Prof. Kweku Asare
The Supreme Court, on June 22, affirmed our contention that the General Legal Council’s (Council) imposition of an entrance examination and interview requirements for the Professional Law Course violates Articles 11(7), 297(d), 23, 296(a), and 296(b) of the 1992 Constitution.
The Court also affirmed that LLB degree holders from Council approved universities automatically qualify for admission to pursue Professional Law Course at the Ghana School of Law or other alternative places of instructions specified by the Council.
Lastly, the Court declared that the Council’s disqualification of persons who have so qualified, starting from 2012 to 2016, violates the constitutional provisions hereinbefore listed.
The Council is an 11-person statutory body whose membership, during the dispute period, included the then Chief Justice (Justice Georgina Woode), the then 3 most senior members of the Supreme Court (the current Chief Justice Sophia Akuffo, Justices William Atuguba and Julius Ansah), the then Attorney General (Mrs. Marietta Brew) and her nominee (Rev. Prof. E. Ofori-Amankwah), the Dean of the Faculty of Law at University of Ghana (Prof Kofi Quarshiga) and 4 members of the Ghana Bar Association (Benson Nutsukpui (National President); Anthony Forson (National Vice-President); Justin Amenuvor (National Secretary); and Yaw Acheampong Boafo (the President of the Ashanti Regional Wing of the Association).
In addition, the Judicial Secretary, the Director of Legal Education at the Ghana School of Law, and 5 Deans of various Faculty of Laws (KNUST, UCC, Mountcrest, GIMPA and Zenith) are attending members of the Council.
The Court’s holding that such an august legal body has violated the Constitution is a jurisprudential landmark that has the potential to fundamentally alter the way institutions and power centers relate to 2 the citizenry.
By this remarkable decision, the Court has affirmed that it will enforce the 1992 Constitution without fear or favor and effectuate the constitutional promise of the rule of law, which provides that all persons and authorities, whether powerful or powerless, are bound by and entitled to the benefit of laws publicly made and publicly administered by the courts.
We, therefore, applaud the courage of the 7-member panel, comprising of Justices Dotse (Presiding), Anin Yeboah, Gbadegbe, Baffoe-Bonnie, Benin, Akoto Bamfo and Pwamang for saying what the law is. At the same time, we will be derelict in our duty as defenders of the Constitution not to express our utter disagreement with and disapproval of the Court’s side agreement with the Council allowing it to administer the 2017 examination and interviews on grounds that they are already in process.
We are firm in our conviction that not even the Supreme Court of Ghana can order the Council to persist in its unconstitutional ways. Nor can the Court ask the 2017 cohort of Law students to engage in an activity that the Court itself has unanimously ruled as unconstitutional. We are grateful to and commend Ms. Ofosua Amagyei, esq. for her tireless pro-bono work in this cause.
We congratulate the thousands of students whose career dreams and goals were temporarily upset and impaired by the Council’s unconstitutional actions. We wish them the best in the second phase of their legal education. While the Court has opened the door for them to start their professional education, there is still an extremely important and unresolved issue of properly compensating them for the the Council’s blatant and reckless infringment of their constitutional right.
We believe that the affected students are, at a minimum, entitled to significant monetary damages and should seek same at the High Court, pursuant to Article 33(1) of the Constitution. We firmly believe that our institutions will continue to ignore our laws and trample over the powerless unless we start making it costly for 3 them to do so.
The Awuni v WAEC case is authority for the uncontroversial proposition that victims of administrative bodies’ disregard of the law are entitled to monetary compensation. It is our fervent hope that today’s sweeping victory for the rule of law will spur the Council into immediate action to make the necessary arrangements for the affected students to puruse the professional course.
The Council should deploy virtual programs, the existing faculties of law, and private education entrepreneurs to clear the backlog that its derelection of duty has created. We also hope that the Council can, sua moto, see the wisdom in discontinuing the 2017 unlawful entrance activities. We must soberly reflect on and ask the obvious question of how a Council of such eminent Justices and Lawyers could so blatantly disregard the law and manage to escape scrutiny of Parliament, the Ghana Bar Association (GBA), and most of all the Deans and Lecturers of the Law Faculties.
The Council is a statutory created body and is therefore subject to supervision by Parliament. Our Members of Parliament (MP) were aware or ought to have been aware that the Council was violating the law on admissions. We raised this matter and brought it to the attention of some of the MPs long before the initiation of this Court action.
Yet, not a single MP, to our knowledge, raised a question about this illegality that affected thousands of their constituents. Thus, it is worth examining why Parliament abandoned its oversight responsibility in this case spanning over 6 years.
