LINSOD Laud A-G

LAWYERS IN SEARCH OF DEMOCRACY (LINSOD) LAUD THE HIGHLY EFFECTIVE 8-MONTH PERFORMANCE OF THE ATTORNEY-GENERAL IN 2009

INTRODUCTION:

As Lawyers in Search of Democracy (LINSOD), we are very much impressed with the highly effective performance of Mrs. Betty Mould Iddrisu in her role for only 8 months in 2009 as the Attorney-General of Ghana. She has been at the receiving end of much criticism. However, for the period under review, we hold the candid view that the facts on the ground do not justify the scathing remark by the media that Ghana’s first woman Attorney-General has been “losing too many cases in Court”. A more constructive criticism, the enzyme that activates democracy, would have applauded her efforts for the period under review.

1. The so-called lost cases:

The cases that were mentioned to underscore the position of the media are Asamoah Boateng versus The Attorney-General, Osei Adjei versus The Attorney-General, Sammy Crabbe versus The Attorney-General, Shirley Ayorkor Botchway versus The Attorney- General, Ray Kakraba-Quarshie versus The Attorney General and Sam Okudzeto versus The Attorney General. It is worth noting that Shirley Ayorkor Botchway and Ray Kakraba Quarshie abandoned their cases after initial setbacks suffered by them in the High Court and the Supreme Court respectively due to robust responses to their cases by the Honourable Attorney-General. In the case of Osei Adjei, one ought to put a finger on the civil and criminal aspects of that case. He has obtained a ruling in the civil case in his favour in the High Court. However, due to an appeal and an application for stay of proceedings, the suit is still on-going.

Does one swallow make a summer? Not at all. Now that criminal investigations have been concluded, he is being prosecuted by the Attorney-General’s Department for committing crimes, including a charge of causing financial loss to the State. He is on bail, but the bail terms imposed on him are so stringent that the continued seizure of his passport is no longer necessary.

The case of Sammy Crabbe (aspiring NPP Chair) involved issues of the right to counsel during interrogation. We accept and acknowledge that this is a universal human right recognised by all democratic countries.

Asamoah Boateng, after suffering an initial setback in the High Court due to his lawyers’ failure to adopt the proper procedures, shifted his focus onto a contempt application against the Director of BNI and two other officers of the BNI which is yet to be heard by the Court.

Turning to the two Civil Service cases arising out of the Muntaka affair, the Attorney-General has been up to the task in defending both actions. The net results of her defence are that the Civil Service now has the opening to consider their misconduct in accordance with its disciplinary procedures in order to determine their fate accordingly.

In the case of Adim Odoom, he and the minority in Parliament touted him as a whistleblower. At the time, the Attorney-General was on air arguing that he was definitely not a whistleblower and was roundly criticised. However, her position has been vindicated and affirmed by the High Court in Ghana’s first test case on whistle-blowing. 2. The Bank of Ghana Case:

The Bank of Ghana Case is one that the Plaintiff, Lawyer Sam Okudzeto, a prominent member of the NPP, decided to exploit to make and unmake the NDC Government.

As soon as the current administration took office in early 2009, the Plaintiff commenced this suit seeking to block the inauguration of the new Board of the Central Bank because, according to him, his term of office as a Board member is yet to expire. He launched this frontal attack against the current Government, knowing very well that the Bank of Ghana is the most critical constitutional economic think tank that churns out important fiscal and economic policies for the running of any government in Ghana. Once the Board is not inaugurated, the Bank of Ghana will be rendered inactive and spineless. Indeed, as it is said in Yiddish, the suit is a chutzpah meant to deflect the NDC Government from promoting fiscal stability and economic development in Ghana, contrary to what is envisaged under Article 183 of the 1992 Constitution. But - and this is where credit is and must be due to the Honourable Attorney-Genera - she surgically dissected the rigmarole in the case by raising an important preliminary objection in law to the entire suit: that the Plaintiff did not have the locus standi to commence the said action against the Governor of the Bank of Ghana and the Attorney-General. For, as a result of due diligence ably carried out by the Hon. Attorney-General, she discovered that the Plaintiff's appointment as a Board Member of the Bank of Ghana was bereft and devoid of legality.

