FULL TEXT: Attorney-General Godfred Dame's remarks at RE Akoto Memorial Lecture

REMARKS BY ATTORNEY-GENERAL, GODFRED YEBOAH DAME AT 16TH EDITION OF “RE AKOTO” MEMORIAL LECTURES GREAT HALL KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY DATE: 28TH APRIL, 2021

CHAIRMAN OF THE OCCASION, EMINENT ECONOMIST MR. KWAME PIANIM,

REPRESENTATIVE OF THE CHIEF JUSTICE OF THE REPUBLIC OF GHANA, HIS LORDSHIP JUSTICE SIR DENNIS ADJEI,

THE DISTINGUISHED SPECIAL GUEST, THE RT. HON. PROF AARON MIKE OQUAYE,

KEYNOTE SPEAKER AND MY OWN COLLEAGUE IN CABINET, MINISTER FOR FOOD AND AGRICULTURE, DR. AFRIYIE AKOTO,

HONOURABLE MINISTERS AND DEPUTY MINISTERS DESIGNATE,

REPRESENTATIVE OF THE OTUMFOUR, ANANTAHENE AND ALL NANANOM HEREIN PRESENT,

THE DIRECTOR OF GHANA SCHOOL OF LAW, MR. MAXWELL OPOKU-AGYEMANG

THE MAYOR OF KUMASI AND OTHER MMDCES PRESENT,

DISTINGUISHED GUESTS, FRIENDS OF THE MEDIA, LADIES AND GENTLEMEN:

As Attorney-General and Minister for Justice, I consider it nothing short of a duty to participate in a programme which seeks to commemorate events leading to the adjudication by the Supreme Court of Ghana of a case, whose judgment has become a scar on the conscience of the nation. The facts of Re Akoto and Seven Others, I believe, will be amply set out in the speeches of the Special Guest, Prof. Mike Oquaye and the Keynote Speaker, Dr. Afriyie-Akoto.

I will thus not bore you with a narration of same, save to say that one cannot miss the “ordinary status” of the citizens of Ghana, the appellants therein, those who took the matter up to the Supreme Court for the Court culminating in a judgment, which, it will be correct to say, has since been assailed in Ghana as a symbol of legislative and executive impunity, aided by judicial complicity.

You would notice that apart from Baffour Osei Akoto and Nana Antwi Busiako, who possessed the traps of noble or dignified status as the Senior Linguist of the Asantehene and Nkofohene of Kumasi respectively, all the other appellants in the matter cannot be described as clothed with the garbs of nobility or what one may describe in modern day parlance – “Honourable”, although that term has been abused and misapplied. The other appellants were lorry driver, storekeeper, letter writer, auctioneer, and transport owner. In fact one of them – 7th appellant - was described simply as “of Kumasi”. He probably had no fixed place of abode or recognizable address. Indeed, the Lord, as the Good Book says in 1 Corinthians 1:28 “God chooses the lowly things of this world and the despised things and the things that are not, to nullify the things that are …”

One lesson to be drawn from the facts of the Akoto case, is that ordinary people or the masses are largely at the receiving end of the laws that we make and are most affected by the adverse consequences thereof. It becomes self-evident that in building a society anchored on the rule of law, we must be guided by the effect of laws and systems we put in place on the ordinary people and not only the high and mighty or a specific class that we target. In quite an irresistibly powerful way, Re Akoto teaches us to be mindful of the collective good of the laws that we enact as a nation as all facets of society will be affected by the application of the law.

Mr. Chairman, it is not for nothing that Re Akoto occupies a prominent place in the scheme of Ghana’s constitutional development. A cocktail of factors, like most landmark decisions of our courts, has collaborated to place this case on a pedestal, in my estimation, akin to the events that have become characterized as Martyrs Day – June 30. The gallantry, bravery, principle and resilience, tribute to which the Master of Ceremonies earlier indicated had been paid by His Excellency the President Nana Addo Dankwa Akufo-Addo in a speech some time last year, ought to be fully recognised and appreciated.

Further, as the records show, a year before arguing the matter, Dr. J. B. Danquah had lost an election to Dr. Nkrumah. He proceeded to campaign vigorously against the Preventive Detention Act which had been enacted in 1958. The Ghana Bar Association remained silent although they protested vigorously against Nkrumah’s attempt to divest them of their wigs and gowns. The Bar actually considered Dr Danquah’s human rights advocacy quixotic and merely philosophical. Some even doubted his legal acumen. His spirits were low and, I dare say, crushed.

