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Opinions of Saturday, 7 July 2007

Columnist: Asante Fordjour

A Review of NPP [is] Are Intellectually Bankrupt

The True State of Ghana
..A Review of NPP [is] Are Intellectually Bankrupt

Issue: Is The Principle of Duty of Care Evenly Enforced In Ghana?

I. ABSTRACT

Lord Kelvin- the British physicist, once observed that when we can measure what we are speaking about, and can express it in numbers, we know something about it. But when we cannot measure it, when we cannot express it in numbers, then our knowledge is of a meagre and unsatisfactory kind. “Unsatisfactory” and haunting might the heading: “NPP [is] are intellectually bankrupt” seem to most readers- either in economics, culture or environment, if this ‘blanket report’ is left without scrutiny and comment. Yes, we argue with the full knowledge that Ghana faces two major crisis- electricity power cuts and pipe-borne water.

II. INTRODUCTION

Recently, Dr Bright Oduro Kwarteng, a Vice-Chairman of the United Kingdom/Ireland Branch of the Convention Peoples Party, was reported to have labelled the ruling National Patriotic Party as intellectually bankrupt. On reading this report of one Peter Jeffrey, on Ghanaweb, what came to mind is: could all NPP functionaries be intellectually bankrupt? Indeed, in March this year, we overheard President Kufuor saying in Twi at their International Conference in London that they are conservatives. So, with NPP’s many aspirants, the true description of the United Party tradition, we would have expected, whether it is rather not “intellectually or demographically choked”. True, this hierarchical jam seems to have created not only “deadlock decisions” within the NPP but also, appears to have signpost it as a nation without hegemonic power, which in global politics had been shocking. Otherwise, most of its functionaries indeed, wield verifiable individual professional or academic accomplishments.

III. THE PRESIDENCY

President Kufuor, for example, came to world in 1938 (Dec. 8), attended one of the greatest colleges in the world and perhaps, heard JB and the Osagyefo live in speech. He witnessed the overthrow of his government and the intellectual struggle that led to its leadership failures and subsequent national gloom and doom. The president, who might remained one of the youngest deputy foreign ministers Ghana has ever had, had since 1969, not only played a leading role in our nation’s constitutional and administrative development but also, its socio-political restructure. The often cited achievement, being the development of our local government experiment and most recently, has to his sole credit the school feeding program. With all reservations, we shall remember him for the national health insurance scheme. In this context, the ruling NPP may not be rationally insolvent or lack of it, as Economist Kwarteng is alleged to have told his audience at the close of Professor Akosah’s recent visit to the UK.

Historically, it could be said that the president represents both the old and the new school. He remains the pillar-by-day and fire-by-night of the new independence built on individual freedom and political tolerance. For those who were not only interested in the Oxford-trained lawyer’s recent outfit at the Golden Jubilee Celebration but also were concerned about his speech, might be persuaded that the UP traditionalist- who appears slow and repulsive to radical change on issues tested good and fine, acknowledged historical guilt and accepted responsibility. Indeed, he had been part of the “death and downfall” of CPP but Kufuor appears set for its resurrection and survival. Consider the introduction of the New Ghana Cedi and its nation-wide acknowledgment of all our fallen heroes and heroines.

Thus, on assumption of office in January 2001, the Kufuor led-NPP, had within months, if not days, “sheltered” the surviving spouse and dependants of the first Prime Minister and President- the Osagyefo, whom Fordjour too, is one of his greatest admirers and a bitter critic. With the back-wards trip to Bui Dam Scheme, nation-wide streets naming projects, reconsideration of the nuclear energy policy, construction and reconstruction of football stadia and not least, the controversial National Youth Employment Program and the long-overdue national identification cards, the ruling NPP has demonstrated a celebrated post-war concern that there are areas that the UGCC still has in common with its prodigal cousin- the CPP.

Then is the president’s historic visit to the “First-among-First Ghanaian Ladies- the late Madam Fathia, in Egypt. The testament that Mrs Nkrumah wanted to be buried in Ghana, on death, might have come as no surprise to most historians, biographers and journalists. The restoration of Dr Nkrumah’s confiscated family home to Madam Fathia which was once occupied by the late Speaker of Parliament, Justice D. F. Anan- of the main Opposition P (NDC) - a regime that deserves indeed every credit and flying colours, for giving a befitting rest to the mortal remains of the Pan-African Messiah. The argument is that the NPP, despite its perceived woes, has, indeed, embarked on historical wound-healing. This is often demonstrated in the president’s choices of words which appear refined and reconciliatory.

But, administratively, it is fair to submit that the ruling NPP’s reliance on techno- and bureaucratic advice- here, on expert information, exposes itself to genuine criticisms. We take hostage, for example, of the lapses in that loan transaction that led to a hairdressing saloon in the UK, the rumours of coup detat and most recently, the president’s explanation of the New Ghana Cedi equivalent to the US dollar. Not forgetting His Excellency’s statement on energy- here, in his State of Nation Address to Parliament which appears counter to our current trials.