This cause should provide a raison d'être for Parliament to (i) pass an Administrative Procedures Act; and (ii) create a cause of action to redress the violation of constitutional rights by person acting under color of law. The GBA has 4 members on the Council.
Therefore, we must also ask about the whereabouts of these representatives as the Council turned on this unconstitutional path in 2012. But it goes beyond the 4 members 4 on the Council. Where was the Association itself? The Association is quick to offer opinions on various issues. For instance, it was quick to issue a statement in support of then Speaker Doe Adjahoe’s position that he does need to be sworn in again before exercising the functions of the President (see, http://www.myjoyonline.com/news/2014/November- 14th/gba-speaker-did-not-err-in-refusing-to-be-sworn-in-as-prez.php).
Surprisingly, the Association was and has been completely silent as thousands of Law students were denied their right to professional education. We need to try to understand why the Association is quick to speak for the Speaker of Parliament but silent when students’ rights are being trampled upon. Our view is that the GBA must look out more for the powerless in society and focus a little less on the powerful who, frankly, do not need their voice.
The Council comprises of the Dean of University of Ghana Law School and several of the Deans of the other Law Schools are in attendance. These Deans are supposed to represent the students’ interest. It is disturbing that these Deans failed to raise questions as their own students, who pay exhorbitant fees, were illegally disqualified.
Moreover, if the Deans, for whatever reasons failed to defend their students and the cause of justice, we must also ask and try to understand the utter silence of the law professors and lecturers who teach these students and whose salaries are partly paid by the students’ fees. One of the reasons lecturers enjoy academic freedom is to allow them to comment on issues that the rest of society may feel constrained to talk about.
What happened to our learned professors? We believe it is time for a careful reexamination of the proper role of the Ministry of Justice. In our opinion, the ministry’s role of defending the cause of Justice has given way to defending any and all actions perpetrated by government institutions. Not only is the Ministry disinterested in whether government institutions are acting lawfully but it feels compelled to reflexively defend every unlawful action taken by these institutions.
To be sure, there are instances when the issues 5 involved are complex and where it will not be obvious that State Actors are violating the law. In the instant case, the regulations and the statement of case made it so abundantly clear that the Council was violating its own regulations.
Yet, the Minister of Justice, to our utter chagrin, chose to defend the Council’s illegal acts, deploying delay tactics and making legal claims that were at once infantile and laughable. Sadly, as the Justice ministry deployed these questionable tactics in Court, Dr. Dominic Ayine, the then Deputy Minister of Justice, publicly decried the Council’s extra-statutory acts at the GBA annual meeting.
It is to the credit of the Deputy Minister for pointing out the glaring illegality at the meeting. Nevertheless, something is very wrong if the Deputy Minister of Justice publicly proclaims the illegality of an action at the same time that his Ministry is actively defending the action in Court. We also call on the Rules of Court Committee to reexamine the Court’s current processes, which provide too much leeway for litigants like the Council to abuse and impose needless cost on plaintiffs.
In the instant case, the Minister of Justice took 3 months to respond to the plaintiff’s statement of case, even though the Court’s rules stipulate a maximum of 14 days. The Council, in utter disregard of the 14-days rule, applied to file a response 5 months after the case had been filed. The Court took a month to hear this application and ended up granting the application while giving the Council another 2 weeks to file a defense that the Council had already exhibited with its application.
When we amended our statement of case to reflect the Council’s belated defence, the Council took 9 months to respond to our amended statement of case but suffered no penalty. The Court’s processes are unduly inefficient and must be reformed if we intend the Court to be a serious citadel of Justice that resolves issues expeditiously and fairly.
Our writ, filed on October 15, 2015, asked for the students to be allowed back into the classrooms within a week. Yet, judgment was given this morning, 20 months, after the initial filing. If private citizens are to effectively discharge their role of enforcing the Constitution, the Court system 6 must be designed not to frustrate their efforts or, at a minimum, compensate them for their costs. Not only does such a lengthy process portray an inefficient process, it also, as in this case, diminishes the value of plaintiffs’ claims.
During the pendency of the suit, another cohort of students (the 2016 group) was subjected to the same constitutional abuse notwithstanding our unsuccessful efforts to place an injunction on the Council in July 2016. In conclusion, this historic verdict is meaningless unless it triggers immediate and substantial reforms of the Council and legal education.
We call on Parliament and relevant stakeholders to seize this opportunity to restructure the Council and to redesign the legal education architecture. In our opinion, the Council has become too powerful to be concerned about the interest of powerless students.
Lastly, we strongly believe that students should be entitled to significant monetary damages that reflect the number of years that they have been made to illegally truncate their professional legal education. Thank You.
