THE LAW AS A TOOL FOR CONSOLIDATING DEMOCRACY IN GHANA

ADDRESS BY

THE HON. ATTORNEY GENERAL & MINISTER FOR JUSTICE

BETTY MOULD ­ IDDRISU

SYMPOSIUM - LAWYERS IN SEARCH FOR DEMOCRACY (LINSOD)

Venue: British Council Date: 22nd April, 2010

Introduction:

The Attorney-General has a critical role to play in the entrenchment of Rule of Law in our country, a role that requires the proper execution of the functions of her office. In pursuit of the noble and lofty goals in our national motto of freedom and justice, I am constantly humbled, as the principal legal advisor to the Government and the chief law officer of the land, to reflect on the ways in which the law affects the fabric of the daily lives of the citizens of this land. The law in this sense goes beyond the theory or reality of rules regulating the affairs of business and government. Those goals are obviously very important for the realization of the collective vision of our people--- for no modern state or community can survive or thrive without a system of laws that provide a predictable human and governmental behaviour and in circumstances where sanctions are applied for infractions.

But today I want to look beyond the confines of formal legal rules, and explore the dynamics of building institutional trust to aid the process of consolidating our democracy.

Justice is Fundamental:

The law goes beyond crime and punishment; beyond contract and in fact beyond laying down a framework of regulation for governance. What defines the law as the most essential attribute of social and political organization is the concept of justice and equity; of fairness. In that sense, while the law is essential for democracy, no democratic system can be sustained for long without a common recognition of the fact that the system of justice and the application of laws are blind to fame and rank - that all are equal before the law.

What our 1992 Constitution provides is a catalogue of agreed-on virtues that set out the political, social, cultural and economic ideals that we should aspire to and manifest in our burgeoning democracy. Even so, we are fully aware that the stipulated ideals in our Constitution require the intervention of human agencies to be actualized. In this way, in a limited number of cases, we are likely to express rival and incompatible social ideals and policies. Yet one key fact generally agreed is that justice requires, in the minimum, blind application of the law and that fairness and equity should be the hallmark of adjudication.

No Perverse Approach to Law

But this inability to achieve moral or legal consensus on all matters of law and legal policy is no license for a perverse approach to law, which denies the law its spirit or turns legal rules into convenient instruments for prosecuting agendas that denigrate the values of our democracy. As I constantly reflect on the tenets of our Constitution, I am glad to note that in a large measure our 1992 Constitution is designed to foreclose certain impermissible or distorted application of the law. What is clear in constitutional law and theory is that constitutional design plays an important role in determining what is constitutionally permissible under any given legal system. As the chief law enforcement officer, I am determined to ensure that the law is enforced within the permissible limits of the Constitution to safeguard and uphold the values of the Constitution.

Nurturing People¹s Trust in the Law

Like all successful and thriving democracies, the extent to which people identify with and honor the law and justice system determines the sustainability of the State and its institutions. A State may not automatically deliver fair justice even though it is a prerequisite for stability and for creating the conditions for fairness in the allocation of resources in a country. While we have generally shown a fair understanding of the democratic system in Ghana, the law continues to be seen (by a majority of our populace)as an inaccessible, strange system of convoluted rules and mystical principles, unfortunately the perception is that, the administration of law and justice is riddled with corruption and detached from the daily lives of our people. This is sad indeed! Until our people understand that the law and the justice system serves as the foundation for their personal security and for improving the economic well-being of every Ghanaian, we will not be able to harness the full potential of the law for social change and development. It is to be hoped that with the ongoing Constitutional review process currently ongoing in the districts and with the NCCE civic education programs the law will become demystified.

The Role of the Judiciary in Upholding, Interpreting and Enforcing the 1992 Constitution

Since justice is not a cloistered virtue and the judiciary is the institution mandated to administer justice, I cannot fail to mention the unique role of our judiciary in realizing the vision and requirement for practical and effective justice. As the appliers and interpreters of law, our judiciary ensures our forward march in constitutional rule to avert any serious risk of constitutional derailment. In discharging their foremost duty and mandate to defend and uphold the Constitution, they ensure the rule of law prevails. This should be manifested at all levels - when they protect individuals from the impermissible exercise of State power, when they protect us from the wrong-doing of others, when they protect the weak from the strong, the powerless from the powerful, as well as assert the legitimate interests of the State in deserving cases, the foremost role of the Courts is to adjudicate in a fair, transparent and independent manner.