IV. IMPLICATIONS OF POWER CUTS (DUTY OF CARE)

Electricity cuts or interruption of free-flow of treated water supply could come as a result of negligence. The tort of negligence, per Alastair Mullis and Ken Oliphant, provides compensation for all sorts of losses that are financial in nature. Thus, if we were to be run over by a negligent car driver, we would get damages not only for our physical injuries (pains and sufferings) but also for the financial consequences of those injuries. Admittedly, when the courts are faced with loss that is purely economic in nature- loss, which does not stem from any physical damage to the claimant or her property- their approach, as Mullis and Oliphant put it, is difficult. In the UK, the courts, as illustrated in Spartan Steel and Alloy Ltd v. Martin & Co Ltd.( ), differentiate between (recoverable) consequential economic loss and pure economic loss which is not generally recoverable.

Thus, Martin & Co were building contractors carrying out road works near Spartan Steel’s metal-processing plant. Their men were careless in digging up the road and damaged the electricity cable running to the plant. The power was cut off for several hours. Spartan Steel sued Martin & Co for their lost profits. The Court of Appeal allowed the claim only in part- the metal alloy that was actually in the melting-machine but not what would have been processed later in the day. Here, the majority of the court made distinction between the profits lost on the metal that was being processed at the time the electricity was cut off which were recoverable. This metal was actually damaged by the power cut and so these profits could be regarded as consequential economic loss stemming from physical damage to the plaintiff’s property. The rest of Spartan Steel’s loss, unfortunately, was deemed as purely economic.

The loss arose from the fact that Spartan Steel was not able to process other lots of metal in the time the power was off- it did not stem from damage to any of these lots. It was reasoned that, the electricity cable had been damaged but the cable belonged to the electricity board, not to Spartan Steel. The Law Lords reasoning was that to recover financial loss it must be established that it was caused by physical damage to our own person or property. The courts’ adoption of a general ‘no recovery’ or ‘exclusionary’ rule for pure economic, according to Mullis and Oliphant, is grounded on policy considerations- the floodgates argument. The main fear is that liability might extend to an indeterminate class of claimers, in an indeterminate amount, thereby imposing an undue burden upon the defendant.

V. THE POLITICAL DEBATE: ASSUMPTION OF RESPONSIBILITY

The issue then is: must NDC be liable to distant victims or passengers in say, trucks stuck with tomatoes at Tema Roundabout or Aburi mountains because the accident it caused at Tetteh Quarshie Circle, consequently led to traffic jam and prevented workers/business people from their daily chores? In Hedley Byrne & Co. v. Heller & Partners Ltd (2), a case involving a creditworthiness reference check from Heller & Partner, Easipower’s bankers, for plausible takeover which the bankers replied yes, in a letter marked ‘without responsibility’, but turned out to be false, Lord Pearce acknowledged that the risk of indeterminate liability justified restriction on the scope of the duty of care. This was identified and developed in Spartan Steel where Denning LJ said: ‘If claims for economic loss were permitted for this particular hazard there would be no end... Some might be genuine; but many might be inflated or even false.’

In Lord Denning’s view, it was best to leave the losses to lie where they fell rather than concentrating them on the defendant: if the losses were small, they might without hardships be absorbed by the victims themselves; if they were serious, then the victims ought themselves to have taken out insurance by way of protection against that risk. A similar and crucial cited case is Caparo Industries v. Dickman (3), in which the issue before the Law Lords was whether accountants performing their statutory task of auditing company accounts at the end of the business year could be held liable to those who invest in the company in reliance upon the accounts and suffer losses as consequence.

The Law Lords submitted that the purpose of the statutory audit was to enable shareholders to monitor the performance of the board of directors, not to enable them- or members of the inventing public generally- to purchase shares with confidence. So, they decline to follow the Court of Appeal in drawing a distinction between the first purchase of shares by the plaintiffs, who were then simply members of the investing public, and the purchase of subsequent tranches of shares at a time when the plaintiffs had thus become shareholders. But, the House accepted that liability might arise in exceptional circumstances, where the auditor made specific representation to a particular investor in anticipation of a proposed takeover. Thus, where the audit is required for different purpose to assist regulatory supervision of a trade or profession- the auditor may well owe a duty of care to whoever is intended to rely upon it.

VI. DUTY OF CARE: SERVICE PROVIDERS AND MANUFACTURERS

In Donoghue v Stevenson, a certain Mrs Donoghue had gone in for a drink. A friend bought her a bottle of ginger beer. She began to drink it; then, as her friend topped up her tumbler, she watched in what she described as horror as a decomposed remnants of a snail floated out with the ginger beer; the claimant suffered shock and an upset stomach. She sued in tort because she did not buy the drink herself. In ruling, Lord Atkin took as his starting point the biblical command that we are to love our neighbours as ourselves, alluding to the parable of the good Samaritan (Luke 10: 29-37) he held: ‘(A) manufacturer of products which he sells in such a form as to show he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that absence of reasonable care in the preparation or putting up of the products will result in injury to the consumer’s life or property, owes a duty to that customer to take that reasonable care.’

