
8. CONSTITUTIONAL AND ADMINISTRATIVE LAW. Fourth Edition, Hilaire Barnett, BA, LLM Queen Mary, University of London, 2002 (WWW.CAVENDISHPUBLISHING.COM/CONSTANDADMIN)

THE PLEA OF NONE EST FACTUM

The plea of none est factum will not avail a person who was careless and negligent in signing a document!

Where two adults, on equal footing and with a clear understanding of what they are doing enter into an agreement which confers some right on one party and imposes an obligation on the other party, the court will enforce the agreement provided the intention of the parties is quite clear from the agreement concluded by the parties. Where the agreement is embodied in a deed it may be enforced against the person who signed the deed. However, there may be certain situations in which, even though a person has signed a document or executed a deed which binds him and imposes an obligation on him, he may nevertheless invoke the plea of non est factum to repudiate the validity of the deed. The plea of non est factum means: “This is not my act and deed.” By invoking the plea of non est factum the person sought to be charged admits that even though he executed the deed or signed the document, yet he contends that due to either fraud or misrepresentation, the character or content of the document he had executed, was essentially, radically or fundamentally different from that which he intended to execute or sign.

Chitty on Contracts (23rd ed.), Vol. 1, summaries the law in the following; “The general rule, is that a man is estopped by his deed, and although there is no such estoppel in the case of ordinary signed documents, a party of full age and understanding is normally bound by his signature to a document, whether he reads or understands it or not. If, however, a party has been misled into executing a deed or signing a document of a class and character different from that which he intended to execute or sign, he can plead non est factum in an action against him.” On this basis, it appears almost unlikely that a man of ordinary prudence will be availed by this doctrine. The plea of non est factum obviously applies when the person sought to be held liable did not in fact sign the document. But at least since the sixteenth century it has also been held to apply in certain cases so as to enable a person who in fact signed a document to say that it is not his deed.

Originally, the plea of none est factum seemed available only to the blind and the illiterate but the leading case of Foster v Mackinnon in which the court, speaking through Byles J appeared to extend the doctrine to people “who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature” this proposition was echoed by LORD REID in saunders v anglia building society when he said that “Originally this extension appears to have been made in favour of those who were unable to read owing to blindness or illiteracy and who therefore had to trust someone to tell them what they were signing. I think that it must also apply in favour of those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate incapacity but that does not excuse them from taking such precautions as they reasonably can”.

This extension however, comes with conditions that must be met by anyone seeking to plead none est factum. A mere mistake will not avail anyone who was careless or negligent in signing the document which is called into question. A mere misunderstanding of the document will not avail him either as was succinctly stated by DONOVAN LJ in muskham finance ltd v Howard that “The plea of non est factum is a plea which must necessarily be kept within narrow limits. Much confusion and uncertainty would result in the field of contract and elsewhere if a man were permitted to try to disown his signature simply by asserting that he did not understand that which he had signed.”

It is immaterial whether the mistake is as to the contents of the document or as to the class and character of the document as was sought to be established by the court in Howatson v Webb. What is essential is that the signor of a document must have taken the trouble to at least find out the general effect of the document he is signing. In GALLIE V LEE, LORD DENNING MR rejected the proposed distinction between mistake as to the contents and mistake as to the character of a document as untenable which was accepted when the case travelled to the House of Lords as SAUNDERS V ANGLIA.  he added that “Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature—by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences—then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document; and once they act on it as being his document, he cannot go back on it, and say it was a nullity from the beginning.”

In QUAO v. SQUIRE, the plaintiff, an educated man, intending to convey a parcel of land to his daughter in law, signed a document which was presented to him by a surveyor and his son without reading it. The document ended up conveying another parcel of land to the son who in turn conveyed it to the defendant. The plaintiff sought to plead none est factum but the court held that since the defendant failed to read the document so as to satisfy himself of the general effect of it, he was negligent and careless. The burden of prove lies on the person seeking to disown his own document. Failure to satisfactorily prove the absence of negligence or carelessness is fatal to the plead of none est factum for the court will only grant this remedy when the consent in signing the document is in fact lacking. As LORD REID in SAUNDERS rightly put it, “a document should be held to be void … only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended”

The doctrine of none est factum must however be distinguished from the common law doctrines of duress and undue influence. When a person is coerced or is unduly influenced into signing a document, the plea of none est factum will not avail him. In BOARD OF DIRECTORS OF ORTHODOX SECONDARY SCHOOL OF PEKI V TAWLMA-ABELS, the defendant alleged that he was coerced into signing a document purported to be a promissory note on which he pleaded none est factum to set it aside. The court, distinguishing the doctrine of none est factum from duress and undue influence held that even if there was evidence that he had been coerced or pressurised into doing so that could not in law support the plea of non est factum which, as a general rule, was limited in its application to a mistake as to the essential nature or character of a document signed. The plea of non est factum was different from the common law defence of duress and the equitable defence of undue influence.

in Ghana, even before the expansion of the plea of none est factum to include people of ordinary prudence howbeit in rare occasions, the plea had gotten  statutory standing in the ILLITERATES’ PROTECTION ORDINANCE, 1951 (CAP 262) which provides in section 4 (1) that Every person writing a letter or other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall clearly and correctly read over and explain such letter or document or cause the same to be read over and explained to the illiterate person. So in WIAFE v. KOM where the plaintiff sought to rely on a promissory note, prepared by himself and not explained to the defendant who was an illiterate, the court held that Where an illiterate party executed a document, any other party to the document who relied on it had to prove that it was read over and if necessary interpreted to the illiterate.  It became necessary for the plaintiff to have called the author of the promissory note to show that he complied with the provisions of section 4 (1) of the Illiterates’ Protection Ordinance, In the absence of any such proof that the defendant appreciated the meaning and effect of the promissory note, it ceased to be of any probative value to the plaintiff. See also KANO v. KALLA.