We must remember the governance milestones chalked by the established democracies could not have been achieved without the pivotal role of their judiciaries. For example, under the common law tradition, a large part of the architecture of individual rights and freedoms was laid down by the English courts. In the early days of the common law, the English courts made the protection of liberty and property part of their key objectives. They exported these ideals to us when in the Bond of 1844 they made the protection of liberty and property fundamental aspects of the agreements they reached with our traditional chiefs (albeit for their own ends). In similar vein, the English courts developed many concepts to protect liberty, including the presumption of innocence, and formulated strict rules on deprivation of property. In the US, the courts through the power of judicial review have protected individual liberty against the tyranny and excesses of legislative majorities. While others had to fight for the power of judicial review, fortunately for us, we have enshrined this power in our Constitution. The courts therefore balance out the effect of political partisanship by ensuring that the moderating influence of the law is brought to bear in governance and that there is a certain fidelity to the rule of law as opposed to rule by the dominant majority.

Even so, our constitutional history reminds us that the power of judicial review has not always been exercised in the best of ways that promote fundamental freedoms, liberties, and the legitimate interest of fighting abuse of power. Re Akoto & 7 Others [1961] 2 GLR 523 SC always serves as a painful reminder of that fact. We need to be careful the ghost of Re Akoto and that the literal/textual mode of interpretation that gave rise to it do not rule us from the grave, and the lessons we draw from Re Akoto constantly remain in our active legal/judicial memory. After all, our judicial system is a measure of our level of governance advancement.

If the duty of our courts to apply the law appears so simple in theory, it can be problematic in practice. For the distinction between law application, interpretation and law-making can indeed be blurred in some cases, despite rhetorical judicial pronouncements to the contrary. In Mettle-Nunoo & Others v. Electoral Commission [2007-2008] SGCLR 1250, Dr Date-Bah, JSC, who delivered the judgment of the Supreme Court, provokes us to rethink the notion that some provisions of the Constitution are as clear as they look. On a key issue as to whether or not, upon a true and proper interpretation of Article 64(1) of the 1992 Constitution, any citizen who was aggrieved by or dissatisfied with the declaration contained in the Declaration of President-Elect Instrument, 2004, had twenty-one (21) days within which to present a petition to the Supreme Court in challenge of the declaration, the Learned Justice of the Supreme Court observed at page 1258 as follows:

³Although it may look like dancing on the head of a pin, there is a distinction between the invalidity of the declaration by the defendant Electoral Commission of the President-Elect and the invalidity of the election of the President. If the plaintiffs succeed in demonstrating that the defendant¹s declaration was invalid and therefore null and void, it would mean that there was never a declaration in respect of which time could begin to run. The twenty-one day time limit would therefore never have commenced. Accordingly, logically, the twenty-one day limitation period cannot apply to an action that seeks to establish the nullity of the declaration, as distinct from the invalidity of the election itself.²

Of course, we lawyers know there is a thin line between interpreting the law and making law. Indeed, judges have filled in gaps in the law in circumstances impelled by core values and structure of the law/constitution. As H.L.A Hart reminds us in his article on ³Positivism and the Separation of Law and Morals²[1] <#_ftn1> , ³ legal rules are essentially incomplete, and that, when they fail to determine decisions, judges must legislate and so exercise a creative choice between alternatives² especially in penumbral legal issues where there is uncertainty about the meaning of the rules. If judges are making a choice ³between alternatives² they have a duty to admit the existence of those alternatives and explain their reasons for the particular choice. Certain matters in the penumbra as Hart calls matters within the domain of legal uncertainty may better be left to the legislature which has a wider scope of operation and manoeuvre. Fortunately for us, our laws signal us into what directions to follow. Since the promulgation of the Interpretation Act, 1960 (C.A 4), our legislature as the makers of law have directed our courts to follow certain rules of interpretation. Amongst others, CA 4 provides that our courts should interpret legislation to effectuate its purpose.