In our view, the Attorney-General's legal objection regarding the Plaintiff's locus standi is unassailable. As the Supreme Court rightly held in Sarkodee I vrs. Boateng II [1982-83] GLR 715, through Apaloo, CJ, at page 724, "... it is no answer for a party against whom a serious issue of locus standi is raised to plead that he should be given a hearing on the merits because he has a cast-iron case against his opponent."

Yet, in another Supreme Court Case - Republic v High Court, Accra; Ex parte Aryeetey (Ankrah - Interested Party) [2003-2004] SCGLR 398 - Kpegah, JSC, delivering the Ruling of the Supreme Court on the issue of capacity, lucidly stated the law, at page 405, as follows: “.....if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgment founded on it. Any challenge to capacity therefore puts the validity of the writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with merits so that if the axe falls then a defendant, who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist on his rights."

The sting in the above legal authorities is very clear: the Plaintiff's case must be dismissed in limine. That is to say, without going into its merits, given the strident challenge by the Attorney-General to Plaintiff’s capacity to commence the action from the word go.

We eagerly await the final outcome of that case. But one thing, from our point of view, is quite certain - the defence put up by the Honourable Attorney-General in this very important case shows how effective she has been in 2009. 3. The Ghana School Feeding Programme (GSFP) Cases:

Another set of cases that have the potential to make and unmake the NDC revolved around the Ghana School Feeding Programme (GSFP).

The Ghana School Feeding Programme (GSFP) - which began in late 2005 with one (1) pilot school from each Region of the country - is a very important tool for the economic transformation of the rural communities in the whole country. It is an initiative of the Comprehensive African Agriculture Development Programme (CAADP) and an integral part of the New Partnership for Africa's Development (NEPAD) for Ghana. Its objective is to achieve food security, reduce hunger and poverty, and promote primary education in line with Ghana's United Nations Millennium Development Goals on hunger, poverty and malnutrition. It is also meant to achieve the goals set out in Ghana's Growth and Poverty Reduction Strategy and the Education Sector Plan (2003-2015). It is financed by the World Bank, the European Union, especially The Royal Government of the Netherlands, International NGOs and the Government of Ghana. At the moment, 170 Districts and a total of 1,696 public schools with a total enrolment of 656,000 school children throughout the country are benefiting from the programme. It is to gradually cover 1,040,000 primary school and kindergarten children in the most deprived communities and schools in Ghana by December 31, 2010.

The brain behind these cases in the middle belt of Ghana is Lawyer Kwadwo Owusu Afriyie, popularly known in NPP Circles as Sir John. Apart from attempting to disrupt such an excellent socio-economic programme during the Government of the NDC in the Ashanti and Western Regions, two very important economic heavyweight regions in Ghana, he would like to utilize the cases in the two regions to promote his personal political ambition of being elected as the General Secretary of the NPP.

In the GSFP Case in the Kumasi High Court, Sir John sued all the Chief Executives of the Metropolitan, Municipal and District Assemblies (MMDAs) and the Regional Minister, Deputy Regional Minister and the Co-ordinator of Feeding Programme in the Ashanti Region on behalf of 68 Caterers in that Region for them to be reinstated to continue with the contract of feeding children of nursery and school-going age in the Ashanti Region. It was to perpetuate the feeding contract that the previous Government gave to the Plaintiffs with effect from 2005 to the end of the programme in December 2010.

Similarly, in the Sefwi Wiawso High Court Case, he commenced the action on behalf of 29 Caterers against the Attorney-General's Representative in the Western Region, the Western Regional Minister, the Deputy Western Regional Minister, the Chief Executives of the 17 MMDAs, and the Western Regional Co-ordinator of the Feeding Programe. Apart from the Sefwi Wiawso District Chief Executive, all the other Defendants either reside in or near Sekondi. In addition, all the Defendants without exception take adminstrative instructions from Sekondi. As expected, the Plaintiffs' reliefs were identical to those being claimed by the Plaintiffs in the Kumasi High Court Case.

