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Opinions of Tuesday, 3 September 2013

Columnist: Asare, Kwame Ohene

The irredeemable pink sheets and ...

...the supremely irregular judgment

- By Kwame Ohene Asare

Throughout history, Ghanaians everywhere, have loved to tout their Law Abiding credentials, without providing any essential details. A close examination of this claim will reveal that the assertion is somewhat economical with the truth, if not ‘factually empty and wholly devoid of logic’ (deriving a little assistance from Lawyer Tsikata with some words).

My American pal once commented in rather poignant language, “men…., the people can’t obey basic road traffic rules, the police and judiciary won’t deal with them because they will readily take bribes and worse, you can enter the country with almost anything”. Unfortunately, the recent Supreme Court judgment seriously undermines any hope I had that the Ghanaian would sooner than later begin to cherish the importance of rules & procedures and at long last endeavour to comply. As the whole Country awaits the Statements of Reasons underlying the recent Judgment of the Supreme Court of the Land I cannot help but note a rather painfully obvious predilection of even the Highest Court of the Land, to disobey the Supreme Law of the Land. The specific provision being Article 49 of the constitution. The provision is not couched in any uncertain terms, the evidence on this question is not that difficult to unravel, simply that the relevant Pink Sheets were unsigned by relevant Returning Officers, it is simply largely undisputed. The constitution does not under any Article known to all reasonable Lawyers, grant any discretion to ignore the provision.

The Court had all the time to write its decision and even to make any amendments it wanted to on the day of Judgment and in spite of the 2-3 hours delay on the D-day, yet on Thursday parties had to be asked to go somewhere else for copies of the decision and to date no one has seen the Court’s reasons. We now hear the decision will be made available on Monday. What heavy-hearted matters made this rather less than professional practice possible on a Day the whole nation waited with well-wishers from all over the world? Our top Lawyers even got the brief judgement wrong as to its intended contents and had to correct it in rather controversial circumstances.

One important fact is that there is usually a rationale behind rules and procedures even if the immediate benefits are not palpably obvious. This is the reason why in advanced communities the enforcers are rigid and will do all their ‘damn best’ to catch you out and/or enforce a breach. If you don’t pay a parking fine/ticket the ensuing debt could follow you for umpteen years and may result in the loss of some precious assets when you least expect. The enforcers can cause you some real depression. There is a purpose to all that. That the roads may be used sensibly in order to avoid/reduce road traffic accidents, deaths and injuries, in a way that is not readily discernible to the ordinary road user. In some cases, the breach becomes a source for raising funds for relevant local authorities to undertake further developmental projects. As a result people who live in England, be they Ghanaians or English, really go to lengths to stay away from the wrong side of the Law. It is these little things which have built this country into the resounding success story it is. These simple procedures make the country robust and highly unlikely ever to fail.

However, with Ghana, it is our non-compliance which has made a rich Nation, so poor (derived the thought from Nana Addo Danquah Akufo Addo).

Years past, in England, Consumer Lawyers had an increased load of cases involving breaches of the Consumer Credit Act 1974. The reason for the Act was to regulate the provision of credit to the Consumer and in the process protect the Consumer by rigorous enforcement of the Act. The interesting provisions of the Act involved a requirement that a Consumer Credit regulated agreement requires that the Agreement should be in writing and must contain the correct amount of credit advanced and it must at least be signed by the Borrower. The provision meant that quite a lot of debtors were able to walk free from agreements for substantial amounts ranging from £5,000 to £25,000 and sometimes up to anything if the debtor has separate agreements of less than £25,000 each, with either the same Creditor or different creditors, obviously if the relevant agreements are non-compliant. The Debtor would keep the Money and would still be allowed by Law not to pay. They were said to be able to eat their cake and still have it. That was the Law. The rules were strictly enforced and there was no room for any margin of error. The creditor was treated as being in breach even if the written agreement misstates the amount of credit by even a decimal point. Even reputable and formidable banks were stopped from enforcing their agreements on this ground and there was no compromise for as long as you could get the Court to understand what the rules are. Unless the borrower had sympathy on the Creditor, the Court would have no power in those circumstances to attempt to do any equitable justice for the Creditor. Such agreements were dubbed as Irredeemably Unenforceable. Even though the rules now permit some discretion to be exercised by the courts the rules remain unchanged and the importance of compliance are still held to be paramount. Today I can confidently say that unconscionable credit bargains have considerably reduced in England for this reason.