Suffice to say from the above that, even though it is not impossible for a man of ordinary prudence to plead the doctrine of none est factum, the burden of proof placed on such a man is so high that it will be rare for a court to grant such a man the remedy. Unlike the illiterates’ protection ordinance where the burden of proof lies on the person seeking to rely on the document to establish that such a document was read and explained to the illiterate in the language he understands, the burden of proof lies on a person seeking to disown a document which he duly signed. None est factum is equitable and discretionary whilst section 4 of the illiterates protection ordinance is statutory and binding.  It is clear therefore that to successfully plead none est factum, the plaintiff must not only establish that he misunderstood the character, class or contents of the document but must also prove that he was neither negligent nor careless in signing the document.

 

 

IMPLIED TERMS OF A CONTRACT

ARE IMPLIED TERMS AN AFFRONT TO FREEDOM OF CONTRACT?

Freedom of contract is defined by Black’s law dictionary, (9^th edi.) as “a judicial concept that contracts are based on mutual agreement and free choice, and thus should not be hampered by external control such as governmental interference.” It is a principle that seeks to guarantee the free will of contracting parties. It indicates first of all, that contracts are singed based on mutual agreement and that the creation of a contract is the result of a free choice unhampered by external control including the government, the legislature or any other external force.

In contracts, the terms expressed by the parties orally or in writing may not comprise the sum total of their obligations under the contract. Therefore, the courts, for purposes of justice will imply terms into the contract either by statute or by custom or by the common law itself. Implied terms are terms which are not stated by the parties in the contract but are placed into the contract by the courts or by statute irrespective of whether or not the parties like it.

The courts may imply a term by fact on the basis of either custom, a trade practice applicable to a particular contract, on business sense or based on the previous consistent and regular course of dealing. For instance, in HUTTON V WARREN, the courts implied a term into a contract by custom. In this case, a tenant of a farm was given six months’ notice to quit. His landlord by custom insists that he continue to cultivate the land during the notice period. Even though there was no express provision that entitle the tenant to allowance during that period, the courts were able to imply a term into the contract entitling the tenant to allowance during the notice period. In BRITISH CRANE V IPSWICH PLANT, both parties were engaged in the same business of hiring out earth-moving equipment. They entered into a quick contract on phone call without either party mentioning any conditions. The plaintiff later supplied the defendants with their conditions but before the defendants could sign them, the crane over which the contract was made sang in a marshy ground. The court was of the view that since both parties are in the same business and they are all aware of the standard practice terms, the plaintiffs were entitled to be indemnified. See the dictum of BROWEN LJ in the MOOROCK. See HOLLIER V RAMBLER MOTORS where using a garage three or four times a year did not amount to a previous consistent and regular course of dealing.

Terms implied by fact are said to have been based on the presumed intention of the parties as the courts recognize the need for contracting parties to be as free as they want to enter into any contract with anyone and on any terms they so choose. BREWEN LJ in the MOOROCK argued that terms are implied into a contract in order to give business sense to the contract which was restated by MacKinnon LJ in somewhat more narrowly In SHIRLAW v SOUTHERN FOUNDRIES when he set out the ‘officious bystander test’. He stated that the law would imply ‘… something so obvious it goes without saying. Thus, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common: ‘Oh, “of course”. However, the courts in the latter case of SHELL V LOVSTOCK GARAGE warned that such a term will only be implied if it was certain and clear and is not inconsistent with an express term of the contract.

Terms may also be implied by statute on the basis that it is necessary to do so for particular classes of contracts such as a landlord and tenant contract. In Ghana for instance; there are several acts and statutes that imply terms into contracts of specific nature. Notable among them include the conveyance act of 1978, hire purchase act of 1974 and mortgage act of 1972.

Terms may have to be implied in a variety of circumstances, ranging from where the contract is built on a common but tacit assumption, to where the parties have failed to foresee contingencies which could arise. The doctrine of freedom of contract inhibits the courts from remaking the contract for the parties, but the courts have at least gone beyond the fiction that they are merely articulating the unexpressed intentions of the parties. Implied terms are very much necessary as they seek to protect the less privileged against unscrupulous well to do. The seminal case on this principle is LIVERPOOL CORPORATION v IRWIN where the court implied a term which requires the maintenance of stairs of council-owned flats before a contract could be said to complete.

Essentially, the debate as to whether or not implied terms are an affront to freedom of contract will linger for some time but it is worth noting that the courts have consistently made sense and ensure equity and justice when they imply terms based on the presumed intention of the parties. Though, terms imply by statute may have its own defects but it still serves its purpose of preventing the vulnerable in society from being taken advantaged of unduly.