The Minister of Local Government, having undertaken painstaking appraisal of the shortcomings in the GSFP countrywide, gave directives to all MMDAs in August 2009 to embark upon a reselection exercise that would be all-inclusive regarding caterers who are to be contracted to implement the Feeding Programme throughout the country.

As soon as the MMDAs and the Regional Administrations in the Ashanti and Western Regions embarked upon the reselection exercise prior to the re-opening of the 2009/2010 academic year in mid September 2009, Sir John issued a writ in October 2009 against the authorities in the two Regions. He concurrently filed motions ex parte for Interlocutory Injunction Orders and was promptly granted same by the two High Courts, several weeks after the newly selected caterers, including many of the Plaintiffs who had reapplied, were carrying out their service contracts with effect from September 2009. The Attorney-General, realizing the flaw in the two cases of the Plaintiffs, took the battle to the Plaintiffs. The Ex parte Injunction Orders were not only discharged, but the Applications on Notice for Interlocutory Injunction that were filed by the Plaintiffs after the revocation of the Ex parte Orders suffered various ignominies.

In the case of the Kumasi GSFP Case, the entire case - that seeks to foist perpetuity of service contract on the Government- was dismissed.

In our candid view, the Attorney-General rightly submitted that service contracts cannot be specifically enforced by a court and as such an order of interlocutory injunction cannot be legitimately founded on it. In the celebrated case of Texaco vs. Bedu (1978) GLR 307. the Court of Appeal, in allowing an appeal against the grant of an injunction restraining the Appellant, Texaco, from terminating its contract with Bedu, held per Apaloo JA, as then was, at page 313, as follows:

"It seems to us manifest that in so far as the plaintiff sought a declaration that his purported termination was unlawful and a consequential order restraining the company from ejecting him from its service station, these claims were doomed to failure. His alternative claim to damages for wrongful termination of the dealership contract, if substantiated, was redressible by pecuniary award............. What legal warrant is there for granting an injunction against the company even before the validity of the plaintiff's claim to damages was determined? In our judgment, there was none whatsoever."

On this score, the Honourable Attorney-General deserves a blue ribbon. In the Sefwi Wiawso GSFP Case, the Attorney-General promptly or, as the lawyers say, timeously raised a preliminary legal objection to the jurisdiction of that High Court, her submission being that, where a matter in dispute relates to the performance or breach of contract and there are 2 or more High Courts in a particular Region of Ghana, the Plaintiff is enjoined to commence his action in the High Court in the town where the Defendant resides or carries on business. Accordingly, she urged upon the court that Sekondi is the most appropriate place for the determination of the Plaintiffs’ claim. The Sefwi Wiawso High Court there and then made an Order for the Registrar to remit the docket to the Chief Justice for the transfer of the case to Sekondi High Court. We cannot but admire the competence and effectiveness of the Honourable Attorney-General in her defence to the Sefwi Wiawso case. Our position is borne out by the decided case in Voiden v. Ghana Goldfields (1999-2000) 1 GLR 462. In that case, Ansah, J, as he then was, held that the rationale for the creation of multiple High Courts within one region was to let the parties litigate in the High Court nearest to them and thereby save them time, energy and expenses. At page 466, His Lordship lucidly stated the law as follows:

"In this suit there is no denial of the fact that both parties live in Tarkwa......Of all the parties and their solicitors, it is only counsel for the plaintiff who resides outside Tarkwa. ..... On the whole then, more hardship will be caused the defendants than the plaintiffs if the suit is heard in the High Court, Sekondi. The balance of hardship and convenience tilts heavily in favour of the defendant and I shall accede to its application. I hold that it is more expeditious, proper and convenient to have this suit heard in Tarkwa than Sekondi."