Then came along this case involving some lowly men suffering the brunt of the Preventive Detention Act. Boy, he rose to the occasion! The commanding and dominant performance delivered by Dr. Danquah can only be described as “legendary”. For the benefit of all gathered here, the submissions of both Dr. Danquah and Attorney-General, Geoffrey Bing (both powerful in every regard), are captured in the 2nd Edition of Gyandoh and Griffiths Vol. 2, Part 1.

I describe Danquah’s submissions as “legendary” because, although those submissions did not prevail in the Akoto case, history has shown that they became the cornerstone for the protection of human rights in the country. All Constitutions enacted in this country have since incorporated Danquah’s arguments in the Akoto case as the yardstick for protection of human rights, constitutionalism, separation of powers and observance of the limitations to the rule of law.

Mr. Chairman, permit me to quote from one passage in the record of Dr. Danquah’s arguments. When answering Attorney-General Geoffrey Bing’s proposition that the concept of judicial review was alien to the constitutional architecture of the country and that same was inherently American, Dr. Danquah submitted thus:

“To propose that this fundamental and universal principle of the exercise of their sovereignty by a free people is peculiarly American is to show a shocking misunderstanding of the nature of self-government. To deny that these universal principles have influenced other countries in the development of their constitutions is to deny what is self-evident. One only has to compare Article 1 of the Republican Constitution of Ghana with the opening words of the American Declaration of Independence to see a universal principle repeated in both documents. The Declaration states: “That to secure these rights [Life Liberty and Happiness] Governments are instituted among Men, deriving their just powers from the consent of the governed.

Article 1 of the Ghana Constitution begins, ‘the powers of the State derive from the people, by whom certain of those powers are now conferred on the institutions established by this Constitution”.

Danquah proceeded to argue and later on had this to say, in reaction to the Attorney-General’s obnoxious conception of the supremacy of Parliament:

“Two things cannot be supreme at the same time. The Parliament cannot be superior to its creator-the Constitution. Thus, Parliament is inferior to the Constitution and subject to its provisions. This is the true meaning. I respectfully submit, of the rule of law upon which, in the words of Dr. Kwame Nkrumah, the Constitution is based. Thus, the term “supremacy of Parliament” is meaningless in relation to the Ghana Constitution.

The courts have both the power and the duty of maintaining the supremacy of the Constitution…”

The principles contained in these arguments by Dr. Danquah in Re Akoto have become the hub around which the wheel of Ghana’s democratic constitutions since 1969 have revolved. They encompass the following:

i. A round acceptance of the concept of judicial review enabling the superior courts to declare as unlawful and ultra vires actions of the executive and the legislature.

ii. The power of the Supreme Court to make consequential orders.

iii. An unreserved promulgation of a bill of rights, fully captured in for instance, Chapter 5 of the Constitution, 1992.

Mr. Chairman, it will be remiss on my part to fail to take note of the sharp, artful and adroit advocacy of the Attorney-General of the day, Geoffrey Bing (Not because I am Attorney-General), but simply because the standard of advocacy in that case was par excellence – both on behalf of the State and the appellants. So, Geoffrey Bing made this classic statement:

“My Lords, I should at the outset call your Lordships’ attention to one authority quoted by Lord Atkin in his dissenting judgment in Liversidge v. Anderson (1942) A.C. 206, H.L. This authority supports, and strongly supports, the arguments put forward by my learned friend on both heads. It was the only authority which Lord Atkin was able to find to support the type of proposition which has been advanced by my learned friend and I have myself been unable to find any other authority other than that quoted by Lord Atkin. I therefore put it forward so that it may be given full consideration by your lordships.

Lord Atkin said:

‘I know of only authority which might justify the suggested method of construction. ‘When I use a word, Humpty Dumpty said in a rather scornful tone. “It means just what I choose it to mean, neither more nor less.” “The question is, “said Alice, “whether you can make words mean different things. The question is,” said Humpty Dumpty, “which is to be master – that’s all.” (Through the Looking Glass)”

Geoffrey Bing continued:

“The essence of Lord Atkin’s argument was that the courts must give the same weight and meaning to words whatever the context of the times and must not be led by the existence of an emergency into placing a strained and unnatural construction on terms used in a statute.”