Similarly, in the arena of constitutional interpretation, since Re Akoto, a grain of judicial authority has favoured a broad and expansive interpretation of the Constitution, which some scholars have called the functional approach to interpretation. In Tuffour v. Attorney ­General [1980] GLR 637 SC at 647-648, Sowah, JSC, as he then was, reminds us that:

³A written constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors our history. Account, therefore, needs to be taken of it as a landmark in a people¹s search for progress. It contains within it their aspirations and their hope for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spiritŠ.

A broad and liberal spirit is required for its interpretation. A doctrinaire approach to interpretation will not doŠ²

Other decisions by our courts have emphasized the necessity of the functional approach to interpretation. In the recent case of Asare v. Attorney-General [2003-2004] SCGLR 823 Professor Date-Bah applied these time-honored judicial insights about constitutional interpretation, and advocated the adoption of the purposive approach to interpretation. Although past decisions have sought to apply the purposive approach in interpreting legislation , as should be the case since this is mandated by the Interpretation Act,1960( CA 4), the decision in the Asare Case sets out a coherent framework for the application of the purposive approach to interpretation.

Directive Principles of State Policy as Benchmarks:

Mr. Chairman, unlike in other jurisdictions, our Constitution guides as to what to do about alternatives between possible interpretations in matters falling within the ³penumbra² as Hart calls the domain of legal uncertainty. Beside this function, the Directive Principles of State Policy guide us to apply rules to achieve certain political, economic and social objectives. In this way, the best interpretation is the interpretation that is best grounded in law and accords closest to the ideals in the Directive Principles of State Policy contained in Chapter 6 of the 1992 Constitution. In this light, the Supreme Court decision in Ghana Lotto Operators Association v. National Lottery Authority [2007-2008] SCGLR 1088 marks a turning point in our appreciation of the Directive Principles of State Policy. The court held, per Professor Date-Bah, JSC, that the directive principles of state policy did not only constitute guidelines for legislative, executive and judicial conduct (as partly held in the CIBA case) they were also presumptively justiciable. As lawyers, we need to take note of these developments and fine-tune our arguments and submissions within these broad legal frameworks.

My colleagues, the directive principles of state policy in Chapter 6 of our Constitution hold the elixir of our constitutional values. Every institution of State in its choices and operations needs to measure itself against the values in the directive principles of state policy. Indeed, the ideal is that all rules of law must be applied and interpreted in ways that accord with the realization of the political, social, cultural and economic visions encapsulated in the directive principles of state policy.

Economic Progress Inseparable from Rule of Law:

Unfortunately, our history has contributed to the distortion of the perception of law and the justice system. From the very beginning of our struggle for independence, there was a sense that one party stood for economic progress, while the other stood for rule of law, as if the two are separate and unrelated. In the struggle for dominance of political ideology, some argued that the entire system of justice and rule of law was a tool of social and economic control, wielded by the political elite and their cronies for self-aggrandizement. The belief that social structures tend to serve the powerful is a phenomenon that reflects the realities of social and power relations. And it is true that the system was applied to serve the needs of those who could take advantage of it. To say that however is not to imply that institutions and their outcomes do not change with evolving situations or are ordained to be static.

If you look at our history, you can see how much has changed, even as some continue to see a static situation. The authority of government rests on laws that guide enforcement and preserve legitimacy. The introduction of the Commission on Human Right and Administrative Justice, for instance, has empowered ordinary people to confront and resist abuse. Our 1992 Constitution has set out a broad framework of government to protect all, irrespective of social position and economic status.

Apart from the 4th Republican Constitution, which brought far reaching innovations to protect the rights of all citizens, it is a fact that the PNDC Government transformed the legal landscape in respect of family relations, especially through the following laws: The Intestate Succession Law,1985( PNDCL 111); and the Customary Marriage & Divorce (Registration) Law,1985( PNDCL 112). This current government has already introduced a Bill in Parliament which is currently undergoing consideration intended to replace PNDC L 111 in light of modern developments. There is also a spousal bill in Parliament intended to implement Article 22 of the 1992 Constitution to regulate property rights upon dissolution of marriages and co-habitive relationships. In matters of accountability, the PNDC passed the Head of Family Accountability Law to provide reliefs against wanton dissipation of family property by family heads.

