Recent developments in what has come to be known as the “Woyome Saga” raise some disturbing policy issues that require sober reflection by any government in office.
Central to the causal events leading to the present drama is the role that the Attorney General's office has played in the series of decisions that led to the payment of the monies which are now the subject of pending criminal suits and investigations being conducted by the police and more recently, the Parliamentary Audit Committee. In reading this write-up, I urge readers to divorce those events from the specific personalities currently under investigation and view them in the light of implications for any government in power.
The first set of events took place prior to the time Mr. Woyome instituted civil proceedings in court against the Government of Ghana, demanding compensation for a role he claimed he had played during the processes leading to the award of contracts for the construction of stadia. Mr. Woyome wrote a petition to the Attorney General, claiming compensation for, what he termed, “financial engineering,” in relation to the award of the contracts. It would appear that before he filed the suit in court, the Attorney General, after considering the petition, took the considered view that he was entitled to compensation. Listening to the discussions that have raged on in the media, it would also appear that the Attorney General undertook some broad consultations spread over three government ministries (Ministries of Justice, Education Sports, and Finance and Economic Planning), before opining that Mr. Woyome was entitled to be compensated for services he had provided to the Government.
It is not the purpose of this short write-up to evaluate the correctness of that decision. For present purposes, I think it is worth considering whether or not, as a matter of fact, those consultations did take place, using official channels; and if they did, whether or not there was an arguable basis for arriving at her decisions, recommending payment to Mr. Woyome.
The second events transpired after Mr. Woyome had instituted a civil suit in court against the Government of Ghana. My understanding of the events was that, even though the Attorney General's office took the view that Mr. Woyome was entitled to compensation, somehow, for some reason, no monies were paid to him. There would have been no other plausible reason for his decision to resort to the courts for redress. The court case was initially not defended, leading to a default judgment being delivered against the State. Subsequent attempts to set aside the default judgment failed.
It is important in analyzing the Attorney General's role during that process by looking at the antecedent events that ended up in court. Having earlier taken the legal position that Mr. Woyome was entitled to compensation, should the Attorney General have defended the suit in court? Again, the purpose of this write-up is not to answer that question, simply because, in my very humble view, that would amount to jumping into the fray of arguments being made, for and against the Attorney General's professional conduct in this specific instance. The issues that I would like to raise go beyond the immediate incident.
In the whole of cabinet, and indeed in government, the only ministerial office that requires the skills of a technocrat is the office of Attorney General. He/she must be a lawyer, duly qualified to practice law in Ghana. One can therefore not conceive of an Attorney General who is not a practicing lawyer. Any lawyer worth his/her salt would recognize that there are always two sides to an argument; and a skilful lawyer can argue either side with conviction, depending on who is paying the bill. In the court room, it is fascinating indeed to listen to two lawyers on their feet take very different positions on the same issue, and argue so passionately about their respective positions in a manner which sometimes leaves even the trained professional uncertain about the outcome of the case under consideration. Ultimately, though, the final say is that of the judge. Even then, the judges also (with the greatest respect to them), sometimes get it wrong; and that is the reason why we have appellate court systems that allow parties to appeal against adverse decisions.
I make these observations in order to make the point that, for legal practitioners and advocates, while we depend on judicial precedents to guide us in advocating positions favourable to our clients, we cannot always be certain of the outcome of our cases. This is because the considerations that ultimately inform final judgments are varied, and may not even include the points canvassed by the lawyers. The Attorney-General is also a lawyer in that sense, and does get it wrong sometimes. In that respect, he/she is not different from other lawyers. Indeed our jurisprudent is replete with legal positions taken by our various Attorney-Generals, which have turned out to be wrong.
Further, the Attorney-General, like any other Minister, makes judgment calls based on his or her view of the law and, sometimes, based on advice proffered by State Attorneys who work under him/her. In law, nobody always gets it right. As the saying goes, “you win some, you lose some”.
It is against this background that one would reflect on the office of the Attorney-General and the role that she played in the “Woyome Saga”. The current frenzy of accusations and counter-accusations has raised a very fundamental question, which both sides of the argument, and, indeed, all sides of the political divide, should give sober thought to. Should any government put an Attorney-General (whether belonging to his party or not) through a criminal trial for taking a view of the law, which, with hindsight, turns out to be incorrect?
In posing this question, I assume that the Attorney- General involved, in arriving at his/her opinion, was not influenced by any improper conduct or motive. I am assuming also that the processes and structures available to the Attorney-General were utilized or resorted to before the opinion was delivered and recommendations made. I am assuming also that the Attorney-General concerned acted in good faith.
If the answer to the question posed is “yes”, what are the implications for that office and all the State-Attorneys who were involved in the processes leading to the erroneous decision? The Attorney-General routinely handles numerous cases instituted against the State. I believe, like any other lawyer, there may be many instances in which either the Attorney-General would, on his/her own assessment, take the view that in a particular case, the State does not have a defence to the suit, and therefore recommend settlement. There may be other instances in which he/she would act on the advice of State Attorneys. They may or may not be right in their opinion.
Should their decisions be the subject of criminal proceedings? If the Attorney General or the State Attorney were in private practice, in the absence of improper conduct or motive, would they be subject to criminal proceedings? Perhaps not. The worst-case scenario would be a civil case instituted by the aggrieved client for professional negligence, an aspect of the law, which is not very developed in our country.
Perhaps, one should consider the effect of the present events on the morale of the State Attorneys in the Attorney-General's office, and ultimately, perhaps, on State purse. One would not be surprised if from now on, even in the clearest cases of fault, a State Attorney would not recommend settlement. In debt cases, for instance, when eventually judgment is obtained against the State, damages, interests and consequential adverse orders would adversely affect the State purse.
A fundamental aspect of the duties of the Attorney General involves the exercise of discretion. There is a real risk that the Woyome saga would have the unwitting or unintended effect of whittling away that discretion, and the good office of the Attorney-General as well as all the well-meaning professionals who work for that office in advising the State, may be the casualty.
Let us pause for a moment and take some sober reflection about the effect of what the current frenzy may have on that office. While, admittedly, caution is required from State officials in dealing with the affairs of the State, the implications of current events, in my very humble view, are likely to be gargantuan for any government in power, who hopes to rely on the selfless and fearless professional advice of its legal advisor, the Attorney-General and his/her State Attorneys.