Of course, Geoffrey Bing’s arguments prevailed. However, a further argument made by him which was upheld by the Supreme Court, would forever put an indelible stain on that decision and become, as I said in the beginning, a scar on the conscience of the nation. This was as follows:

“In my submission, the object of the declaration is to impose on every President a moral obligation. Article 13(1) provides in facts a political yardstick by which the conduct of the President can be measured. If the President departs from any of the principles set out in the declaration, the people have a remedy, not through the use of the courts but through the use of the ballot box”.

This argument by Geoffrey Bing was upheld, but same would forever drive that Irish former Labour MP of the British Parliament and Queen’s Counsel into the records as a shocking, unrelenting and perhaps, unfortunately so, champion for autocracy and impunity.

Mr. Chairman, it is insightful to note that Geoffrey Bing provided a clue about the inspiration of key actors in Dr. Kwame Nkrumah for the enactment of the PDA and detention without trial generally, in his book “Reap the Whirlwind” at page 222 thereof. He wrote as follows:

“To the African Ministers self-Government implied the right to use, in the national interest, the same powers and methods of government which the Colonial authorities had employed. If denial of access to the courts was justified in 1948 why was it wrong in 1957? The Labour Government which had supported it in 1948stood not only for enlightened Colonial rule but even for Colonial self government. It was not as if Dr Nkrumah’s Cabinet was trying to justify their action on the ground that what they proposed had previously been done by some reactionary and oppressive regime of the past. They had were only exercising the type of power which even Earl Attle’s Government had admitted it was essential sometimes to employ. Why then should there be so much criticism when a popularly elected Government used it in Ghana and no protest, even by the Left wing of the Labour Party, when it had been used against Dr. Nkrumah and Ako Adjei by a Colonial Regime admittedly unrepresentative of the people”

He also provided an insight into the mindset of Krobo Edusei, the Minister for Interior who masterminded the execution of the PDA, at page 225 of this book.

“I myself went off to spend a few days holiday with Dr. Nkrumah at Half Assini, the western frontier village where he had grown up. We were bathing in the surf when the Police Superintendent in charge of the Prime Minister’s radio link with Accra waved tom us from the beach. There was an important message. It was from Krobo Edusei who had been appointed, a day or so before, Minister of the Interior, announcing that he had informed the Immigration authorities that he could not approve the issue of a re-entry permit for Christopher Shawcross.

Krobo Edusei had a logical case for his particular point of view. His experience of the law had led him to believe that Courts were merely places where politics were pursued by other means. On the night of independence he had stood beside Dr Nkrumah, as he addressed for the first time the independent [people of Ghana, wearing a prison cap, embroidered with the letters ‘PG’ – ‘Prison Graduate’. To him any criminal conviction under Colonialism was the best testimonial obtainable of political rectitude and he let no one forget that he, like Dr. Nkrumah , had been imprisoned by the previous regime. He regarded a Court primarily as the institution through which a government, Colonial or otherwise, imposed its policy behind a cloak of magisterial propriety and it must be said there were incidents in past legal history of the Gold Coast which could be cited to justify his argument.”

My Lord, I cannot conclude these brief remarks without drawing attention to a fundamental prerequisite for the rule of law, as established in the legal arguments of Dr. Danquah. It is that, apart from ensuring that the quality of the law is such as will be in the ultimate interest of the nation, the application of the law ought not to be discriminatory.

As Prof. Dicey, the Vinerian Professor of English Law wrote in his book An Introduction to the Study of the Law of the Constitution, “We mean in the second place, when we speak of the rule of law as a characteristic of our country, not only that with us no man is above the law, but that here, every man, whatever be his rank or condition, is subject to the same law of the realm and amenable to the jurisdiction of the ordinary tribunals”. This is also classically captured by Dr Thomas Fuller as “be you never so high that the Law is above you”. So, the distinguished author, Tom Bingham writes at page 4 of his classic – The Rule of Law thus:

“So if you maltreat a penguin in the London Zoo, you do not escape prosecution because you are Archbishop of Canterbury, if you sell honours for a cash reward, it does not help that you are Prime Minister. But the second point is important too. There is no special law or court which deals archbishops and prime ministers: the same law, administered in the same courts, applies to them as to everyone else”.

May God help us to continue to build a society founded on the rule of law and respect for fundamental human rights. I am profoundly grateful for the opportunity.

God bless us all!!!