In the economic sphere, the minerals and foreign investments laws/codes did what other previous governments had failed to do through extraordinary measures by fashioning laws that protected investments but enhanced the benefits and rights of Ghana as host and Ghanaians as beneficiaries. Still, in the economic sphere, the PNDC passed the Securities Industry Law, the Ghana Ports and Harbors Authority Law, Home Mortgage Finance Law, the Ghana Trade Fair Authority Law, Ghana National Petroleum Law, Ghana Stock Exchange Laws, among a host of legislation, aimed at promoting, protecting and safeguarding investments. All these were done in a way that projected Ghana as an attractive investment destination. Success in striking a balance between protecting the interests of all Ghanaians in our natural wealth and endowments while maintaining an attractive investment destination is a win-win for Ghanaians and investors alike. This was not always the case. There were times in our past when expropriation or artificial limits to share ownership in the minerals sector was the preferred method. This display of populist nationalism pleased sections of the public but ultimately retarded our economic development.

Development through Law:

A hallmark of NDC governments has been the successful use of lawmaking to achieve national goals that bring maximum benefit for the population. In light of our imminent oil production this government is keenly aware of the need to strike the appropriate balance between investment and national interest. To that end there is a plethora of legislation being drafted which will reflect the views of the Ghanaian through the national discussions which have taken place over the past year.

This will be crucial as we address the various aspects of drilling, production and processing oil in large commercial quantities. How we create opportunities for Ghanaians as service and products providers in the oil production and processing chain will be an even more important gain from the oil discovery than its export, and the law is the most critical instrument for achieving this. This is a challenge my colleagues and I have focused on. Ghanaians can expect a first-class and a cutting-edge approach to this issue that can create employment opportunities to Ghanaians and break the cycle of net outflow of both our human resources and capital.

I made a reference to the Constitution earlier. I would like to point out additional comments on two features in that Constitution and how they expanded the conditions for social justice, social harmony and fairness.

Probity, Accountability and Human Rights:

One enduring feature of our Constitution is its emphasis on probity, transparency and accountability. The preamble to our Constitution brings these values to the fore, and this is fortified by Article 21 which guarantees the right to information. Real democracy thrives on reasoned debate, persuasion and information flow, but without access to information citizens cannot demand probity and accountability. The NDC Government, in pursuit of its Better Ghana Agenda and to ensure increased transparency and accountability in governance, has introduced the right to Information Bill in Parliament which is presently undergoing debate and hopefully will be passed into law this coming Parliamentary session.

A related feature of our Constitution worth emphasizing is the elaborate human rights provisions in Chapter 5 of our Constitution. From our history, we have learnt the value of individual liberties and freedoms. From the decision in Re Akoto to the excesses of some of our military regimes, the NDC Government recognizes and commits itself to the value of protecting human dignity. In this regard, I¹m sure that Ghanaian practitioners have recent significant decisions emanating from our courts upholding individual liberty. Whether or not these decisions go in our favor once they are arrived at in an independent manner then as the Attorney-General, I applaud these positive developments. This notwithstanding, I will continue, in appropriate cases as the Government¹s principal legal advisor, to assert the interests of the State as forcefully as necessary, and naturally, leave the judiciary to have the last word.

Protecting the Independence of the Judiciary:

My Chairman, in manifesting these thoughts, let me swiftly add that the independence of the judiciary should be upheld. As the special agents of the people of Ghana, in whom the sovereignty of Ghana resides, and for whose welfare the judicial power must be exercised, the judiciary is accountable to the people of Ghana. All of us in the three arms of government ­ the Executive, Parliament and the Judiciary - owe our authority to the people. We in the executive arm of government are accountable to the people whom we have to go to every 4 years to request the renewal of our mandate. Indeed, we need to show greater demonstrable transparency. We also need to demand transparency and accountability from other actors in the justice sector. If transparency and accountability are to permeate everything we do - prosecuting cases, writing judgments, how we settle on facts and issues, how administrative power is exercised, how we resolve complaints against the judiciary, we need to recognize we have a constitutional duty to demonstrate transparency and accountability.

