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Opinions of Saturday, 8 June 2013

Columnist: Koramoah, Kwame Adofo

Why it is wrong for practising lawyers to ,,,

...openly declare their political affiliations

We have for some time now been hearing pronouncements in the media by certain personalities about corruption in the judiciary that is worrying. It is also disturbing because some of the serious claims were made by practising lawyers. More tellingly one practising lawyer went as far as openly asserting that he, himself, aided and abetted corrupting a judge by paying a bribe of GHC500. This is serious. It is more serious not only because a lawyer (who is an officer of the court) has stated publicly to have committed a criminal act, but that such statement further undermines the confidence of the people in the justice system, and to put it simply, confirms the perception of corruption within the judicial system of the country. It follows that in light of the current NPP application before the Supreme Court, one wonders how a decision is going to be received by either side. But that is a matter for a later analysis.

However for current purposes the concern mainly is looking at the damage that lawyers do to the system of justice when they proudly proclaim their card carrying membership of a particular party as if they have an overriding duty to the party and not the profession.

In a democracy there must be three different estates aside of the media which is usually referred to as the fourth estate. That is there must be:

1. A Parliament which consist of elected members from the population; 2. The executive; and 3. An independent judiciary.

These estates derive their power from the constitution. It therefore follows that under no circumstances should Parliament and by extension the executives have any power to interfere with the judiciary. The judiciary plays a vital role of administering the rule of law to all manner of persons without fear or favour. It is because of such reasons that judges are appointed with tenure (not elected) to apply the law without fear of elections, which members of parliament have to go through from time to time.

Lawyers are officers of the court. Their function is to assist the court in the administration of justice. They are meant to swear an oath to, inter alia, act with candour, owe a duty to the client, and an overriding duty to the court. Lawyers together with the judiciary must vehemently defend the integrity and independence of the court from political interference or undue pressure from the other branches of government.

But current events in Ghana are worrying, and in fact indicates that Ghanaian lawyers are either confused or do not know their role as officers of the court. They routinely invite politics into the sphere of the judicial system, and sometimes attack the system in which they are to play a role as officers. Today we have many practising lawyers who have openly declared their political relationships or affiliations and some even wear it as a badge of honour. This is wrong.

A basic understanding of the role of a lawyer is therefore important. The role of a lawyer is by design very different from say the role of other professions such us doctors, engineers, accountant or say other business persons such as the barber or the shop owner providing service to paying customers.

In a democratic society lawyers play an important role that no other professionals do: the lawyer is the guardian of the rule of law, the ideal that all persons are equal before the law neither expects nor receive special treatment from it. A lawyer therefore has duty to the client, and an overriding duty to the court and the proper administration of justice.

The recent live coverage of the NPP case in court has shown that many of the lawyers either do not understand their role in the administration of justice, or that some lawyers do not understand their role as officers of the court and are merely using the profession as a springboard to do politics whilst still holding themselves out as “lawyer(s)”.

But the correct position is: when one is admitted to practise as a lawyer, that person joins a group of persons with great power to shape the society for the benefit of all, and therefore as a philosopher once said, with “great power comes with great responsibility”. This is why lawyers should be held to the highest level of integrity and must face a sterner punishment of been struck off the role for various offences and certainly not allowed to practice after one has been convicted of a crime.

But in Ghana the situation appear to be the opposite. It is now a common place to find many lawyers whilst holding a practising certificate to openly declare their political affiliation to a particular party. This is wrong. It is wrong because it further invites politicians to intermeddle with the judicial system which is what was reported in the media that one lawyer was at some time threatening to report the chief justice to President Mills and or Rawlings. This is sad. It is also sad because it is because of such intermeddling by the executive and other dictators that a person is admitted as a lawyer to assist the court in the administration of justice to ALL persons without fear or favour.

There is a further reason why a practising lawyer must never openly declare their political affiliation. For example the cab rank rule is an obligation on barristers and in the case of Ghana barristers and solicitors to accept any work in a field in which he professes himself competent to practise at a court at which he normally appears in. The rule is there to protect and defend the rule of law where all persons are to be equal before the law. It is for at least this reason that it is wrong for a lawyer to openly declare his/her political affiliation whilst still practising as a lawyer. That is, from the moment that a lawyer declares that they are, say, an NPP, or the NDC or CPP etc, etc, then there is a prima facie conflict of interest situation. The question that follows is what do they do with client’s who do not belong to their party? Would the lawyer take a case against his/her party or the government if retained by the client whose rights have been breached by an otherwise tyrannical regime?

The above questions cannot easily be answered in light of the fundamental principle that a practitioner must defend and uphold the rule of law without fear or favour. It is because of the obligation to the rule of law that lawyers must never openly declare their political affiliations. But where they do openly declare, then it is in the interest of justice that they must stop practising as lawyers.

But, again in Ghana today many of the lawyers have openly declared their party affiliations. This is wrong. It is wrong because it creates a perception in the minds of the public that every decision should be seen within the prism of party politics or that the justice system is amenable to political influence. This sadly, erodes the public confidence in the justice system.

There is also a further danger in lawyers openly declaring their political affiliations. The recent case of the Yaa-Naa where the defendants where discharged by a court for lack of evidence is a case in point. In that case the decision to dismiss the charges against the defendants may have been sound. It is also likely that the defendants were ably represented by a very competent lawyer. But because they were represented by a team of lawyers, the lead counsel being a sitting Member of Parliament for the opposition NPP, the decision was criticized as “political”. This does a great disservice to both the client and the legal system in general. It actually invites the perception that justice is not blind.

I do not know the lead counsel in the case but it suffices to say that it was not wise that he took part in the case. In fact he should never have run the case, and should never have spoken to the media about his role in the case because from the moment he took part in the case (given that he is an NPP member) and subsequently spoke about it in the media; it became “politically” charged issue which does not help either his client’s or the proper administration of justice in the country.

The Ghana Bar Association and by extension the General Legal Council has a duty to ensure that lawyers exhibit the highest conduct and candour and that the integrity of the legal profession is kept, to quote Justice Atuguba, “sacrosanct”. The fact that lawyers in Ghana are clearly not showing such conduct is a clear reflection of the dereliction of duty by the two bodies.

The recent stories of corruption in the judiciary would have benefited the judiciary greatly if they were not made by lawyers who have openly declared their political affiliations. It would have helped the judiciary to weed out the bad ones among them and help ultimately to build public confidence in the administration of justice in the country. But because they were made by lawyers who are declared party political members, it would sadly be seen within the prism of party politics and not help in making the judicial system any better. Public confidence will continue to erode until lawyers in Ghana stop mixing practising law and politics.

Kwame Adofo Koramoah is a solicitor and Barrister of the Supreme Court of New South Wales, Australia and the Principal of Denning Lawyers in Sydney Australia. He is also admitted as a Barrister and solicitor of the Supreme Court of Ghana. email:billyoo@hotmail.com