We adore the erudite learning and brilliant successes of the Attorney-General in all the above cases.

4. The contract for the running of toilets by service providers in the MMDAs: Another suit worth mentioning is the so called Ayawaso East and West Toilet Seizure Case. As Accra and Tema are hotbeds of vociferous support for the NPP and NDC, the NPP decided to resort to this case as a test case to win over its despondent supporters in the aftermath of the NPP’s defeat in the December 2008 elections. Here, again, the Honourable Attorney-General exposed the subterfuge of the Plaintiffs. They claimed to have had a judgment that made them the sole runners of toilets in Ayawaso, especially at Nima. Although the Plaintiffs were running the toilets poorly, they were only touting the sanctity of contract, not its performance to the satisfaction of the end users - the general public, including the numerous voters and party activists of both parties in Nima. The Plaintiffs brought an application for contempt against the Ayawaso East and West District Assemblymen for ignoring a judgment in a suit in which the Defendants were not parties.

The Honourable Attorney-General submitted that the Respondents were not parties to the suit in which judgment was rendered in favour of the Plaintiffs. More importantly, the Respondents never had any knowledge about the judgment being relied upon by the Plaintiffs to sanction them for contempt. Significantly, the Honourable Attorney-General contended that the Respondents as public officers were bound by statute to provide satisfactory toilet facilities to the public and that such a statutory duty is a complete defence to the charge of contempt against them. No wonder, the trial High Court dismissed the Plaintiffs' case against the Respondents. We stand shoulder to shoulder with the Honourable Attorney-General on her success in that case. For, In Re Effiduase Stool Affairs (No. 2); Ex parte Ameyaw (No. 2) [1998 – 1999] SCGLR 639, Acquah, JSC, stated, at page 667, the statutory defence to contempt proceedings in the following terms: ‘The Research Committee of the NHC, the members of which are cited in this application as the second to twelfth respondents, is one of the committees constituted under section 2(2) of the Chieftaincy Act, 1971(Act 370). Its functions as spelt out in paragraph 56 of the NHC Standing Orders (Revised) 1991, are, inter alia, to: “study chieftancy declaration forms for enstoolments, destoolments, abdications and death of chiefs…..for entry in the National Register of chiefs.” The reference of the sixteenth respondent’s petition to that committee by the President of the NHC was thus the appropriate thing to do. And I do not see how members of that committee can be liable for contempt for doing what they are expected to do.’ [Emphasis supplied]

The media landscape was silent. But this was a case full of hot potatoes, politically. The Honourable Attorney-General kept her stoic silence, but the feat was significant and would be important during the 2012 electioneering campaign. The Attorney-General must be congratulated on all this. 5. Pro-active Role in Constitutional Review.

One of the most laudable achievements of Mrs. Betty Mould Iddrisu as the Honourable Attorney-General in just eight months of being in that role is the setting up of a Constitutional Review body to review the constitution of the Fourth Republic. Cabinet has approved the review. It is a courageous proposal to separate the powers of prosecution from the functions of the Attorney-General. This will prevent the lingering perception that almost every call on past political appointees to account for their stewardship is motivated by politics. The Attorney-General has been able to source funding of over US$2 million for this important national consultative exercise. 6. Other Legislative Roles of the Attorney-General: In the field of legislation, the Honourable Attorney-General has been able to push the Property Rights of Spouses and Right to Information Bills through Cabinet. They are now before Parliament for passage into law. These are legislations that have been on the debating table for over 10 years. She has also been proactive in revamping the Serious Fraud Office by making proposals to Parliament for making a new enabling statute that will give more bite to that Office under the Economic and Organized Crime Bill. The Bill will seek to give it a new nomenclature designating it as an Agency.