Further in this regard, a few days ago, the Judicial Service launched the codes of conduct for judges and its staff. The Attorney-General¹s Department is also working on a code of conduct for prosecutors - all in an attempt to ensure greater transparency, accountability and efficiency in the work of our prosecutors. All these developments are compelling indications the Government of the NDC is committed to strengthening our democracy, and the proposals I outlined for constitutional reform seek to take this process forward.

Anti­Corruption Mechanisms:

One of the key challenges therefore, we need to address is public corruption, which has been described as a secret tax on the poor by the powerful and well-placed. I believe it is worse than that. The deadening hand of corruption steals not merely tangible assets; it undermines and destroys our national values; breeds cynicism and cost us our ability to achieve national plans and development goals.

Finding a way to nip corrupt activities in the bud when they are going on, instead of finding them out after the fact as happens after changes in government, should be a national crusade. Obviously, this does not mean that prosecuting vigorously those that engaged in corrupt acts in the past eight years is not important or should be downplayed. The people deserve to have confidence in the legal system. They need to know that impunity cannot be allowed or excused no matter how powerful or highly placed the perpetrators. And we need to use the law to signal to the law-abiding that the State is on their side. How else can we have a well functioning society if Government were to in any way indicate that obeying the law does not pay?

In seeking to deepen accountability, strengthen checks and balances among the various arms of government; and ensure greater transparency, we are taking these additional steps to safeguard our national wealth; protect the peoples¹ interest better and create conditions for national progress that will reward all who play by the rules.

Towards this end, as I have already indicated the NDC Government has resolved to have the Right to Information Bill enacted as soon as possible to put in place and my office is redrafting the Public Officers Ethics Bill for presentation to Parliament. These proposed laws will give the framework for the effective delivery of transparency and accountability in our public service.

Still, in spite of all the public institutions charged with monitoring and enforcing proper financial management in the public system as well as for assessing incomes and determining taxes, acts of corruption continue to occur year after year and only come to light long afterwards and require further investments of resources to investigate and prosecute. We need to strengthen our financial management infrastructure. In addition to strengthening our procurement rules and processes, we must institute effective and verifiable comparative pricing/costing processes. We will move forward in automating our financial and revenue systems to ensure real time information flow. Institutions under the Financial Administrative Act need to be strengthened to protect the public purse. Finally, the Audit Service should be strengthened to carry out effective random pre-audits. Gone should be the days when institutions of State out of impunity and political ³cronyism² refuse the Auditor-General access to public accounts, receipts and disbursements. The NDC government will insist on financial accountability, for the Ghanaian taxpayer must have value for money. My own office cannot be exempt from this crusade and we are looking at strengthening the AG¹s office to enable it effectively carry out a core mandate of implementing the findings of the Public Accounts Committee of Parliament. We are also assisting the SFO to migrate to the Economic and Organised Crime Office after the expected passage of the Bill in Parliament this Parliamentary session.

Conclusion:

A worthy state must provide conditions and opportunities for its people to achieve the best in themselves, while recognizing that all are equal before the law. Our lawyers, prosecutors, judicial staff , the judges and all other players in the justice sector have a critical role to play in the creation, preservation and advancement of society. When we apply our laws to all in a fair, thoughtful, reasoned, unbiased and understandable manner, we can demonstrate that the rule of law and the legal process is our best hope for achieving the fullest measure of human justice, progress and social harmony.

As Justice Edusei, JA, delivering the judgment of the Court of Appeal in Quayson v. Attorney-General [1981] GLR 295 CA succinctly put it at page 300, let us be ³emboldened by the memorable words of Mr. Abraham Lincoln, some time President of the United States, when he proclaimed that Œlet us have faith that right makes might; and in that faith let us, to the end, dare to do our duty as we understand it.¹ ³

In that breath, I am determined that the law and its proper and purposeful application will indeed make Ghana worthy for all her people. I remain mindful of the politicization of the rule of law itself, and the difficulty of appeasing various constituencies in the application of the law while still appearing and actually being neutral. Beside, being Attorney General, I am also the Minister for Justice, whose role is to among others, promote the cause of justice through the effective delivery of legal services in Ghana. I am committed to that duty and I am confident that given the imperative of good governance in our time, advancing the cause of democracy through law remain not only our avowed goal, but a real priority for the Mills government.