In my view, Ghanaians are really no different from many others. What often makes the difference between a people who religiously comply with the Laws and/or the enacted rules of conduct on the one side and that of the non-compliant are usually the effective enforcement of the relevant rules or the lack thereof. The lack of effective enforcement of the rules is what leads to the breakdown of Law and Order, mistrust in the Courts of Law or mistrust in our Judges and clearly not merely the Court’s capacity to ride rough shod over the explicit wording of the Country’s Laws.

In the leading case of Wilson v The Secretary of State (U.K.), involving unenforceable Consumer Credit Agreements, the Law Lords gave their verdict. They ruled that the Loan Agreement was Unenforceable, Mrs Wilson did not have to repay the outstanding debt and that the Lender must refund to Mrs Wilson the Loan repayments she had previously paid to the Lender totaling £6,900. Lord Nicholls concluded that: "

...Undoubtedly, as illustrated by the facts of the present case, the Consumer Credit Act 1974, may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall."

The Highest Court in England and Wales simply felt that it had no powers against the clear wording of an Act even if the consequences were harsh to the Lender.

For the same reasons the Supreme Court of the Republic of Ghana may make Law but it does not have power to go against the express wording of the Constitution.

Question. Is it the compliance with Law that entitles a person to describe himself as Law Abiding or his non-aggressive disposition which means he even overlooks wrongdoing even when it stares him in the face?

Undoubtedly, there is something admirable and profound about the Ghanaian love for peace and/or for keeping a semblance of peace and tranquillity which typically is able to hide the rather anarchical transgressions underneath this peace that has kept this rather well-endowed Nation as a typical beggar Nation. What are we trying to hold onto if we cannot hold onto the simple rules of organised behaviour that binds progressive Nations?

If people do not, of their own accord want to obey Laws, then it is incumbent on the State to strengthen its hand otherwise, Atubiga and Kenneth Kuranchie would have gone to Jail in vain. A Judge, especially the Police Officer, does not have to understand the import of a rule unless the rule itself says or suggests otherwise although an understanding of the mischief the rule seeks to eliminate will go a long way to strengthen a Judge’s hand; his duty is simply to obey. An unsigned Pink Sheet is as good as a Consumer Credit Agreement Unsigned by the Borrower ;they are both Irredeemably Unenforceable. In point of fact an Irredeemable Pink Sheet is in an even worse position, its invalidity is derived from our National Constitution and not a mere Act of Parliament.

The Supreme Court of Ghana had an extra-ordinary opportunity to make history, get the Electoral Commission working, to defeat the notion that nothing ever changes in an immobile West African State yet they chose to ignore the indubitable documentary evidence, Irredeemable wrongdoing and the consequent proof of non-compliance with the basic rules and precepts set for Election 2012. Today, despite 56 years of independence, Ghana remains packed up on the roadside. Nothing seems to be compliant.

As we await the full reasoning of the Supreme Court, Ghana is still ailing. Let us all put our shoulders to the wheel in spirit and in prayer to get our current leaders working, compliant and sensitive to the Country’s aspirations.

The Non-compliances, failures or even fraud in Election 2012 appear to have been endorsed by the Supreme Court, and the perpetrators of the alleged infractions, pardoned merely on the grounds of keeping the peace and tranquillity of Mother Ghana, worse still the peace might have been kept simply for the economic benefit of just an infinitesimal few.