7. Upholding the Rule of Law:

Since taking up the mantle as Attorney-General, she does not see the legal system as one in which she must win cases by all means. The so-called BNI cases referred to above in which right to Counsel have been upheld by the Courts can be cited as examples. Nobody expects the Honourable Attorney-General to advise the Government to go on a binge of shouting "No court, no court" in the aftermath of the said rulings by the trial high courts.

8. Financial Rape of the State by Public Officials & their Prosecution: Many detractors of the Hon. Attorney-General have been shouting hoarse as to when the impunity of the previous administration's financial malfeasance will be prosecuted in the law courts. It has been the resolve of the Attorney-General not to resort to hasty prosecutions. The Attorney-General does not seek to justify the persecution of political opponents and would want to understand the anxiety of the public, including her own Party faithful, in the context of holding public office holders accountable for their misdeeds. The Attorney General’s approach has, therefore, been to conduct thorough investigations into alleged cases of corruption by NPP Ministers in order not to give the impression of persecution as was in the cases of Tsatsu Tsikata and the former First Lady, Nana Konadu Agyeman Rawlings, in the previous administration. In that regard, she has, after painstaking investigations, embarked upon the prosecution of high public officials who indulged in rapacious financial activities to the detriment of the State. These are the cases involving Akwasi Osei Adjei, Daniel Gyimah, and Asamoah Boateng and his wife. Akwasi Osei Adjei was the Foreign Minister during the NPP’s term in office, while Asamoah Boateng was the Information Minister.

The Attorney General has, therefore, done more than enough to hold former public officials accountable to the Ghanaian public. She is also the Minister responsible for the setting up of the Ghana @ 50 Commission of Inquiry. Currently she is championing the protection of Ghana’s Maritime boundaries. 8. No nonsense approach to murderous impunity:

It is significant to note that Mrs. Betty Mould Iddrisu has also delivered on a key campaign promise of the NDC to prosecute the murderers of Issa Molbilla, despite great difficulties.

9. Retooling of the A-G’s Department:

Apart from the above laudable achievements, Mrs. Betty Mould Iddrisu has managed the Attorney General’s Department with such dexterity and professionalism that service delivery has improved sharply. Information Communication Technology in the Ministry for which contracts had been awarded by the previous administration a year before her appointment but which had seen zero implementation is completed. From the beginning of 2010, the Ministry of Justice and Attorney General’s Department will enjoy first class ICT. She has also achieved the acquisition 26 Toyota Corolla saloon cars for State Attorneys over the past few months.

10. Ensuring Justice for Remand Prisoners:

By adopting a new approach to the chronic problem of remand prisoners and in collaboration with all stakeholders in the Justice Sector, the Attorney General has reinvigorated the Justice for All Programme, resulting in the renewal of several warrants for prisoners yet to face trial. This has led to the legalisation of the continued remand of most inmates of prisons in Ghana. In addition, donor support and confidence in the program has doubled - all due to her efforts of the Attorney-General. 11. Positive Settlement of botched International Transactions: The Honourable Attorney-General has been saving a lot of money and resources for Ghana in her roles with regard to ugly international transactions bequeathed to the current Government. She has been able to do this through shrewd negotiating skills in disputes between the Government of Ghana and CP, on the one hand, and the Government of Ghana and Rockshell International Limited, on the other. In the case of CP, an amount of 300 million Euros was outstanding. In the end, the Government has been able to negotiate a substantially low figure as settlement. In the case of Rockshell, an amount of US$87 million was outstanding but the Government in the end negotiated a settlement of US$35 million. Hitherto, the claims by these contractors had been left unattended to, even though expensive foreign solicitors had been hired by the NPP at unbelievable costs to the Ghanaian taxpayer to settle these disputes.

Success in this area has been due to her alertness and professionalism and sharp managerial skills in dealing with these issues before they get out of hand.

CONCLUSION:

Congratulations, Honourable Attorney-General. We have great hope that, all the foregoing feats, amongst others overlooked in this article, are pointers to greater achievements in 2010.

Dated in Accra this 8th day of January, 2010.

Kwabla D. Senanu, SECRETARY, LINSOD.