We are not concluding that the current energy crisis is caused by the Volta River Authority (VRA) or the Electricity Corporation of Ghana but rather, nature- failing rains. Thus, legally, we could argue that the contract is frustrated by event (Climate Change) which is beyond the contemplation and control of the contractual parties at the time of the contract. But the argument is: could a retailer- Afrikiko Spot in Accra, for example, have reasonable possibility of intermediate examination of every ‘highly invisible’ Guinness drink it orders from Kumasi Brewery? The basic principle of Hedley Byrne v. Heller provides that a person may assume a legal responsibility to another when they enter into a special relationship in which the latter reasonably relies upon the former’s careful exercise of special skill, knowledge or capacities. Suggesting that our techno- and bureaucrats could be liable if this foresight is overlooked?

In Hedley Byrne, the concept of voluntary assumption of responsibility, per Mullis and Oliphant, was invoked by the Law Lords in order to pre-empt the argument that, given that the defendant bankers had no duty to answer the credit inquiry, they could have no duty to exercise due care if they chose to respond... Lord Reid made this clear at 486 that: ‘A reasonable man, knowing that he was being trusted or that his skill and judgement were being relied upon, would, I think, have three courses opened to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could simply answer without any such qualification. If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require.’

VII. APPLICATION: HOW TRUE IS THIS IN GHANA?

By now, most readers may be saying that what do electricity power cuts or water stoppages, got to do with these citations? Indeed we may not ask this until we find our dear ones or ourselves under scissors in operation theatre where suddenly, electricity power goes off. The situation would be worse if a standby generator designed to spring up in its place, due to wear and tear, fails to function and as the result, we suffer partial or permanent injuries. What if we were to be trapped in a defective lift or escalator in a shopping centre or in a rented tower building for some minutes or hours and suffer nervous shock and rendered redundant? What if the techno- or bureaucrats had been negligent in replacing worn-out parts of the main plant or the standby generator; or had been wrong as to the ordering of right article specification? What if the periodic safety and maintenance standards had been ignored? Perhaps, this is the thicker lens through which the Hon. Joe Adjaho (NDC) is looking at our current energy crisis.

Of course it is not only electricity power cuts that pose serious problems to health and national economy but also water and sewerage system. Yes, the Minister for Water Resources, Works and Housing conceded that some of our water pipelines laid under our own soil, had in some instances, not been replaced since independence. And even where is had been done, some of their trenches, are so shallow that the lines, are easily damaged when they are run over by cars, pedestrians and more so, by those who attempt to connect it illegally. Hon Hackman Owusu Agyemang revealed this to the UK-based KasapahFM, in what seems to debunk an allegation (kick-backs?) levelled against the presidential aspirant’s outfit by a Canadian expatriate who alleged to have been invited to Ghana but had been refused contact

Yes, the consequence, of shoddy work according to the minister, is: uncontrollable bursting overflows of water that is sometimes wasted and which takes “years” to manage? While the old-rusted metal channels, with its treated but sometimes, impure water to our households, that of course becomes visible on opening our taps, modern plastic pipelines, as the Water Resource minister admits, are undoubtedly, not free-standing agents of treated water, diluted with sand particles occasioning from lax approach to duty by some of our plumbers and bureaucrats who are employed and paid for their special skill and knowledge? Having considered negligence and foresight, perhaps it has been evident that the NPP, like most political parties, especially, the CPP itself, whose capacity the “councillor?” was probably championing, is not really intellectually bankrupt but lacks indeed, the political willpower to sanction its stalwarts and agents whose actions and omissions plunge us into political despair?

Admittedly this has little bearing on our political judgements. In a 30-minute poll conducted by KasapahFM to determine which party its listeners would have voted to power assuming the 2008 presidential election had been held on 15 June 2007 and why, the NPP chalked 114, for “good governance”, while the NDC was penalised with a bare 10 votes for its past human rights abuses. The CPP trailed with 8, with most of the targeted audience (aged 20- 40?), while sounding somewhat sympathetic with the Cockerel, ambiguously, describe the CPP as “unknown and old fashioned”. But one serial NPP critic sarcastically also said he is voting NPP for its “recruitment of armed robbers” (NYEP?). While this controversial remarks was accepted by our vociferous Presenters- “Easy-E” and Alfred Larbi (aka Oxygen), the pollsters stumbled by rejecting a respondent who “honestly” perceives NPP as an Akan/Asante-based?

VIII. CONCLUSION

Having considered all these, perhaps, we could conclude that the challenge facing our nation is not intellectual deficiency but rather, lack of patriotism to come to terms with what Germans describe as “Kompromis”- a Realpolitik of foresight that puts nation and people ahead of any ideological considerations. Not until we wipe out our “straitjackets” and impose upon ourselves that duty of care when dealing with national issues, will perhaps, that our said power generators, water pumping machines, among others, will begin to function properly?



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